Cater ex rel. Central Bank of Alabama v. H. B. Merrell & Co.

Buchanan, J. We are of opinion that the answer of the garnishee and ap-pellee, Eagar, to the two sets of interrogatories propounded to him by plaintiff, and the documents annexed to those answers, give the date of the advance by Eager to defendants, and of the instrument of pledge subscribed by defendants for the security of that advance, with sufficient precision. But the objection, made to the validity of the pledge appears well founded. The instrument of pledge does not state the amount of the debt which it was given to secure. It reads as follows : ’ . “ For value received, I hereby pledge to J. Eager, Esq., all right, title, and in376 tercst that I have, in six hundred and twenty-nine bales of g'unny bags, to be disposed of by him at any time he may think proper.” The Civil Code, Art. 3126, provides that the privilege of the pledgee of movable effects, “ shall take place against third persons only in case the power is proved by act made either in a public form, or under private signature ; provided that in this last case, it be duly registered in the office of a notary public, at a time not suspicious; provided also, that whatever may be the form of the act, it mentions the amount of the debt as well as the species and nature of the thing given in pledge, or has a statement annexed thereto of its number, weight and measure.” The Act of 1815, page 348, relative to pledges, section 2d, has modified, in some respects, the law as laid down in this Article of the Code quoted. The section reads as follows : “ All pledges of movable property may be made by private writing, accompanied by actual delivery; and the delivery of property in a warehouse, shall pass by a private assignment of the warehouse receipt, so as to authorize the owner to pledge such property; and such pledge, so made, without further formalities, shall be valid as well against third persons as against the pledgees thereof, if made in good faith.” By comparing this law with the 3125th Article of the Code, it is obvious that the clause “ without further formalities,” means the registry of private acts of pledge in the office of a notary public, required by the Code. But the mention of the amount of the debt intended to be secure, like that of the specific property pledged for the security of the debt, is in no sense a formality. It is essential to the contract of pledge — so essential, that without such mention, the contract would be unintelligible. For what is a pledge? It is an auxiliary contract for the enforcement of any lawful obligation. C. C. 3100, 3103. It results from this definition, that there should be no uncertainty or ambiguity as to the nature and extent of the principal obligation, which it is the object of the pledge to aid and enforce. Otherwise, it is impossible to ascertain the nature and extent of the rights and obligations of the pledgor and pledgee, reciprocally, from the instrument itself. Recourse would necessarily be had to parol proof, to explain the intention of the parties. And thus the object of the law which requires this contract to be reduced to writing, would be defeated, and the door opened to the perpetration of frauds upon the parties contracting, and upon their creditors. The garnishee cannot, therefore, retain possession of the proceeds of the gunny bags of defendant, under his so called pledge; and the rule which calls upon him to pay over said proceeds to the Sheriff, must be made absolute. On the trial of this rule, the garnishee offered proof that he was a commission merchant or factor. The District Court properly refused such evidence. It seems to have been offered for the purpose of establishing a different privilege upon the gunny bags, from that of the pledge, which was the only privilege asserted in the answer to interrogatories. But the appellee should have laid the foundation of such proof by a third opposition, which he has not done, but which he is, probably, still in time to do. It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the rule be made absolute; that the appellee, Jennison Eager, pay into the hands of the Sheriff, within three days, the sum of sixteen thousand seven hundred and seven dollars and eighty-four cents, proceeds of gunny bags of [377] defendant in liis hands, in part satisfaction of the execution levied in this ease without prejudice of said Eager’s right to claim the said proceeds, by way of third opposition, under the privilege accorded by law to consignees, commission agents or factors; and that the appellee pay the costs of this appeal.