Sallee v. Waters , 17 Ala. 482 ( 1850 )

DARGAN, C. J.

This was a motion against the defendant as sheriff of Butler county for failing to make the money on an execution issued against James H. Curtis. A jury was empanelled to try the issue made up, whether the defendant could have made the money by proper diligence. They returned a special verdict, which shows that Curtis, the defendant in the execution, was a printer by trade, and during the time the execution was in the hands of the sheriff owned a newspaper establishment, consisting of a press, types, and other necessary articles and appendages for publishing and which he employed in the publication of a weekly newspaper; that Curtis worked at his trade himself and employed others to work and carry on said newspaper establishment; and that among the said publishing materials there was no paper or ink, except such as were necessary in a printing office, and usually denominated printing materials. The press, types, materials, &c. were valued at five' hundred dollars. The jury further found that Curtis had one child dependant on him for a support, but that he had1 no wife, nor did he keep house, but he and his child boarded at different houses in the town of Greenville. Upon the foregoing-facts the jury agreed that if the law was in favor of ih’e plaintiff they then found1 in his favor, but if it was otherwise they found for the defendant. The court decided in favor of the defendant, whereupon judgment was rendered for him.

The defendant contends that these articles are not liable to be sold by execution under the act of 1833, inasmuch as Curtis was the head of a family. That act is in the following, language : “ The following articles shall be retained by and for the use of every family in this State, free and exempt from levy and sale by virtue of any execution or other legal process; that is to say, two cows and calves, two spinning wheels, two axes, two1 hoes, five hundred Weight of meat, one hundred bushels of corn, all the meal on hand, two ploughs, one table, one pot, one oven, two water vessels, two pair of cotton cards, all books, one churn, three chairs, one work horse, mule, or pair of oxen, all implements or tools of trade,” &c. Whether the court erred or not depends on the construction that should be given to the words, “ all implements or tools of trade.” In the case of Buckingham v. Billings, 13 Mass. 82, the question arose whether a. printing press, types, &c. were liable to be sold under execution according to the laws of Massachusetts, which exempts from levy and sale “ the tools of a debtor necessary for his trade or occupation.” Chief Justice Parker, in delivering the opinion of the court, said, “It was not to be supposed that it was intended to comprehend within the term tools, which are properly small articles used by the hand, complicated machinery or expensive utensils, which may of themselves be of great value. There are machines now used in manufactures which may as well be denominated tools.as the apparatus of a printing office, and yet it cannot be supposed that the Legislature intended to exempt them from attachment and thus to enable a debtor to hold a large capital which cannot be reached by his creditors.” In the case of Patton v. Smith, 4 Conn. 450, the question arose whether a printing press, types, &c. were exempted from levy and sale under the act of Connecticut, which exempts all tools necessary for the upholding of life; the court dissented from the reasoning employed in the case of Buckingham v. Billings, supra, and held that the press and types were not liable to levy and sale. The reasonings of the courts in the two cases refered to are irreconcilable and lead to directly contrary results.' We therefore must determine for ourselves, without regard to the decision in either case.

It is to be regretted that the framers of our laws do not (if by possibility it can be done) use more definite and precise language to convey their meaning and intention. Trade, for instance, in its common acceptation may signify the business that one pursues, whether it be in buying and selling, or whether it be any of the mechanic arts. So manufacturing may be said to be a trade, and without violence to language, the machinery necessary to carry it on may be said to be the implements of that trade. Yet it will not be contended that the statute intended by the term tools or implements of trade to exempt costly machinery from the payment of the debts of the owner; if so, a debtor worth a large capital may set his creditors at defiance; indeed he may be wealthy, yet the law could not compel him to pay his debts. I see and feel the difficulty in laying down a principle by which we can determine what shall be considered in all cases implemeats or tools of trade, unless we take the words in their broadest sense, but that construction would lead to results, in my opinion, entirely beyond the design and intention of the law. It would exempt property of great value under the denomination of implements of trade, and might leave the debtor in possession of wealth. This I cannot believe was intended by the use of the terms, tools or implements’ of trade. In the case of Ritchie v. McCauly, 4 Barr. 471, it was held that the printing or stamping blocks of an oil-cloth painter, worth from a thousand to fifteen hundred dollars, were not the necessary tools of a tradesman, within the meaning of the act of Pennsylvania. Yet it was conceded in that case that, the occupation of a painter of oil-cloth was a trade and one engaged in it a tradesman within the meaning of those terms; and it is evident that the blocks used in stamping the oil-cloth were-necessary to carry on the trade with success. This authority I think applicable to the case before, us, and shows that the use of the terms, tools and implements of trade, are not to be taken in their most extended signification. But to limit them is the difficulty. My own opinion, however, is that we should look to the character or nature of the trade in determining whether the articles claimed.to be exempt can be considered as tools or implements. If the trade or occupation is usually carried on with machinery, apparatus, or implements of great value, we may then reasonably conclude that the Legislature did not intend to exempt such from levy and sale. If this be not the proper construction of those terms, we must hold that the Legislature intended to permit a particular class of tradesmen to enjoy the use of property that may yield a large annual income, although they may be involved in debt. A printing press and types may be of the value of several thousand dollars; the business maybe profitable and give employment to many; the owner may be an editor as well as a practical printer; and if such property be not subject to levy and sale, we may leave him in independent circumstances, whilst his creditors are put at defiance. Such property, in my opinion, was never intended to be included by the Legislature when they used the terms, tools and implements of trade. A majority of the court, however, think otherwise. They hold that as printing is a trade and a press and types are indispensably necessary in following or conducting it, they are to be considered as implements of trade, and consequently not subject according to the facts of this case to levy and sale. We all, however, agree that the judgment must be reversed, for it appears that Curtis had paper and ink in possession during the timo the execution was in the hands of the sheriff, and we cannot think that by any construction such articles can be included by the terms, tools or implements of trade. They are rather stock in trade, than the implements or tools of trade.

As to the question whether Curtis was the head of a family, we think it clear that he was. To constitute a family within the meaning of the act, the relation of parent and child, or that of husband and wife, must exist; there must be a condition of dependence on the one or the other of these relations; but it is not necessary that all the dependents should live under the same roof, or that the family should live together; it is the relation and the dependence on that relation, not the aggregation of the individuals, that constitutes a family. — Abercrombie v. Alderson, 9 Ala. 981; Allen v. Manassee & Mosely, 4 Ala. 554.

Let the judgment be reversed and cause remanded.

CHILTON, J.

The Legislature has not thought proper to distinguish between different trades, or to say that the toob or implements of one trade and not of another should be exempt, or that these tools or implements shall not exceed a certain value, but the language is general and exempts the tools and implements of all tradesmen. If then, being called upon to construe this general language, we should engraft exceptions and say the blacksmith is within the exception, but the printer, who is confessedly a tradesman, is not, we should usurp the powers of the Legislature and in effect make the law, rather than construe it. This law was conceived and enacted in the most benevolent policy and should recieve a liberal construction, and the case of Buckingham v. Billings, in 13th Mass, has since been departed from so far as it holds a different doctrine by the same court, in L5tb Mass, and 10th Mete. Rep. If under this exemption persons should attempt a fraud on the statute and seek to shelter a large amount of property under its provisions, we should protect the statute against such abuse and construe it according to its manifest design, which was to furnish the tradesmen of the country the means of supporting their families by exempting from levy and sale the tools and implements of their trade. When a printer seeks to exempt several presses and corresponding type, or more presses than one, then we will look into the argument of the Chief Justice, which furnishes such illustrations. In this case there was but one press, and suitable type, &c. for working it. Take it from the printer and you turn him out a tradesman without the tools and implements of his trade. I see no difference in principle between an officer’s levying upon a hammer in the hands of the blacksmith, the plane in the hands of the carpenter, or the composing stick and type in the hand of the printer. They are all tools and implements of trade, and the statute declares all tools and implements of trade are exempt. The argument of the Chief Justice, drawn ab inconvenienti, in a doubtful case would be valuable, but as opposed to a plain statute does not satisfy my mind that we should be justified in departing from it and in substituting, as I think would be the effect of a contrary decision, in lieu of th.e statute, judicial discretion — a most unstable and unsafe guide in the administration of justice. This hasty sketch of my views will serve to show the reasons upon which I predicate my conclusion.