| Cal. | Jul 1, 1867
The third subdivision of section two hundred and nineteen of the Practice Act relates exclusively to exemptions in favor of judgment debtors who are farmers, and therefore has no application whatever to this case, for it is not pretented that the plaintiff was engaged in farming, or that the team 'was being used by him in the prosecution of that business.
The case falls under the sixth subdivision, which reads as follows : 4‘ Two oxen, two horses, or two mules, with their harness, and one cart or wagon, by the use of which a cart-man, huckster, peddler, teamster, or other laborer, habitually earns his living.”
The case shows that the plaintiff, prior to the 1st of August, 1865, was a merchant—that on that day he sold out the business and stock to Wellman, Peek & Co. for the purpose of paying his debts, with the understanding that he was to have the business back after some of the goods had been sold and the stock reduced ; that two weeks after the sale he went back into the store as chief clerk and managing agent for his vendees, at a monthly salary of seventy-five dollars; that he had a family consisting of a wife and five children; that ho took his family supplies from the store generally, but sometimes purchased from other parties and
It is very questionable whether, under the circumstances detailed, the sale to Wellman, Peck & Co. was not a sham, and made chiefly to enable the plaintiff' to continue his business in the name of that firm without molestation from his other creditors. If so, the transaction did not change the occupation of the plaintiff' from that of a merchant into that of a clerk even, much less a teamster or other laborer who habitually earns his living by the use of his team. But if we assume, for the purposes of the case, that the sale was bona fide, and that the plaintiff ceased to be a merchant and thereafter became a clerk, we still think that he did not become a teamster, or a laborer, who habitually earns his living by the help of his team, in the sense of the statute.
In common speech a teamster is one who drives a team, but in the sense of the statute every one who drives a team is not necessarily a teamster, nor is he. necessarily not a teamster unless he drives a team continually. In the sense of the statute, one is a teamster who is. engaged, with his own team or teams, in the business of teaming—that is to say, in the business of hauling freight for other parties for a consideration, by which he habitually supports himself and family, if he has one. While he need not, perhaps, drive his team in person, yet he must be personally,engaged in the business of teaming habitually, and for the purpose of malting a living by that business. If a carpenter or other mechanic who occupies his time in labor at his trade purchases a team or teams and also carries on the business of teaming by the employment of others, he does not thereby
In order to entitle a party to claim as exempt from execution two horses, etc., under the sixth subdivision of section two hundred and nineteen, he must show that he is a cart-man, huckster, peddler, teamster or other laborer, and that he habitually earns his living by the use of such horses, etc. By “ other laborer ” is meant one who labors by and with the aid of his team, and not by the aid of a pick and shovel, or an anvil, or a lapstone, or a jackplane, or a yardstick: In our judgment the plaintiff failed to show that he belonged to either of these classes.
The instructions of the Court were not in accordance with the foregoing views, and they were so far erroneous.
Hew trial granted.