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Smith v. Eason.

is the very question in dispute, and his Honor was led into error by assuming, in the first part of his charge, that the character of the instrument was fixed, without reference to the alterations, and afterwards, in the second part of the charge, treating it as a bond, under the misapprehension that the question then was, whether the alterations changed its legal effect. The instruction prayed for, in the second place, was, that the alterations avoided the instrument, supposing it to have been executed, leaving its character undetermined. Now, although the alterations were immaterial in reference to the legal effect of the instrument, supposing it to be a bond, yet they were clearly very material in reference to its character, that is, whether it be a bond or a testamentary disposition, for this, as we have seen, was to be decided mainly by the words contained in it; and it may well be, that a word will change its character, although, supposing that to be fixed, the same word would not change its legal effect; for instance, if one make an instrument, in writing, for his executor to pay A B $5,000, the addition of the word “administrator” tends to fix its character as a bond, and to repel the idea of its being a direction to his executor as a testamentary disposition, by providing for a case of intestacy; so, the words “witness my hand and seal,” have a tendency to give to it more of the appearance of a bond, and consequently to influence the decision of the question as to its character. In this view of our case, the alterations were material. It is admitted that the alteration of a bond by the obligee in a material part, so as to change its legal effect, avoids it. This is upon the ground, that it is a wilful and fraudulent attempt to change its nature, and amounts to a “spoliation.” The same principle applies to an alteration of an instrument, by the party interested under it, in a material part, so as to change its character; upon the ground, that it is a wilful and fraudulent attempt to change its nature, and amounts to “spoliation." In like manner, expunging a word, if the character of the instrument be undisputed, may not change its legal effect, whereas, if the question be as to its character, such expunging may change it

Barrett v. Cole.

altogether, and would consequently be a material alteration. For instance, “I give and bequeath to A B my sorrel horse,” (signed, sealed and delivered). This is a testamentary instrument. Expunge the word bequeath, and it becomes a deed of gift.

The case does not state distinctly that the instrument in question was delivered. This circumstance would tend strongly to fix its character; for delivery is necessary to make a deed, and, although not wholly inconsistent with the making of a will or a testamentary disposition, is very rarely a part of the res gestæ at its execution.

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PER CURIAM.

Venire de novo.

WILLIAM BARRETT vs. R. A. COLE et al.

Property delivered as a pledge to secure a debt, and re-delivered by the

pawnee to the pawnor, is liable to be seized and sold under execution against the pawnor.

Trover, tried before SAUNDERS, Judge, at a Special Term (November Term, 1856,) of Moore Superior Court.

The suit was brought for the alleged conversion of a horse. One Due, being indebted to the plaintiff, delivered him the horse in question, as security for a debt which he owed him, and immediately the horse was delivered back to Due, upon an agreement, that it was to be kept and used by him until the ensuing fall, when plaintiff was to sell it, and out of the proceeds pay his debt, and the excess, if any, was to be returned to Due.

The horse in question was seized by the defendant Cole, who was a constable, duly qualified, and sold under a process, at the instance of the defendant Tyson, who was the plaintiff in the execution, and who became the purchaser of the pro

Barrett v. Cole.

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perty and made use of it. The plaintiff was present at this sale and forbade it.

The debt under which the property in question was seized, was due prior to the contract between Due and the plaintiff, and the debtor was entirely insolvent.

Upon the trial below, the jury returned a verdict for the plaintiff by the consent of counsel, with an understanding, that if his Honor was of opinion that the plaintiff was entitled to recover on the facts above stated, a judgment was to be entered accordingly, but if of a different opinion, the verdict was to be set aside and a nonsuit entered.

His Honor, on considering the question reserved, gave judgment for the plaintiff, from which the defendants appealed.

No counsel appeared for the plaintiff in this Court.
Kelly and Haughton, for the defendants.

BATTLE, J. The contract between Due and the plaintiff, by which the horse in question was delivered to the latter, for the purpose of securing a debt which Due owed him, was undoubtedly intended by the parties as a security for money, and must have been either a mortgage or a pledge. If it were a mortgage, it was clearly void as against creditors, because not in writing, and proved and registered within six months as required by law. Rev. Stat. ch. 37, sec. 23; (Rev. Code ch. 37, sec. 22). If it were a pawn or pledge, we think that it was equally void as against the creditors, because the possession, instead of being retained by the pawnee, was iinmediately restored to the pawnor. A pawn is defined to be a bailment or delivery of goods by a debtor to his creditor, to be kept till the debt is discharged. It is the pignori acceptum of the civil law, according to which, the possession of the pledge (pignus) passed to the creditor, therein differing from the hypotheca where it did not. See Kent's Com. 577, and the authorities there referred to. In the well-considered case of Doak v. the Bank of the State, 6 Ire. Rep. at page 319, DanIEL, J., says, “ a pledge is a deposit of personal effects, not to

Barrett v. Cole.

pawn

be taken back but on payment of a certain sum, by express stipulation to be a lien upon it.” Nash, Judge, says of the pledge that it is essential, “that the possession of the article should accompany it;" RUFFIN, Chief Justice, who filed a dissenting opinion, does not deny that the possession of the article must accompany the pledge, but contends that, being but a security for money, it ought to be in writing and made public by probate and registration, like mortgages and deeds in trust, otherwise it should be void as against creditors. Bank, and other stock, and choses in action, he admits to be an exception, because they cannot be rendered liable to the satisfaction of a judgment, either upon execution, or by a decree of the Court of Equity. See his opinion at page 335. The mischiefs which the Chief Justice strongly depicts as likely to arise from holding that a pledge of a personal chattel, where the possession accompanies it, need not be in writing, and proved and registered, would be greater if the or were at liberty to take back the pawn and keep it for a longer or shorter time, under another agreement with the pawnee. Being the original owner, his possession would be less likely to lead to a knowledge of the circumstances under which he held it. How could a creditor or purchaser know -what reason would he have, even to suspect, that he had pledged it for a debt, while he still continued to possess and use it as formerly? This very case, if the judgment were affirmed, would afford a striking example of the injustice and hardship of the rule. The defendant Tyson was a creditor of Dne at the time when he pledged his horse to the plaintiff. Due immediately took back the horse, and was in possession of it at the time when the defendant levied the execution upon it at the instance of Tyson. Here was the owner in possession of his own horse, and yet the defendant Tyson is to lose his debt, and have to pay, besides, a heavy bill of costs, because, forsooth, Due had made a secret pledge of the horse to another person! We call the pledge a secret one, because it was not in writing and put upon the register's book, and there is no testimony to show that the defendant knew any

Smith v. Sasser.

thing about it. Such ought not to be, and we believe is not, the law. The judgment must be reversed, and, according to the agreement of the parties, a judgment of nonsuit must be entered here.

PER CURIAM.

Judgment reversed.

STEPHEN SMITH vs. HENRY SASSER.

Property delivered as a pledge, to secure a debt, and re-delivered by the

pawnee to the pawnor, may be sold by the latter, and a good title passes.

Action of TROVER, tried before SAUNDERS, Judge, at a Special Term (December, 1856) of Wayne Superior Court.

The declaration alleged the conversion of a gun.

One Bright Kennedy was the owner of the gun in question, and having had some repairing done to, and being unable to pay for it, the defendant went with him to the gun smith and advanced the money so dne him. The gun, ther upon, was, in the presence of Kennedy, delivered to the de fendant, upon an agreement that it was to be his property until the money was re-imbursed to him. The gun was then handed back to Kennedy, who kept it for about five months, when he exchanged it with the plaintiff for another gun. The defendant afterwards got possession of the property and converted it.

The Court charged the jury, that the property in the gun was in the defendant as a pledge, and unless they were satisfied that Kennedy had paid him the amount for which it was pledged, he was entitled to their verdict. Plaintiff excepted.

Verdict and judgment for the defendant, and appeal by the plaintiff.

Dortch, for plaintiff.
W. A. Wright, for defendant.

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