In what manner the Debtor shall be distrained to appear in Court,
whether by the Pledge itself, or by another mode, is doubtful. But
that may be left to the discretion of the Court, as the matter can be
sufficiently expedited whichever mode is resorted to. It is, however,
sometimes requisite that he should be present in Court, before the
thing in question be adjudged absolutely to the Creditor; since, were
he present, he might alledge some reason, why the thing should not
irrevocably belong to the Creditor. But when the Debtor appear in
Court, he will either confess, that he pledged the thing in question
for the Debt, or he will deny it. If he confess it, as he has in
so doing confessed the Debt, he shall be commanded at a reasonable
period to redeem his pledge; and, unless he should comply, liberty
shall be given to the Creditor, from that time, to treat the pledge
as his own property, and do whatever he chuses with it. Should the
Debtor, however, deny it, he will then either acknowledge that the
thing is his property, but that for some cause it happened to be out
of his possession, and to have got into the hands of the other, as
a Loan, or as being intrusted to him for Custody or from some other
cause of this nature; or he will confess in Court, that the thing is
not his property, which if he should do, liberty shall immediately be
conceded to the Creditor, to dispose of the thing in question, as his
own. But, if he alledge that the thing is his property, but denies
as well the pledge as the Debt; then, the Creditor shall be obliged
to prove against him, that he intrusted the other to the extent of
the present demand, and that the Debtor in return pledged to him the
specific object in dispute. The nature of this proof may be collected
from what we formerly laid down, in treating of Pledges who deny their
suretyship. But, previous to the period fixed for the payment, the
Debt cannot be demanded; although, if a thing be pledged indefinitely,
and without any period being fixed, the Creditor may, at any time
he chuses, demand the Debt. The Debt being discharged by the person
owing it, the Creditor is bound to restore to him the thing pledged,
without its having suffered any deterioration; nor, if the thing
should by any accident be lost or injured whilst in his Custody, is
the Creditor from that circumstance liberated from the Debtor’s claim;
because he is decidedly bound, either to restore the thing pledged or
to make satisfaction for it, or to lose his Debt. When a Compact is
entered into between a Debtor and Creditor, concerning the pledging
of a particular thing, if the Debtor, after having received the Loan,
should not deliver the pledge,[382] it may be asked, what step should
the Creditor have recourse to in such a case, especially as the same
thing may be pledged to many other Creditors, both previously and
subsequently? Upon this subject, it should be remarked, that the King’s
Public-domain text, read in full here on John Shaqi.
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