DISSENTING. OPINION.
ORMOND, J.The statute which presents the question before the court is, that “ it shall not be lawful for any sheriff or other officer to levy a writ of Jieei facias or other execution, on the planted crop of a debtor, or person against whom an execution may issue, until the crop is gathered.” [Clay’s Dig. 210, § 46.]
I shall not enter upon the enquiry, whether, at common law, an execution could be levied upon a growing crop, though L apprehend, it would not be difficult to maintain the affirmative of the proposition. It is sufficient for my purpose, that the statute supposes such to have been the law, as it doubtless was the practice.
This act must be considered in connection with the other acts upon the same subject. The policy of the State, as indicated by these statutes, is undeniably that all the property of a debtor, real and personal, to which he has a legal title, shall be subject to sale by execution, and it appears to me that it would be difficult to assign a reason for the exemption of this species of property from the claims of judgment creditors, and for giving to the defendant in execution the right to dispose of it. It appears to me, with all deference, that the argument that because the sheriff was prohibited from levying on a « planted crop,” that therefore the execution had lost its lien, and the debtor had the right to sell it, is a non sequitur. The mischief which the statute designed to remedy was, the sacrifice which would be necessarily made by the sale of an immature crop: the statute enables the debtor to retain it until it matures, and by severing it from the soil to put it *747in a condition to bring its value — the lien in the mean .time continuing in the plaintiff in .execution.
If further confirmation of the correctness of this view werene-cessary, it will be found, I think, in the language employed by the legislature. The sheriff is forbidden to levy on a “planted crop” until the crop is gathered. Now, if the view taken by the majority of the court, is correct, the right secured to the plaintiff in execution, of levying on the crop after it is gathered, may be frustrated, as it was in this case, by a sale by the defendant in execution, whilst the crop is in an immature state. The construction which has been put upon the statute, involves the singular anomaly, that the legislature, for the protection of the debtor, has forbidden the plaintiff in execution to sell the property of his debt- or, because it is not in a condition to bring its value, and yet permits the debtor-, voluntarily, by a sale, to submit to the same sacrifice, for his own benefit. It is, in effect, a gift to the defendant in execution, of the growing crop, provided he does not gather it himself, but disposes of it in its then condition. This, I feel a thorough conviction, was not the intention of the legislature; but that it was to secure him from loss, by prohibiting a levy and sale of the crop, until it was gathered, when the temporary suspension of the right to sell, ceased.