and sell his interest in them, without losing his security; and as he cannot safely sell his interest, it is difficult to find a sound reason for a practice allowing a sale of his interest on an execution against him. The better practice would be, it seems, to reach his interest in the debt by proceedings supplementary to the execution, as you reach any other mere chose in action, treating the things held in pledge as they are, a mere incident to the debt.1

Without having the rightful power to sell or to again pledge the goods held as a security separate from the debt secured, the pledgee may pass them over to another party to be held for his benefit;2 or he may transfer them with the debt as a security for his own liability; but may not make any disposition of the pledge that will defeat or impair the original pledgor's right to take back his goods on payment of his debt.3 He cannot sell or pledge them as his own property, without losing his security.1

§ 200. An actual delivery or something equivalent is essential to complete the contract of pledge: hence while a strict technical pledge cannot be made of goods yet to be manufactured, an agreement hypothecating them as a security, will take effect as a pledge, as fast as they are made. Like an assignment of moneys to be earned or of demands that are yet to come into existence, the transfer takes effect upon them as they come into being. Though there cannot be a present grant of an interest which may or may not accrue, there may be a pledge or an assignment made of any interest in personal property. And it seems that even the naked possibility or expectancy of an heir to his father's estate may be secured to a transferee by an executory contract, made in good faith, and for a valuable consideration; and that the agreement will be enforced in equity. Though liable to be defeated, it is capable of being

Ingalls v. Lord, 1 Cowen, 240; Ransom v. Miner, 3 Sandf., 692; Hasbrouck v. Bouton, 60 Barb. 413; 41 How. Pr., 208.

2 This is often done: White v. Platt, 5 Denio, 269; Hays v. Riddle, 1 Sandf., 248; Hutton v. Arnett, 51 Ill., 198; Nash v. Mosher, 19 Wend., 431.

3 Lewis v. Mott, 36 N. Y., 395; Chapman v. Brooks, 31 N. Y., 75; Jarvis v. Rogers, 15 Mass., 389, 408; Mann v. Shiffner, 2 East, 533; McCombie v. Davies, 7 East, 6; Moses v. Conham, Owen, 123; Haskins v. Kelly, 1 Robt., 160; Nash v. Mosher, 19 Wend., 431; Gallaher v. Cohen, 1 Brown Pa., 43.

4 Dykers v. Allen, 7 Hill, 497. The effect of a wrongful pledge upon relative rights, will depend upon the relation of the parties: Douglas v. Dudley, 48 N. Y., 688; see Butts v. Burnett 6 Abbott's Pr., N. S., 302.

5 Macomber v. Parker, 14 Pick., 497.

6 Field v. Mayor, &c., of New York, 6 N. Y., 2 Seld., 179.

7 Lawrence v. Bayard, 7 Paige Ch., 70.

• Stover v. Eycleshimer, 46 Barb., 84; 3 Keyes, 620.

alienated;' and upon principle there appears to be no legal reason to prevent a man from binding himself by an executory agreement to take effect and operate upon his personal estate at a future time. The law works out the same thing in substance, where he contracts a debt to be paid at any time after date; it is collectible out of his property, when it falls due.

§ 201. The pledgee or lienholder may make any disposition of the things held in pledge or subject to his lien, consistent with the duty he owes to the owner or pledgor; he may transfer the possession subject to his lien to a third person to hold until the lien is paid; and he may make a sub-pledge of his demand with the goods, subject to the interest of the original pledgor. But he cannot safely make any use or disposition of the things pledged inconsistent with the obligation he is under to the owner or pledgor; for if either he or the transferce repudiate or disclaim the original contract, as by an absolute sale of the pledge, the wrongful act will re-vest the property in the pledgor, discharged of the lien.2

§ 202. III. Subject of Pledge. The contract of pledge in its earliest use was confined to goods and chattels-things capable of an actual or manual delivery. The early cases relate almost uniformly to the simplest forms of property-chattels, plate, jewels, watches, wearing apparel, articles of furniture, all that peculiar assortment of things, deposited under the stress of necessity in a pawnbroker's shop. The preamble to the earliest English statute on the subject, describing the business and the abuses to be reformed, does not allude to a pawn or pledge of anything but tangible property; and while from the earliest times we find the contract in use, it is noticeable that the transaction usually concerns things capable of being actually delivered or deposited. By degrees

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1 Moore v. Littel, 41 N. Y., 66. This case relates to estates in land; it holds that a grant "to A for life, and after his decease to his heirs and their assigns forever," gives to A's children a vested interest in the land, and that the interest of each is alienable immediately, though capable of being increased or lessened, or totally defeated.

2 Nash v. Mosher, 19 Wend., 431; Samuel v. Morris, 6 Carr. & Payne, 620 ; Mount v. Williams, 11 Wend., 77; Baltimore &c. Ins. Co. v. Dalrymple, 25 Md., 269; see also-Moore v. Hitchcock, 4 Wend., 292, where the lienholder, the maker of brick, was held entitled to maintain trover against the Sheriff for levying upon and selling the property in disregard of his rights, on an execution against the general owner. See 6 Hill, 484; 1 N. Y., 20; 11 N. Y., 501, 507; 25 N. Y., 348; 28 do., 574.

3 I. Jac., I., Ch. 21; see also 25 Geo. III., Ch. 48.

* Reference is here made to the first reported cases under the Common Law. In a translation of Gentoo Laws, made at the instance of Warren Hastings, from

the contract has been extended in its application until it is now used to cover any kind of personal property; an extension that might have been anticipated from the development of the law, from the manner in which diverse rights of property spring up from the growth of commerce, from the employment of capital by corporate bodies, and from the vast increase in the volume and variety of personal property in modern times, as compared with the earlier stages of society.

§ 203. The rule that every kind of personal property may be pledged, has with us one exception; a pension certificate cannot be pledged or mortgaged; nor can any right or interest in any pension be pledged or mortgaged. The general government has taken care from the beginning that its pensioners shall receive and enjoy all pension moneys for the support of themselves and their families. Substantially the same provisions are found in all the statutes on the subject. The pension the Sanscrit into the Persian, and from the Persian into the English language, laws of a very ancient form and origin, we find a chapter entitled Of Lending and Borrowing, divided into sections: 1, of interest; 2, of pledges, &c. And the contract is assumed to be a deposit of some article as a security. An extract or two will show this, and also the remarkable similarity in some of its particulars between ours and the most ancient law: "If a man borrows money upon a deposited pledge, the son of his grandson must discharge the debt." It does not outlaw. "If a man, who hath long since deposited a pledge, should abscond or die, the creditor in the presence of the debtor's friends shall produce the pledge, and ascertain its value; after that he shall keep it by him ten days; and if within that space, the debtor's heir does not come in and satisfy his clain, he shall sell the article pledged, and take his own money with interest, from the amount; if there be any remainder the creditor is not to keep it." The instances of pledge found in the Mosaic law relate entirely to things movable, and actually delivered.-Exodus xxii. 26, 27; Deut. xxix. 6, 12, 13, 17.

▲ Payne v. Woodhull, 6 Duer, 169; Moffatt v. Van Doren, 4 Bosw., 609.

2 The Pension Laws of the United States, as Revised and Consolidated June 22, 1874, contain these two sections; title 57. "§ 4745. Any pledge, mortgage, sale, assignment or transfer of any right, claim or interest in any pension which has been, or may hereafter be granted, shall be void and of no effect; and any person acting as attorney to receive and receipt for money, for and in behalf of any person entitled to a pension shall, before receiving such money, take and subscribe an oath, to be filed with the pension agent, and by him to be transmitted, with the vouchers now required by law, to the proper accounting officer of the Treasury, that he has no interest in such money by any pledge, mortgage, sale, assignment or transfer, and that he does not know or believe that the same has been so disposed of to any person." $ 4746 provides a punishment for procuring or presenting false vouchers, &c. "§ 4747. No sum of money due or to become due to any pensioner, shall be liable to attachment, levy or seizure by or under any legal or equitable process whatever, whether the same remains with the Pension Office, or any officer or agent thereof, or is in the course of transmission to the pensioner entitled thereto, but shall enure wholly to the benefit of such pensioner."

cannot be alienated, nor can the money due or to become due to any pensioner be attached, levied upon, or seized under any legal or equitable process: the intention of the statute is that the pension shall enure to the pensioner as a livelihood.

The policy of these acts of Congress is the same as that which underlies our exemption laws; under which the protection and preservation of the family, the primary community, against the improvidence or misfortune of its head, are deemed so important as to justify a limitation upon the right to dispose of property; and under which a stipulation waiving in advance the protection of the statute is held void, because designed to disappoint the intentions of the legislature. Upon views of policy and humanity the householder having a family, is not permitted to divest himself of the protection of the law; and the pensioner is not allowed to anticipate his living. But so far as his means will permit, every man is bound to pay his debts; and there is no law to prevent him from paying his debt with money derived from any source, or from depositing exempt property as a pledge for its payment.2

§ 204. Independent of the statute, a pension given for past services, whether it be regarded as an indefeasible right, or as an allowance payable during the pleasure of the government, is an assignable interest; it is quite distinguishable from the compensation presently accuring to officers and soldiers for their services. The effect of an assignment by an officer of his pay or salary yet to be earned, would be prejudicial to the public service; it is therefore against the policy of the law to hold it assignable. The half pay granted to an officer, contemplating a possible recall to service at a future day, is treated in the same way as

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1 Kneettle v. Newcomb, 22 N. Y., 249; the waiver of the exemption given by statute at the time the debt was contracted was held void. Crawford v. Lockwood, 9 How. Pr., 547; see comment upon the rule in Shapley v. Abbot, 42 N. Y., 443, 451; and in Wilcox v. Hawley, 31 N. Y., 648, 653. The like policy, founded in motives of humanity, prevailed at a very early day. For example, in the Mosaic law, no one was permitted " to take a widow's raiment to pledge." "No man shall take the nether or the upper millstone to pledge: for he taketh a man's life to pledge." "When thou dost lend thy brother any thing, thou shalt not go into his house to fetch his pledge; thou shalt stand abroad, and the man to whom thou dost lend shall bring out the pledge abroad unto thee; and if the man be poor thou shalt not sleep with his pledge. In any case thou shalt deliver him the pledge again when the sun goeth down, that he may sleep in his own raiment, and bless thee; and it shall be righteousness unto thee before the Lord thy God."-Deut. xxvi. 6, 10-13.

2 Frost v. Shaw, 3 Ohio St., 270.

3 Bliss v. Lawrence, 58 N. Y., 442, and cases there cited; Wells v. Foster, 8 Mees. and Wels., 149.

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his pay for present services. The public has an interest in his life, and is concerned in his reasonable support; on this ground the statute law often interposes to prevent the sale or assignment or pledge of a pension.2

§ 205. It was formerly doubted whether incorporeal things, like debts and scrip of stock which cannot be manually delivered, could be the proper subjects of a pledge-a doubt no longer, and now of no interest except as it indicates the order in the growth of the law. For it is at length perfectly settled that any legal or equitable interest whatever in personal property may be pledged; provided the interest can be put, by actual delivery or by written transfer, into the hands or within the power of the pledgee, so as to be made available for the satisfaction of his debt. Shares of stock can be so transferred by an instrument in writing, and thus made a collateral security for the payment of borrowed money.3 A negotiable note or bond may be so transferred by a simple delivery; being payable to bearer, or to order and properly indorsed, a delivery places them in the power of the transferee.*

§ 206. The distinction between a mortgage and a pledge of personal property is perfectly settled; under a pledge the title does not pass, it remains in the pledgor; under a mortgage the title passes, subject to a condition of defeasance. Plain as this distinction is, it requires some discrimination to draw the line between a mortgage and a pledge of choses in action, there being in each case a formal transfer of the property. When the transfer is made as a mere security for a debt, it is always a pledge; if the transfer be made in terms to secure the payment of moneys due, or if that be the fair interpretation of the transfer, it creates a pledge. A written transfer of goods or chattels is interpreted

1 Flarity v. Odlum, 3 T. R., 681; Lidderdale v. Duke of Montrose, 4 T. R., 248; Stone v. Lidderdale, 2 Austr., 533.

2 Ex parte Batline, LL. D., 4 Adol. and Ellis, 690; Priddy v. Rose, 3 Merrivale, 85, 102; Row v. Dawson, 1 Ves., 331; Davis v. Duke of Marlborough, 1 Swan, 79; Grenfell v. Dean and Canons of Windsor, 2 Beaven R., 544.

3 Wilson v. Little, 2 Comst. (2 N. Y.), 443, 445; S. C. 1 Sandf. R., 351; Romaine v. Van Allen, 26 N. Y., 309; 41 N. Y., 235, 241; Morris Canal & Banking Co. v. Fisher, Stockt. R., 667.

4 Hays v. Riddle, 1 Sandf. R., 248; Bank of the State of N. Y. v. Vanderhorst, 1 Robt. R., 211, holding that the pledgee receiving a note on a discount or loan is a bona fide holder for value. S. C., 32 N. Y., 553.

5 McLean v. Walker, 10 John. R., 472, 474; Garlick v. James, 12 John. R., 146, 149; Brownell v. Hawkins, 4 Barb., 491; Clark v. Henry, 2 Cowen, 324; Parsons v. Overmire, 22 Ill., 58; Campbell v. Parker, 9 Bosw., 322; Kimball v. Hildreth, 8 Allen, (Mass.), 167; Gay v. Moss, 34 Cala., 125; Haskins v. Kelly, 1 Robt., 160, 172; Woodworth v. Morris, 56 Barb., 97; Mowry v. Wood, 12 Wis. R., 413.