
    Edward Southworth v. Ed. Sebring.
    
      Tried before Mr. Justice Richardson, at Charleston, January Term, 1835.
    Property in chattels personal may be transferred in writing, without delivery, the delivery of the writing-being a symbolical delivery of the property.
    The assignment of a bill of sale of personal property as collateral security, vests the property in the assignee,and will enable him to maintain tro-ver against asub-scquent purcha-
    
      Detinue for a negro woman named Tenah and her children. Plea non detinet. The plaintiff gave in evidence a bill of sale for Tenah and her increase, from one John Walker to Timo-, thy W. Johnson, dated 20th December, 1828, attached to which was the following assignment:
    
      “ Charleston, May 10, 1832.
    This is to certify that I hereby assign all my right, title and interest, in the annexed bill of sale, to Edward Southworth, as collateral security for a note given him this day for $500, payable on the 1st January, 1833. On the payment of this note, this writing to be null and void.
    (Signed) Timothy W. Johnson.”
    The negroes were not delivered to the plaintiff at the time of executing this assignment, but remained in Johnson’s possession. Timothy Johnson being indebted to the defendant Sebring, in January, 1833, confessed judgement to him for $3,000, and in February, 1834, sold the negroes in question to him, in part payment of this judgement, and delivered them into his possession, where they have remained ever since. No bill of sale or other writing passed at the time, and it appeared that the defendant was then not aware of the assignment to the plaintiff, and that the purchase then made was bona fide and for a valuable consideration.
    His Honor charged the jury that the assignment' to the plaintiff could not be regarded as either a mortgage or a bill of sale, but as merely transferring the paper containing the original bill of sale: and if the assignment should be regarded as a pledge of the property, delivery was essential, and without which it'would be void. The jury, however, found for the plaintiff, and the defendant appealed, and now moved for a new trial, on the grounds :
    1. That the assignment to the plaintiff was not a transfer of the right of property.
    2. That if the assignment be regarded.as a pledge, it is void for want of delivery of the property.
    
      
      Eckhard, for the motion,
    argued that the assignment attach. ed to the bill of sale, was a pledge of the property, and that delivery was essential. 1 Pow. Mortg. 203 ; Story on Bail. ^ . g Rep. 435 . 15 Jb< 43 . 12 Jb. 300 ; 2 T R 466 . j Atk> 106 . 5 John. Rep. 261. jq John. Rep. 486 ; 12 lb. 146 ; 1 (Jain’s Ca. 200.
    
      Brewster, contra.,
    
    contended that the assignment must ope. rate either as a mortgage or a bill of sale: if the first, it is sufficient to sustain the action; after condition broken the right of property vests in the plaintiff. This is precisely the same as if Johnson had executed a new bill of sale, with the condition in it; and to'suppose that the parties intended merely to transfer the paper on which the bill of sale was written, would be to regard them as doing a futile act. As for the want of actual delivery, the execution and delivery of the assignment is equi. valent to it. And he cited 5 John. Rep. 258 ; Buller N. P. 258; Pow. on Mortg. 35, 36, 42, 43; Esp. N. P. 140-1; Story on Bail. 197.
   Johnson, J.

In the assignment of the bill of sale by John, son to the plaintiff, the intention of the parties is too clearly expressed to admit of any controversy. Johnson was indebted to the plaintiff in the sum of $500, and his intention was to secure the payment by a lien on the negroes. The possession of the bill of sale, assigned as it was without the possession of the negroes, or the right of possession, would be no security at all; and a construction giving the assignment that operation, would wholly defeat the obvious intention. Conceding this, the counsel for the motion have contended that it was a mere pledge of the property, as contra-distinguished from a mort. gage, and not having been accompanied by a delivery, was an executory contract, conveying no vested right, and Was consequently superceded by the sale to the defendant.

There is not, I apprehend, any difference between.the legal effect of a mortgage and a pledge; both vest a special pro-pertv in the thing mortgaged or pledged, in the person who takes to be divested on the performance of the conditions of the mortgage or pledge, and the only difference between them is in the manner of their creation. If the property be delivered, then it is technically called a pledge, and the property vests in the pledgee by the delivery; but the property in chattels may be transferred from one to another, in writing, without delivery, the delivery of the writing being a symbolical delivery of the property. If, therefore, this assignment operates to vest a property in the plaintiff, then it must operate as a mortgage. The utter worthlessness of the paper on which a bill of sale is written, precludes the idoa that that should be the subject of a contract: when, therefore, Johnson assigned this bill of sale to the plaintiff, for the consideration expressed, it cannot be supposed that he intended to confer any other right than the right to the possession of it, and the necessary and natural inference is, that the property described in it was the subject of the contract. A common mode of transfering bonds and notes for the payment of money, is by the term “assign,” and although that term does not, in itself, import an authority to receive the contents, yet no one ever doubted that it was implied : under any other construction, it must be inoperative, and precisely so here. This assignment must operate to invest the .plaintiff with a property in these negroes, or it cannot operate at all. But the case of Montgomery v. Kerr, 1 Hill, 291, is decisive of this question. There it was held that the assignment of a mortgage of a chattel operated as a transfer of the rights of the mortgagee to the assignee, and that, after condition broken, he.might maintain trover for it; and, if such be the effect of the assignment of a mortgage, I apprehend the same consequences must necessarily follow from the assignment of a bill of sale : all the reasons, whether founded on principle or policy, apply as well to one case as the other.

Motion dismissed.

O’Neall and Harper, Js. concurred.  