
    Isaac W. Brownell v. Thomas Carnley, Sheriff, &c.
    Goods in the possession of a consignee, who has made advances thereon, cannot be seized and taken possession of by a Sheriff under a warrant of attachment against the property of the consignor as a non-resident debtor.
    By such a seizure the Sheriff renders himself liable as a trespasser, and an action to recover the possession of the goods may be maintained against him by the consignee.
    Although the interest of the consignor in such a case may be attached, the proper mode of making a levy thereon is that prescribed by § 225 of the Code.
    (Before Oakley, Ch. J., Boswoeth and Slosson, J.J.)
    Jan. 9 ; 28, 1854
    This was an action to recover the possession of fifty hogsheads of sugar and fifty barrels of molasses, which the defendant, as Sheriff of the city and county of Mew York, had seized and taken possession of, under a warrant of attachment against the property of one W. S. Gordy, as a non-resident debtor. It was brought to trial before the Chief Justice and a j'ury on the Yth February, 1853, upon the issues made by the pleadings, denying the plaintiff’s title, andj'ustifying under the attachment.
    It appeared upon the trial, that the goods belonged originally to Gordy, who ■ received an advance thereon from one A. M. Sayre of $180218; that Sayre, with his knowledge and consent, shipped them from a port in Louisiana to the plaintiff in Hew York, from whom he, Sayre, had received an advance corresponding in amount with that which he had made to Gordy. The bill of lading was in the ordinary form. By its terms the goods, upon their arrival at Hew York, were to be delivered to the plaintiff or his assigns, he or they paying freight for the same. The .goods, shortly after their arrival, were seized, taken possession of by the defendant, and remained in his possession when the suit was brought, under the warrant of attachment against Gordy, mentioned in his answer. The warrant was produced and proved upon the trial. It was agreed by the parties, that the' value of the goods was $2708 81, and that the plaintiff had a surplus in his hands, arising from the sale of the property, over and above his advances, commissions, and charges, belonging to Gordy, and amounting to $850.
    The jury, under the direction of the Court, found a verdict for the plaintiff with six cents damages, and assessed the value of the goods at $2708 81. The verdict was taken, subject to the opinion of the Court at general term.
    
      C. W. Sandford, for the plaintiff,
    moved for. judgment on the verdict, and insisted on the following points.
    1. The plaintiff had a lien upon the goods consigned to him until his advances were paid, and the bill of lading transferred to him the title. (Colley v. Merrill, 6 Greenleaf’s Repts. p. 50; Walker v. Birch, 6 Term Repts. p. 262; Gordon v. London Assur. 1 Burrows, p. 494; Maker v. Wilson, 1 Gallison Repts. p. 419 ; Kent's Com. vol. 2, p. 549, and cases cited; Abbott on Shipping, p. 333, 334, 335; Grove v. Brien, 8 How. U. S. R. 438.)
    H. The creditors of Gordy had no right, by attachment or otherwise, to take the goods out of plaintiff’s possession without paying or tendering the amount of his advances and expenses thereon. (M'Neil v. Glass, 13 Martin’s Louis. Repts. p. 261.) The case of Steif v. Hart, 1 Comstock, p. 20, 6 Hill, 484, relied upon by defendant, does not apply. That case has no reference to attachment, but is confined strictly to executions, and is a technical decision upon the statute relating to executions. (See 1 R. S. p. 366.)
    IH. The shipment was made by Sayre to the plaintiff Brownell, who had no right to surrender the property without Sayre’s orders, Sayre having a legal interest id the property and a right to control the proceeds until his advances were paid.
    IV. Judgment should be entered for the plaintiff upon the verdict.
    
      A. J. Vanderpoel, contra,
    
    contended that the Sheriff was not liable, upon the following grounds.
    I. The proofs established that Qordy, the defendant in the attachment, was the owner of the goods attached, subject to the lien of the plaintiff for his advances thereon. The sheriff was bound to levy the attachment upon the property. (Code, sec. 231, 232.)
    II. The statute made it the duty of the Sheriff to take possession of the property pledged, when levied upon by virtue of an execution or attachment. (2 R. S. p. 366, § 20, 21, 23; Stief v. Hart, 1 Coms. 20; Bakewell v. Cook, 6 Hill, 484; Wheeler v. Macfarland, 10 Wend. 318; Moore v. Hitchcock, 4 Wend. 292.)
    HI. .The powers and duties of the Sheriff, under proceedings by attachment,.are more explicitly defined by the Code, than in proceedings by virtue of executions under the revised statutes. (2 R. S. p. 366, § 20, 21, 23.)
    ' The doubt which arose under the statute relative to executions from the use of the terms “right and interest,” in the 20th section, and “personal property” in the 23d section, is most carefully guarded against in secs. 231 and 232 of the Code relative to attachments, by using the word “ property ” in an unlimited sense.
    The Sheriff’s powers and duties under attachments against absent debtors are found, 2 R. S., p. 65., sec. 7 of 3d ed., and it will be observed that the amendment contained in the act of 1840 (Laws, p. 296) is so framed, as most effectually to guard the rights and interests of all parties from abuse, while the property is in the hands of the Sheriff.
    Sec. 8. “ He shall make a just and true inventory of all the property so seized. Collect, receive and take into possession all debts, credits and effects of such debtor.”
    The pledgee acquires his lien, subject to the pre-existing regulations, for the benefit of the creditors of the pledgor, and while the property is in custody of the law, to enable the officer to do his duty, the lien of the factor is not lost or affected.
    IT. The Sheriff, under and by virtue of his levy, was rightfully in the possession of the property, for the purpose of executing his process; in acquiring such possession he did not interfere with any right of the plaintiff; he is not charged as a wrong-doer in acquiring the possession. ' The plaintiff, therefore, cannot maintain this action.
    The action is for a wrongful detention; no refusal to deliver or demand was shown before suit was brought.
    V. It appearing that the plaintiff has sold the property, and now has a clear balance of $850, to which he has no claim, the defendant is entitled to the same, as the value of the right and interest of the defendant in the property at the time it was attached. (Moore v. Hitchcock, 4 Wend. 292; Scrugham v. Carter, 12 Id. 131; Wheeler v. Smith, 11 Bar. R. 345.)
   By the Court. Oakley, Ch. J.

We are all of opinion that there must be judgment for the plaintiff. The legal title of the goods at the time of their arrival was vested in him, not merely by the terms of the bill of lading, but by virtue of his antecedent advances (Anderson v. Clarke, 2 Bing. 20 ; Patten v. Thompson, 5 M. &S. 356 ; Bryan v. Nix, 4 Mees. & Wels. 792; Abbot on Ship., 5, Amer. Ed. pp. 332-4.) He had then an absolute right to sell them, and to perfect the sale by a delivery to the purchaser; and this not only for the purpose of reimbursing his advances, but with a view to his commissions upon the sale, since, according to the known custom of merchants, it was doubtless to secure these commissions that his advances were made. The seizure of the goods by the defendant was, therefore, a plain violation of his legal rights. It not merely prevented their exercise, and deprived him of the benefits he meant to secure, but if continued, might have resulted in an actual loss of the moneys he had advanced. A decision more at variance with the understanding, and more hostile to the interests of merchants, could not well be made, than to hold that the prior rights of a consignee, having a title and a lien, are liable to be thus sacrificed at the instance of a general creditor of the consignor.

It is undoubtedly true that Grordy as owner, and virtually the consignor, had an interest in the property consigned, which was liable to be attached, but it was not an interest which gave to him, or could give to his creditors, any right to divest, or interfere with, the possession of the plaintiff—unless upon the terms of refunding his advances with interest, and paying his commissions and charges. Until a compliance with these terms, the interest of Grordy was nothing more than a right to demand and receive from the plaintiff the surplus proceeds of a sale,—and it was this interest, and this alone, that was liable to be attached. It is evident, however, that this contingent interest or right was not’ a property which in judgment of law was capable of a “ manual deliveryand hence the Sheriff, instead of taking possession of the goods, should have proceeded in the mode prescribed in § 235 of the Code. He should have done nothing more than to leave with the plaintiff a certified copy of the warrant of attachment, together with a notice of the interest levied on, and by so doing he would have given to the.creditor, at whose suit the attachment was issued, all the protection and security to which he was entitled. By proceeding as he has done, he has rendered himself liable as a trespasser, and lost wholly the protection of the .process under which he professed to act.

Even had the plaintiff in this case been only an ordinary pledgee, having no title to the goods, and no power of immediate sale, but merely the right of retaining the possession for his ultimate security, we must still have held that the conduct of the defendant in depriving him of this possession was unlawful, and not justified by the process under which he acted.

Every pledgee has at common law an absolute right to retain the possession of the property pledged, not only against the pledgor, but against every person not showing a paramount title, until the conditions of the pledge have been fulfilled; and to warrant an interference with his possession, in any other ' case, an express statutory provision changing the rule of the common law is necessary to be shown ; but no such provision certainly is to be found, making goods in the lawful possession of a pledgee, liable to seizure under an attachment' against the property of the consignor, whether the attachment be issued under the Revised Statutes, or under the Code. It is true the Revised Statutes have so far changed the rule of the common law, as to make the right and interest of a ’ pledger liable to be sold under an execution against him, even while the goods are still in the possession of the pledgee, but the statute, by its express words, is confined to a sale under an execution ; and this a sale, not of the goods themselves, but merely of the interest of the.pledger—that is, his right to redeem them upon payment of the debt for which they are pledged. The reasons upon-which the statute is founded, are not applicable, in our opinion, to a seizure of goods under an attachment; and the principle is well settled, that a -statute, in derogation of the common law, is, in all cases, to be strictly construed, and is never to be extended, by a doubtful analogy, to .cases that .its terms have failed to embrace.

It may not be amiss to remark that it is still, in our opinion, an open and doubtful question, whether the statute, in authorizing a sale under an execution of the interest of the pledger, has authorized the Sheriff to remove the property from the possession of the pledgee. Such was indeed the decision of the Supreme Court in Stief v. Hart, but although the judgment in this case was affirmed in the Court of Appeals, it was so, not by a majority of its members, but solely as a consequence of an equal division in their opinions. We do not think that this question—rejecting as we do the supposition, that the provisions of the statute are just as applicable to an attachment as to an execution—is necessary or proper to be decided by us in the present case, nor, are we to be understood as meaning to express any opinion in relation to it. We mean only to intimate that we’should not hold ourselves precluded from examining and determining the question in conformity to our own views of the proper construction of the statute, if hereafter it shall properly arise in a case before us.

It is admitted that the goods now in question have been sold -by the plaintiff since the possession was restored to him in the present suit, and that he has now in his hands a balance of $850 belonging to Gordy, the debtor in the attachment; but whether the defendant, by virtue of the attachment, is entitled to demand from the plaintiff the payment of this balance, is not a question that we have now a right to determine. Ho such question is raised by the pleadings, and it is very doubtful whether it could have been raised, in any form of pleading, in an action like the present. The only question that we can now determine is, whether the seizure of the goods by the defendant under the attachment was a wrongful act, and the plaintiff therefore entitled to recover their possession, when he commenced this action. We are clearly of opinion that he was so entitled, and- consequently, that judgment must now be entered in his favor.

Judgment accordingly with costs.  