| Vt. | Jan 15, 1826
After argument, the opinion of the Court was delivered by
There is no doubt that property in personal chattels may pass by a bargain and sale, for a sufficient consideration, without delivery, as between the parties to the sale ; but then, as against every one but the vendor, there must be a delivery of the possession. When, therefore, the same chattel is sold to two different persons, by conveyances equally valid, he who first lawfully acquires the possession will hold it against the other. [Lanfear vs. Summer, 17 Mass. 110.) The liability of the plaintiff below to pay the small note signed by him as surety for Peters, the former owner of the hog, was undoubtedly a sufficient consideration for the transfer to him; and the discharge of the debt due from Peters to the defendant, was an equally valid consideration for the subsequent assignment to the defendant.
Both transfers, therefore, being equally valid, as it respects the consideration on which they were made, and good against Peters, the rights of the parties at the trial, as against each other, must have depended altogether on the question of possession. The evidence given was, that the transfer to the plaintiff was made in June, but no delivery or possession was taken by him, until the 2d of August following. He then took the hog into his keeping for a few hours ; but the same day it went back into the possession of Peters, and there continued until the 8th of August,
The transfer to the plaintiff, therefore, to be valid against the defendant, must have been accompanied and followed with possession ; and this would be so, whether the transfer was a sale, or a mere pledge. But considered as a mere pledge, as the bill of exceptions states it to have been, there is another view of the case. It is essential to every pledge of a personal chattel, that it should be accompanied by delivery of possession, or it will not be valid; and in case of delivery, the general property remains in the former owner, and only a special property passes to the pawnee. (Cro. Jac. 245.— Yelv. 178.-» — 16 Vir. Abr. 263. —Powell on Mortg. 3.) If, therefore, the pawnee takes a delivery of the thing pledged, and yet immediately redelivers it to the owner, or, which is equivalent thereto, permits it to go back into his possession, the special property, created by the bailment, is determined and gone. The general owner having the possession, may lafully dispose of it to any one, and the pawnee has no such right or property in the thing, as will enable him to maintain trespass, or indeed any action to recover it. In every view of jthe case, the defendant had a right, on the evidence given, to cáll upon the court to instruct the jury, that if the plaintiff permitted the hog to go back into the possession of Peters, or it was permitted to remain there with his knowledge and consent, the defendant, under the assignment to him, acquired the legal property. A bill of exceptions is not confined, as the plaintiff’s counsel argued that it was, to some opinion or decision expressed by the court in the course of the trial, or some positive misdirection to the jury. A party has a right to require the opinion of the court upon any point of law which is pertinent to the issue, and the refusal of the court to give such opinion is cause for exception, and a ground of error. (Smith vs. Carrington, 4 Cranch. 62.) On this ground, without considering the other points discussed in the argument, the judgment must be reversed.
Judgment reversed.