Howard v. Hubertson

Chief Justice Lee charged the jury, that this case was one governed by the law of pawns and pledges. The plaintiff by making his appearance at the January term, fulfilled the conditions of the bail bond, and is clearly entitled to receive the $800 as the moiety of the Premier. Whether he is entitled to recover the value of the schooner Kalama is quite another question. That portion of the law of pawns or pledges, relating to the use of the article pawned, is laid down by Judge Story as follows: I. If the pawn is of such a nature that the due preservation of it requires some use, there, such use is not only justifiable, but it is indispensable to the faithful discharge of the duty of the pawnee. 2. If the pawn is of such a nature, that it will be worse tor the use, such, for instance, as the wearing of clothes, which are deposited, there, the use is prohibited to the pawnee. 3. If the pawn is of such a nature that the keeping is a charge to the pawnee, as, if it is a cow or a horse, there, the pawnee may milk the cow and use the milk, and ride the horse by way of recompense, for the keeping. 4. If the use will be beneficial to the pawn, the pawnee it seems may use it. 5. If the use will be without any injury, and yet the pawn will thereby be exposed to extraordinary perils, there, the use is impliedly interdicted In this case the pawn or pledge was a vessel, which would probably take more injury from worms and other causes by lying in the harbor, than by moderate use at sea, but, as by such use it would be exposed to extraordinary perils, as the result has proved, the pawnee could not sail it except at his own risk. I know of no case in the books where the pawn has been a vessel, but the Court is clearly of the opinion, that a ship is a pawn of such a nature as to forbid its use without the consent of the pawner. Whether the vessel was running with Howard’s consent and on his account, or without his consent, and on Hubertson’s account, does not clearly appear. The evidence is not full on this point, but it is for you to determine. If you find it [47] was running without Howard’s consent, and under the direction of the defendant, then the plaintiff is entitled to recover its value, in addition to the $801); if with his consent, then her loss must fall upon Howard. Mr. Harris and Mr. Burbank for plaintiff. Mr. Bates and Mr. Montgomery for defendant. The jury after an absence of six hours returned a verdict for the plaintiff in the sum of $1100.