Gay v. Southworth

Devens, J. It is a general principle of the law that all goods and chattels are subject to attachment for the debts of their owner, and after judgment to levy on execution. Buckingham v. Billings, 13 Mass. 82. Remmington v. Cady, 10 Conn. 44. Davenport v. Lacon, 17 Conn. 278. From motives of humanity to the debtor, that he may not be entirely deprived of the necessaries of life and the means of continuing to obtain a livelihood, certain exemptions have been made by which he has been entitled to hold certain domestic animals and certain small amounts of furniture, provisions, tools, &c. When, therefore, a defendant, sued in trespass for taking goods proved to be those of the plaintiff, shows that he took them as an officer of the law, by virtue of a legal process against the plaintiff and his goods, it is for the plaintiff to show that they were such goods as were exempt from attachment, and this because he seeks to except them from the operation of the general law. This seems in some cases to have been assumed rather than decided. Gibson v. Jenney, 15 Mass. 205. Danforth v. Woodward, 10 Pick. 423. Wallace v. Bartlett, 108 Mass. 52, 54. Sanborn v. Hamilton, 18 Vt. 590. Towns v. Pratt, 33 N. H. 345. Hughes v. Farrar, 45 Maine, 72. Everett v. Herrin, 46 Maine, 357. Healy v. Bateman, 2 R. I. 454. There are, however, both in this and in other of the New England States, the general character of whose laws in reference to attachment on mesne process is essentially the same with our own, other cases in which the question has been more directly considered, In Clapp v. Thomas, 5 Allen, 158, where corn had been attached, it was held that the burden of proof was on the plaintiff to show that it was procured and intended for use by him as pro [335] visions for his family; and that -the maintenance of the action by him depended on that fact. In Howard v. Farr, 18 N. H. 457, it was held, under a statute exempting one cow from attachment, that the action could not be maintained for taking on a writ of attachment the cow of the plaintiff, if it did not appear that it was his only cow. In Bourne v. Merritt, 22 Vt. 429, which was an action for attaching furniture which the plaintiff contended was used by him in his family, the court say: “ Neither can we assume that the articles of property sued for were exempt from attachment and execution on the ground that they were articles of household furniture belonging to the plaintiff, or used by him as such. They are doubtless appropriate for such a use; but non constat that they had ever been used for such purpose, or were intended by the plaintiff for such use; ” and further add, “ If the plaintiff claimed that those goods were exempt from the operation of the general law subjecting property to attachment and execution, it was for him to show it.” The jury should therefore have been instructed that it was for the plaintiff to satisfy them that the officer, in making the attachment, had not left other household furniture such in kind and value as is exempt by law from attachment. Exceptions sustained.