Rowell v. Powell

The opinion of the court was delivered by Royce, J. As we understand that portion of the charge that was excepted to, the court instructed the jury (in substance) that they were to take into consideration what business the colt had been used for previous to the attachment, and what future use the plaintiff intended to put him to, at the time the' attachment was made, and if they should find that the plaintiff had then resolved to engage in the business of peddling as soon as the snow should go off, and had the bona fide intention of using the colt in that business, that he would be exempt from attachment, under No. 39 of the acts of 1866. It is not now claimed but what the evidence of the past use of the colt was proper to be admitted, but it is claimed that to make him exempt, he should have been kept and used for team work at the time of the attachment; that there must be an actual use, and that the intention to use him for such work at some future time would not render him exempt. It has never • been understood that an actual user of the animal for team work at thé time its exemption from attachment was claimed was necessary ; such a construction would defeat the evident purpose of the statute. 'In Webster v. Orne, 45 Vt. 40, the past use of the horse for team work seems to have been regarded as decisive ; for the horse was not in use for team work at the time he was attached, and it does not appear that he was then on the farm, where he had been so used, and his owner was then intending to sell him. Future intended use is as controlling upon the question of exemption as any past use. “ Kept and used ” signifies that the animal must be kept for team work and must be in actual use, or it must be kept with the honest intention and purpose of the owner, within a reasonable time thereafter, to use him for team work as occasion [305] may require, to enable him with the aid of the animal to procure a livelihood. The case of Sullivan v. Davis, 50 Vt. 648, relied upon by the defendant, differs from this in the important fact that exemption was claimed in that case, for a colt less than two years old, and which it is found was too young for teamwork, so that he did not come within the description of animals that are exempted by the statute. In view of what appeared upon the trial, we do not find any error in the charge, and the judgment is affirmed.