
    Stephen Jewett versus William G. Warren.
    Of the delivery of chattels, as necessary to transfer the property in them.
    Tt is a good delivery of timber in rafts in a river, to go within sight of it, and show it to the vendee as the timber conveyed. And it is not necessary that the vendee, in such case, should immediately take any other possession of the same than the possession they constructively give ; but he may suffer them to remain as they were when delivered, until he may have occasion to use them.
    A liability for another on a contract in force is a sufficient consideration for a mortgage or pledge; and the ratio of the consideration to the value of the thing pledged is of no importance.
    Trover for a quantity of logs. The action was submitted to the decision of the Court on an agreed statement of facts to the following effect.
    
      On the 16th of May, 1814, one William Jewett made a bill of parcels of the logs in question to the plaintiff, valued thereby at $ 1602.44, and therein acknowledged to have received payment “ by indorsing for me at the Kennebec Bank for the sum of $ 1350.” Some time before this transaction the plaintiff had become surety to the Kennebec Bank, for the said William Jewett, in the sum of % 1350, which the plaintiff was liable to pay at the time of the said bill of parcels being made, which was done in the presence of one Towle, who subscribed the same as a witness for the purpose of protecting the plaintiff against his said liability. The said William Jewett at the same time directed the said witness to deliver the said logs to the plaintiff, * who afterwards showed [*301] the same to the plaintiff, they being then rafted, at a mill, in a boom.
    
    On the day after making the bill of parcels, the said William Jewett died, and, in a few days afterwards, the defendant took administration upon his estate, which is insolvent. No part of the money, for the payment of which tbe plaintiff was liable as aforesaid, had been paid, either by him, or the defendant, or his intestate. But the plaintiff’s property bad been attached in an action commenced for the recovery thereof, and in which judgment was to be rendered against him at the then next term of the Common Pleas in this county.
    On the 30th May, 1814, the defendant took possession of the logs in question, caused them to be inventoried as part of the deceased’s estate, and, soon after the commencement of this action, caused part of them to be sawed into boards, some of which boards he has since sold.
    The plaintiff never exercised any particular care in the safe-keeping of the logs which remained in the boom, nor did he employ any person to see to their preservation ; but the defendant took care of them, employing persons at his own expense to attend to them ; and by this means they were preserved, as, without such care, a part of them would probably have been lost.
    About ten days after the decease of the said William Jewett, while the appraisers were taking the value of the said logs, the plaintiff exhibited the said bill of parcels to the defendant, who read the same ; but the plaintiff made no demand of the logs, nor did he claim them otherwise than by showing the bill of parcels.
    At the time of executing the said bill of parcels, it was the understanding of the parties, that, if the logs should produce more than sufficient to protect the plaintiff against his liability aforesaid, he was to refund the surplus.
    
      If, upon the facts thus agreed, the Court should be of opinion that the plaintiff was entitled to recover in this action, ' [ * 302 ] * the defendant was to be defaulted, and the plaintiff have judgment to the amount of his aforesaid liability ; otherwise, he was to become nonsuit, and the defendant have judgment for his costs.
    
      Warren, for the plaintiff.
    
      Wilde, for the defendant.
    
      
       A boom is a space in a river, adjoining the bank, and surrounded by a fence, wherein timber and logs are confined and preserved as in a dock.
    
   Parker, C. J.,

delivered the opinion of the Court.

The objections made to the plaintiff’s title to the logs, which are the subject of this suit, deserve consideration.

It is said, in the first place, that the transfer attempted by William Jewett to the plaintiff cannot be viewed as a mortgage or pledge of the logs, as security to the plaintiff for his liability upon said William’s note to the bank ; because there was no actual delivery to, or possession by, the plaintiff, of the thing pledged, under the bill of parcels exhibited in the case ; because, also, the parties intended the transfer should be absolute, and cannot now consider it conditional, to avoid .the consequences of an absolute sale under such circumstances ; and because, also, there was no consideration for the transfer, there being no absolute debt due from said William to the plaintiff

But neither of these objections is, in our opinion, sufficiently maintained.

There was all the delivery which could have been usefully made of property of this nature. A person was appointed by the vendor to deliver the logs lying within a boom, who went within sight of them with the vendee, and showed them to him. This was as effectual, for such kind of property, as a delivery over in hand of a chattel capable of such personal possession. There was no necessity afterwards, that the vendee should place a person over the logs, to take care of them for him. He did as others do with similar property ; suffered it to lie within a boom, until he should have occasion to use it; and when the defendant claimed the logs, as belonging to the estate of his intestate, the plaintiff exhibited his bill of parcels, and declared them to be his property.

[ * 303 ] * Nor will the acts of care or ownership exercised by the defendant, as administrator, vary the case ; for it was his duty to protect from waste and accident property belonging to the estate, which had been pledged for a sum less than its value ; as he might eventually have to administer upon this very property.

As to the intent of the parties to make this transfer pass for absolute, although really conditional, we see no facts from which a jury would presume, or which can in law be construed to have, that effect. The bill of parcels is in the usual form practised with regard to merchandise actually sold. But it does not necessarily follow that the parties intended to give the transaction that appearance. If they did, they showed but little skill in their contrivance. The logs are estimated at several hundred dollars more than the note on which the plaintiff was liable ; and the receipt on the bill shows the consideration to have been the plaintiff’s liability only upon a note of hand in the bank. It would be impossible to set this up as an absolute sale under these circumstances ; and especially as the parties called a witness, to whom the real state of the transaction was communicated, and discovered no disposition to conceal any thing.

With respect to the consideration, whatever objections might lie, considering this as an absolute sale, on account of the contingency of the plaintiff’s obligation to pay any thing, or the difference between it and the value of the logs, these objections vanish when the transfer is viewed as a pledge. For a liability to pay on a contract in force is a sufficient consideration for a mortgage or pledge ; and the ratio of the consideration to the value of the thing pledged is of no importance.

With regard to the objection of fraud, this has been answered in the foregoing observations ; and, upon the whole, it is the opinion of the Court that the plaintiff is entitled to judgment.

Defendant defaulted. 
      
      
        Rice vs. Austin, 17 Mass. Rep. 197. — Badlam vs. Tucker et al., 1 Pick. 389. — Vide Lanfear vs Sumner, 17 Mass. Rep 110. — Holmes vs. Crane, 2 Pick. 607. — Draftman et al. vs. Searle, 3 Pick. 38. — Peters et al. vs. Ballestier, 3 Pick. 495. — Gardner vs. Howland, 2 Pick. 599 — Butterfield vs Baker, 5 Pick. 522. — Flagg vs. Dryden, 7 Pick. 52. — Shumway et al. vs. Rutter, 7 Pick. 56 — Joy vs. Sears, 8 Pick. 4.
     