Colby v. Cressy

By the court. We see no ground on which this action can be sustained. The plaintiffs were never the owners of the goods. They once had possession, and an authority to sell and apply the proceeds to certain purposes. But it does not appear, that they ever exercised that authority. The contract between them and Ogilvie, under which the goods were delivered to them, did not amount to a mortgage. 2 Vesey, jun. 378 ; 5 Johns. 258, Barrow v. Paxton; 5 Pick. 59, Ward v. Sumner. Had the plaintiffs retained the possession, they might [239] perhaps have held tb e goods asa pledge. 2 Pick. 607 ; 2 Caine’s Cases, 202. But continued possession is requisite to preserve the lien which is created by pledging. Where the goods were, between the time when they ■were delivered to the plaintiff, in 1826, and the 13th February, 1829, does not appear. But they having been in the possession of Ogilvie, from February, 1829, until the time when they were taken by the defendant, and having been used by Ogilvie as his own, the plaintiff’s cannot be permitted to claim them under the contract of 1826, which, for aught that appears, had lain entirely dormant from the time it was made until the goods were seized. Even when goods are seized by virtue of an execution, if they are suffered to remain with the debtor, another creditor may seize and hold them. 11 Johns. 110; 17 ditto, 274; 3 D. & E. 596; 5 Cowen, 392. We are of opinion that there must be Judgment on the verdict.