#### William Ainsworth *v.*John M. Greenlee.

j > From Burke. J

A constable offered, for sale, under an execution, divers goods locked up in a room, without shewing them to the bidders. The sale is void.

The law requires the sale to be conducted in such way as is most likely to make the properly bring the highest price. The bidders ought to have an opportunity of inspecting the goods and forming an estimate of their value. The goods ought also to be present, that the officer may deliver them forthwith to the purchasers.

The Defendant owned a house in the county of Burke, having’ sundry apartments, one of which he had leased to James W. Edwards. Sundry persons having obtained judgments against Edwards, executions were sued out, and on the day on which Ms property was advertised for sale, the Plaintiff, William Ainsworth, settled one of the executions, amounting to 120 dollars, or thereabouts, in some way satisfactory to the Plaintiff in that execution j and all the other executions, except one for 19 dollars, in favor of Hopper, were compromised between Edwards and the Plaintiffs in said executions. The constable set lip a mare for sale to satisfy the execution of Hopper, and a bid of fi\ o dollars was made. The sale of the mare was cried for some time, when the constable said, he also set up with the mare a quantity of goods which were locked up, upstairs of the apartment leased to Edwards, the sale being made before the door of the house. The goods were not shewn, nor were they examined nor particularly described. Ainsworth, the Plaintiff, bid 20 dollars. The sale was immediately closed, and he was declared by the constable to be the purchaser. The goods were of the value of 150 dollars, ami the mare of 40 dollars. Edwards was insolvent, and indebted to other persons besides those who had executions against him.

After the sale, the constable went up stairs, unlocked the room, and, taking the goods piece by piece, delivered *471them to Ainsworth. They were 3e.fi in the room; and some days thereafter, Ainsworth applied for the goods, when Greenlee refused to let him have them. Ainsworth demanded the goods, and, upon Greenlee’s refusing to deliver them, (he admitting that they were in his custody,) Ainsworth brought this action of trover to recover their value.

Tiie Court charged the Jury that the sale under which Ainsworth claimed the goods was void j 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 Plaintiff| 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.

Tavxor, Chief-Justice,

delivered the opinion of the Court:

The constable’s authority to sell these goods was derived under a *fieri facias;*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 presence of the goods too, in the possession of the officer, to which possession the levy gives him a right, assures the bidders that a 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 cither to sacri-*472flCe, at under value, the property of an honest Defendant, or su*)sel>ve some purpose of collusion between a knavish one and the purchaser. One of these ends must have j)cen c{fec|:e(] jn tfljg 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.