The opinion of the Court was pronounced by
Baylies, J.The han 1-writing to the receipt was admitted by the defendant to bo his, and the County Court suffered the bill of sale to go to the jury for them to find the hand-writing thereto, by comparing it with the handwriting to the receipt. As this Court have decided, that the hand-writing to an instrument may be found by the jury on comparison of hand-writings, I see no reason why it could not be done in this case. On trial, the hand-writing to the bill of sale was proved by the deposition of-I’arkhubst, Jr., who said he saw the defendant, sign it.— With this evidence, in addition to the comparison of hand-writings, there is no good reason for granting a new trial on suggestion of forgery.
The defendant, in his requests for the County Court to charge the jury, seemed to think, that he was sued in trover, either for goods sold, or for goods pledged or pawned, apd the action would not lie. But the Court considered, that the goods were mortgaged by the defendant to the plaintiff, to secure the payment of twenty-two or twenty-three dollars, which had not been paid, and the plaintiff’s title to the goods had become absolute ; and after the goods were demanded, trover would lie. Before we decide that the County Court took a correct view of this part of the case, we will have recourse to the books, and,, see if we can find a distinction in the law, between a pledge, and mortgage of goods.
• Mr. Powell, in his valuable Treatise on Mortgages, Vol. 1, p. 3, says, “The striking distinction between a mortgage of lands, or goods, and a pawn of goods, is, that in *536the former case, the mortgagee has, after the condition forfeited, an absolute interest in the thing mortgaged, where- “ as the pawnee has but a special property in the goods, to detain them for his security. A mortgage is a pledge, and more; for it is an absolute pledge, to become an absolute interest, if not redeemed at a certain time : a pledge is a deposit of personal effects, not to be taken back, but on payment of a certain sum, by express stipulation, or the course of trade to be a lien upon them.” So in the same book, p. 33, a. n., it is said, “That B., super-cargo of a ship, which was to go a voyage to the East Indies, having shipped on board goods and commodities, borrowed money on bottomry of A., and at the same time made a bill of sale of the goods and commodities, and.of the produce and advantage thereof, to A., in nature of a mortgage, as a security for the money lent. The ship went her voyage, and those goods were sold, and others bought with the money arising by the sale, and those again invested in other goods, and so there had been several barters and exchanges of several sorts of goods. The ship returned, and B. died at sea, or on his return home; and it became a question between a judgement creditor of B., who got possession of these goods, and A., which of them should have the property. And one ground on the part of the judgement creditor was, that B’s heeding possession of the goods after the sale, made it fraudulent, and void as to creditors. Sed per Cowper, Chancellor, the trust of these goods appeared upon the very face of the hill of sale. Though they were sold to A., yet he trusted B. to negotiate and sell them for A’s advantage ; then B’s keeping possession of them was not to give a false credit to him, but for a particular purpose agreed upon at the time of sale.” — Bucknal vs. Royston, Pre. Chanc. 285. It was decided in the case of Edwards vs. Harben, 2 T. R. 587, “ That in the transfer of Chattels, possession must accompany and follow the deed, and consequently, that where the assignment, or bill of sale is absolute, the possession must be delivered immediately; but where it is conditional, it will not berendered void by the vendor’s continuing in possession till the condition be performed. So long ago as the case of Stone vs. Gruhham, 2 Balst. 218, the Court held, that an absolute conveyance, *537or gift of a lease for-years, unattended with possession, was fraudulent; but that if the deed of conveyance be conditional, there the vendor’s continuing in possession will avoid it, because by the terms of the conveyance, the vendee is not to have the possession until he has performed the condition. And in Kidd vs. Rawlinson, 2 Bos. & Pul. 59, Ld. Eldon Ch. J. cites and sanctions the following passage from Bul. N. P. 258: ‘The donor’s continuing in possession is not in all cases a mark of fraud, as where a donee lends his donor money to buy goods, and at the same time takes a bill of sale of them for securing the money.
Chancellor Kent, in his 4th Vol. Com. 132, says, “ Á pledge or pawn is a deposit of goods, redeemable on certain terms, and either with or without a fixed period for redemption. Delivery accompanies a pledge, and is essential to its validity. The general property does not pass, as in the case of a mortgage; and the pawnee has only a special property. If no time of redemption be fixed by the' contract, the pawnor may redeem at any time ; and though a day of payment be fixed, he may redeem after the dayv A mortgage of goods differs from a pledge or pawn in this, that the former is a conveyance of the title upon condition, and it becomes an absolute interest at law, if not redeemed by a given time ; and it may be valid in certain cases without actual delivery.”
In Slurtevant vs. Ballard, 9 John. R. 337, Kent, Ch. J., in delivering the opinion of the Court, says, “ A conditional, as well as an absolute sale, may equally be fraudulent in point of law, as well as fraudulent in fact, unless the intent of the parties in creating the condition be sound and legal.”
In Barrow vs. Paxton, 5 John. R. 261, the Court say, “The bill of sale stated in the record was a mortgage of goods, and not a technical pledge. A pledge is a deposit of goods to be redeemed on certain terms. Delivery always accompanies a pledge; but a mortgage of goods is often valid without delivery. Here, possession of the mortgagor was consistent with the face of the deed, and there is no pre-i tence of fraud upon the creditors.”
In Holmes et al. vs. Crane, 2 Pick. 607, “ A debtor made *538a bill of sale to Lis creditor, of machines in a manufactory, on condition to be void on payment of a sum of money, and the vendee took possession by putting his hand on each piece of machinery: the vendee then made a lease of the machines to the vendor, and delivered them to him. Held, that this bill of sale was a mortgage, and that the possession of the vendor, after sale, was only prima fade evidence of fraud, which might be rebutted by showing the transaction to have been bona-fide.”
In Brown vs. Bennet et al. 8 John. R. 96, the Court say, “ A mortgage of goods is a pledge, and more ; for it is an absolute pledge to become an absolute interest, if not redeemed at the specified time. After the condition forfeited, the mortgagee has an absolute interest in the thing mortgaged; whereas a pawnee has but a special property in the goods to detain them for his security.”
In Cortelyou vs. Lansing, Adm'r, 2 N. Y. Ca. in Error, 200, the principles stated are, that “on the deposit of a pledge, where no day of redemption is limited, the right of redemption descends to the personal representatives of the pawnor. If the pawnee sell the pledge before application to redeem, he is answerable for the value of the pledge, at the time of the application.”
In Marsh vs. Lawrence, 4 Cowan, 461, it is stated, “that a bill of sale or assignment of goods, declaring that the object is to secure the vendee as surety for the vendor, and that in case the vendee shall become liable, he may turn out the goods on the execution, or that they should be at his disposal at private sale, he accounting to the vendor for the proceeds, is in the nature of a mortgage.”
In Dawes vs. Cope, Assignee, 4 Bin. 258, the Court decided, that where the deed or conveyance is conditional, or to take effect at some future time, the retaining of posses-session according to the intent of the deed, is not fraudulent.
The law makes an evident distinction between a pledge and mortgage of goods. And the County Court, in their charge to the jury, were correct in considering the goods in question mortgaged to the plaintiff, and not merely pledged to secure the payment of the debt which the defendant owed. After the goods were mortgaged to the *539plaintiff, he left them in the possession of the defendant, the mortgagor. Whether, on this account, the law would consider the mortgage fraudulent and void, as to the creditors of the defendant, we are not called upon to decide,. — - The defendant is not permitted to say it was a fraudulent mortgage of his goods to avoid it$ for neither of the parties to the mortgage, though guilty of fraud as to others, can set up such fraud to avoid his contract. This point is well established.—See Steele vs. Brown et al. 1 Taunt. 381. Robinson vs. McDonnell, 2 B. & A. 134.—Peaslee, Admr vs. Adm’r of Hay, 1 Chip. Rep. 331.—Fletcher vs. Howard, 2 Aik. 115.
Sawyer, for plaintiff. Prentiss, for defendant.As the general property in the goods passed to the plaintiff by the mortgage, the defendant could not subsequently acquire that property by merely possessing and using the goods one year, by consent of the plaintiff. So, after the year had elapsed, the plaintiff having demanded possession of the goods according to the tenor of the defendant’s receipt, and the defendant having refused to let the plaintiff have the goods, can maintain trover for them.
On the whole, we are satisfied with the proceedings, and judgement of the Court below in this action.
Judgement affirmed-