The opinion of the Court was pronounced' by
Paddock, J.This case is quite new; and it is not with*407out some hesitancy that the Court have come to a determination upon it. The cases cited by counsel do not furnish any established principle within which it would be proper to range it.
It appears that the plaintiff had killed a fatted beef, and while the same was on the slings, the defendant being ax Deputy Sheriff, levied an execution upon, and sold the: same ;: and the question now submitted'is, whether beef on-the slings, is subject to the levy of an execution-. Our practice of attaching- property on. mesne process, is a thing, unknown at common, law, and is a right given, by statute; between which, and distress at common law, there is a strong analogy : the former having for its object the securing of a fund out of which to satisfy the plaintiff’s judgement, should he recover: the latter, to compel the personal appearance of the defendant in. Court, or the performance of some duty. — Co. Lit. 47, a. b. — 3 Black. Com. 9- and 10.
But in n.o case could property distrained be sold in satisfaction of the duty or demand'; and after the appearance of the person, or performance of the duty, it was returned; to the distrainee. But at common Jaw, there was no property privileged or exempt from being taken on. an execm tion or fieri facias and sold. — 3 Salk. 136-. — 1 Burr. 579i
It will be found, that with a few exceptions, as tools, dec-, no property was exempt from- distress at common law, except such as necessarily would perish-or. suffer diminution.. Hence, hides in vats could not be distrained', because, if exposed to the air and dried during the process of tanning, they could never afterwards be reduced into-leather; and for that reason, it was held in Bond vs. Ward, 7 Mass R., that hides, thus situated, wer.e not attachable on mesne process*- Grain in the stack was not liable to distress, because,, the quantity would necessarily be diminished by a removal ; but,should the landlord find it upon a cart, he might distrain and drive it away. — Co. Lit. 47, b.
But there may well be a distinction between property perishable by removal and that which is perishable in its nature. If grain could be removed without-waste, or hides raised from the vats and becoming dry, could be returned, agairi, and the tanning completed, the objection to dig? *408training them would cease.- But such "is not the case.— Property, whether perishable or not, may depend upon many circumstances, such as the season of the year; for in the spring, vegetable roots, the growth of the previous year, would soon perish ; but in the fall- season-,.’they might not be considered perishable ; and in warm weather, fresh meat will perish shortly ; whereas, it is common with every family, to keep it through all the cold season in a frozen state.
The objection to- attaching property perishable in its nature, upon mesne process, does not- apply with equal force to an execution. Our statute requiring but fourteen days between the levy and sale, there is very little danger of property perishing in the cold seasons, properly taken care of; and if an instance should occur wherein property thus taken should suffer partial or total decay, the occurrence would be so very rare, that it would be far better for community to pass it by unnoticed, than to say that articles having, a real intrinsic value in them, should not be taken on execution, because, being perishable in their nature, a loss-, by possibility, might be sustained.
In the present case, the beef was attached in the month of December, a season when warm weather is not to be expected, and the sale in a reasonable time after.
With this view of the case, the Court affirm- the judgement of the County Court,
Judgement affirmed..