In this case, an application is made for a rehearing, predicated upon a supposed error into which the court fell in the opinion delivered in the cause, in recognizing the doctrine as correct that negroes can, in any case in attachments, be sold on the order of a judge as wasting or perishable property, under the acts of our Legislature, found in Clay’s Digest, page 56, § § 7 and 8.
In the opinion delivered by a majority of the court, the doctrine above stated was recognized simply, but no attempt was made to argue the question. The member of the court who prepared the opinion delivered by the majority, deemed it sufficient to base his conclusion upon this point upon his own observation and experience, both at the bar and upon the circuit court bench. Inasmuch, however, as there seems to be a different understanding as to the practice in different portions of the State, amongst members of the profession, and’ inasmuch as one member of the court has deemed it his duty to dissent from the conclusion attained by a majority in the opinion pronounced, we deem it proper to consider the question as one entirely new, and to discuss it, by itself, upon principle independent of any practice in any portion of the State. Thus regarding the question, we are free to announce, in the commencement of the discussion, that our subsequent examination and reflections upon the subject have but confirmed the majority of the court in the correctness of the doctrine announced in their first opinion.
*229The question is, can negroes, in any case, be sold under our attachment laws, above cited, by the order of a circuit judge, “ as perishable property” or as property liable to waste or be destroyed by keeping I It has been well remarked, that we have but two legislative provisions upon the subject, and those are the ones cited above, viz., sections 7 and 8 of Clay’s Dig., page 56. The former section provides for the issuance of tho attachment process, on debts not yet due, and in that case, the words of the act are: “ But if the property so attached be clearly of a wasting or perishable nature, then the same shall be sold,” &e. As this language is used in reference to attachments issued on debts not yet due, it would doubtless have to be confined in its construction to the precise case made by • the statute, and would not be applicable to any other. The eighth section seems to contain the general law, and is tho one applicable to all eases other than that provided for in the seventh section.
The language of the eighth section is : “ When any estate attached shall, on the oath of the plaintiff, his or her attorney, or agent, or other credible person, be certified to any judge, or justice of the peace, to be likely to waste, or be destroyed by keeping, and if the person to whom it belongs, his or her attorney, agent or factor, shall not, within twenty days after the levy of the attachment, replevy the same, then such estate shall, by the order of said judge or justice, be sold,” &c.
The language of this act is : “ When any estate attached shall be certified to be likely to waste or be destroyed by keeping.” It will not be contended, we apprehend, that there, is anything in this phraseology which, in itself, necessarily excludes slave property. The term “ any estate” may well comprehend all property upon which a levy may be made. If, therefore, slave property is exempt, it must be because it is not comprehended within the spirit and scope of the statute. This is the precise question that we propose to discuss.
Let us look, for a moment, at the obvious intent and design of the statute. The Legislature has provided a summary remdy for the collection of debts, in cases where, by the ordinary process, there would be no remedy at all. It has authorized the seizure of goods and chattels as the leading process in the cause, and has also provided for the replevy of the goods so *230seized and attached. But there is a case not yet provided for; and that is, where the goods are not replevied, and by keeping them in the hands of the sheriff or other officer, they will%ield no fruits to the suitor. The statute then provides a remedy for that case, and permits them to be sold, and the money brought into court. We think it may safely be asserted, that the object and design of the statute was, as well to protect the attaching creditor, and give him a fruitful remedy against his debtor, as to protect the debtor, and prevent the sacrifice of his property without accomplishing the payment of his debt. Both the creditor and debtor have an equal interest in the sale of the property falling within the scope of the statute, as it pays the debt on the one side, at the same time that it deprives the other of the property. But for this law, the debtor would often be deprived of his property, whilst the debt for which the attachment was issued would be left unpaid.
Keeping in mind this object and intent of the statute, let us advance now to the inquiry into the meaning of the terms “ likely to waste or be destroyed by keeping.” These terms are obviously susceptible of two constructions : the one, the strict construction, meaning those articles only which are in themselves perishable, and contain within themselves the elements of their own destruction and decay ; as, for instance, ripe fruits, fresh meats, and articles of a similar nature. With this definition applied to the terms, they would necessarily comprehend but very few articles of the vast variety of personal estate liable to attachments. Giving to the terms this rigid construction, it would not matter if it was shown to perfect demonstration that, at the termination of the litigation, the article attached would become utterly worthless to the creditor ; if the expense of keeping until the final judgment and execution would be fourfold the value of the article levied on, unless it contained in itself the element that would necessarily effect its own destruction, no order could be made by any judge or court for its sale.
Take, for instance, a horse, a mule, or live stock of any kind. These could not be brought within the above stated definition, for they are not perishable in that sense of the word, and yet they would destroy themselves twice over, in nine cases out of ten, if they were to be kept by the sheriff, after being levied on *231under attachment, until the end of the litigation ; and yet no authority is found, under the above construction of the words of the statute, to obtain an order for their sale. If the above construction were to prevail, -not one article in one hundred of the vast variety of personal property liable to attachment could be sold, although it might be-shown, to the satisfaction of any one, that by keeping it would prove fruitless to the attaching creditor at the same time that the debtor would be deprived of his property.
The other construction of which the terms above mentioned are susceptible, is, that they comprehend all those articles ■which not only contain in themselves necessarily the elements of decay, but also those which, by being kept by the officer levying upon them, would become fruitless to the creditor, and by consequence an entire loss to the debtor. This construction certainly agrees entirely with our ideas of the object and intent of the statute. Giving to the statute this construction, it will be seen that its terms are quite comprehensive: all that is necessary to be shown is, that the article levied upon is likely to waste or be destroyed by keeping. It need not be shown that it will necessarily waste or be destroyed; but, if it be likely to Avastc or be destroyed, it may be sold — not one particular article, or one species of articles, but any estate attached. This construction of the terms of the statute, we are satisfied, is what the laAV makers intended by them, and is sanctioned both by sound reason and common sense. Giving to these terms this construction, can they, in any case, comprehend slaves ?
We apprehend no one Avould contend, if ahorse or mule Avas levied on, in a city where the expense of keeping Avould be some fifteen or eighteen dollars per month, and the ordinary term of pushing an attachment to final judgment Avas 12 months, that such horse or- mule Avould be considered as not falling within the spirit of the statute, because, before the final judgment, he would have eaten up his value and much more. ' And why Avould he be considered as falling Avithin the terms of the act 1 There may be nothing in his case that would tend to show that he would not out live a dozen such suits. It is not, then, because he has in himself necessary the element of decay and destruction, but because by keeping he AYOuldbe wasted and destroyed to the plaintiff and defendant, and therefore comes within the spirit of the *232statute. The same reasoning is applicable to all cases. If it is shown that by keeping the article it will necessarily become or is likely to become worthless to the creditor, and by consequence to the debtor, then it is embraced by the statute. It matters not, in our opinion, what the subject matter is : it may be cotton bales, live stock, hardware, provisions, or dry goods ; if by keeping them to the end of the litigation, they will prove, or be likely to prove, fruitless to the creditor, he may have them sold, on the order of the judge, according to the statute in such case made and provided.
We would now ask, where is to bo found in our law, or in our policy, anything militating against the construction of the act above given ? There is certainly nothing in the act itself, which contravenes this idea, but on the contrary, as we have shown by the terms of the act itself, everything tending to show that no exception was intended to be made of anything whatever. It is conceded, that in the administration of estates, and in the law of executors, in this State, distinctions are made in favor of slave property. But it does not follow from this, that slaves were intended not to be comprehended in the above mentioned terms of the statute. As long as slaves are considered u property” and “ estate,” we cannor, by our decision, so legislate as to screen them from the operation of a statute, when the terms which it employs make no exception in their favor. If slaves are to be subjected to the payment of debts, what reason or good sense ip there in saying that they should be liable to be lost to the creditor, as well as the debtor, because they are slaves? It must be recollected that the statute is one designed for the mutual benefit of the creditor and debtor, and every article that is exempted from its operation, when it is levied on and subjected to expense by way of keeping, is to that extent doomed to destruction, so far as the parties litigant are concerned. But it is said, if slaves are to be comprehended in these terms of the statute, it will often operate a great hardship to the debtor, by often causing favorite slaves to be sold at a great sacrifice. We confess we do not comprehend the force of this argument. In the first place, the provision of the statute is for those cases where the party has failed to replevy the property; and a sale of the property, fairly made under the order of the court, must be considered as favorable to the debt- *233or, so far as the price is concerned, at one time as at another ; and if the property is sold before final judgment, instead of after, the debtor is saved all the expense of keeping the propeí ty.
But it is insisted, that the attachment may be levied, and property sold, upon a false or spurious claim. This argument proves too much. It goes against the whole policy of the law, as well against those cases clearly falling within the terms of the act, as against those which are doubtful. But, as an answer to this argument, it may be said, that, when an attachment is sued out, the attaching creditor has to give bond and security, to answer' in damages for all the wrongs that may result from the wrongful suing out of the same. With this remedy, which the statute has provided, the defendant has in all cases' to be satisfied. If it is defective, the Legislature alone can correct the evil.
According to the views which we entertain, there may be cases, where slaves, being levied upon and put in jail, would be as much subject to the statute as any other species of property. If, for instance, in a sickly season, with an epidemic raging in the vicinity of a jail, where were kept slaves in custody under an attachment; or, if the slaves are so affected by the confinement, or other regimen to which they are necessarily subjected in the hands of the officer, as that they will be greatly deteriorated in value at the termination of the litigation, or, if by the expense of keeping they would become fruitless to the attaching creditor, or be likely to become so, in any and all of the above cases, we consider it entirely proper to obtain an order for their sale, and that such an order is well warranted by a fair construction of the statute.
For these reasons, the application for a rehearing is refused.