I dissent from the conclusions attained by a majority of the court, as to the construction of the seventh and eighth sections of our attachment laws. — Olay’s Dig. 56.
I hold, that the terms “clearly of a wasting and perishable nature,” used in the seventh, and “tobe likely to waste or be destroyed by keeping,” employed in the eighth section of the act, as descriptive of the property which the judge or justice may command to be sold by interlocutory order, before judgment, were never intended by the Legislature to include slaves ; nor are slaves necessarily included in them ex vi termini.
It will be remembered, that when this statute was passed, (1823,) personal property alone could bo levied on by attachment, and consequently the terms were not employed to designate such property generally, but to distinguish one class of it from another ; nor were they used to contradistinguish personal property from real estate. The question then arises, Are slaves so “clearly of a wasting or perishable nature,” or so “likely to be destroyed by keeping,” that we can suppose the Legislature intended to put them in this category? If other acts of that body are entitled to any weight, (and I feel bound to allow them some share in settling this question of intention,) wo may safely answer, they did not. That they have been uniformly regarded as the most valuable and permanent of all personal property, by the law-givers of this State, will abundantly appear by the many enactments, whoso object is to prevent their sacrifice, when sold by officers under legal process, or by executors and administrators to pay the debts of their testators or intestates.
It is provided, that slaves shall not be sold under execution, when the judgment is for a less sum than $100, if other property is to be found (Olay’s Digest 202 § 7). Neither sheriff, coroner, nor constable, shall sell them at any other place than at the court-house of the county, or such other public place as is provided by law; and then, on a more *226extended notice than is required on the sale of other chattels ; and in the course of administration, when the other chattels of the decedent have proved insufficient to pay the debts of the estate, it is left discretionary with the Court of Probate, acting for the best interests of all concerned, to sell either lands or slaves for the payment of the remaining debts. In my opinion, these legislative provisions are utterly inconsistent with the idea that slaves were intended to be included in the sections of the law 1 am now considering.
Apart from this, this court has invested this species of property with attributes which pertain main]}' to real property, and which exclude the idea that they should be regarded as of a “wasting and perishable nature,” and “likely to be destroyed by keeping.” In Price v. Price, 5 Ala. 578, and Williamson and Wife v. Mason, 23 ib. 488, it is held, that a contingent remainder may be limited in slaves; and in McWilliams et al. v. Ramsey, adm’r, at the last term, 23 Ala. 813, we have held them subject to a reversion after the tci’mination of a life estate. I have been unable to rocon- ' cile these decisions with the idea that slaves arc property, so wasting and perishable in its nature, as to require it to be sold, lest it may become valueless within the ordinary period of litigation in a suit in the Circuit Courts, or before a justice of the peace.
It is, also, a sale rule in ascertaining the meaning of terms employed in a statute, when they are not technical in their character, to give to them the meaning ordinarily attached to them in the community in which the law is to operate, or, in other words, to give to them that sense in which they are commonly received. I am inclined to think, it would be difficult to find a man, outside the pale of the legal profession, who would include slaves in the terms “perishable and wasting property,” or “such as will be likely to be destroyed by keeping.”
These sections of our law are not such, in my opinion, as to require that the terms used in them should be extended by construction. They are in derogation of the common law, and tend generally to abridge the right of the citizen to his property. Ordinarily, the property of the defendant, in an *227action at law, is not subjected to the payment of the demand against him, until that demand is sanctioned and established by the verdict of a jury, and the judgment of a court.— Under these sections of the attachment law, however, it is subject to be taken from him and sold before judgment, and on no better evidence of his indebtedness than the mere affidavit of his pretended creditor. A proceeding so summary, and based upon so unsubstantial a foundation — a foundation which would not bo allowed, in our courts, to occupy a place in establishing a demand for more than $100 — deserves no favor at the hands of the court; certainly not so much as to extend terms beyond their ordinary import, to sustain it.
If slaves are not included in the terms used in the seventh and eighth sections of our attachment laws, then the court below had no jurisdiction to order the sale of those in controversy. The fact that the plaintiff in attachment takes the oath required by the law, cannot change the nature of the property levied on, or give the judge or justice authority to sell such as is not within the meaning of the statute. Those officers do not derive their power.to order a sale from the affidavit of the plaintiff, but from the nature of the property, and the provisions of the law. The affidavit is the means appointed by the statute to bring the levy and the character of the property to the knowledge of the judge; and if one swears that property is perishable, which is not so in fact, the judge should not credit the absurd affidavit and order a sale. If he does, he acts without authority, and his order is null and void.
Such is the case here; and my conclusion is, that the sale made under the order is void, that the purchaser takes no title by his purchase, and that the right of property in the slaves remains where it was before the order and sale wore made.
The practice under this statute by the judges of the Circuit Courts, it is said, generally conforms to that adopted in this case. I know that this practice is not universal. But were it so, I would not sanction it; because I am satisfied that it is erroneous, and that the courts below ought not to be allowed to make rules of construction or practice for this court, but should receive their rules from us.
*228The fact that claims to property have arisen under erroneous decisions of the inferior courts, is entitled to no weight, for the obvious reason, that whenever one of these claims arises, some other person has been illegally deprived of his right, who is much more entitled to the protection of this court.
Note by Reporter. — After the delivery of the foregoing opinions, the counsel for the defendant in error made application for a re-hcaring ; and in support of his application he submitted the affidavits of several attorneys of this court, stating that they had never known slaves to be sold as “perishable property” under the attachment law, and that the practice of the Bar, so far as their experience extended, did not warrant such orders. On this application the following opinions were pronounced: