the negligence of the creditor, the rule of damages is their value at the time their return is properly demanded.'

III. His Right to Assign the Pledge.

§ 418. The pledgee may assign his interest in the pledge and the assignee will stand in his place. The lien of a pledge

Illinois: Belden v. Perkins, 78 Ill. respect between a pledge and a lien.

can not be separated either from the possession of the pledge, or from the debt, so that to make an effectual sale both must pass to the assignee.' Therefore if the pledge alone be assigned, unless it be negotiable paper or a chose in action having the legal qualities of such paper, payment or tender may be made to the original pledgee who retains the debt, and then the assignee of the pledge is liable in trover for the pledge.' As the security, however, is a mere incident of the principal debt, just as a mortgage is a mere incident of the debt secured,' an assignment of the debt passes either a legal or equitable interest in the pledge, unless it is otherwise agreed between the parties.

vance, proceed on this ground." Note to Hubbell v. Drexel, 21 Am. Law Reg. (N. S.) 457, citing Daubigny v. Duval, 5 T. R. 604, 606, where Buller, J., said that "a lien is a personal right and can not be transferred to another," and Legg v. Evans, 6 M. & W. 36, 42, where Parke, B., said: "A lien is a personal right which can not be parted with, and continues only so long as the possessor holds the goods;" and McCombie v. Davies, 7 East 6, where Lord Ellenborough remarked, that "nothing could be clearer than that liens were personal, and could not be transferred to third persons by any tortious pledge of the principal's goods." See § 331.

Whitney v. Peay, 24 Ark. 22; Johnson v. Smith, 11 Humph. (Tenn.) 396; Bullard v. Billings, 2 Vt. 309. See, also, Lewis v. Varnum, 12 Abb. Pr. (N. Y.) 305.

2 Ratcliff v. Davis, Yel. 178, and see Felt y. Heye, 23 How. Pr. (N. Y.) 359, 362, per Ingraham, C. J.; Sheridan v. Presas, 18 Misc. (N. Y.) 180, 41 N. Y. Supp. 451; Usher v. Van Vranken, 48 App. Div. (N. Y.) 413, 63 N. Y. Supp. 104.

8

Jones on Mortgages, §§ 813-822; Southerin v. Mendum, 5 N. H. 420; Whittemore v. Gibbs, 24 N. H. 484.

Cole v. Bank of Montreal, 39 U. C. Q. B. 54, 74; Esty v. Graham, 46 N. H. 169; Stearns v. Bates, 46 Conn. 306, 312; Homer v. Savings Bank, 7 Conn. 478; Hawkins v. Fourth Nat. Bank, 150 Ind. 117, 49 N. E. Rep. 957; Waddle v. Owen, 43 Neb. 489, 61 N. W. Rep. 731.

See to the contrary, however, Johnson v. Smith, 11 Humph. (Tenn.) 396, where it was declared by the court that the analogy between a mortgage and a pledge does not hold in this matter. "The essential distinction is, that in the case of a mortgage, the right passes by the conveyance, and possession of the property is not essential to create or support the title. But, in the case of a pledge, the right is created and passes only by delivery or possession of the property pledged; and as the lien can not exist in favor of the pawnee, without possession of the pledge, so neither can it pass to the assignee of the debt, without being accompanied by the pledge." But would not the original pledgee ordi

§ 419. The pledge is not a distinct and independent right of property which is capable of being assigned by itself aside from the debt. The pledgee can not separate his special property in the pledge from the debt secured by it, so that the debt shall be owned by one person and the pledge by another; and therefore it is held that the assignee of the pledge can not maintain an action to enforce the lien, unless he shows that he also owns the debt secured by the pledge.'

In some states it is provided by statute that pledges and collateral securities shall not be transferred separate from the debts secured."

But the severance of the security from the debt and the assignment of the security for the purpose of enabling the assignee to bring an action upon it for the benefit of the pledgee are not unlawful, as the substantial interest in such case remains in the pledgee.3

§ 420. The original contract of pledge is not put an end to by repledging the thing pledged, and therefore the original pledgor can not recover it without having first paid or tendered the amount of his debt secured by the pledge. This subject was very fully and learnedly discussed in Donald v. Suckling before the court of Queen's Bench. The earlier authorities

narily be regarded as holding posses- is fully vested in the assignee. Pollak sion of the pledge as the agent of his v. Janney, 100 Ala. 561, 13 So. Rep. assignee? 661.

1 Van Eman v. Stanchfield, 13 Minn. 75; Williams v. Ashe, 111 Cal. 180, 43 Pac. Rep. 595.

Alabama: Code 1896, § 947. Such assignment operates as a discharge of the pledge restoring the title to the pledgor. See Dexter v. McClellan, 116 Ala. 37, 50, 22 So. Rep. 461, where the assignment was not within the prohibition of the statute. The assignment is not utterly void, but the owner is armed by the statute with an election to affirm or disaffirm the transfer, and by affirming it the title to the securities

JONES PLEDGES-29

were examined in detail by the several judges delivering separate opinions and a distinction recognized between a pledge and a lien, as regards the powers of a person entitled to the one or the other security, Mellor, J., saying: "I think that when the true distinction between the case of a deposit, by way of pledge, of goods, for securing the payment of money, and all cases of lien correctly so described, is considered, it will be seen that in the former there is no implication, in general, of a contract by the pledgee to retain the personal possession of the goods deposited; and I think that, although he can not confer upon any third person a better title or a greater interest than he possesses, yet, if nevertheless he does pledge the goods of a third person for a greater interest than he possesses, such an act does not annihilate the contract of pledge between himself and the pawnor; but that the transaction is simply inoperative as against the original pawnor, who upon tender of the sum secured immediately becomes entitled to the possession of the goods, and can recover in an action for any special damage which he may have sustained by reason of the act of the pawnee in repledging the goods; and I think that such is the true effect of Lord Holt's definition of a 'vadium or pawn' in Coggs v. Bernard;' although he was of opinion that the pawnee could in no case use the pledge if it would thereby be damaged, and must use due diligence in the keeping of it, and says that the creditor is bound to restore the pledge upon payment of the debt, because, by detaining it after the tender of the money, he is a wrong-doer, his special property being determined; yet he nowhere says that the misuse or abuse of the pledge before payment or tender annihilates the contract upon which the deposit took place. If the true distinction between cases of lien and cases of deposit by way of pledge be kept in mind, it will, I think, suffice to

ruling of the majority of the court in this case was reaffirmed by the unanimous judgment of the Exchequer Chamber in Halliday v. Holgate, L. R. 3 Ex. 299. Also, see, supporting the

text, Drake v. Cloonan, 99 Mich. 121, 57 N. W. Rep. 1098; Reardon v. Patterson, 19 Mont. 231,234, 47 Pac. Rep. 956.

12 Ld. Raym. 909, 916.

determine this case in favor of the defendant, seeing that no tender of the sum secured by the original deposit is alleged to have been made by the defendant; and considering the nature of the things deposited, I think that the plaintiff can have sustained no real damage by the repledging of them, and that he can not successfully claim the immediate right to the possession of the debentures in question."

In the same case Chief Justice Cockburn to like effect said:1 "The question here is, whether the transfer of the pledge is not only a breach of the contract on the part of the pawnee, but operates to put an end to the contract altogether, so as to entitle the pawnor to have back the thing pledged without payment of the debt. I am of opinion that the transfer of the pledge does not put an end to the contract, but amounts only to a breach of contract, upon which the owner may bring an action,—for nominal damages if he has sustained no substantial damages; for substantial damages, if the thing pledged is damaged in the hands of the third party, or the owner is prejudiced by delay in not having the thing delivered to him on tendering the amount for which it was pledged. We are not dealing with a case of lien, which is merely the right to retain possession of the chattel, and which right is immediately lost on the possession being parted with, unless to a person who may be considered as the agent of the party having the lien for the purpose of its custody. In the contract of pledge, the pawnor invests the pawnee with much more than the mere right of possession. He invests him with a right to deal with the thing pledged as his own, if the debt be not paid and the thing redeemed at the appointed time. It seems to me that the contract continues in force, and with it the special property created by it, until the thing pledged is redeemed or sold at the time specified. The pawnor can not treat the contract as at an end until he has done that which alone enables him to divest the pawnee of the inchoate right of property in the thing pledged, which the contract has conferred on him."

'L. R. 1 Q. B. 585, 618.