#### STEPHEN SMITH vs. HENRY SASSER.

Property delivered as a pledge, to secure a debt, and re-delivered by the pawnee to the paw'nor, may be sold by the latter, and a good title passes.

ActioN of TROVER, tried before SauNdbes, 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 tc^|, and being unable to pay for it, the defendant went with him to the gunj smith and advanced the money so due him. The gun, ther® upon, was, in the presence of Kennedy, delivered to the del 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 escjianged it with the plain tiff 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.

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

Dortch, for plaintiff.

W. A. Wright, for defendant.

*44Battle, J.

The principle which must govern this case, is the same as that of Barrett v. Cole, decided at the present term, (ante 40). The owner of the gun in question, pawned it to the defendant, to secure a debt which he owed him, and the defendant immediately handed it back to him, and he kept it five months, and exchanged it to the plaintiff for another gun. By giving up the possession, the defendant lost j his lien, and the plaintiff acquired a good title by his pur- | chase from the owner. Thus, it is said in Stout on Bailments, sec. 299, “ that as possession is necessary to complete a title by pledge, so by the common law, the positive loss, or delivery back of the possession of the thing, with the consent of the pledgee, terminates his title.” So, in 2nd Kent’s Commentaries, 581, we find it laid down, that in the case of Castilyon v. Lansing, 2 Caine’s cases in Error, 200, it was shown, by a careful examination of the old authorities, to have been the ancient and settled English law, that delivery was essential to a pledge, and that the general property did not pass as in the case of a mortgage,J^ut remained with the pawnor. The Pledge of moveables without delivery is void as against subse-■nt bona fide purchasers, and generally, as against creditors.” PTWe are aware that there is an expression in the opinion, delivered by the Court, in the case of Macomber v. Parker, 14 Pick. Rep. 509, which would seem to qualify the doctrine as laid down by these eminent jurists. The expression is this: “ If the vendor or the pledgor should have the ^ctual possession of the property, after it were pledged or sold, it would be only prima faeie, but not conclusive, evidence of fraud. The matter might be explained and proved to be for the ven-dee or pledgee.” Here it is not said that the possession of the pledgor is obtained by a re-delivery from the pawnee, and we presume, that such a case was not intended, because in a subsequent part of the same opinion, it is stated “ that the lien would be destroyed, if tire party gives up his right to the possession of the goods.” Such, we believe, is the true doctrine, so far as creditors and subsequent bona fide purchasers are concerned. If it were otherwise, a wide door would be open *45to fraud and injustice. As between tbe parties themselves,, tbe rule may be different, and Story on Bailments, sec. 299,. cites Roberts v. Wyatt, 2 Taun. 208, for tbe position, “ that if tbe thing is delivered back to tbe owner, for a temporary purpose only, and it is agreed to be re-delivered to him, the-pledgee may recover it against tbe owner, if be refuse to restore it, after tbe purchase is fulfilled,” However this may be, it does not apply to tbe case before us, in which tbe plaintiff claims as a bonco fide purchaser without notice. The. judgment must be reversed, and a venwe de novo awarded.

Pee Cueiam. - Judgment reversed.