Chamberlain v. Whitney
65 Vt. 488
Vt.
1893
Check Treatment
ROWELL, J.

It is too well settled to admit of question, that in order to recover for property, as exempt from attachment the plaintiff must show all the facts necessary to bring the property within the statute of exemption.

It is found that the wagon was the plaintiff’s only wagon. Its kind and the use tó which it was put make it exempt, if enough else appears to make it so. Hickok v. Thayer, 49 Vt. 372. The statute provides that there shall be exempt one two-horse wagon, or one one-horse wagon used for purposes of teaming, or one ox-cart, as the debtor may choose. It is not found whether the plaintiff had an ox-cart or not, nor whether he chose the wagon for exemption. If he had an ox-cart, he would have had to choose the wagon in order to exempt it. Plaintiff claims that as all reasonable presumptions are to be made in favor of the judgment, we ought to presume that the court below inferred and found from the facts certified up that the plaintiff did not have an ox-cart; and he makes the still broader claim, that if any further inferences of fact are necessary to uphold the judgment, the presumption is that the court below made them. This last claim is too broad to be sound. The true rule on this subject is laid dawn in Pratt v. Page, 32 Vt. 13, to the *491effect that this court will presume in favor of the judgment that the court below inferred such facts from those certified up as it ought to have inferred, or as it fairly might have inferred. Applying this rule, there is clearly nothing in the record from which the court below could have fairly inferred and found that the plaintiff did not have an ox-cart. Indeed, the record is entirely silent on that subject; and as said in Pratt v. Page, it can hardly be said that a judgment is fairly sustained that is made to rest solely on the presumption that the court below inferred a fact that does not fairly arise from those certified up.

Nor does it appear that the course of the trial was such as to amount to a concession that such was the fact. The judgment therefore cannot be sustained as to the wagon.

The only objection made to the judgment for the harness is that it does not appear that the plaintiff did not have two^ other harnesses and chose this one. But the course of the examination assumed that he had no other harnesses, the exceptions say, and we understand this to mean a mutual assumption, and that the court treated it as a concession of that fact. The court had a right to treat the case as the parties treated it, and to. decide it accordingly, as it manifestly did on this point. Hence the judgment for the harness was correct. The saddle was not included in the judgment.

The plaintiff now asks to have the cause remanded, that he may show that he did not have an ox-cart, which he asserts to be the fact. But it would hardly be warrantable to do that, with nothing to show why he did not make that proof on trial. And besides, the value of the wagon is so small, only $10, that it is better for the plaintiff that the litigation should stop here.

Judgment reversed and judgmentfor the-plaintifffor $4,. the value of the harness.