#### Charles Gibson *versus*Peleg Jenney.

A swine, when killed, is protected from attachment and execution by the statute of 1805, c. 100.

Trespass for taking one swine, the property of the plaintiff. At the trial in the Circuit Court of Common Pleas, the plaintiff proved the taking of the swine, which had been butchered but not cut up, and that he, at that time, owned or possessed no other swine. The defendant was a deputy sheriff, and seized the swine by virtue of an execution, in his hands, issued against the said *Gibson.*The court instructed the jury that the property thus taken was exempted from attachment and execution by virtue of the statute of 1805, c. 100; and the plaintiff having obtained a verdict in con formity to those instructions, the cause came up to this Court upon exceptions filed by the defendant, under the late statute.

*L. Williams,*for the defendant.

The statute upon which the plaintiff founds his claim, being in derogation of the common law, should receive a strict construction ; and, in construing statutes, as well as other writings, the words made use of are to be understood in the sense most generally attached to them. The statute exempts one cow and one swine. The exemption of a cow was doubtless intended to furnish the family of a poor debtor with milk; but it would not be contended that the cow, when converted into beef, and salted, was still exempted. It is a benefit to a poor man to be able to raise and fatten a hog from the refuse of the food of his family, and with it, afterwards, to pay his just debts. If pork raised by the poor man is in every case protected, how is an officer to distinguish between that and pork purchased by the poor man ? It is important that officers have a certain rule for their conduct ; and it was for * that purpose that the present *192question was brought before the Court. The defendant insists that pork, when killed and dressed, is no longer a swine.

*Nye,*for the plaintiff.

The intention of the legislature was to protect a swine for the food of a poor man’s family. The construction contended for, on the part of the defendant, would destroy at once the whole effect of such benevolent intention, unless the swine be eaten alive.

Parker, C. J.

The question presented in this case is more curious than difficult; for, if we are to be governed at all by the manifest intention of the legislature in making the exemption of a swine from the liability to attachment, or execution, we must give the exemption effect, in the present instance.

What could have been intended but the sustenance of a poor family, by this exemption ? To give the strict construction contended for, on the part of the defendant, would be to convert the intended benefit into an injury; for the swine would be protected until it became fit for food, and then be at the mercy of the creditor.

It is said that statutes, made in derogation of the common law, are to be construed strictly. This is true; but they are also to be construed sensibly, and with a view to the object aimed at by the legislature. As to cases of difficulty which may arise, such as the debtor having one swine alive, another just killed, and perhaps a third in his barrel, — when such cases arise, they will be determined according to their merits; and care will, it is hoped, be taken that frauds may not be successfully practised under a statute designed for benevolent purposes, *(a)*

*Judgment on the verdict.*

(a)

**In an indictment for stealing *two turkeys,*it was held, it must be taken to mean *living*turkeys. — *Rex vs*Halloway, 1 *Car.*& *P.*128. — So, in *Rex*vs *Edwards*& Al., it was held, on an indictment for stealing an animal, it would be intended it was alive — 1 *Russ & Ryan,*497. — Deacon, *Cr. Law,*763. — 2 *Russ, Cr. L.*706, 2d ed. — See *Rex*vs. *Williams, R.*& *M.*107, cc.; *Rex*vs. *Puckering, R. & M.*cc. 242. — If, however, the animal has the same appellation whether it be alive or dead, and it makes no difference, as to the charge, whether it were alive or dead, it piay be called, when dead, by the appellation applicable to it when alive. — *Rex*vs. Puckering, ubi sup. — In *Rough's*case, (2 East, P. *C.*607,) where the prisoner was indicted for stealing a *pheasant,*of the value of forty shillings, of the goods and chattels of the prosecutor, the twelve judges held that, from the description, it must be taken to he a pheasant alive, and so *feres natures;*and to show it to be felony, the indictment must show it to have been dead or reclaimed, and the stating it to be *the goods and chattels*did not supply the deficiency. In actions against lords of manors for taking away game, the declaration usually is, that the defendant w *with force and. arms took and carried away"*so many “ *dead hares,"*&c. — *Bird*vs. *Dale,*7 Taunt. 560.— *Churchward*vs. Sturdy, 14 East, *R.*249. — 1 *Chitty,*Plead. 193, 5th *Lond.*ed.