delivered the opinion of the Court. The question in this case is, whether the plaintiff has shown such a property in these goods, and such a right of .possession, as will enable him to maintain trover against the sheriff.
A question arose incidentally, not perhaps very material to the decision of the present case, as to the nature of the title which passed by the bill .of sale from Lang to Dawes, or through him to Horr. It was an absolute bill of sale, in the ordinary form of a bill of parcels, of goods to the amount of $2000-48, and receipt of payment is acknowledged. It is in proof, that this was not intended as a sale, but as collateral security for the payment of a promissory note for $1000, payable in 60 days. Clearly it was not a mortgage ; it contained no condition, no defeasance, nor can one be engrafted upon it by parol proof. As a transfer it was fraudulent and void as against creditors, because no consideration was paid, and if set up as a sale, it must operate to defraud creditors. But as possession was delivered to the lender of the money, and was to be retained till the money was paid, it may perhaps be deemed a pledge, putting it on the same footing as if no bill of sale had been executed. At least the most favorable view which can be taken of the transaction for those rvho claim title under it, is to consider it as a pledge or paw-n, in security of ♦he money advanced
*405Suppose these goods well pledged to Dawes and through him to Horr, the question is, whether the property passed by the assignment from Lang to the plaintiff.
It seems now well settled, that when personal property is under a pledge or lien, whether created by operation of law, or by the act of the owner, the general property remains in the owner, and that he may transfer it by a proper contract, and upon a good consideration, subject only to the lien. Tuxworth v. Moore, 9 Pick. 347 ; Fettyplace v. Dutch, 13 Pick. 388. And in such case, as the actual custody and possession of the goods for the time being, is in the hands of the party having the lien, it follows that a constructive or sjunbolical delivery is sufficient to pass the property. An order by the vendor upon the keeper, or if the contract of sale or conveyance be in writing, proper and satisfactory notice of the conveyance by the vendee to the holder, constitutes such constructive delivery. Where goods are lying in a warehouse, although subject to a lien for keeping, notice to the warehouse keeper, where all the other requisites of a sale are proved, is equivalent to a delivery. After such notice the keeper ceases to be the agent of the vendor, and becomes the agent of the vendee, and thus the goods are placed under the effective control of the vendee, as they would be by an actual delivery. Here notice was given by the plaintiff to Horr, who had the custody of the goods, with no claim of title but that of a pledge ; the property passed to the plaintiff subject to that lien.
But the most material question is, whether Horr, by the transactions stated, waived his lien, before the plaintiff made his demand ; and the Court are of opinion that he did. After notice of the assignment and transfer to the plaintiff, he indorsed over his note to third persons, without also assigning over the pledge ; it does not appear., that the indorsees of the note knew that the indorser held any pledge in security for the note, but he informed them, that if they would purchase the note, he, Horr, could point out property of Lang, upon which it might be secured by attachment. He, in fact, did point out this property to the attaching officer, not only to be attached to secure that particular note, but also to be attached upon other demands against Lang by strangers. He thereby put it *406entirely beyond his power, or that of his indorsee, to restoi e the property upon payment of the note ; and by this means he effectually waived his lien, if he had not done it by indorsing over the note without transferring the pledge. We would not be understood hereby to hold, that an attachment under all circumstances, though made by the party holding the pledge, or by his consent, would be a waiver of his lien. Where the pledgee has other demands, not secured by the pledge, if he were to attach the same goods, with notice to the officer, that he did not waive his lien, but that he, the officer, was to hold the possession for the pledgee and to maintain his lien, it would not amount to a waiver. Townsend v. Newell, 14 Pick. 332.
And now by the Revised Statutes, property subject to mortgage or pledge, may be attached in the modes therein pointed out.
In the present case, it was suggested, that the officer might be deemed the agent of Horr to keep possession for him. But we can perceive no facts to warrant this claim ; no notice was given to the officer of the existence of any such lien, and no agreement made by the officer to hold for him. On thr contrary, the goods were attached on several demands by thi creditors of Lang, and the officer became answerable to no persons but the parties to those suits, according to the responsibility thrown upon him by the law, in consequence of such attachments.
The plaintiff having taken the general property by the assignment, subject to the lien, and the lien being discharged, had the general right of property, which draws after it the right of present possession, so that the demand upon the officer and his refusal to deliver the goods constituted a conver sion which is sufficient to maintain this action.