PLEADING, SPECIAL. By special pleading is meant the allegation of special or new matter, as distinguished1 from a direct denial of matter previously2 alleged3 on the opposite side. Gould on Pl. c. 1, s. 18.
PLEAS OF THE CROWN, Eng. law. This phrase is now employed to signify criminal causes in which the king is a party. Formerly4 it signified royal causes for offences of a greater magnitude than mere5 misdemeanors. These were left to be tried in the courts of the barons6, whereas the greater offences, or royal causes, were to be tried in the king's courts, under the appellation7 of pleas of the crown. Robertson's Hist. of Charles V., vol. 1, p. 48.
PLEAS POLL, Engl. practice. A record which contains the declaration, plea, replication, rejoinder, and other pleadings, and the issue. Eunom. Dial. 2, §29, p. 111.
PLEBEIAN8. One who is classed among the common people, as distinguished from the nobles. Happily in this country the order of nobles does not exist.
PLEBEIANS9. One of the divisions of the people in ancient Rome; that class which was composed of those who were not nobles nor slaves. Vide Smith's Dic. Gr. & Rom. Antiq. art. Plebes.
PLEBISCIT, civil law. This is an anglicised word from the Latin plebiscitum, which is composed or derived10 from plebs and scire, and signifies, to establish or ordain11.
2. A plebiscit was a law which the people, separated from the senators and the patricians12, made on the requisition of one of their magistrates13, that is, a tribune. Inst. 1, 2, 4.
PLEDGE or PAWN14, contracts. These words seem indifferently used to convey the same idea. Story on Bailm. §286.
2. In the civil code of Louisiana, however, they appear not to have exactly the same meaning. It is there said that pledges are of two kinds, namely, the pawn, and the antichresis. Louis'. Code, art. 3101.
3. Sir William Jones defines a pledge to be a bailment15 of goods by a debtor16 to his creditor17, to be kept till the debt is discharged. Jones' Bailm. 117; Id. 36. Chancellor18 Kent, 2 Kent's Com. 449, follows the same definition, and see 1 Dane's Abr. c. 17, art. 4. Pothier, De Nantissement, art. prelim. 1, defines it to be a contract by which a debtor gives to his creditor a thing to detain as security for his debt. The code Napoleon has adopted this definition, Code Civ. art. 2071, and the Civil Code of Louisiana has followed it. Louis. Code, 3100. Lord Holt's definition is, when goods or chattels19 are delivered to another as a pawn, to be security for money borrowed of him by the bailor - and this, he adds, is called in Latin vadium, and in English, a pawn or pledge. Ld. Raym. 909, 913.
4. The foregoing definitions are sufficiently20 descriptive of the nature of a pawn or pledge but they are in terms limited to cues where a thing is given as a security for a debt; but a pawn may well be made as security for any other engagement. 2 Bulst. 306; Pothier, De Nantissement, n. 11. The definition of Domat is, therefore, more accurate, because it is more comprehensive, namely, that it is an appropriation22 of the thing given for the security of an engagement. Domat, B. 3, tit. 1, §1, n. 1. And, according to Judge Story, it may be defined to be a bailment of personal property, as security for some debt or engagement. Story on Bailm. §286.
5. The term pledge or pawn is confined to personal property; and where real or personal property is transferred by a conveyance24 of the title, as a security, it is commonly denominated a mortgage.
6. A mortgage of goods is, in the common law, distinguishable from a mere pawn. By a grant or a conveyance of goods in gage21 or mortgage, the whole legal title passes conditionally25 to the mortgagee; and if not redeemed27 at the time stipulated28, the title becomes absolute at law, though equity29 will interfere30 to compel a redemption. But in a pledge a special property only passes to the pledges, the general property remaining in the pledger. 1 Atk. 167; 6 East, 25; 2 Caines' C. Err23. 200; 1 Pick. 889; 1 Pet. S. C. B. 449 2 Pick. R. 610; 5 Pick. R. 60; 8. Pick. R. 236; 9 Greenl. R. 82; 2 N. H. Rep. 13; 5 N. H. Rep. 545; 5 John. R. 258; 8 John. R. 97; 10 John. R. 471; 2 Hall, R. 63; 6 Mass. R. 425; 15 Mass. R. 480. A mortgage may be without possession, but a pledge cannot be without possession. 5 Pick. 59, 60; and see 2 Pick. 607.
7. Things which are the subject of pledge or pawn are ordinarily goods and chattels; but money, negotiable instruments, choses in action, and indeed any other valuable thing of a personal nature, such as patent-rights and manuscripts, may, by the common law, be delivered in pledge. 10 Johns. R. 471, 475; 12 Johns. R. 146; 10 Jonhs. R. 389; 2 Blackf. R. 198; 7 Greenl. R. 28; 2 Taunt31. R. 268; 13 Mass. 105; 15 Mass. 389; Id. 534; 2 Caines' C. Err. 200; 1 Dane's Abr. ch. 17, art. 4, § ii. See Louis. Code, art. 3121.
8. It is of the essence of the contract, that there should be an actual delivery of the thing. 6 Mass. 422; 15 Mass. 477 14 Mass. 352; 2 Caines' C. Err. 200; 2 Kent's Com. 452; Bac. Abr. Bailment, B; 2 Rolle R. 439; 6 Pick. R. 59, 60; Pothier, De Nantissement, n. 8, 9; Louis. Code, 3129. What will amount to a delivery, is matter of law. See Delivery.
9. It is essential that the thing should be delivered as a security for some debt or engagement. Story on Bailm. §300. And see 3 Cranch, 73; 7 Cranch, 34; 2 John. Ch. R. 309; 1 Atk. 236; Prec. in Ch. 419; 2 Vern. 691; Gilb. Eq. R. 104; 6 Mass. 339; Pothier, Nantissement, n. 12; Civ. Code of Lo. art. 3119; Code Civ. art. 2076.
10. In virtue32 of the pawn the pawnee acquires, by the common law, a special property in the thing, and is entitied to the possession of it exclusively, during the time and for the objects for which it is pledged. 2 Bl. Com. 396; Jones' Bailm. 80; Owen R. 123, 124; 1 Bulst. 29; Yelv. 178 Cro. Jac. 244; 2 Ld. Raym. 909, 916; Bac. Abr. Bailment, B; 1 Dane's Abr. ch. 17, art. 4, SSSS 1, 6; Code Civ. art. 2082; Civ. Code of Lo. art. 3131. And he has a right to sell the pledge, when there has been a default in the pledger in complying with his engagement. Such a default does not divest33 the general property of the pawner, but still leaves him a right of redemption. But if the, pledge is not redeemed within the stipulated time, by a due performance of the contract for which it is a security, the pawnee has then a right to sell it, in order to have his debt or indemnity34. And if there is no stipulated time for the payment of the debt, but the pledge is for an indefinite period, the pawnee has a right, upon request, to a prompt fulfilment of the agreement; and if the pawner refuses to comply, the pawnee may, upon demand and notice to the pawner, require the pawn to be sold. 2 Kent's Com. 452; Story on Bailm. 308.
11. The pawnee is bound to use ordinary diligence in keeping the pawn, and consequently is liable for ordinary neglect in keeping it. Jones'-Bailm. 75; 2 Kent's Com. 451; 1 Dane's Abr. ch. 17, art. 12; 2 Ld. Raym, 909, 916; Domat B 1, tit. 1, §4, n. 1.
12. The pawner has the right of redemption. If the pledge is conveyed by way of mortgage, and thus passes the legal title, unless he redeems35 the pledge at a stipulated time, the title of the pledge becomes absolute at law; and the pledger has no remedy at law, but only a remedy in equity to redeem26. 2 Ves. Jr. 378; 2 Caines' C. Err. 200. If, however, the transaction is not a transfer of ownership, but a mere pledge, as the pledger has never parted with the general title, he may, at law, redeem, notwithstanding he has not strictly36 complied with the condition of his contract. Com. Dig. Mortgage, B; 1 Pow. on Mortg. by Coventry & Land. 401, and notes, ibid. See further, as to the pawner's right of redemption, Story on Bailm. §§345 to 349.
13. By the act of pawning37, the pawner enters into an implied agreement or warranty38 that he is the owner of the property pawned39, and that he has a good right to pass the title. Story on Bailm. §354.
14. As to the manner of extinguishing the contract of pledge or mortgage of personal property, see Story on Bailm. 359 to 366.
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