(dissenting.) My examination of this case has led me to the conclusion that, on the facts presented at the trial, the plaintiff was properly non-suited.
The defendant, being the sheriff' of the county of Hudson, had in his hands a writ of foreign attachment against one Julius Blumenthal, a non-resident debtor, and by virtue of such process levied on certain cattle, and put an officer in charge of them. It appeared at the trial, in an incontestable form, that Blumenthal was the owner of this property, and that he had mortgaged them to Eox, the plaintiff in this *512suit, and that the latter, at the time of the seizure, had them, in possession.
According to repeated adjudications in this state the defendant was bound to levy on these chattels, the defendant in the attachment suit having, as mortgagor, an attachable interest in. them, and it therefore follows that unless the officer exceeded or abused his authority in the execution of his writ he has not-rendered himself liable to the present action.
What the sheriff did was this: he levied his attachment according to the statutory formula, put his deputy in. charge of the- goods, and subsequently turned them over to the auditor, who sold them at auction and delivered them to the respective purchasers. In this conduct of the sheriff I have not found anything illegal. It seems to me clear that he, was bound to take the chattels in charge, and afterwards to pass them over to the auditor for sale. This was his duty, and his entire duty, for he was in no respect responsible for the subsequent actions of the auditor.
The right of the officer to take into his custody the chattels attached, and thus, for the time, to' disturb, measureably, the possession of the mortgagee, appears to follow, as an inevitable .consequence, from the establishment of the legal doctrine that. the mortgagor has an attachable interest in the property. That is tire settled doctrine in this state, and hence the right of the officer to seize and secure the chattels must exist, unless ■ we are willing to commit ourselves to the incongruous proposition that the mortgagor’s interest is attachable, but that it cannot effectually be attached. And it will be observed that unless the sheriff can áeize the things attached, the process, as - applied to the class of cases in which the present one takes ■ rank, is a mere futility. If the officer cannot disturb, for the • time being, the possession of the mortgagee, and can do nothing but -make a verbal announcement that he attaches the ■ goods, it is obvious that such a procedure is an empty fonn when the property is in transitu from state to state, in charge of the mortgagee. By virtue of such an order of things a person having property in his hands worth $10,000, and on, *513which he holds a mortgage of $100, could carry it through and from this jurisdiction without the slightest danger of its being meddled with by the creditors of the mortgagor. I see no reason why such property should be thus hedged in against just claims, for the substantial rights of the mortgagee do not require so extreme a measure. If the officer takes possession the mortgagee runs no hazard, for the officer must keep it safely, and after selling the interest of the mortgagor in it he must, after the sale, return it into the possession of the mox’tgagee, for if he delivers it to the purchasers he renders himself liable. Therefore, the mortgagee is exposed only to a temporary interruption of his possession, which is not an anomalous incident, for it occurs whenever in the administration of the law the ends of justice require it Indeed, it may be said, generally, that whenever there are various interests in personal property requiring adjustment by judicial action, the possession of such property will always be taken from the person having the abstract legal right to it, whenever such course be requisite to the needs of the procedure. A familiar illustration of such a course is that of appointing receivers in a court of equity. Nor is there any hardship in the application of such methods to such a case as the present, for when a person takes a mortgage on personal property he is aware that the creditors of the mortgagor are entitled to require his, interest therein to be sold to pay their debts, and therefore the mortgagee cannot reasonably complain of the doing of that which is necessary to effectuate such right. Nor do I think an inability in the sheriff to take the property attached in charge would be in accord with ordinary procedures, for no •instance is recalled in which such inability exists when an officer has put a lien on property by force of his writ for the purpose of ultimately subjecting it to sale. And it is also observable that if the right of exclusive possession in the mortgagee be paramount to an attachment, it will likewise be paramount to an execution founded on an ordinary judgment, the result being that after a levy under such latter process the officer could not take the property into his possession. Nor *514is it apparent how, in view of the theory contended for by the plaintiff, the iñterest of one tenant in common of a chattel could be taken .into custody either by virtue of an attachment or an execution. Therefore, it seems to me, upon the general rules of the law, that the officer by force of a writ of execution or attachment against a mortgagor, must take charge of the articles levied or attached in order to bring them to a sale.
But if there were any doubt on this subject, tested by ordinary legal principles, that doubt I think would be dissipated by the directions contained in the Attachment act itself. By the twelfth section of that statute it is provided in these words: “That the goods, chattels and personal estate so attached shall remain in the safekeeping and care of the said officer in order to answer and abide the judgment of the court,” Ac. Rev., p. 44. This language is general, and it embraces every case in which chattels are attached, and it is not perceived how its effect is to be restrained by the court so as to except from its operation the property of a mortgagor. Consequently, my conclusion on this first head is that the sheriff was justified in putting his deputy in charge of these chattels. Nor have I observed anything which indicates that in making this levy ‘he fell into any illegality. The act requires that the officer shall go to the house or lands of the defendant, or to the person or house of the person in whose custody or possession the defendant’s property or .estate may be, and then and there declare, in tlie presence of a credible person, that he attaches the rights and credits, moneys and effects, goods and chattels, Ac., of the defendant, at the suit of the plaintiff named in the writ, and then and there make ah inventory and appraisement thereof. This is the course of law enjoined on the-sheriff in all cases, and this was the course pursued in the present instance. The officer conformed to the statute. He .could not lawfully do anything more, for he would not have been justified in declaring that the defendant in the writ was the mortgagor of the property, and that he attached only such an interest. Such a practice would be attended with very great inconvenience, and might, seriously impair the rights of *515the plaintiff in the proceedings. The act gave the formula, and the sheriff cannot be said to have been guilty of misfeasance, because he took it strictly as his guide.
If, then, the defendant was not a wrong-doer from the mode of making his levy, the only remaining question is, whether he became such by the doing, subsequently, of any illegal act. What ho did was to hand over, shortly after his levy and before a sale, the property attached, to the auditor appointed in the-case. The statute'says the goods are to remain in the safekeeping and care of the officer in order to abide the judgment of the court, and consequently, in this case, in strictness, the delivery to the auditor should not have preceded the order to sell. But a premature delivery of this sort would not render a sheriff liable, provided the goods so delivered were held by the auditor so as to be subject to the order of the court to sell. During the interim between the passing the goods to the auditor and the order to sell, the sheriff would be responsible for the safety of the chattels, and the auditor, for that period, would be his special bailee. To such a course of proceeding the parties in interest cannot complain, for if the goods are not forthcoming at the requisite juncture, the sheriff and his sureties must make good the loss.
The sole remaining question therefore is, whether, after the making of the order for sale, the responsibility of the sheriff in anywise continues. Nothing is observed in the act, or in the nature of the proceeding, that appears to lend any support to the affirmative of this proposition. After the auditor has been ordered by the court to make sale of the chattels he must of necessity take possession of them, and the sheriff has no duty assigned to him in that part of the proceeding. The statute merely requires the sheriff to safely keep the property attached “ in order to answer and abide the judgment of the court,” and if he has them to transfer to the auditor at the time of the order for sale, and transfers them to the auditor, he has fully discharged that function. Nothing is perceived either in the words or spirit of the act that lends even a color to the idea that the sheriff is to supervise, or in any respect *516to intermeddle with the sale of the auditor. In fact, at that stage of the procedure, the property is under the control of the court, and for the sheriff to attempt to control the proceedings at that stage would amount to a contempt. My conclusion from these considerations is, that the sheriff, by submitting to the judicial order for a sale, and by leaving the-matter to the auditor, cannot be treated as a wrong-doer.
Nor do I think this course of practice is unreasonable with respect to its effect upon the interests of the,mortgagee. .His right is not left without substantial safeguards. In the first place no sale that the auditor can make will displace or impair his title ; immediately upon the completion of a sale of any article he is entitled to take possession of it, and if such possession be contested an action of replevin will afford a complete remedy. Or his simpler course is to apply to the court directing the sale for an order on the auditor to the effect that after the sale, he, the mortgagee, shall be restored to the possession. Such an order could not be refused, and it would be a perfect protection. In addition, the mortgagee can file his bill in chancery requiring the property to be sold in payment, in the first place, of the debt due to him. These remedies would appear to afford ample security to the mortgagee.
But it was urged on the argument that the sheriff, before levying the attachment, took a bond of indemnity, and thereby manifested an intention to proceed adversely to the title of the mortgagee.
How,, from the premises stated, a hostile purpose is to be inferred is not apparent. As a prudent officer, he might well take an indemnification whether he intended to attach the chattels as the property of a mortgagor or of an absolute owner. But the intention of the officer is of no consequence whatever, for he is answerable only for his acts. If he had the right as against the mortgagee to take charge of the goods, and to hand them over to the auditor, and he did those acts, and nothing more, it seems out of the question to hold that he is liable to an action for such a course of legal conduct.
But, further than this, I cannot but think that the transac*517lion -which embraced the giving of this bond of indemnity, instead of being inimical to the defence in this case, is entirely destructive of the plaintiff’s right to sue. These were the facts : The plaintiff, when the sheriff attempted to levy the •attachment, claimed to be the absolute owner of the property, •and served a written notice to that effect. It wás against that claim that the plaintiff in the attachment gave his bond, and ordered the sheriff to proceed. It does not follow that such a step would have been taken if the plaintiff in this suit had claimed to be mere mortgagee, thus declaring the truth. The claim of absolute ownership, if submitted to, would have defeated the attachment proceeding in foto, and it was against that claim that the plaintiff in that suit took his stand; by such contest and the giving of his bond he altered his position, and it is not perceived how the plaintiff in this case can be permitted to base an action on the admitted ground that the claim so made by him, and which- has thus been acted upon, was not true. It seems to me that upon settled principles he is estopped from such a course. By a recovery in the present action the plaintiff is allowed, in substance, to say to the defendant, I assured you, in solemn form of law, that I was the absolute owner of these cattle, you were bound to treat that statement as false, and, in some inscrutable manner discover that I was mortgagee and treat me accordingly. .
In fine, the plaintiff’s action appears to- me to be founded on one or more of the following propositions, viz.:
First. That the officer executing an attachment against chattels under mortgage cannot take charge of them according to the exigency of his writ when he finds them in the possession of the mortgagee.
Second. That a mortgagee may serve such sheriff with a written notice falsely claiming an absolute ownership in such chattels, and in an action against the officer may himself prove the falsity of such notice, and may recover on the ground that he is mortgagee and not absolute owner.
Third. That having put in such false claim he may treat the officer as a wrong-doer, because he failed to'discover under *518such circumstances that he was mortgagee, and failed- to protect his interest to that extent- .
Fourth. That the sheriff after executing an attachment, and after delivering the chattels attached to the auditor, who has been ordered to sell them, is responsible, if after such sale the auditor does not return the property to a mortgagee, who has not claimed to be such, but has claimed to be absolute owner.
As I cannot agree to any of these propositions I am constrained to vote to affirm the present judgment..
For affirmance — The Chief Justice, Depué, Scudder,, Cole, Paterson. 5.
For reversal — The Chancellor, Dixon, Magie, Eeed, Yan Syokel, Brown, Clement, McGregor, Whitaker. 9.