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THE PAWNBROKERS ACT., Issue 7971, 29 July 1889
THE PAWNBROKERS ACT.
At the City Police Court this morning, Messrs E, H. Carew, R.M., J. Logan, and \V. Hutchison, J.P.s, gave judgment in the case Wilson v. Myers, in which defendant was requested to deliver up to plaintiff a watch illegally pawned, the property of plaintiff, and which was being retained by the police as an exhibit for production in the hearing of the charge of larceny as a bailee preferred against one Ross, who pawned, along with others, the article in question. Judgment was given as follows : The light of the owner of stolen property to recover possession is not the real question in dispute in this case. The complaint is laid under section 36 of the Pawnbrokers Act, 1868, and part of the proof required on the complainant’s Fide is that the watch claimed is in the defendant pawnbroker’s possession. : The facts in iliis case bearing upon that.point are that the prefect complainant laid an information for lirceuy of the watch, and upon that information he caused the defendant to be subpoenaed as a witness, and to prednoe the watch claimed to be the subject of the larceny. In consequence of this the watch was produced at the hearing of the information, and appears to have been taken possession of by a police officer, who, rightly or wrongly, claims a right to retain it, and has retained it in his custody for the purposes of tho prosecution of the charge of larceny. Can it be said that the watch, while held by the police officer, is in defendant’s possession ? Possession means having a thing in one’s own hand or power, bat it has been said by Mr Haggitt that possession under the Act includes constructive possession, but the authorities show that the doctrine of constructive possesion does not apply to a wrongdoer or person without title (Sweet’s ‘ Law Dictionary,’ page 620, note 1). It is uot necessary to decide whether a police officer has authority to retain the watch for the purposes o‘ the prosecution, but we will point out that under section 31 of the Act any Justice has power to issue a warrant authorising a constable to seize and take possession of any pledge found on the premises cf a pawnbroker, in the words of the warrant, "for pmpoies of safe custody and evidence only, ’ which shall bs identified. What the defendant has done, he could therefore have been c impelled to do by any Justice. Had the watch been seized by the police under such a warrant, could it be contended that it still continued in the pawnbroker’s possession? and if not, is defendrnt in a worse position because, without a warrant having been issued, he produced it at the hearing upon a summons calling upon him to da so? We think certainly not, and that the facta do not bring the case within section 36 of the Act. Case dumissed ; each party to pay his own costs. Mr Hutchison said he was the dissentient, and had drawn up a written statement containing his reasons for doing so ; but it was not considered proper by the Bench that he should read his statement in Court. Defendant: Would your Worships make any order as to costs ? Mr Carew: No; we think not. No costs will be allowed. Mr Hutchison subsequently handed td us the written statement containing his opinions regarding the case, which ate as under:— My judgment in this case would have been to grant tbe order sought for, but I ain in the minority, and therefore I speak with much diffidence—more especially as I differ from Mr Carew, for whose decisions generally I entertain very great respect. There, however, appears to me to be an important principle involved in this case, which induced me to put my opinion in writing. The principle is the right of every individual, against whom there is no allegation of wrong-doing, to the possession , and use of his undisputed property. The plaintil here is the undisputed owner of a watch, of t the possession and use of which ho is deprived by circumstances over which he had and has no i control. Tho ot j otions taken by Sir Robert Stout to the action before tbe Court are purely
technical —they do not touch the principle involved. It is not correct to eay, as has been said, that the watch is in the custody of the law by the direction of the plaintiff; and it seems to me quite immaterial, for the purposes of this action, who commenced the criminal proceedings by which, as a matter of fact, the plaintiff is deprived of hia property. The question is: Has he a right to its possession now? The plaintiff traced his watch to the keeping of Mr Myers, a pawnbroker, with whom it was pledged by the watchmaker who got it to repair. It is in evidence that the watchmaker had no authority to pawn the watch; but the pawnbroker refused to give up the watch to its owner. Ho is therefore, to my mind, the first person with whom tho plaintiff has to deal. The pawnbroker’s defence now is that he is not in possession of the watch—that the police have it It does not very clearly appear whether Mr Myers considers the police are holding the watch for him or for the purposes of criminal procedure. It is, however, conceded, as I understand it that the police hold the watch with Mr Myers’s concurrence. The nonpossession of the watch by Mr Myers no doubt complicates the case, until we get back to simple common sense. Suppose, as Mr Haggitt very'aptly put it, that Mr Myers, instead of telling the Court that the police were keeping the watch, bad told them that he was showing the watch to a friend, who coolly put it in his pocket, and, declining to give it up, walked away with it. Would the Court have accepted that plea? I should think not. That tho police have the watch no doubt makes some difference. What that difference is we shall see immediately. Meantime, accepting Mr Myers’s statement that he cannot now give_ up the watch, as it has passed out of hia keeping, it can only be accepted as a defence to this action if he is prepared here and now to give up all claim to the watch, as against the right of the owner to its possession ; and the relinquishment of this claim might, in the circumstances, t< asnnably satisfy any order made by this Cou t. Mr Myers has advanced money on the watch. That is so, but not to the owner of the watch. He never got any money from him, It is hard that Mr Myers may probably lose hia money, but it is much harder that the owner should not gst his watch. Besides, it must be borne in mind that a pawnbroker carries on a 'trade subject to such risks. The State would never Pcense persons to lend money at such exorbitant rates of interest as pawnbrokers charge (I do not know these rates—probably €0 per cent.) if great risks were not contemplated and provided for in such usury. Assuming, ther, if an order had been made, that Mr Myers would have obeyed it to the extent I have indicated — that is, that so far as he had any claim upon the watch, he at once relinquished it before tho right of the owner he (the defendant) would thus have set himself right with the Court, and the plaintiff would then have been face to face with the police. I have i-aid that the possession of the watch by the police is different from its possession by a private it dwidual; and the difference is this: Mr Myers believed in all good faith th.t the police should get the watch, and the police believed equally in good faith that they should keep it. In this part of the transaction there is no blame attributable either to Mr Myers or to the police. They did what they had always been in the habit of doing. Our police did net even institute the system. I have no doubt it has come down to them by custom and precedent, And this thing goes on until one day common sense and justice step in and break down the id .-I. What has beenleirnf din tbecase before us ? This, namely: that in retaining this watch, when dunaided by its undisputed owner, the police are entirely mistaken, and, unintentionally of course, committing a serious wrong. They have shown no right, in the interests of justice, to keep possession of this watch. They have not even shown any right iu law—even taking law in its narrowest and most Old Bailey form. They have produce d bo rule or order of any judicatory authorising their procedure. They have submitted no arguments in its justification. The fact is that the police have simply assumed an authority, and it has gone on unquestioned by the persons with whom they have had to deal until they have established a custom or precedent, which they now plead as their sole defence; and where no one suffers injury or inconvenience fiom this custom it works well enough, and perhaps saves the police some trouble, but the convenience of the public is of far more importance than saving trouble to the police. I am not, as I have aheady said, blaming the police in this instance. Until it cropped up they very likely supposed they had some authority tc justify tbeir proce' dure; but the police all the world over a-e too apt to assume authority which does not belong to them, and they seem to forget that no custom, however long it may have continued, ran convert wrorg into right. Some’lung has been said about ju-tire being defeated by the less <f exhibits at criminal trials if the pioperty were not retained by the police a< it now is. Of course eve y Court must be careful on this point, but it will readily be seen how little is to ha apprehended on this score when it is remembered that the Court, as a general rule, and with reasonable securities, does not seek to keep possession of the chief exhibit at every trial—the criminal himself. He is allowed the ownership of his person—his liberty-until the day of trial; and what is dot e with the chief exhibit could, where necessary, be done with all other exhibits. Even the late Mr Jostica Johnston, who was perhaps the greatest advocate of legal minutiae and of the powers of tho police, who has sat on the New Zealand Bench, concedes this point. In his ‘Justice of the Peace ’ I find him saying: 11 Such articles (referring to exhibits) ought properly to remain in the custody of the police until the trial, unless they be of a perishable nature, or such as the
owners may want for use in the meantime. The plaintiff has stated that he wants his watch in the meantime, and it seems to meanunn;coisaty hardship, and contrary to law, '.hot he should bo deprived of it.
THE PAWNBROKERS ACT., Issue 7971, 29 July 1889
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