
    William H. Ward et al. versus Charles P. Sumner, Sheriff &c.
    A having indorsed for B certain promissory notes, B, before the notes become due, executes a deed of furniture to A, upon condition to be void if he saves A harmless. The deed and furniture are formally delivered in the presence of a witness, to whom alone the transaction is made known, but B remains in the possession - and use of the furniture as before. Heldt that the conveyance might be viewed either as a mortgage or a pledge, according to the intent of the parties, and as the furniture remained in B’s hands, it must be construed to be a mortgage; and there being no actual fraud, the mortgage was held valid as against creditors of B.
    Replevin of divers articles of household furniture, which had been attached, on the 11th of October, 1825, by a deputy of the defendant, as the property of one King; and which were his property, unless the same passed to the plaintiffs by virtue of a conveyance made on the 26th of September, 1825. The plaintiffs being at that time indorsers of promissory notes for King, and for the firm of King & Davenport, to the amount of 3500 dollars, not then due, King executed and delivered to them a deed of the furniture, enumerating the several articles, upon the condition, that if he should hold them harmless against their indorsements, the deed should be void. The deed, and some one article of furniture, in name of the whole, were delivered within King’s dwellinghouse, where the furniture then was, no person being present except one of the plaintiffs, King, and S. Sumner, who was asked by King to go to the house to be a witness of the transaction. King, with his family, continued to occupy the house and use the furniture as before, until the attachment was made. The deed and delivery of the furniture were not known, until after the attachment, to any person except the parties, and S. Sumner, and Davenport. The promissory notes above mentioned were paid by the plaintiffs. King testified that the conveyance of the furniture was designed by the parties to secure, the plaintiffs for all their liabilities for King and for .King & Davenport ; but no particular liabilities were specified at any time, nor was it intended to confine it to any.
    The defendant’s counsel insisted that nothing passed by the deed to the plaintiffs, but that the same was fraudulent in law and void.
    A verdict was taken by consent for the plaintiffs, subject to the opinion of the whole Court.
    
      B. Sumner, for the plaintiffs,
    cited Holmes v. Crane, 2 Pick. 607 ; 5 Johns. R. 258 ; 9 Johns. R. 341 ; 19 Johns. R. 218 ; Prec. Chan. 285 ; Cowp. 432 ; 2 Bulstr. 226 ; 2 T. R. 587 ; Rob. on Fr. Conv. c. 5, § 3.
    
      H. H. Fuller, for the defendant,
    contended that the conveyance was not a mortgage, but a,pledge. By a mortgage the general property passes. It is a conditional sale, with a right of defeasance, and the chattel may remain in the pos session of the mortgager, if the transaction is not accompanied by actual fraud. But if, as in the present case, a mere lien is intended to be created, the object being to give security and not conditionally to sell the chattel, the owner must not be suffered to remain in possession. A conveyance of a ship at sea as security against a liability, though commonly called a mortgage, is in fact a pledge ; but there, from the nature of the chattel, an actual delivery is not required. The consideration of the deed in the present case is merely nominal. Nothing was due to the plaintiffs when" it was executed ; they had only incurred a liability for King ; which, without doubt, is a sufficient consideration for a pledge, but not for a mortgage. In a mortgage there should be a definite sum to be paid and a definite time for the payment , in both 1 s which particulars, as also in regard to notoriety, this conveyanee is deficient. Cortelyou v. Lansing, 2 Caines’s Cas. in Err. 200 ; 1 Pow. on Mortg. 3, 43, 49, 50 ; 2 Ves. jun. 378; Montag. on Lien, 4 ; 1 Pick. 389 ; 2 Ball & Beatty, 274 : Metcalf’s Yelv. 179, note ; 6 East, 27, note ; Patch on Mortg. 326, 327 ; 1 Cranch, 309 ; 16 Mass. R. 246.
   Per Curiam.

We think this is a mortgage and not a pledge. Whether it should be considered as one or the other, depends on the intent of the parties ; and as the chattels were not delivered into the possession of the plaintiffs, it could not be a pledge. 
      
       See Story on Bailments, 198, 201; 4 Kent’s Comm. (3d ed.) 138; Homes v Crane, 2 Pick. (2d ed.) 610, n. 1; 2 Story’s Comm. Eq. 296, 297.
     