after stating the facts. The plaintiff assigns as error, the refusal of the court to admit the instrument in evidence, either as an agricultural lien, or as a mortgage, and the exclusion of the testimony of the agent, Vick, as to the. agreement of the parties. The plaintiff also contends *354that no interest should be allowed the defendant on the damages assessed by the jury, but the court gave judgment for that sum with interest from the 30th of September, 1878, that being the date of the seizure of the cotton by the sheriff.
The errors assigned by the defendants were : 1. The admission of the testimony of the witness, Vick, as to the amount of the cotton received by him, and the person from whom it was received. 2. The instructions given by His Honor to the jury.
The case of Clark v. Farrar, 74 N. C., 686 is directly in point, and if allowed to have any force as an authority, must be conclusive as to the first three exceptions taken by the plaintiff. It is there said that an agricultural lien can only be acquired by virtue of the statute and a strict compliance with its requirements, and that amongst its requirements is the plain one that the agreement must be reduced to writing and executed by the parties before the advancements are made or the supplies furnished.
It is needless to speculate why this provision is made by the statute. It is clearly so written and can be conveniently observed, and if parties will wilfully disregard it, they must abide the consequences.
According to the same authority, an instrument, which is intended by the parties to opera tp as an agricultural lien, and which purports to be one, must take effect as such, or not at all, and will not be permitted to prevail as a -mortgage.
The decision is put squarely upon the ground that creditors and subsequent purchasers have a right to know, truly, what encumbrances are upon the property, and their nature and extent, and this information they are entitled to have ex visceribus, the deed itself. Besides this, the instrument now under consideration does not convey, or purport to convey, the title of the property which was the subject of agreement, to the plaintiff, but only provides that his debt shall constitute a lien thereon. In Jones on Chattel Mortgages, *355§ § 8S11, and 12, it is said that a decisive test of a legal mortgage of personal property is the use of words which make the instrument one of sale, conveying the title of the property to the creditor conditionally, so that, by the non-performance of the condition by the debtor, the title will be transferred to the creditor, or he shall be clothed with the power to sell. In both of the cases of Harris v. Jones, 83 N. C., 317, and Cotten v. Willoughby, Ib., 75, cited by counsel for plaintiff, the deeds contained express stipulations for the sale of the property in case of the debtor’s default, and are therefore easily to be distinguished from the one before us. Such instruments have sometimes been enforced as mortgages between the parties themselves, but never, so far as our investigation has gone, as against subsequent bona fide purchasers or creditors. Such being the state of the law, it was proper, as a matter of course, to reject the testimony offered, as to the custom of the plaintiff to deliver goodsto its customers before taking liens from them, and as to the course of dealing in this particular case, since its only effect could be to show, that both the usual custom of the company and this special agreement were in the very teeth of the statute, and consequently void.
In the opinion of the court the plaintiff’s last exception is well taken. The rule in this state is, that interest, as interest, is allowed only when expressly given by statute, or by the express or implied agreement of the parties. Devereux v. Burgwin, 11 Ired., 490; Lewis v. Rountree, 79 N. C., 122. The only statute upon the subject is that contained in Rev. Code, ch. 31, § 90, which provides that all sums of money due by contract of any kind whatsoever, excepting such as may be due on penal bonds, shall bear interest, &e., but there is no provision made for actions of troyer or trespass de bonis as-portatis. In such cases, in order to compel the wrong-doer to make full compensation to the injured party, the jury may, in their discretion, and as damages, allow interest upon-*356the value of the property from the time of its conversion or seizure, and it has been usual for them to do so. But there is no rule which gives it as a matter of law and right, and it was error, therefore, in His. Honor to have thus added to the damages as assessed by the jury.
The defendants’ exceptions, we think, can, neither of them, be maintained. The claim of the plaintiff, as set forth in the affidavit, was for eleven hundred and twenty-five pounds of cotton, and the mandate to the sheriff was expressly limited to that number of pounds. It may possibly be, as laid down by His Honor, that if the property had been so circumstanced, as that the sheriff, in executing the writ, must necessarily and in fact have removed the whole crop out of the possession of the constable, and in so doing had caused its loss to the execution creditors, the plaintiff might have been .responsible for the whole, upon the principle that every one must so use his own as not to injure another.
But certainly upon no other principle, either of-law or common justice, could such responsibility attach to the plaintiff.
If, in executing the order, the officer abused his authority by exceeding the exigencies of his writ, the responsibility must rest upon him, and not upon the plaintiff, who neither authorized such excess nor gave it sanction.
But the truth is, there is no abuse of authority disclosed in the case. The cotton, though matured and subject to execution, stood in the field, and was incapable of immediate delivery, and all that, the officer did, was to have picked and delivered the number of pounds specified in the mandate and secured by the plaiutiff’s undertaking, leaving the residue unmolested and the rights of the defendants with regard to it entirely unobstructed.
It is not like the case of seizure and sale of property under execution, whereby a trespass may be committed if levied upon the property of a wrong party; but the course pur*357sued was that which the law prescribes, in order that the title of personal property, when disputed, may be gotten before the courts and tested by a trial there had.
As to the residue, left untouched in the field and just in the condition' it was before the plaintiff began the action, it was exactly as His Honor said, the duty of the constable to look after it, and if he permitted the same to be lost to the executions in his hands, the fault was his own, and his must be the responsibility. ' .
The sheriff was at liberty, as he saw properly to do, to employ a deputy, or agent, to pick and deliver so much of the cotton as was claimed by the plaintiff; and the evidence going to show that he thus delivered it, and not in person, in no manner tended to contradict his return upon the writ.
The judgment of the court below is reversed, and the defendants will have judgment here for the sum of $91.35, with interest thereon from the first day of the term of the court, at which the judgment appealed from was rendered, and the clerk will divide the costs of this court between the parties.
Per Curiam. Judgment accordingly.