delivered the following dissenting opinion:
I am of the opinion that the eighth section of the law “to amend the execution laws passed in 1844, repeals the provisions contained in the law of 1834. It covers the entire ground of the previous law, of 1834, and all cases that can possibly arise through irregular, illegal or defective executions. It is the appropriate, rightful and becoming remedy. The first is very far from this, as it is not only very obscure* but puts it in the power of a defendant and the officer ©>f the Court to obstruct its process and defeat and arrest its mandate.
It is said there is not a repugnancy nor inconsistency between the two, to produce a repeal. With due deference I think there is. When a party complaining of an illegal or improper execution is referred by the last action of the Legislature to the Court for a remedy, with a declaration, that any other provision is abrogated, where is the pretext for an application elsewhere ? Can it be supposed to have been the intention of the Legislature to associate the sheriff with the Court in the performance of this duty? Will any •one maintain that the power is concurrent, and that the sheriff could properly and legally grant a stay of execution for a cause that had been presented to the Court and deliberately refused ? Yet such it seems to me is the legitimate result of the ruling of the Court. It does seem to me that the direction to the Superior — the Court, to perform this duty, excludes the action of the subordinate, as fully and completely as if the particular clause had been ex*23pressly repealed. The construction I give to the law is sustained by the practice under it ever since its passage, as I believe this case presents the first and only instance of an attempt to act under the old law. It is sustained, too, l think, by the authorities. 3 Gill. 138, 6 B. Mon. 146, 19 Yermont, 230.