concurring. Articles 3121 and 3122 of the Civil Code, are explanatory of what species of property may be pledged. They declare that: “ One may pawn every corporeal thing, which is susceptible of alienation. One may even pawn money, as security for performing or refraining to perform an act. One may, in fine, pawn incorporeal movables, such as debts and other claims of that nature.”
Articles 3123, 3125, 3121, 3128 and 3129 of the Civil Code, explain the formalities necessary for the execution of pledges.
Articles 3121 and 3122, defining the kind of property that may be pledged, are not affected or changed by the Acts of 1852 and 1855.
These Acts are identical, except that in the Act of 1855, there is a section repealing all laws contrary to its provisions, and all laws upon the same subject-matter, except what is contained in the Civil Code and Code of Practice. These Acts do not relate to the nature of property that may be pledged, but only to the formalities to be pursued, and, therefore, affect the several Articles of the Code already quoted, relative to the forms necessary for the creation of pawns.
These Acts make three distinctions as to the kind of formalities necessary for the perfection of the pledge.
The first section refers to the pawning of promissory notes, bills of exchange, stocks, obligations or claims upon other persons, and the only formality required as to them is, that the debtor shall deliver to the creditor the notes, bills of exchange, certificates of stock, or other evidences of the claims or rights so pawned.
The second section refers to movable property, exclusive of the species mentioned in the first section, and provides that pledges of movable property are to be made by private writing, accompanied by actual delivery. It explains only as to one class of movables the manner of delivery, declaring the delivery of property or deposit in a warehouse, shall pass by the private assignment of the warehouse receipt.
This section only requires a private writing or act under private signature, according to the French text, and the delivery for the perfection of the formalities of a pawn.
The third section relates to credits not negotiable ; it only requires for the perfection of the formalities of the pledge of this kind of property, that notice of its being pledged must be given to the debtor.
The property averred to be pledged in this case is gunny bags. The second section of these Acts then is applicable to their pledge.
This section requires that the pledge bo made by private writing.
In order to determine what is necessary to put into the private act, we must refer to the Articles of the Civil Code, defining a pledge, for the Articles already quoted and the Statutes of 1852 and 1855, do not explain the nature of pledge, but merely state the property that may be pledged, and the necessary formalities.
Articles 3100, 3102 and 3103 declare, that the pledge is a contract by which one debtor gives something to his creditor as a security for his debt, that a thing is said to be pawned, when a movable thing is given as security, and that every lawful obligation may be enforced by the auxiliary obligation of pledge.
*378. The moaning’ then of the declaration in the second section of these Acts, that a pledge may he made by private writing is, that the parties may make a written contract in which it shall be specified that the debtor gives a certain thing which must be mentioned to his creditor, as a security for a debt which must also be specified.
The object of the law in requiring it to be in writing, is that the whole contract should bo manifested.
If this were not the object, then there would have been no necessity of declaring that the contract of pledge should be in writing.
Besides, if it be not necessary to mention the debt which was to bo secured by the pledge, then, by parity of reasoning, there would be no use to insert in the private act, the nature and amount of the property pledged.
The word pledge is used in the Statutes of 1852 and 1855, in the sense of the definition of Article 3100 of the Civil Code, which defines the contract of pledge, and as the second section of these Acts require the contract to be in writing, the private act between parties must contain what is declared to be essential by this Article, to constitute a pledge, that is a declaration of the thing given in pledge, and of the particular debt for which the thing is pledged.
In the present case, there is no particular debt specified in the act of pledge. It merely says, “ for value received I hereby pledge,” &c. The words “ value received,” do not explain the particular debt for which the gunny bags were pledged, and, therefore, this act of pledge does not create a pawn within the definition of Article 3100 of the Civil Code.
I, therefore, concur in the decree.