A life-policy of insurance may be pledged, or a wife's life-policy. The common law does not permit the pay and emoluments ef officers and soldiers to be pledged, from pub lic policy. 1 H. Blackst. 627 ; 4 Term, 248. Hence, probably,. a fishing-bounty could not be pledged, on the ground that government pensions and bounties to soldiers, sailors, etc., for their personal benefit, cannot be pledged. A bank can yledge the notes left with it for discount, if tt is apparent on the face of the notes that the bank is their owner.
4. Ordinary care. The pawnee is bound to take ordinary care of his pawn, and is liable only for ordinary neglect, because the bailment is for the mutual benefit of both parties. Hence, if the pledge is lost and the pledgee has taken ordinary care, he may still recover his debt. Such losses often re sult from casualty, superior force, or intrinsic defect, against which a man of ordinary pru dence would not have effectually guarded himself. If a pledgeor find it necessary to employ an agent, and he exercise ordinary caution in his selection of the agent, he will not he liable for the latter's neglect or mis conduct. 1 La. Ann. 344 ; 10 B. Monr. Ky. 239 ; 4 Ind. 425 ; 8 N. H. 66 ; 14 id. 567 ; 6 Cal. 643.
Loss by theft is prima facie evidence of a want of ordinary care, and the bailee must rebut the presumption. The facts in each case regulate the liability. Theft is only evidence, in short, and not absolute presump tion, of negligence. Perhaps the only safe rule is that, where the pledgee pleads loss by theft as ground for not performing his duty,, to excuse himself he must show that the theft could not have been prevented by ordi nary care on his part. If the bailor should assert in his declaration that the pledge was lost by the bailee's fault, he would be cam pelled to prove the charge as laid.
5. Use. The reasonable use of a pledge is allowed to a pledgee, according to Lord Holt, Sir Wm. Jones, and Story, provided it be of no injury or peril to the bailment. The reason given by Story is precise, namely, that where use of the pledge is beneficial to it, or cannot depredate it, the consent of the pledgeor to such use may fairly be presumed; but not otherwise. Still, the word peril is somewhat broad. If the pawn be in its na ture a charge upon the pawnee,—as a horse or cow,—he may use it, moderately, by way of recompense. For any unusual care he may get compensation from the owner, if it were not contemplated by the parties or implied in the nature of the bailment. Ld. Raym. 909 ;
2 Salk. 522 ; 1 Parsons, Contr. 593. The pawnee is answerable in. damages for an in jury happening while be is using the pawn. Still, though he use it tortiously, he* only answerable by action. His pledgee'altien not thereby forfeited. 4 Watts, Penn. 414 A pledgee can exercise a horse, but not loan it for hire. The rule is, that if he derive any profits from the pledge they must be applied to the debt. 2 Murph. No. C. 111. Hence, if a slave be pledged a,s security for £L debt, the creditor must account for the profits of the slave, and apply them to extinguish the debt. Wythe, Va. 55 ; 15 Ala. N. s. 558.
6. Property. The pledgee has at common law a, special property in the pledge, and is en titled to the exclusive possession of it during the time and for the objects for which it is pledged. If a wrong-doer take the pledge from him, he is not thereby ousted from his right. His special property is enough for him to support replevin or trover against the 'wrong-doer. He has, moreover, a right to action, because he is responsible to his pledgeor for proper custody of the bailment. The pledgeor, also, may have his action against the wrong-doer, resting it on the ground of his general property. A judgment for either pledgeor or pledgee is a, bar against a similar action 14 the other. 2 Blackstone, Comm. 395 ; 6 Bligh, N. s. 127 ; 1 Barnew. & Ald. 59 ; 5 Binn. Penn. 457 ; 16 Wend. N. Y. 335 ; 9 Gill, Md. 7 ; 13 Me. 436 ; 13 Vt. 504.
The bailee, having a special property, re covers only the value of his special property ss against the owner, but the value of the whole property as against a stranger, and the balance beyond the special property he holds for the owner. 15 Conn. 302. So if the owner brings the action and recovers the whole damages, including those for deprivation of possession, it must be with the consent of the pledgee.
A pledgee may bring replevin or trover against the pledgeor if the latter remove his pledge hefore paying the debt and thus injure the pledgee's rights, on the ground that the owner has parted with his ahsolute right of disposing of the chattel until he has redeerqed it from its state of pledge. 2 Taunt. 268 ; 1 Sandf. N. Y. 208 ; 22 N. H. 196 ; 11 N. Y. 150 ; 2 M'Cord, So. C. 126. Yet in trover the damages recovered cannot be greater than the amount of the debt, if the defendant derives title under the pledgeor. 4 Barb. N.