Page:Harvard Law Review Volume 12.djvu/154

134 134 HARVARD LAW REVIEW. judgment for the plaintiff. The greater part of the decision is taken up in showing that if the danger of spontaneous combustion was imminent the plaintiff should recover just as if spontaneous combustion had actually occurred ; but the question whether the plaintiff could have recovered even if spontaneous combustion had in fact taken place seems scarcely to have been considered or argued. Indeed it was not disputed by defend- ant's counsel that if fire had actually broken out the plaintiff" could recover directly from the defendants. The judge in substance said, "An action by the cargo-owners for insurance on their coal would have been defeated by the doctrine of inherent vice, but the position with regard to the freight was different. If the vessel had continued on her voyage without discharg- ing the coal at Sydney, it was reasonably certain that spontaneous combus- tion would have ensued and the whole vessel and cargo been destroyed by fire." It seems difficult to perceive any material difference between an action by the cargo-owners for the insrrance on their coal and the action by the ship- owner for the insurance on his freight. In the one case, as in the other, the captain would be obliged to unload in order to save the ship and cargo. True, in the action by the ship owner the coal with its inherent vice is not furnished by the plaintiff" as in the action by the owners of the cargo ; but this fact is of no significance, for in both cases the terms of the insurance policy is against loss " by fire, jettisons, and perils of the sea," and the loss due to spontaneous combustion in each case would seem, on the doctrine of inherent vice, not to be covered by these terms. In this view, then, even if the coal had been actually destroyed by spontaneous combustion, the owner of the vessel should not have recovered insurance on his freight, and therefore he should not recover, further than in general average, for ^ny loss incurred to prevent spontaneous combustion. A Pledge without Transfer of Possession. — The essential element of a pledge is doubtless the handing over of the possession to the pledgee ; and strictly, when this possession is given up, the pledge terminates. Nevertheless, it is settled that if the pledgor regains possession by force, the pledge remains valid, on the fiction that the pledgor has not recovered his old possession, but has stolen the possession of the pledgee, and is holding, not as pledgor, but as thief. By an extension of this theory of changed capacity, it is now law that the pledgee may voluntarily intrust his posses- sion to the pledgor as his agent for a temporary purpose, and still retain his lien. The Supreme Court of Kansas has recently taken a step further in the case oi Matthewson v. Caldwell, 52 Pac. Rep. 104 (Kan. Sup. Ct.). The defendant in that case purchased a claim against the bank, and the bank agreed to pledge certain negotiable paper for its payment. The bank officers produced the paper in the presence of the defendant; and then, without actually transferring the physical possession, they agreed on behalf of the bank to accept it as a deposit from the defendant and to hold it for her as her agent. During this agency, the bank examiner made his rounds ; and without the knowledge of the defendant the bank officials produced the pledged paper as bank assets, and were duly credited there- with. Subsequently the bank failed. The creditors claimed the pledged paper ; but the court held, first, that the pledge was valid ; and, second, that there was no estoppel on the part of the defendant to deny the owner- ship of the bank.