We now enter upon a topic of more interest, inasmuch as the questions which belong to it are of more frequent occurrence.

(5) Blakemore v. E. & B. Railway Co., 92 Eng. C. L. 1036.

* A pledge is a bailment for the mutual benefit of both parties, for while the pledgee obtains security for his debt, the pledgor obtains credit or delay, or other indulgence. The bailee is therefore bound only to ordinary care, and is liable only for ordinary neglect. If the pledge be lost by an intrinsic defect, which might possibly have been remedied, or by a casualty which might possibly have been prevented, or by superior force which might possibly have been resisted, the bailee is still not responsible, unless he was in positive default. (t)

He has a special property in the pledge; and may maintain any action, which requires such property in the plaintiff, against a third party, for an injury to the pledge; (u) and a judgment in such action brought by the pledgee or by the pledgor would bar an action for the same cause by the other party. (v) And

(t) Commercial Bank v. Martin, 1 La. An. 344. In this case the court say that a pledgee is bound to take that care of the property pledged which a prudent person (diligent paterfamilias) would take of his own. But he is not bound to use the utmost diligence. And where it becomes necessary for a pledgee, in the exercise of the diligence required of him, to employ an agent on account of his particular profession and skill, he will not be responsible for the misconduct or neglect of the latter, where reasonable care was shown in the choice of the agent, as to his skill and ability. See also Exeter Bank v. Gordon, 8 N. H. 66; Goodall v. Richardson, 14 id. 667. The general rule of law, where a person receives bonds or notes for collection, as collateral security for a debt, is that he is bound to use due diligence; and if they are lost through his negligence, by the insolvency of the makers, he is chargeable with the amount. Noland p. Clark, 10 B. Mon. 239.

(u) It is also decided in the case of Gibson v. Boyd, 1 Kerr, 160, that an action will lie in favor of the pawnee against the general owner, when the rights of the former are invaded by the latter. That was an action of replevin for a mare. It appeared that the mare in question was the property of the defendant, and had been delivered by him to the plaintiff as a pledge. The defendant afterwards took the mare from the plaintiff's possession, whereupon the plaintiff brought this action, and the court held that he was entitled to recover. Chipman, C. J., said: "This is an action of replevin for a mare, in which the defendant pleaded property in himself, and also property in a third person; and the plaintiff replied to each plea that the property was in himself; upon which issue was taken. From the testimony in the case, it appeared that the mare belonged to the defendant, and was delivered to the plaintiff as a security for a debt due from the defendant to the plaintiff; the contract between them therefore was clearly that of a pawn or pledge; and the defendant and plaintiff stood in the situation of pawnor and pawnee. In this state of things the defendant took the mare from the plaintiff. It is now contended on the part of the defendant, that he being the general owner of the mare, the plaintiff cannot maintain this action of replevin against him. It is admitted to be clear law that the pawnee may maintain replevin against a stranger, and the right to retain the thing pawned, until the debt is paid, cannot be perfect unless this right of possession is indefeasible, and not liable to be invaded or interfered with by the debtor, although he be the general owner of the thing pawned. The fallacy of the argument on the part of the defendant appears to lie in the extent of signification given to the term 'general owner.' He remains the general owner, subject to the right of the pawnee; he has parted with his absolute right of disposing of the chattel until he has redeemed it from its state of pledge. . . . There cannot, I conceive, be a particle of doubt that this action is maintainable."

(v) 48 Ed. 3, 20 b, pi. 8; 20 H. 7, 6, b, pl. 16; Flewellin v. Rave, 1 Bulst 68.

♦ 111 he * is undoubtedly bound to do all that may be proper or necessary to preserve the value of the pledge. Hence it has been held, that where a party receives negotiable paper from his debtor, with the debtor's indorsement, as collateral security for his demand, and not as agent merely, it is his duty to present the same for payment when due, and take the proper steps to charge the debtor as indorser; and, failing to do this, he makes the paper his own. (w)

He has generally only a right to hold; and if he uses, it is at his own peril; and he is liable for any loss which occurs while using. If he derive a profit from this use, he must allow for it; unless this use was equally profitable to the owner. If the pledge be a horse, the bailee may use it enough to keep the horse in health, without paying for this use; but if he take a journey with it he must pay. He may milk a cow, and indeed ought to, because not to milk her would injure the owner, by hurting the cow; nevertheless he must account for the milk, because he derives a positive profit from it. The question of use sometimes resolves itself into more or less of resulting injury; thus, he may use, carefully, books, although perhaps any use of them implies some slight injury; but not clothes, for these are more rapidly worn out, and necessarily more injured by use. (x) But even if he use the pawn tortiously without putting it out of his possession, it is said that he is only liable to an action; his lien upon it not being thereby terminated. (y) But his lien is terminated by a tender of the debt. (yy) The lien of the pledgee and the rules of law applicable to it, are considered in our chapter on Liens.

In all cases the pledgee must account for income or profits * derived from the pledge; (yz) and where he is