Noland v. Wickham , 9 Ala. 169 ( 1846 )

COLLIER, C. J.

Among other things, it is enacted, that “-one, work horse, mule, or pair of oxen,” “shall be retained by, and for the use of, every family in this State, free and exempt from levy or sale, by virtue of' any execution, or other legal process.” [Clay’s Dig.] The only point which we remember to have decided under this statute, is, that the exemption does not cover the property of one who has a family in another State, although he is here accompanied by a son, not shown to be dependent upon him. [Allen v. Manasse & Mosely, 4 Ala. Rep. 554.]

It is not controverted in the present case, that the plaintiff had a family residing with him in this State, but to exempt a horse from liability to seizure and sale, under execution, it is insisted, he must, within the meaning of the act cited, have been broke to gear; or in other words, should be a draught horse, and have been used for that purpose. This construction, we think, is entirely too restricted. The statute was doubtless intended for the benevolent purpose of enabling the head of a family to support, and at the same time contribute to the comfort and convenience of, those of his own household who are dependent upon him. To give to it the scope and operation contemplated by the legislature, it will not do to limit the exemption to a horse that has actual- ) y performed service in a .plow, or cart; but we must understand the-terms “work horse” to mean, one that performs the common drudgery of the homestead; as to haul wood, to draw the plow, to carry the family to church, &c., either under the saddle or in traces. It is not necessary that he shall have performed this service; if he has performed a part of it, and is intended as such a drudge, it is quite sufficient to bring him within the exemption of the statute. If' the law were otherwise, then a horse purchased for the purpose of being used in traces, or harness, whenever the family required it, if he had not been broke to these, would be subject to levy and sale, though he had performed important service under the saddle, for the family. And this too, when it is known that the docility of the horse is in general such, that there are but few that cannot be induced to draw kindly.

It might so happen, that no member of the family, either from bad health or other cause, were able to drive a plow or cart; yet, if the only horse belonging to its head was used to ride to mill, to carry the children to school, and in other equally necessary or convenient service, surely it would not be insisted, that he was subject to execution because he had never drawn in traces or shafts. We cannot think, the Circuit Judge misapprehended the law, in instructing the jury ashe'did'in the first charge excepted to.

We incline to the opinion, that as the statute does not prescribe who shall elect which horse a defendant in execution shall retain where he has several, the right of election, if he claims it, devolves upon him. But does the evidence in the case before us, show that the plaintiff had more than one “ work horse,” according to the interpretation we have given to those terms ? The horse left, was “ a small filly, the rise of two years old, broke to the saddle ;” thus making the inference legitimate, that she had not been employed in doing the ordinary service of the family. It results from this view, that the second charge is also defensible. The judgment is consequently affirmed.