Abercrombie v. Alderson , 9 Ala. 981 ( 1846 )

COLLIER, C. J.

The act of 1833, “ to exempt certain property from execution,” enacts, that “ the following articles 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, that is to say,” &c. among which are enumerated “all tools or implements of trade.” Clay’s Dig. 210, § 47. To bring a case within the influence of this statute, the defendant in execution must have a family. The language employed, to say nothing of the object of the enactment is too explicit to admit of controversy. In Allen v. Manasse and Mosely, 4 Ala. Rep. 554, in considering its effect, it was said, “the exemption is not conferred upon the property of every person, and it seems clear that a debtor, merely as such, is not considered; it is only when connected with others, that protection is cast around his property, and this is, that those dependent on him may not be injured by his destitution.” “ To constitute such a family there must be a condition of dependence, and no mere aggregation of individuals will create this relation. Nor can the circumstance that a family exists elsewhere, have any material influence on the case.” There is not the slightest proof in the record, that the defendant in execution had a family in this State or elsewhere; consequently the protection afforded by the statute, does not exempt his property from seizure and sale under legal process.

It is however supposed that the common law secures the tools of one’s trade from liability to the payment of his debts. We will briefly consider this question. In Simpson v. Hartopp, 43 Law. Lib. 187, an action of trover was brought for a stocking frame which had been distrained for rent. It appeared that J. A. (the tenant,) was by trade a stocking weaver, and used the stocking frame as an instrument of his trade, and continued the use thereof, and his' apprentice was using the same when it was seized by the lessor as a distress for rent. It was held that beasts of the plough and instruments of husbandry, as well as the instruments of a man’s trade or profession are not distrainable; but it was added that, the privilege in such cases is only allowed where a sufficiency of other goods and chattels were found upon the premises, which were by law distrainable. The stocking frame however being actually in use, was improperly seized — 1, because it would be damnified in the removal, and could not be restored in the same condition in which it was : 2, because its seizure while in use, would be a breach of the peace ; and this although there was no other distress upon the premises. 'This is regarded as a leading case, and has been always approved, so far as our research extends. See Co. Lit. 47 a, b; Gorton v. Falkner, 4 T. Rep. 565; Fenton v. Logan, 9 Bing. Rep. 676, and notes to Simpson v. Hartopp, 43 Law. L. 191 195; 5 Dane’s Ab. 35; Piggott v. Birtles, 1 Mee. & W. Rep. 441. Stephens, in his Commentaries on the Laws of England, (3 vol. 366,) after enumerating the articles which at the common law were absolutely exempt from distress from rent, says there are others which are priviledged sub modo— as beasts of the plough (averia camcce,) and sheep, and instruments of husbandry; and the instruments of a man’s trade or profession; for example, (the axe of a carpenter, the books of a scholar, and the like.) As to all which the rule is, that they are exempt from distress only provided there be other sufficient distress on the premises.” We infer from what is said in Hutchins v. Chambers, 1 Burr. Rep. 589, that the law is even less indulgent towards a defendant in execution, than it is to a lessee, who is in default in the payment of rent. But be this as it may, our researches do not furnish any case, or principle which could have exempted the tools in the possession of the defendant in execution from seizure and sale foi the satisfaction of the judgment against him. The evidence recited does not show that he was a tinner, but merely that he hired other persons who used, the tools in the making of tin ware, Avhich he sold. If the exemption be allowable, it must be confined to the case of a debtor Avho uses them in his trade, and not to one who employs others to Avork for him.

This view of the case is decisive to show, that the charge to the jury is free from error, and the judgment is consequently affirmed.