Odger's English Common Law

BAILMENTS. 639
course, be determined by reference to the agreement itself.
This may be so, although one of the parties to the bailment
may not have read the agreement ; if he receives and keeps
it, he may be held to have assented to the conditions contained
in it, although he did not know what they were. 1 On
common earners and innkeepers the common law imposed a
wider liability than on other bailees; but this, as we shall
see, has been greatly restricted by statute.
A pledge or pawn is a bailment of goods to a creditor, as
security for some debt or engagement. " To constitute a
valid pledge, there must be a delivery of the article either
actual or constructive to the pawnee." 2
The pawnee is bound
to use ordinary diligence in the care and safeguard of the
thing pawned.
" If the pawn be such as it will be the worse for using, the pawnee cannot
use it, as clothes, &c. ; but if it be such as will be never the worse, as if
jewels for the purpose were pawned to a lady, she might use them, but then
she might do it at her peril ;
for whereas if she keeps them locked up in her
cabinet, if her cabinet should be broken open and the jewels taken from
thence, she would be excused ; if she wears them abroad and is there robbed
of them, she will be answerable ; and the reason is because the pawn is in
the nature of a deposit and as such is not liable to be used. But if the
pawn be of such a nature as the pawnee is at any charge about the thingpawned
to maintain it, as a horse, cow, &c, then the pawnee may use the
horse in a reasonable manner or milk the cow, &c, in recompense for the
meat." 3
The pawnee is bound to give up to the owner the thing
pawned upon a tender of the amount due to him ;
unless indeed
it has been lost through no fault of his, in which case he may
still claim from the pawnor the amount of the debt secured
by the pawn. 4
If, however, the chattel be lost after the
i See the remarks of Mellish, L. J., in Parker v. S. E. By. Co. (1877), 2 C. P. D.
at D 421 • and Harris v. G. W. By. Co. (1876), 1 Q. B. D. 615, 529, 580 ; Burke
v S E By Co. (1879), 5 C. P. D. 1 ; Watkins v. Bymill (1883), 10 Q. B. D. 178.
'2 Per Erie, C. J., in Martin v. Beid (1862), 11 C-. B. N. S. at p. 784.
3 Per Lord Holt, C. J., in Coggs v. Bernard (1703), 1 Smith's L. C, 12th ed.,
at pp. 2(11, 202.
* Bac. Abr. " Bailment," B. As to the liability of a pawnbroker for damage
done to goods pawned by an accidental fire, see Syred v. Carruthers (1858), E. B. &
E. 469. Should however the bailee, having contracted to warehouse goods at a
particular place, warehouse them elsewhere, where they are destroyed, though
without any negligence on his part, he will be liable for the loss so caused :
Lilley v Doubleday (1881), 7 Q. B. D. 510 ; and see Shaw $ Co. y. Symmons $ Sont r
[1917J
1 K. B. 799.