[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 22 The decision of the question presented by the exception in this case, depends upon the construction of the 20th section of 2d Revised Statutes, page 366, taken in connexion with sections 18, 19, 21 and 23.
"SEC. 18. Upon executions against the property of a defendant, the officer shall levy upon any current gold or silver coin belonging to the defendant, and shall pay and return the same as so much money collected without exposing the same for sale at auction.
"SEC. 19. Upon executions the officer may levy upon and sell any bills or other evidences of debt issued by any monied corporation, or by the Government of the United States, and *Page 23 circulated as money, which shall belong to the defendant in such execution.
"SEC. 20. When goods or chattels shall be pledged for the payment of money or the performance of any contract or agreement, the right and interest in such goods, of the person making such pledge, may be sold on execution against him, and the purchaser shall acquire all the right and interest of the defendant, and shall be entitled to the possession of such goods and chattels, on complying with the terms and conditions of the pledge.
"SEC. 21. No sale of any goods and chattels shall be made by virtue of any execution unless previous notice of such sale shall have been given, six days successively, by fastening up written or printed notices thereof, in three public places of the town where such sale is to be had, specifying the time and place where the same is intended to be had.
"SEC. 23. No personal property shall be exposed for sale unless the same be present and within the view of those attending such sale: it shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price."
It will be observed, on reference to the statute, that the 18th and 19th sections speak of a levy and the 20th does not; and from this difference in language it was inferred on the argument that the officer might sell under the 20th section without making a previous levy. But it will be seen that the mode of sale is so regulated by the statute as to require the officer to have the custody and control of the property sold; and the officer is therefore justified in making a levy, because a levy is necessary to a sale in the manner directed. Whenever the law requires an act to be done, it authorizes the agent to do what is necessary to accomplish it in the mode pointed out for its performance.
The 23d section declares "that no personal property shall be exposed for sale by the Sheriff unless the same be present and within the view of those attending the sale." If this provision is applicable to cases arising under the 20th section, the Sheriff must have the power to take the goods into his *Page 24 custody; because without it, he cannot produce the goods at the sale.
It cannot be seriously urged that the officer may discharge his duty without a levy, by advertising the goods to be sold on the premises of the pledgee for the purpose of having them within view of the bidders there, while the goods may be removed at the pleasure of the pledgee, beyond the reach of the Sheriff or purchaser; and moreover, if the statute gives the Sheriff no authority to take the goods for the purpose of a sale, it gives him none to enter on the pledgee's premises for that purpose; for the sale may as well be any where else as there unless it be in connection with the power to exhibit the goods to the persons attending the sale.
In Bakewell vs. Cook, 6 Hill 484, the Supreme Court decided this question, holding that the 23d section applied to and regulated sales authorized by the 20th section, as well as other sales of personal property. Indeed it is impossible to give to the 23d section any other construction, unless it can be shewn that the right and interest of a pledgor in goods pledged is not "personal property." These words are used in the 23d section, and have a well settled meaning. They embrace not only goods, chattels, coin, bills and evidences of debt, but in their strict and more appropriate legal definition signify the right and interest of the owner or owners in these articles. "Property" is defined by Jacob, in his Law Dictionary, to be "the highest right a man can have to any thing; being used for that right which one hath in lands or tenements, goods or chattels, which no way depends on another man's courtesy." In Morrison vs. Semple, 6Bin. 94, Chief Justice Tilghman said, "that property signified the right or interest which one has in lands or chattels, and that it was used in that sense by the learned and unlearned, by men of all ranks and conditions;" and in Jackson vs. Housel, 17 Johns, Rep. 283, Chief Justice Tilghman's definition is cited and approved by the late Chief Justice Spencer. In that case and in the case of Wall vs. Langlands, 14 East 370, it was held that a devise by a testator of all his "property" *Page 25 passed his whole real and personal estate, and comprehended all he was worth. The words "general property," and "specialproperty" are constantly used in the books to denote, not the chattel itself, but the different interests which several persons may have in it. Indeed the revisers could not have selected, and the language does not afford words better adapted to apply to and embrace every thing mentioned in the 19th and 20th sections of the statute as the subjects of sale than the words "personal property" used in the 23d section. If the words goods andchattels had been used in the 23d section, they would have afforded far more ground for doubt, because they are less comprehensive in their meaning. But even then a liberal construction would make them applicable to the sales mentioned in the 19th and 20th sections, because the things pledged are in fact sold subject to the redemption of the pledge. They are used in the 21st section, which directs a six day notice of sale; and if the plaintiff in error can be supposed to have shewn that the officer may sell the defendant's interest in goods pledged without producing the goods at the sale, he has shewn by stronger reason that the sale may be made without notice; because if the words "personal property" do not include the thing to be sold, the words "goods and chattels" certainly do not: and yet no one can doubt that the Legislature intended that sales under the 20th section should be regulated by the 21st.
Before the 20th section was enacted, debtors had it in their power to place their goods beyond the reach of their creditors by pledging them for the payment of a debt not equal to their value. This was doubtless the fraud alluded to by the Revisers in their note to this section. (3 R.S. 727.) "It is submitted," say they, "that the opportunity thus given to fraud and to the injury of creditors, should be avoided." Public sales of personal property not within view of the bidders at the sale were declared void by judicial decisions on the plainest grounds of public policy before the revised statutes were passed. (Linnendoll vs.Doe and Terhune, 14 Johns. 222; Sheldon vs. Soper id. 352; Cresson vs. Stout, 17 Johns. *Page 26 116.) The first part of the 23d section is declaratory of the law as it was previously established in these cases. The sale of personal property without having it within the view of the bidders for the purpose of ascertaining and estimating its value, was an intolerable abuse of the process of the courts. They struck it down the moment it appeared, without waiting for a statute. The plaintiff's construction of the 20th section, would set it up again; and not only so, but would render the statute ineffectual for the prevention of the frauds alluded to by the revisers. Where there is a collusive understanding between the pledgor and the pledgee of property not having an uniform quality and value in the market, (such for instance as horses, books, pictures, c.,) the execution creditor could have no hope of selling the goods for their value unless they were exhibited at the sale, or in some way submitted to the examination of the purchasers; and where there was no such collusion, the sale without viewing the goods would be oppressive and injurious both to the pledgor and the execution creditor. The removal or concealment of the goods by the pledgee would give him an advantage at the sale over all others, and would enable him to buy at the sale at a merely nominal price.
It may be necessary in the case of goods pledged to have them produced at the sale for the purpose of selling, in lots or parcels, according to the latter branch of the 23d section; for it may frequently happen that the sale of a part of the goods, if they are in view of the buyers, may be sufficient to satisfy the pledge; and in such case the residue should be divided and sold in the ordinary way.
The purchaser ought, moreover, to have the opportunity at the sale of complying with the terms and conditions of the pledge, and of taking possession of the property. This just advantage he loses, if the goods are not produced.
It was urged on the argument that the terms "personal property," in the 23d section, could not have been used in the sense here ascribed to them; first, because the removal of the goods by the officer interferes with the pledgee's right of possession; and secondly, because the Sheriff in taking the *Page 27 pledged goods exercises over them a greater power and control than the pledgor himself could lawfully exercise.
The first answer to these suggestions has been already given. It is that the 23d section, by appropriate language, subjects the sale of pledged goods to the same regulations which prevail in other cases; and we are not at liberty to disobey the statute. The Legislature has an undoubted right to confer the authority on the officer for the purpose of enabling him to execute the writ in such manner as to prevent fraud where it exists between the pledgor and pledgee, and to protect the rights of creditors. If the pledge in this case has been made before the law was enacted, a question might arise as to its retrospective operation. But whether the contract on which the execution issued was made before or after the goods were pledged, is of no importance, because the pledgee took the goods subject to a pre-existing regulation for the benefit of the creditors of the pledgor, prior or subsequent, requiring the goods to be present at the sale. The control exercised by the officer over the property of the pledgee, in taking temporary possession of the pledged goods for the purpose of a sale, is not so great as that which is exercised by the officer in the case of partners and part owners, at common law, according to the modern decisions. In the case of partners, it is true, there is no exclusive right of possession in either one of them, as in the case of the pawnee of goods; but where one partner has exclusive possession in fact, the other is not at liberty to use force to deprive him of the advantage which that possession gives; and if violence be used for that purpose by the partner out of possession, he is answerable, civilly and criminally, for all the injury which results from it. But under an execution against the property of the partner out of possession, the officer is armed with an authority which that partner has not, namely, the authority to seize the partnership goods in the hands of the other partner, and to use force if necessary to take them into his custody; and that not merely for the temporary purpose of effecting a sale and then restoring the possession, as in the case of goods *Page 28 pledged; but the Sheriff is authorized to deliver the possession to the purchaser, thus putting it beyond the reach of him from whom he took it. (2 Hill 47, Waddell vs. Cook, 3 Denio 125; Walsh vs. Adams.) So the Sheriff may enter the premises of a stranger against his will to take the goods of the debtor which happen to be there, although the debtor himself would be a trespasser in doing so. In these cases the Sheriff is justified, because he could not otherwise satisfy the exigency of the writ, to do which he is clothed with lawful authority, and bound by his duty. When the law authorizes an act, and nothing is done but what is necessary to accomplish it, those who perform it are not trespassers. (14 Mass. Rep. 27, Williams vs. Amory.)
The prevention of frauds, and the protection of the rights of the creditors of the pawner of goods, could not have been effectually accomplished in any other way than by subjecting sales such as that in question, to the same regulations as exist in other cases of personal property. We are not to presume that the power of the officer will be oppressively exercised. The possession of the pledgee will seldom be actually disturbed; and if it be interrupted the interference will commonly lead to the satisfaction of the pledge. But if it should not, the probable injury to the pawnee of the goods is not to be compared with the evil which is likely to result from a sacrifice of the value of goods by a sale at which the purchaser cannot know the quality or value of the article he buys, or where to find it when bought.
I am in favor of affirming the judgment of the Supreme Court.
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