¶1By the Court,
¶2Were it not for the statute of frauds, all verbal sales of goods and chattels would be valid. That statute declares all sales of goods, &c., for the price of $50 or upwards void unless a memorandum of the sale, in writing, is made and signed by the parties, or the property, or some part of it, be ac*436cepted by the buyer, or he pay part of the purchase money. (2 Stat. at Large, 140, § 3.)
¶3If a sale is valid when there is 'a delivery of part of the property, it is "not perceived why there may not. be a verbal mortgage, when the property is delivered to the mortgagee. It has been held that such mortgages are valid. In Ackley v. Finch, (7 Cowen, 290,) there was an agreement, between Ackley and Finch, that Finch should assign to Ackley a judgment bond against one Smith, and deliver to him a chaise and harness as his property, absolutely, and allow a debt Ackley had against Finch, and that he (Ackley) would advance $120 to discharge a levy on Finch’s property. This agreement was carried into effect. Ackley then said to Finch, “ If you will pay me the amount I have paid, and my debt amounting to $206, with interest, on or before the 1st March next, I will receive it and redeliver you the property.” This was held a valid mortgage. (Bank of Rochester v. Jones, 4 Coms. 506. Ferguson v. The Union Furnace Co., 9 Wend. 345.)
¶4The plaintiff gave evidence tending to prove the agreement that the plaintiff should take into his possession and keep the cattle until the note was paid. This was a valid mortgage, within the cases cited. Indeed those cases are on all-fours with this.
¶5The defendant having denied that there was an agreement that the cattle should be the plaintiff’s until the note was paid, it was. the duty of the court to submit that question to the jury; refusing to do that, the plaintiff has the right to insist that the jury would have found there was such an agreement; and we must assume, for the purposes of the case, there would have been such a finding.
¶6If the transaction was not a mortgage, it was. a pledge, and the plaintiff having kept possession of the oxen, he was entitled to recover.
¶7The plaintiff says that the cattle were to be his, and *437they were driven to Ms lot, and there is not a word of evidence that they ever passed out of his possession, until they were wrongfully taken by Baker and sold to the defendant.
¶8But if Baker did have the use of the oxen, it would not render void the plaintiff’s title, within the cases cited from the 9th Wendell, (supra.)
¶9The plaintiff gave evidence tending to prove that the defendant was informed, before his purchase, of the plaintiff’s interest in the property: he was not therefore a bona fide holder. TMs question should also have been submitted to the jury.
¶10The judgment must be reversed and a new trial ordered, costs to abide the event.
¶11¡New trial granted.
¶12Mullin, Talcott and E. D. Smith, Justices.]