At 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. *Page 29 Scholey 8. East 467; Metcalf vs. Scholey 5. Bos. Pull. 461. Srodes vs. Caven, 3. Watts, R. 258; Watson's Sheriff 181.)
It 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."
The 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.
It 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 *Page 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.
The 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).