¶1At common law goods pawned or pledged are not liable to betaken in execution in an action against the pawner or pledgor. (Wilkes vs. Ferris, 5. John Rep. 336; Marsh vs. Lawrence, 4Cow. R, 461; Badlam vs. Tucker, 1 Pick. 389; Pomroy vs.Smith, 17, Pick. 85; Story on Bail. § 353, and so theprinciple was understood by the revisers, of our RevisedStatutes, 3 R.S. 727, note under § 20. Scott vs. *29Scholey 8. East 467; Metcalf vs. Scholey 5. Bos. Pull. 461. Srodes vs. Caven, 3. Watts, R. 258; Watson's Sheriff 181.)
¶2It is only by Statute that the right and interest of the pawner or pledgor of goods and chattels, can be reached by execution against such person. 2. R.S. 366. § 20., enacts that "when goods or chattels shall be pledged for the payment of money, or the performance of any contract or agreement, the right andinterest in such goods, of the person making such pledge, maybe 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."
¶3The 23rd Sec. of this Statute declares that no personalproperty shall be exposed for sale, unless the same be present, and within the view of those attending such sale. If the case of Bakewell vs. Ellsworth (6 Hill 484) was correctly decided it is admitted, that it must govern the decision of the case at bar. It is, however, insisted here as it was there, that although the Sheriff was authorized by the 20th Sec. to sell the "right and interest" of the pledgor on execution against him, yet the Statute has not conferred any authority on him to seize or take into his possession the property in the hands of the pledgee preparatory to such sale; that the Sheriff should exercise the power to sell without taking possession of or removing the property from the possession of the pledgee; that the termpersonal property in the 23rd Sec. did not apply to or include the "right and interest" mentioned in the 20th Sec., and that therefore a sale could legally and properly be made by the Sheriff of such right and interest, without the property being present and within the view of the persons attending the sale.
¶4It was admitted on the argument that if the sale of such right and interest is within the 23rd Sec., that the Sheriff could not sell unless the property was present and within the view of those attending such sale. If, therefore, the Sheriff *30 has no right to take into his possession the property on making a levy, to hold until he makes a sale of such right and interest and a sale cannot take place unless the property be present at the time and place of sale, it is obvious that such sale must depend upon the mere volition of the pledgee to produce and exhibit it at the time and place of sale; an absurdity which I think ought not to be ascribed to the legislature in framing the Statute. I agree with the Supreme Court in the construction of this Statute and the course of procedure which the Sheriff, under such circumstances, is authorized and required to adopt, as stated in the case referred to.
¶5The right of the Sheriff to take and hold the goods preparatory to a sale of such right and interest arises by necessary implication from the provisions of the statute referred to. Whenever a power is given by statute, every thing necessary to making it effectual, or requisite to attain the end, is implied. (1. Kent's Com. 464., 5. Ed.) So where the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its commands. (Foliamb's Case 5,Coke 116). I am of opinion that the judgment be affirmed with double costs. (2. R.S. 618, § 33).
¶6The 20th Section, 2 R.S. 367, declares that when goods or chattels shall be pledged for the payment of money, or for the performance of any contract or agreement, the right andinterest in such goods of the person making such pledge, may be sold upon 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.
¶7The 23d Section provides, that 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 or parcels as shall be calculated to bring the highest price.
¶8In Bakewell vs. Ellsworth, 6 Hill 485, it was said by the *31 Supreme Court, "That the term personal property in the 23d section is synonymous with the words right and interest in the 20th section."
¶9Whether this is the true construction of the statute, is the sole question in this case as it was in the one cited. The import of the term personal property, and of the words right and interest in goods pledged, is certainly different. The first includes all things moveable which are the subject of property; the other, a qualified right and interest in the things themselves. The term personal property is used in this law in a restricted sense; it applies to goods and chattels, coin, bills of monied corporations, which partake to some extent of the character of coin, in a word to things which can be felt and handled. But goods and chattels and the right and interest of the pledgor in "such goods," it seems to me, are far from being identical.
¶10It is difficult to account for the use of different terms in the 20th and 23d sections upon the hypothesis assumed by the Supreme Court.
¶11Few men possessed a more accurate knowledge of the force and effect of legal language, than the distinguished gentlemen who revised our laws: that they used terms the legal signification and common understanding of which were different, to convey the same idea, is not probable, nor should this language be so construed, unless such construction is necessary to give effect to the statute. The term personal property was intended to include not merely goods and chattels, but the bills of monied corporations, which were of a mixed character; these last being subjected to seizure like goods and chattels, were to be sold in the same manner, and both were consequently embraced under the general term personal property in the 23d section
¶12To this extent the 19th and 23d sections were declaratory of the law at the time of the revision. (12 J.R. 220. Ib. 395.J.R. 116, 14 do. 352). The language of both is substantially copied from the decisions of our courts, introducing no new principle, and intended, as I apprehend, to be applicable *32 to the same kind of property which was the acknowledged subject of seizure, of division, and manual delivery at common law. The 20th section, however, establishes a new principle, and subjects an interest in goods to sale which could not be reached at common law. Its phraseology as we have seen is adapted to that purpose, and of course different from that of the other sections. The Sheriff is authorised to sell, (not the goods) but theright and interest of the pledgor, and this interest is all that is acquired by the purchaser. The right to levy upon the bills of monied corporations expressly given in the preceding section, is omitted in the 20th, for the obvious reason, that aright is not the subject of a manual taking; it is alsoindivisible, and consequently cannot be sold in parcels, as directed by the 23d section as to the personal property therein mentioned.
¶13Had the 20th section related to the sale of real estate, instead of a right and interest in personal property, effect might be given to its provisions without implying an authority in favor of the Sheriff to change the possession as a means of effecting a sale. As the law stood at the time of the revision, an Equity of redemption, the mortgagee being in possession, a reversion, and kindred interests in land might have been sold upon execution without any levy upon the land out of which those interests arose, and without interfering with the rightful possession of third persons. Wood vs. Colvin. (6 Hill 230).
¶14The Revisers in their note to the 20th section, after premising that goods bailed or assigned could not be sold at the common law, remark "that no possible evil is apprehended from extending the same principle which prevails here in relation to realestate to personal property," (3 R.S. 727.) By the principle adverted to, a lessor's interest in real estate might be sold, but a lessee could not be divested of his possession as a means of accomplishing such sale. So in the case of personal property. No case has been cited, where the manual taking of goods by an officer, has been justified by virtue of an execution against one having neither the possession in fact or *33 the right of present possession. The case of partners, joint tenants and tenants in common, all proceed upon the right of the co-partner, and co-tenant, to the possession as well as an interest in the goods taken. (Phillips vs. Cook,2 Hill 47note.) The possession is itself a legal right which may be transferred by sale. (8 Wend. 239; 2 Cow. 253).
¶15The decision of the Supreme Court makes an exception in the case of a pledge under the statute to a rule otherwise universal. In the second place the decision deprives the pledgee in all cases of the possession of goods which he has acquired by a valid contract made in good faith and for a valuable consideration with the debtor, and in many instances of the whole benefit of his agreement; and this without reference to the fact, whether the debt which is to be enforced by execution was incurred prior or subsequent to the bailment. Thirdly, in the absence of fraud, it gives the officer greater interest in and control over the property, than is possessed or could be exercised by the debtor through whom he makes title, legalizing the manual taking and removal of goods, to which the former had neither the right of possession, or possession in fact. I cannot believe that an implication attended by such consequences is a necessary one. The law gives to the creditor the right and interest of the pledgor, and when it grants to the Sheriff authority to transfer that interest without removing the property from the possession of the pledgee, it gives the means of obtaining it. A sale can be made of an interest in personal as well as in real estate without a prior change of possession, and if a right to levy is implied in behalf of the officer, it ought to be qualified by the right of sale in behalf of which it is invoked. The latter is limited to the right and interest of the pledgor; let the Sheriff then seize what the law empowers him to sell, and there could be no just ground of complaint in any quarter.
¶16Again, the reasons upon which the authority of the Sheriff at common law rests, to take exclusive possession of the goods upon execution, apply but partially to the present case. Those reason are, first, that it is necessary for their safe keeping; *34 secondly, to enable him to divide and sell them in parcels, and lastly, to make delivery to the purchasers. But according to the 20th section of this law, the purchaser is not entitled to possession of the goods; the officer cannot sell in parcels; and the property after sale, remains with the pledgee, with whom the purchaser must adjust the lien and upon whose responsibility he must rely for a delivery. It is true the goods would not always be within view at the time of sale. But they could be described with reasonable certainty, which is all that would be necessary to pass the interest of the pledgor. The same knowledge that would enable the officer to seize and remove the goods in the hands of the pledgee, would enable him to levy upon the interest to be sold, to make an inventory, and to execute a bill of sale, or give such a description that a fair estimate could be made of their value. A view would not determine the price to be paid, since the value of the pledgor's interest would depend upon the lien to which they were liable.
¶17I admit this to be an inconvenience, but it is one which is inseparable from the nature of the interest sold: it is one to which the pledgor is exposed in making a voluntary sale of his interest, and one to which those who claim under him must also submit.
¶18The argument from inconvenience will bear with equal force against the construction of the Supreme Court; for that gives to the lowest executive officer that the law entrusts with its process, with a view to the sale of an inconsiderable interest in a valuable property, the right to override a valid contract between the debtor and pledgee, by removing the whole property from the possession of the latter, detaining it until the day of sale; and for a reasonable time afterwards, to enable the purchaser to ascertain and pay the lien. Of what is a reasonable time the officer of course must be the judge, as there is no one to determine for him.
¶19It makes no difference in the case supposed, whether the judgment was fraudulent or not, whether it was for five dollars or five hundred.
¶20It seems to me that these evils are palpable; and yet if *35 this be the true construction of the statute, they must have escaped the attention of the revisers, as they assure us they apprehended no possible evil from the adoption of the principle they recommended.
¶21Upon the whole case, therefore, I am of opinion, that the judgment of the Supreme Court should be reversed.
¶22The rights of the pledgee are as important as those of the judgment creditor, they are also prior in point of time, both should be respected, and such a construction should be given to the statute, as will enable the creditor to reach the interest of the pledgor, without essentially impairing the right of the pledgee under his contract.
¶23The property in question was delivered by Willmarth, the general owner, to the plaintiff, to secure the payment of a debt owing to the plaintiff.
¶24Besides the delivery of the goods to him as a security for his debt, the plaintiff was authorized, by express arrangement between him and the owner, to sell the goods, and to apply the avails to the extinguishment of the debt for which they were pledged. On the delivery of the goods, the price at which they were to be accounted for to the owner, was fixed, and it was part of the arrangement between the parties, moreover, that the proceeds of the goods above the price so fixed, should go to the plaintiff, and be retained by him as his profit exclusively.
¶25The plaintiff's right of possession in this case, was coupled with a right to sell, and an interest beyond the mere security for his debt; which, I think, distinguishes this from the ordinary case of a pledge, and gives him the exclusive possession and precludes absolutely the removal of the goods by the Sheriff. But viewing this as the ordinary case of a pledge, it is entirely clear that the statute, which has changed the common law, and authorizes the sale of the interest of the pledgor in the property pledged, does not authorize the removal of the property out of the possession of the pledgee.
¶26The statute, section 20, 2 R.S., page 366, which authorizes *36 the sale on execution of the pledgor's interest, qualifies the right which the purchaser acquires therein to the precise interest of the pledgor, and expressly secures the possession of the goods to the pledgee, until a compliance by the purchaser with the conditions of the pledge.
¶27The provisions of the section, taken together, negative, by implication at least if not expressly, the right of the officer, or of any other person, to remove the pledge from the possession of the pledgee. At all events it contains no authority for the officer having the execution to take the goods pledged into his own possession, or to do any other act in respect thereto than to dispose of the same by sale. The Sheriff, by the levy, acquires no other right in the goods pledged than that which, at the time, remained in the pledgor, and as the pledgor clearly had not the right to the possession himself, and could not legally interfere with the possession of the pledgee, so the Sheriff, by his levy, acquired no such right.
¶28By the common law and the adjudications of our Courts, prior to the Revised Statutes, the interest of the pledgor in property pledged, was not the subject of seizure and sale on execution. (Story on Bailment, sec. 353; 14 Johns. 222; 17 Johns. 116; 5 Johns. 335; 4 Cow. 461; Revisers' Notes, 3 R.S., page 727, sec. 17.) Although in the cases cited on the argument, (4Wend. 292, and 10 Wend. 318) property in the nature of a pledge was sold on execution, yet the question of the right to sell was not raised, nor passed upon by the Court in either case.
¶29An actual taking and removal of the pledge is not a necessary incident to a sale thereof by the Sheriff, or in other words, the right to sell does not imply a right to remove. The sale may be effected without an actual interference with the pledgee's possession. The Sheriff, by the 23d section of the same statute, which is an enactment declaratory of the rule as previously settled by judicial decision, requires the presence of the property at the time and place of the sale. This unquestionably gives the Sheriff authority to enter upon the premises where the property may be situated, and have the *37 inspection of the property, but does not authorize, either expressly or by necessary implication, its actual taking orremoval. The two sections together give him the right of seeing, levying upon and selling the property, but give him no right to take it out of the possession of the pledgee except upon the terms provided by the 20th section. Having the right, therefore, to visit the place where the goods may be deposited for the purpose of making a levy, he has the same right, also, on the sale subsequently, with all such persons as may attend as bidders, to enter upon the same premises to accomplish the sale. The Sheriff, and all persons accompanying him as bidders, will be protected, and are not liable as trespassers. In the case of the People vs. Hopson, (1 Denio 575) it is expressly settled that "where a levy under an execution is made upon personal property which is left in the defendant's possession, the officer may sell on the defendant's premises, and third persons may rightfully attend there as bidders." Nor is the argument that the security of the Sheriff renders an actual taking and removal necessary, well founded. It does not follow that he would be accountable to the judgment creditor for the value of the goods, should the same during the time intermediate the levy and sale be removed by the pledgee, or any other person, beyond the reach of the Sheriff. The statute not having clothed him with authority to remove the goods out of the possession of the pledgee, he will not be held accountable for their loss if that loss is not attributable to his own fault or procurement. Neither the statute, nor the security of the officer, or of the execution creditor, require that the property pledged shall be taken out of the possession of the pledgee.
¶30The statute, withholding from the officer the right to remove the property, imposes upon him no responsibility for its safe keeping, or accountability for any waste or loss not properly chargeable to his default.
¶31The statute, authorizing the sale of a pledge, is restrictive of common law right, and must be construed strictly. Nothing that is not expressly provided for, and given thereby, can *38 be taken by intendment or implication. It is entirely clear, from the language of the statute and the note of the revisers accompanying it, that the authority to sell the interest of the pledgor in the property pledged, was not designed to interfere with the possessory right of the pledgee. (See Revisers' note, 3 R.S., page 727, section 117.)
¶32The cases (12 Wend. 134, Scrugham vs. Carter; 23 Wend. 610, Burrall vs. Acker; 24 Wend. 395, Philips vs. Cook; 17 Wend. 58, Randall vs. Cook; 2 Hill 47, Note, Waddell vs. Cook; and4 Hill 161, Birdseye vs. Ray,) relied on as establishing the right of the Sheriff to levy and remove the property pledged from the custody of the pledgee, have no application in the case of a pledge. In the three first cases the property was copartnership property, taken and sold on execution against one of the partners, and the actions were prosecuted by the partners not parties to the execution. The fourth was the case of a sale of the mortgagor's interest in property in the possession of the mortgagor covered by a chattel mortgage, and the fifth and sixth were cases where the property sold was held by several persons jointly, and as tenants in common, and the interest of all were seized and removed for the debt of one.
¶33In all these cases except the case of the chattel mortgage, the owners had severally the right to the possession of the entire property to the exclusion for the time being of the other owners, and the Sheriff had consequently the same possessory right, by virtue of his execution, to which the individual who was the execution debtor was entitled.
¶34The case under consideration is entirely different. In this case there was no joint ownership, no partnership, nor any ownership in common in the property between the plaintiff, the pledgee, and Willmarth, the pledgor.
¶35It is true that in the case of Bakewell vs. Ellsworth, (6Hill 484,) the Supreme Court say that when the interest of the pledgor in property pledged is levied upon, the Sheriff may take the actual possession of the goods. But on looking into the case it will be seen that the question as to the Sheriff's *39 right to the actual possession of the goods was not raised or at all discussed, and what was said by the Court therefore in this respect, can be regarded only as an obiter dictum, and not as a deliberate adjudication of the point. The section which authorizes the sale of the pledgor's interest, clearly does not authorize the taking of the goods out of the possession of the pledgee, and the Sheriff in removing the goods in this case, acted without authority and became a tort-feasor, and judgment should have been given against him. I am of opinion, therefore, that the judgment of the Supreme Court should be reversed.