
    Samuel Bonsey versus Josiah L. C. Amee.
    In assumpsit, to recover one quarter of the proceeds of the sale of a vessel and of her earnings previously to the sale, the plaintiff, in support of his title, produced a bill of sale of one quarter thereof from S, who with three others was the first owner of the vessel. The defendant produced a paper, executed previously to the sale to the plaintiff, by all the first owners, whereby they agreed to " pledge ” to the defendant the vessel, then building as security for his advances thereon, and .j allow the defendant to buy any part of the vessel, at a certain rate per ton. 1 he vessel was afterwards sold by the defendant ; but his advances amounted to more than the proceeds of the sale and earnings. Held, that the !ast mentioned in* rfrument was not an absolute transfer, nor a mortgage, nor a pledge j and that without a delivery of the vessel, it was incompetent to avoid the subsequent transfer to the plaintiff.
    Assumpsit for money had and received. The plaintiff claimed to recover one quarter of the proceeds of the sale of a vessel and one quarter. of her earnings before the sale, the whole proceeds of the sale and earnings of the vessel having been received by the defendant.
    At the trial, before Wilde J., the plaintiff, in support of his claim, produced a bill of sale of one quarter part from one Stinson, who was the first owner of the vessel, m common with three other persons.
    The defendant relied on a paper, not under seal, executed by Stinson and the other first owners, previously to the sale of one quarter part to the plaintiff by Stinson. By this instrument, they “ pledged ” to the defendant “ the hull of a vessel,” then building by them, as security for the payment of advances made, or to be made, by him on the vessel; which payment was to be made when the vessel should be completed ; and it was also agreed therein, that the defendant might take any part of •the vessel when completed, he paying therefor twenty dollars per ton, provided she was not disposed of previously to her coming to Boston.
    The vessel was subsequently sold by the defendant; but his advances for the building of it amounted to more than the proceeds of the sale and the earnings.
    The judge instructed the jury, that the legal title did not pass to the defendant, by the last mentioned instrument; that it was evidence only of a pledge, and would not constitute a lien on the vessel, unless accompanied with possession.
    
      A verdict was found for the plaintiff. The defendant moved for a new trial, on the ground of a misdirection to the jury.
    
      June 11th
    Dunlap, in support of the motion,
    contended that the vessel was mortgaged to the defendant, and that he had a constructive possession of the vessel by means of the workmen, whom he paid ; besides, it is not necessary that possession should accompany the deed of transfer, except in cases of pawn. Jac. Law. Dict. Pawn; ibid. Mortgage; Wardv, Sumner, 5 Pick. 59; Conard v. Atlantic Ins. Co. 1 Peters’s Sup. Ct. R. 449; Edwards v. Harben, 2 T. R. 587; Brooks v. Powers, 15 Mass. R. 244; Bigelow’s Dig. Sale, B; Glover v. Austin, 6 Pick. 209; D'Wolf v. Harris, 4 Mason, 515; 1 Fonbl. Eq. 145.
    
      Warner, for the plaintiff,
    cited Mucklow v. Mangles, 1 Taunt. 318; Stringer v. Murray, 2 Barn. & Ald. 248; Powell on Mortg. 3; Brown v. Bement, 8 Johns. R. 75; Robinson v. M'Donnell, 2 Barn. & Ald. 134; Hay v. Fairbairn, 2 Barn. & Ald. 193; Monkhouse v. Hay, 8 Price, 256; Mair v. Glennie, 4 Maule & Selw. 240; Robinson v. Macdonnell, 5 Maule & Selw. 228; Sturtevant v. Ballard, 9 Johns. R. 337; Homes v. Crane, 2 Pick. 610; [2d edit, note 1 ;] 6 East, 27, note; Man v. Shiffner, 2 East, 523; Heywood v. Waring, 4 Campb. 291.
    
      June 27th
    
   Parker C. J.

We suppose from the statement ol the case, that the plaintiff had good title to one quarter part of the vessel, which he purchased of Stinson, unless the defendant had before acquired a title or a legal lien by the writing produced by him, signed by the four owners, including Stinson who afterwards sold to the plaintiff.

The writing, on which the defendant relies, did not transfer the absolute title in the vessel, for that would have been contrary to the intention of the parties, nothing more being designed than a security for advances which the defendant might make towards the building and equipping the vessel; for in the same instrument provision is made for a future purchase, if the defendant should elect to buy any part, unless the owners should themselves dispose of her before.

The instrument does not amount to a mortgage, for it does not appear that there was any delivery of the vessel; and a delivery is necessary to constitute a mortgage of a cnattel;* besides, the vessel not being in existence as such, the instrument created only an executory contract, not a sale, conditional or absolute. Mucklow v. Mangles, 1 Taunt. 318; Robinson v. McDonnell, 2 Barn. & Aid. 134; Stringer v. Murray, 2 Barn. & Ald. 248.

Neither can it amount to a pledge, because to constitute this kind of contract there must be not only a delivery over, but a continued possession by the pledgee of the thing pledged; and as soon as the thing is restored, the pledge ceases to exist. Now it does not appear that there was any delivery over or possession of the vessel. The plaintiff’s title to one quarter is maintained.

The instrument on which the defendant relies, not amounting to a mortgage, or a pledge, or an absolute transfer, for the reasons before given, we can perceive no way in which he could have acquired a lien upon the vessel so as to defeat a subsequent purchaser bona fide and for a valuable consideration. The transaction has more analogy to a contract of bottomry, than to either species of contract mentioned. But it cannot avail in that form, because no ship was in existence when the contract was made, and the circumstances are not such as will justify a bottomry. In short, it seems to be an incomplete contract, for want of delivery or possession, and wholly incompetent to avoid a subsequent transfer. Had there been any evidence of knowledge, on the part of the plaintiff, of the advances made by the defendant, and the contract of .he owners with the defendant, before the plaintiff purchased, his purchase might be deemed fraudulent and void; but, on the supposition that there was no such knowledge, his- title is valid.

Judgment according to verdict. 
      
       See Carrington v. Smith, 8 Pick. 419; Butterfield v. Baker, 5 Pick (2d edit.) 525, and note 1. This is said to be contrary to the current of the authorities in Story’s Comm, on Bailments, (2d edit.) 197, note 4. See Bullock v. Williams, 16 Pick. 33; Forbes v. Parker, 16 Pick. 462.
     
      
       See Long on Sales (Rand’s1 edit.) 287; Clark v. Spence, 4 Adolph. & Ellis, 448; Simmons v. Swift, 5 Barn. & Cressw. 857; Sumner v. Hamblet, 12 Pick. 82, 83; Rhode v. Thwaites, 6 Barn. &. Cressw. 388; Goode v. Langley, 7 Barn. & Cressw. 26; Atkinson v. Bell, 8 Barn. & Cressw. 277; Carruthers v. Payne, 5 Bingh. 270; Woods v. Russell, 5 Barn. & Ald. 946; Oldfield v. Lowe, 9 Barn. & Cressw. 73.
     
      
       See Story’s Comm, on Bailments, (2d edit.) 197,201 el seq.; Lee v. Bradlee, 8 Martin, 20; Macomber v. Parker, 14 Pick. 497; Ash v. Savage, 5 N Hampsh. R. 547; Haven v. Low, 2 N. Hampsh. R. 13; Ward v. Sumner, 5 Pick. 60.
     