Robinson v. Myers

33 Ky. 441 | Ky. Ct. App. | 1835

Chief Justice Robertson

delivered the Opinion of the Court—

Judge Ewing did not sit in this case.

The record in this case, together with an extraneous document used here by consent, purporting to contain instructions proposed by the plaintiff and overruled by the Court, presents, when properly scrutinized and considered, but one question: that is — Is “ a bona fide housekeeper with a family,” in this state, who owns two work beasts — one here, and the other in Tennessee, within his immediate control — entitled to the exemption, from execution, of the one here?

The fourth proviso in the general execution statute of 1828, (1 Stat. Law, 641,) whether interpreted according to its letter, or to its obvious policy, should be understood as intended to secure to every housekeeper with a family, against the claims of judgment creditors, the use of only one work beast. If he has more than one, ah& for the purpose of eluding his creditors, or for any other purpose, sends all except one beyond the limits of his county, or even of this state, he cannot be entitled to the exetnptio'n of the Only one left at home; because he would then have more than one which he might use, and the statute only intended to secure to him the right to use one; and though an execution debtor, owning more than one work beast subject to the execution, may elect Which one he will keep, yet if one of them only be within the reach of the execution, he cannot defeat the creditor’s levy on that one, by electing to keep it, whilst he retains the right to control and enjoy the use of another, which he will not substitute under the execution; for if he could do so-, a beneficent statute, enacted for his projection, might be prostituted as an engine of fraud and •evasion, and thus perverted to ends altogether inconsisjent with its spirit and policy.

As therefore, the facts in this case conduced to prove-, jhat the plaintiff had a work beast which he had carried "to Tennessee, -and there left, subject to his control at :-any time, the verdict and judgment in favor of the defendants, in this action of trespass, for selling under execution the only work beast belonging to him in this state,'was not without evidence, or contrary to law, and should not therefore 'be disturbed.

- Wherefore, it is considered that the judgment be afi 'firmed-.