
    Richard Penhallow versus Elijah Dwight.
    An officer, having an execution against one, may lawfully enter the close of the debtor, and cut down, seize and sell, as personal estate, corn or other product of the soil there growing, when ripe and in a fit state to be gathered.
    Trespass for breaking and entering the plaintiff’s close, and cutting down and carrying away his corn there growing.
    The parties submitted the cause to the determination of the Court upon an agreed statement of facts. The defendant, at the time when, &c., was a constable of Belchertown, * in [ * 35 ] which the locus in quo was situated, and he entered the close, and cut and carried away the plaintiff’s corn thereon growing, and then fully ripe and fit to be gathered ; claiming authority so to do, by virtue of an execution to him directed, then in full force, and issued in due form of law, upon a judgment of the Court of Common Pleas, for the county of Hampshire, against the plaintiff, and in favor of one Eldad Parsons. The said corn being sold by the defendant at public auction, according to law, produced the sum of 22 dollars, 49 cents, which sum, after deducting his fees, and the expenses of gathering the corn, the defendant endorsed on the said execution. If the Court should be of opinion that the defendant had a right, by virtue of the authority aforesaid, to enter the said close, and cut and carry away the plaintiff’s corn, in manner and for the cause aforesaid, it was agreed that judgment should be rendered for the defendant for his costs; otherwise for the plaintiff, fa 25 dollars damage, with his costs.
    
      Alvord for the plaintiff.
    
      Dickinson for the defendant.
   Curia.

As the defendant had the right, and indeed was obliged, by the duty of his office, to enter the close of the plaintiff, and to seize any personal property of the plaintiff, whereby he might satisfy the execution he then held against the plaintiff; the only question is, whether corn, then in a proper state to be gathered, but found standing, might lawfully be cut down and disposed of, to raise the tnoney due upon the execution. And we have no doubt that corn, or any other product of the soil, raised annually, by labor and cultivation, is personal estate; and would go to the executor, and not to the heir, on the decease of the proprietor. It is therefore liable to be seized on execution, and may be sold as other personal estate.

An entry, for the purpose of taking unripe corn, or other produce which would yield nothing, but in fact be wasted and destroyed, by the very act of severing it from the soil, would not be protected by this decision.

Let the defendant have judgment for his costs, 
      
      
         [Com. Dig. Execution, (C. 4,) 1 Salk. 368. — Whipple vs. Foote. 2 Johns. Rep. 418. — Hartwell vs. Bissell, 17 Johns. Rep. 128.—Ed.]
     