After the sale, the constable went up stairs, unlocked the room, and, taking the goods piece by piece, delivered them to Ainsworth. They were left in the room; and some (471) days thereafter, Ainsworth applied for the goods, when Greenlee refused to let him have them. Ainsworth demanded the goods, and, upon Greenlees' refusing to deliver them, (he admitting that they were in his custody), Ainsworth brought this action of trover to recover their value.
The Court charged the Jury that the sale under which Ainsworth claimed the goods was void; because the goods were not shewn at the time of the sale, nor before the sale, to the persons attending. There was a verdict for the Defendant; and a rule was obtained for a new trial upon two grounds: 1st. Of misdirection by the Court; 2d. That if the sale were void, yet that Ainsworth was entitled to recover upon the delivery made to him of the goods by the constable. The rule was discharged, and the Plaintiff appealed. The constable's authority to sell these goods was derived under a fierifacias; the execution of which the law requires to be done in such a manner, as that by the sale, the property is most likely to command the highest price in ready money. It is evident, that for this purpose, the bidders ought to have an opportunity of inspecting the goods, and forming an estimate of their value; without which it is not to be expected that a fair equivalent will be bid. The *Page 285 presence of the goods too, in the possession of the officer, to which possession the levy gives him a right, assures the bidders that the delivery will be made to the highest forthwith; and that so far the object of the purchase will be attained without litigation. Here, however, the goods were sold without being exhibited to the bidders, and while they were actually locked up in an apartment of the house. This was such an abuse of authority in the constable as was calculated either to sacrifice, at under value, the property of an honest Defendant, or to subserve some purpose of collusion between (472) a knavish one and the purchaser. One of these ends must have been effected in this case, where property has been sold for one tenth of its value. There is much justice and security in the rule established by the decisions heretofore made, requiring the presence of chattels when they are sold by the sheriff or constable; and those cases ought to be followed. The rule for a new trial must be discharged.
Cited: Smith v. Tritt, 18 N.C. 243; McNeely v. Hart, 30 N.C. 494;Alston v. Morphew, 113 N.C. 461; Barbee v. Scoggins, 121 N.C. 143. (473)