Lathrop v. Middleton

23 Cal. 257 | Cal. | 1863

Crocker, J.

delivered the opinion of the Court—Horton, J. concurring. •>

This is an action to enjoin the defendant, the Sheriff of Butte County, from selling a ferryboat beloging to the plaintiff under an execution against him, and to require him to release the levy thereon. ' It appears that the Sheriff, having two executions against the plaintiff, levied the same upon the ferryboat, which was at the time in an unfinished condition, and had never been used at the ferry. The plaintiff contends that the United States mail from Or oville to Shasta crosses the river at his ferry, and therefore his ferryboats are exempt from forced sale on execution. The statute of'this State provides what property shall be exempt from sale on execution; but ferryboats, even on mail routes, are not included in the list. Nor is there any Act of Congress which exempts such property.

In Parker v. Porter (6 Louisiana, 169) a levy of an attachment was made on a steamboat used to carry the United States mails; but no mails were on the boat at the time, though they were brought on soon after, and it was held that the levy was valid, and was not an obstruction to the passage of the mail within the Act of Congress making it a penal offense to “ knowingly and willfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same held, further, that this act must be strictly construed when under its provisions it is sought to protect property used in the transportation of the mails from the pursuit of creditors, in derogation of a right recognized by the laws of the State.

The property in this case was clearly liable to the levy, and the Court erred in enjoining the sale and ordering the defendant to release the levy.

The judgment is therefore reversed and the cause remanded.