Odger's English Common Law

640 TORTS ARISING OUT OF CONTRACTS.
pawnor has tendered the amount due, the pawnee will be
liable, for he ought not to have detained the pawn after
such tender was made. The pawnor retains all his property
in the thing pawned and may sell it subject to the rights of
the pawnee, which will bind the purchaser. But at common
law the pawnee had no right to sell the thing pawned without
the consent of the pawnor ; he had merely the right to hold it
as security for repayment of the sum advanced. Such a right
has, however, been given to professional pawnbrokers by
statute.
The right of the pawnbroker to sell and of the pawnor to
redeem a pledge is now regulated by the Pawnbrokers Act,
1872, 1 which consolidated and amended the former statutes.
This Act provides that if the pledge be not redeemed at the
expiration of a year and a day, the pawnbroker may then,
subject to certain provisions, expose it for sale ;
but if at any
time before the sale has actually taken place the owner of the
chattel pawned tender the principal and interest due together
with the expenses (if any) incurred, he is entitled to the return
of the chattel; for the power of sale is allowed the pawn-
broker merely to secure to him the money which he has
advanced together with interest.
When a pawnbroker sells a forfeited pledge as such, he
sells merely the right to the pledge which he himself had. 2
He only undertakes that the subject of sale was a pledge,
that it is now irredeemable and that he is not cognisant of any
defect in the title to it. In the absence of fraud and of any
usage of the trade to the contrary, he will not be deemed to
warrant the title of the chattel sold. Hence a pawnbroker,
who has sold a forfeited pledge, will not be liable to
refund the purchase-money, if the person who bought it
from him is compelled to restore the chattel to its rightful
i 35 & 36 Vict. c. 93, ss. 16—19. This Act does not apply to any loan by a pawnbroker
above £10.
2 See Chapman v. Speller (I860), 14 Q. B. 621 ; Bagueley v. Hawley (1867),
L. R. 2 C. P. 625.
' Morley v. Attenborough (1849), 3 Bxch. 500. In Sims v. Marryat (1851), 17
Q. B. at p. 291, Lord Campbell, C. J., after citing with approval the judgment
of Parke, B., in Morley v. Attenborough, suprd, remarks: "It may be that the
learned Baron is correct in saying that, on a sale of personal property, the maxim
caveat emptor does by the law of England apply ; but if so, there are many