I concur in holding that nothing is exempt for keeping *545animals, where the party claiming the exemption does not own or possess such animals. The judgment below is erroneous, so far as it allows any exemption for animals not owned or possessed.
I think, however, that growing crops of" grain, or vegetables, suitable for family consumption, are within the exemption of the statute. If, at the time of the levy, a defendant in execution has enough provisions on hand for six months, then of course there is no right to any more. And a levy made on growing crops would then be as valid as a levy on any surplus provisions on hand. And such levy would not, if valid when made, be affected by any subsequent destruction, sale, or other disposition of the exempted property. But where a family does not possess a supply for six months, then I think they have a right to look to their growing crops for enough to make up the deficiency. Such crops are designed for human sustenance, and are frequently the chief reliance of their owners. There is no more difficulty in making the selection, in this class of cases, than in making the sale. If the law permitted a growing crop to be sold before maturity, there might be more difficulty in making it. But no sale can be made until the crops are ready for gathering; and it is perfectly easy to make at that time all necessary deductions.
It is undoubtedly true that an officer cannot at once make an inventory or appraisal, so as to allow the exempted amount to be set apart from the rest. But the law does not require this to be done at once, in regard to any property; and it may be done at any time before it is noticed for sale, if not at any time before actual sale. And a levy upon growing crops is kept alive, by statute, upon all executions, until thirty days after the crops mature: — Comp. L. §4464. The statute authorizing the commencement of suits by attachment requires an inventory and appraisal in all cases. But it has never been supposed growing crops could not be attached.
*546These exemptions have never been construed technically against the right claimed; and the literal provisions of the statute have been interpreted by their obvious design. Thus, where, under a law from which ours is copied, “ all sheep to the number of ten, with their fleeces, and the yarn or cloth manufactured from the same;” are exempt, cloth made from wool owned by a person who never had any sheep, was held exempt: — Hall v. Penney, 11 Wend. 44. The same doctrine was re-affirmed in Brackett v. Watkins, 21 Wend. 68. In the case of Carpenter v. Herrington, 25 Wend. 370, an exemption was allowed where potatoes planted on shares on another man’s ground, by a defendant in execution, were sold before they were dug. It does not appear whether they were levied upon before maturity or not; but the language of the Court does not go upon any idea that this was material. Nelson Ch. J. in deciding the case says: “As the necessary vegetables are absolutely exempt, they will be protected in any stage of the process of obtaining them for the family use; whether by planting them Or in any other way.”
If growing crops are not exempt, the entire policy of the law must 'fail in regard to a large class of cases which are evidently designed to be, protected. It seems to me that such a construction as covers them is both natural and just; and in no way violates either the letter or spirit of the law.
I think that judgment ■ should. be rendered upon the finding for all the provisions found necessary for the family, and such animals as they are shown to possess. This appears from the finding to be $19.88. Judgment should be reversed, except as to the sum of $19.88, with costs of this Court in favor of defendant, and affirmed to that amount.
Martin Ch. J. concurred.The Court being thus divided on one point, the judgment was reversed, with costs of this Court, except as to $19.88, and affirmed as to that amount.