Butler, J.
It is conceded that personal property can not be taken and appropriated by a creditor in payment of his debt by levy and sale on execution, unless at every step the course prescribed by law is strictly pursued ; and it is therefore apparent that if the court below was right in its construction of the act of 1861, the defendant became a wrong doer by selling at the end of twenty-one instead of seven days, and the plaintiff must retain his judgment, whatever we may think of the other point of the defense.
The act of 1861 directs imperatively that certain kinds of property shall be sold at the end of seven days instead of [498] twenty-one days. It describes the excepted property in the terms used in the act of 1828 which authorises the sale of personal properly attached. The description is general and does not distinguish the property with as much certainty as could be desired. It is entirely sufficient in the act of 1828 ; for by the provisions of that act, application is to be made to a judge or commissioner, and his determination is conclusive, and a protection to himself, the officers, and the parties.
It is not to be presumed that the legislature intended to clothe the sheriff or constable with judicial power and protect him by the incidents of that power, and the officer acts as in all other cases at his peril. But it may be assumed that the legislature thought the language, taken in connection with the object and purpose of the law, would furnish a sufficiently certain guide for his conduct, and we must regard that presumption in construing the act.
Two kinds of property are contemplated. First, that which is in its nature perishable.
The first appearance of this word “perishable” in our statutes, was in 1782, when a section was added to the statute respecting wrecks, authorizing an immediate sale of the wrecked property if of “ a perishable nature.” In the statute of 1828 referred to, the words are again used and transposed, but the import is the same. It is believed that the words in this connection did not exist in any other statute till 1846, when they were again used in an act relative to “ unclaimed goods and strays.” Dr. Webster, when preparing his dictionary, had his attention turned to the word “ perishable” as used in our statutes, and he defines it to mean, in such use, “ subject to speedy decay” Doubtless that was the sense in which it was used in the statute of 1828. The great delay however between the attachment of property on mesne process and obtaining judgment, which attended litigation previous to the reorganization of our judiciary system, and the obvious equity of the law, led to a liberal construction of the statute to advance the remedy, and orders for the sale of property not in its nature perishable, but which would materially depreciate in value for other causes, have been quite common. [499] The only object of the General Assembly was to prevent loss to the parties, and so long as the parties are benefited that liberal construction may be tolerated. But the reason for such liberal construction is not applicable to this law. The change which it makes in the time of posting for sale, fourteen days, is too short for any material depreciation in value, except from natural and speedy decay. Looking to the language used, therefore, in connection with the object and purpose of the law, and the presumed intention of the General Assembly to so distinguish the property as to afford a reasonably safe guide to the officers who are compelled to serve executions, we are satisfied the property intended is that, and that only, which will materially depreciate or be wholly lost by natural decay before the expiration of the twenty-one days prescribed in the general law. If then the property be fruit, vegetables, shell or other fish, meats, or other property which will be liable to materially or wholly decay before the end of twenty-one days, it should be posted and sold at the end of seven days.
The remaining kind of property described in the statute is “ live stock,” the custody and preservation of which would be “ expensive.” The word “ expensive ” here is not used in the sense which lexicographers attach to it, but in its popular sense, meaning that which would involve or require expense. There is not such a difference in the expense of keeping’ different kinds of stock, or different animals of the same kind, or different ones of any kind at different times, as to justify any other construction. The General Assembly meant to save all unnecessary expense for the benefit of the plaintiff, if required for the satisfaction of his debt, and if not so required for the defendant. If therefore an officer has in his custody live stock, which it will require an expenditure to keep and preserve, and for which he will have a right to charge, he must post and sell at the end of seven days. If the property is receipted to be forthcoming at the sale, or the care and custody is provided for by either of the parties, so that it will involve no expense chargeable to the property, he must post [500] and sell at the end of twenty-one days, as provided by the general law.
The court below found the fact that'the keeping of the horse in question was expensive, and that it was sold at the end of twenty-one instead of seven days, as directed by statute, and properly rendered judgment for the plaintiff.
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Butler, J.
It is conceded that personal property can not be taken and appropriated by a creditor in payment of his debt by levy and sale on execution, unless at every step the course prescribed by law is strictly pursued ; and it is therefore apparent that if the court below was right in its construction of the act of 1861, the defendant became a wrong doer by selling at the end of twenty-one instead of seven days, and the plaintiff must retain his judgment, whatever we may think of the other point of the defense.
The act of 1861 directs imperatively that certain kinds of property shall be sold at the end of seven days instead of [498] twenty-one days. It describes the excepted property in the terms used in the act of 1828 which authorises the sale of personal properly attached. The description is general and does not distinguish the property with as much certainty as could be desired. It is entirely sufficient in the act of 1828 ; for by the provisions of that act, application is to be made to a judge or commissioner, and his determination is conclusive, and a protection to himself, the officers, and the parties.
It is not to be presumed that the legislature intended to clothe the sheriff or constable with judicial power and protect him by the incidents of that power, and the officer acts as in all other cases at his peril. But it may be assumed that the legislature thought the language, taken in connection with the object and purpose of the law, would furnish a sufficiently certain guide for his conduct, and we must regard that presumption in construing the act.
Two kinds of property are contemplated. First, that which is in its nature perishable.
The first appearance of this word “perishable” in our statutes, was in 1782, when a section was added to the statute respecting wrecks, authorizing an immediate sale of the wrecked property if of “ a perishable nature.” In the statute of 1828 referred to, the words are again used and transposed, but the import is the same. It is believed that the words in this connection did not exist in any other statute till 1846, when they were again used in an act relative to “ unclaimed goods and strays.” Dr. Webster, when preparing his dictionary, had his attention turned to the word “ perishable” as used in our statutes, and he defines it to mean, in such use, “ subject to speedy decay” Doubtless that was the sense in which it was used in the statute of 1828. The great delay however between the attachment of property on mesne process and obtaining judgment, which attended litigation previous to the reorganization of our judiciary system, and the obvious equity of the law, led to a liberal construction of the statute to advance the remedy, and orders for the sale of property not in its nature perishable, but which would materially depreciate in value for other causes, have been quite common. [499] The only object of the General Assembly was to prevent loss to the parties, and so long as the parties are benefited that liberal construction may be tolerated. But the reason for such liberal construction is not applicable to this law. The change which it makes in the time of posting for sale, fourteen days, is too short for any material depreciation in value, except from natural and speedy decay. Looking to the language used, therefore, in connection with the object and purpose of the law, and the presumed intention of the General Assembly to so distinguish the property as to afford a reasonably safe guide to the officers who are compelled to serve executions, we are satisfied the property intended is that, and that only, which will materially depreciate or be wholly lost by natural decay before the expiration of the twenty-one days prescribed in the general law. If then the property be fruit, vegetables, shell or other fish, meats, or other property which will be liable to materially or wholly decay before the end of twenty-one days, it should be posted and sold at the end of seven days.
The remaining kind of property described in the statute is “ live stock,” the custody and preservation of which would be “ expensive.” The word “ expensive ” here is not used in the sense which lexicographers attach to it, but in its popular sense, meaning that which would involve or require expense. There is not such a difference in the expense of keeping’ different kinds of stock, or different animals of the same kind, or different ones of any kind at different times, as to justify any other construction. The General Assembly meant to save all unnecessary expense for the benefit of the plaintiff, if required for the satisfaction of his debt, and if not so required for the defendant. If therefore an officer has in his custody live stock, which it will require an expenditure to keep and preserve, and for which he will have a right to charge, he must post and sell at the end of seven days. If the property is receipted to be forthcoming at the sale, or the care and custody is provided for by either of the parties, so that it will involve no expense chargeable to the property, he must post [500] and sell at the end of twenty-one days, as provided by the general law.
The court below found the fact that'the keeping of the horse in question was expensive, and that it was sold at the end of twenty-one instead of seven days, as directed by statute, and properly rendered judgment for the plaintiff.
A consideration of the second point is unnecessary to a determination of the case. But we do not wish, by passing it over, to permit an inference that we intend to relax in the slightest degree the rule that the retention of possession by the vendor is conclusive evidence of a colorable sale. We adhere to it as a rule of policy, required for the prevention of fraud, and to be inflexibly maintained. The question therefore, in this and in all cases, must be, not whether there be such a rule of law or not, but whether in fact"there has been a retention of possession, without any delivery at all, or a color-able delivery evidenced by a restoration of the possession. On this point the motion is not as clear as could be desired. It states that Guy Webster, the vendor, was using the horse at the time of the attachment, “ to all appearance as his own, in the same manner as he had been prior to the sale.” Taken by itself this clearly imports a restoration of possession.. The motion further states that “ the subsequent hiring of the horse was the result of an unexpected emergency in the plaintiff’s business.” But it is not stated what the business or the emergency were, or for how long a period the hiring was. The case presented is not one of intermeddling merely ; or of use as a servant or friend of the plaintiff: or of neighborly or brotherly and temporary loan or accommodation for a single and brief period and purpose ; but of an intentional hiring, which imports an intentional restoration of possession, to use “ to all appearance as his own, and in the same manner as before the sale.” How this would appear if the facts were fully detailed we can not say. X But we can not readily conceive of any ordinary emergency in the business of a vendee, that should justify the restoration of the possession of property to a vendor by hiring, within about a week of the sale, to be publicly used by Mm as before the sale; or how a salé so [501] characterized could be sustained against an attaching creditor consistently with an inflexible adherence to the law as heretofore settled in this court. We need only say that the case as stated appears to be one of the class of cases which the rule, as one of policy, and not of bona ftdes, was intended to embrace.
A new trial is not advised.
In this opinion the other judges concurred.