
    William Hanna v. H. M. Bry et al.
    The horse of a physician is liable to seizure on execution, and is not exempted by C. P. M4.
    The proper mode of seizing on an execution a debt existing in the form of a judgment is, by a notification of the seizure by the sheriff to the judgment debtor; and such notification is effected by the process of garnishment served upon the judgment debtors.
    A sheriff' has no right to seize and take into his possession the records in the custody of the clerk of the court.
    APPEAL from the District Court of Ouachita, Copley, J.
    
      O. D. Stillman, for plaintiff,
    contended : This action was instituted by an out by plaintiff, restraining the defendant Bry, and the sheriff, from proceeding in the sale of certain property seized under an execution issued in the case of Bry, Executor, v. William H. I-Ianna, to wit, a horse, saddle and bridle, and a judgment rendered in the Twelfth District Court of Ouachita, in favor of plaintiff Hanna and Abel T. Nonvood v. Bry and Wife.
    
    
      There was judgment perpetuating the injunction from which defendants have appealed.
    The case presents only two points for the consideration of this court: 1. Is the horse of a physician (the only one possessed by him) who practises medicine in the country, where a horse is indispensable for the exercise of the profession by which he gains a living, and without which his profession would be useless to him, subject to seizure and sale for an ordinary debt, as in this case ? 2. Can a judgment in the custody of the clerk of the court be seized and sold by the sheriff, without his taking actual possession of it?
    The horse seized was the only one owned or possessed by plaintiff, and the testimony clearly shows that his profession (the only one by which he gains a living) would be entirely useless to him without it. By article 644 of the C. P., the tools and instruments necessary for the exercise of the trade or profession by which the debtor gains a living, are exempted from seizure and sale.
    Now, what is intended to be understood by the words tools and instruments, in this article of the code ? Do they apply exclusively to inanimate objects, as has been contended by the counsel for the defence, or to all objects embraced under the names of tools and instruments necessary for the exercise of a profession, as understood by the general definition of these terms. Lexicographers define instruments to be the agent, by which work is performed or anything effected. Could the plaintiff possess a more effective agent or instrument in the exercise of his profession than his horse, particularly when it is shown that his profession would be worthless to him without it? The objects embraced under these terms, tools and instruments, are general; are not rendered specific by the article of the code, and are only restricted by the terms necessary for the exercise of the trade or profession. A horse may not be a necessary instrument in the profession of every physician, nor a jack-plane to every carpenter, but in this case, the horse is proved to be indispensably necessary, and its exemption from seizure is clearly within the letter, spirit and intention of the law. A mechanic may not have the tools of his trade released from seizure under this article, unless he proves that they are necessary to his livelihood. Parker v. Starkweather, 7 N. S. 337.
    Judge Morphy, in the case of Lambeth v. Milton, 2 R. R. 81, says, that this article of the code was dictated by public policy as well as humanity. While it encourages the exercise of all useful trades and professions, it enables the unfortunate debtor to sustain himself and family by honest industry; and at the same time holds out to the creditor a prospect of obtaining his debt by the future labor of his debtor, with these privileged tools and instruments. There are other authorities of this court which sustain this point. 1st Ann. 394.
    It is urged by the counsel for the defence, that a horse is not an instrument intended to be exempt from seizure by this article of the code, because it does not contribute to a physician’s medical knowledge. I do not see the force of this objection. It appears to me that a physician’s horse contributes as much to his medical knowledge as his spatula, his lancet, or his leeches; and I presume, the counsel will not contend that these instruments are liable to seizure under this article, or that they are unnecessary in the practice of medicine.
    With regard to the second point, it is established by the evidence that the sheriff made no legal seizure of the judgment, he not having taken it into actual possession, the same being in the possession and custody of the clerk of the court. The sheriff took the judgment from the office of the clerk, and soon after returned it at the request of the clerk, who was ordered to issue execution on it; he had no right to permit it to be taken from his office, and the sheriff never had any legal possession of it, such as would enable him to sell and make a delivery.
    It has been repeatedly held by this honorable court, that the sheriff cannot make a valid seizure of tangible property without taking it into actual possession. Daley v. Cunningham, 3d Ajm. 55. Fluker v. Bullard, 2d Ann. 338. Offut v. Monquit, 2d Ann. 785. Simpson v. Attain, 7 R. R. 504. Gobeau v. New Orleans and Nashville Railroad Company, 6 R. R. 348.
    
      McGuire and Ray, for defendants,
    contended : Plaintiff relies on the provision of article 644, C. P., which says, the sheriff cannot seize “ the tools and instruments necessary for the exercise of the trade or profession by which he gains a living.”
    As a general rule, every species of property is liable to seizure to pay debts. All exceptions to this rule are made by express law, and are in derogation to the, general principle, and ought to be construed strictly.
    
      No decision of our court, we think, has gone the length contended for by-plaintiff. The farthest our court has gone is in the case of the Farmers and Mechanics’ Bank v. Franklin, 1st Ann. 394, where the commercial books, counting-house furniture-, and iron chests in fthe counting-house used to keep the books in, of a merchant, were held not liable to seizure.
    A practising lawyer’s books are saidnotto be liable to seizure, 2R. R. 81, and by a dictum of the court in 7 N. S. 337, it was intimated that under this article C. P. 644, a blacksmith could not retain more tools than were necessary to labor at his trade.
    These are the only decisions in our reports we have been able to find in explanation of this article.
    Plaintiff cannot benefit his case by showing that he had no other horse, or any other property, or that he was insolvent. These are immaterial questions. For if a horse used by a physician in the practice of his profession in the country is exempted, it is not material whether the physician has other horses or is able to purchase others or not.
    The words “tools and instruments necessary to the exercise of a trade or profession,” were intended, we think, to have a specific and limited application, and were not intended to be extended by implication as it is an exception to a general rule. The words tool and instrument, as applied to the exercise of a trade, such as that of blacksmith or carpenter, are very plain, and cannot well be misunderstood. Judge Porter says, in 7 N. S., 337, “The object of the law was to secui-e to citizens and others the means of laboring at their trade or profession and he intimated that more tools than was necessary could not be exempted under this article. These words tools and instruments, as applied to the exercise of the profession of physician, can only apply to his scientific instruments and medical books essentially necessary to the practice. A physician’s medicines, which he keeps for the use of his patients, although he may keep none for sale otherwise, we think would clearly not come under this article. And in the country it is known to the. court that such would be equally as essential to the practice of a physician as a horse, anything that is a mere incident and does not add to the knowledge of a physician or assist in the application of a remedy, does not come within the fair purport of the article. If the court extends this article by implication, as is contended for in this case, its operation would be partial. The practice of some physicians in the country requires the assistance of several horses to enable them to visit all their patients. If one would be exempt, all would certainly be. Besides, some physicians from choice or physical infirmity, would require a carriage in place of a saddle — the same principle that would exempt one would the other. Again, some physicians confine their practice to towns and cities where a horse is not necessary; in such a case such property would not be exempt. If the horse is exempt from seizure, the provender provided for his sustenance ought likewise to be exempt, and so the exemption might be strained to apply to almost every species of property owned by a physician. In the country, it is known to the court that lawyers in the practice of then-profession are compelled to travel from one parish to another, which they could not do without the assistance of a horse, and will it be seriously contended that his horse is exempt from seizure under this article.
    We cite these examples to show the legitimate'and extreme consequences the doctrine contended for by plaintiff would lead to.
    We think the rule laid down in the C.P. 644, is general, and must apply' alike to all cases, and that the words “tools and instruments” are to be used in a technical or restricted sense, as appliable to the exercise of a profession, and that by no fair construction can they be construed to apply to a horse used by a physician in his practice. Such expressions cannot fairly apply to animals used ip conveying a physician to see his patients.
    The seizure (or as plaintiff alleges “ pretended seizure ”) of the judgment of Hanna and Norwood v. T. H. Bry and Husband, No, 1728, constitutes no legal ground in favor of plaintiff for an injunction. If the proceedings of the plaintiff in execution, and of the sheriff, were illegal, plaintiff could not be effected in any way by it; and if they were legal, the proceeds of the seizure would go to pay his debt. The proceedings are neither injurious to him or impair any right which he claims. C. P. 296.
    This question was settled in the case of Calderwood v. Prevost, 9 R. R. 182, 183. The argument of the court in that case is conclusive. If the sheriff, as the plaintiff alleges, has not possession of the judgment, plaintiff is not actually disturbed ; and it is time enough for him to complain when actually disturbed.
    
      Injury to the plaintiff, or apprehension of it, can only authorize an injunction, mere irregularities in proceeding will not. 2 L. R. 66. 12 L. R. 123, 124.
    It does not appear, so far as we can find, that the failure to make an actual seizure has ever been set up successfully by a defendant in execution, as a good ground for an injunction.
    We think that, taking plaintiffs allegations as true, he is not on this point ertitled to an injunction. But should the court think plaintiff’s allegations, if true, authorize an injunction, we will proceed to examine this point on the merits.
    Under the execution enjoined of Henry M. Bry, Executor, v. Hanna and Norwood, the sheriff also seized and advertised for sale, a judgment in the case of Hanna and Norwood v. Thankful H. Bry and Husband, for $212, with five per cent interest from May, 22, 1849, No. 1728. Plaintiff alleges said seizure was illegal, because the suit or judgment was not in the possession of the sheriff. The court will observe, that plaintiff does not allege the sheriff did not take it into possession, but only that he did not then have it in possession.
    The evidence of Allen shows, that the sheriff did take actual possession of the suit and judgment when it was seized, and kept the possession of it for some time, and returned into the clerk’s office at Allen's request as clerk.
    According to the C. P. 647, the sheriff may seize the “lights and credits,” “ and all sums which may be due” to the debtor, “in whatsoever right.” This authorized the seizure of a judgment; and if taking actual possession of a judgment be necessary to constitute a seizure, it was done in this case ; although, at the request of the clerk, the sheriff had returned it to the clerk’s office. Yet the sale would have been good if the sheriff had delivered and transferred it to the purchaser at the sale ; at all events, if the plaintiff, Hanna, was fearful of being injured by the sheriff, not being able to make a good delivery and transfer of it, he could have obviated that by coming forward and ratifying the sheriff’s act. The only objection urged or set up by plaintiff is, that the sheriff was not in possession of the judgment.
    Judgments have been seized and sold. 4 R. R. 341. The objection in the case before the court was not raised in that case, but it shows that a judgment may be sold under execution. Judgments may be attached. 3d Ann. 55. This case intimates the legal requisites to constitute an attachment, and like requisites may be required to constitute a valid seizure.
    It is manifest, that the actual possession necessary to constitute a legal seizure of a note or other evidence of a debt not reduced to a judgment, does not apply to the seizure of judgments. But in this case it has been attempted to comply strictly with the law. Actual seizure has been made, as well as the most certain and effectual notice given to the debtors in the judgment seized, which seems to be what would be required to constitute a legal seizure or attachment according to the dictum of this court. 3d Ann. 55. The manner in which this notice was given to the debtors in the judgment seized, was by citing them as garnishees, according to the act of 20th March, 1839, section 13, p. 8, 9.
    Plaintiff sets up various objections to the proceedings in garnishment, but concludes by praying that Bry’s executor be held to his proceeding in garnishment. His objections are therefore waived. The legal effects of this proceeding is now to be considered.
    This proceeding was intended merely to perfect the seizure. The proceedings under the act of March 20, 1839, B. & C. Digest, 458, after a.fi. fa. has been applied for, are mainly the same with the proceedings against garnishees under the attachment laws. C. P. 262 to 265. From the time the interrogatories are served, according to the act of 1839, the property and money in the hands of the garnishee are levied upon. If the garnishee acknowledges he has property of defendant in execution in his hands, he is ordered to deliver it to the sheriff. If he does so, it is to be sold, and the proceeds applied to the execution. If he acknowledges he owes the defendant in execution, he is ordered to pay it over to the sheriff. If he does not, judgment is or may be ordered up against him ; but whether in favor of the sheriff or plaintiff in the execution, the law does not say.
    In the case before the court, we hold, that plaintiff in the execution enjoined had aright to use the act of 1839 to have a debt levied upon; and then, after the levy, he could notify the defendant in execution of such levy, and if the debt be not paid, he can proceed and sell the claim. But if he prefer it, he can proceed and carry out the act of 1839, and obtain judgment against the garnishee and execute it; and whatever amount he may make on it, to have it credited on the execution. It was the former of those proceedings that plaintiff in the execution enjoined was pursuing when stopped by this injunction.
    This view of the law will harmonize the right to seize a judgment, C. P. 647, with the provisions of the garnishment laws and the act of 1839. There are two modes of proceeding: one to have the debt owing by the garnishee to the defendant in execution sold ; and the other, to obtain judgment against the garnishee for the benefit of the plaintiff in execution.
    Plaintiff’s injunction ought to be dissolved, with ten per cent interest, and twenty per cent general damages on the amount enjoined, and $100 special damages for attorney’s fees.
   The judgment of the court was pronounced by

Slidell, J.

This is a case of injunction, obtained to restrain the sheriff from proceeding to the sale of certain property seized under fieri facias, in the suit of Bry, Executor, v. Hanna.

There was judgment in the court below perpetuating the injunction, and the defendants have appealed.

I. The fii’st question presented for our consideration is, the legality of the seizure of a horse belonging to Hanna. It is proved that Hanna is a physician, and that his practice is a country practice, in the exercise of which a horse is indispensable. The horse was the only one he had. Hanna contends that the horse is exempt from seizure under the article 644 of the Code of Practice.

At common law, from which we derived the writ of fieri facias, little mercy was extended to the debtor. Even his wearing apparel might be taken, provided in doing so the sheriff was not obliged to strip it from the debtor’s back. But our law, in a spirit of greater tenderness, has declared that “ the sheriff cannot seize the linen and clothes belonging to the debtor or his wife, nor his bed, nor those of his family, nor his arms and military accoutrements, nor the tools and instruments necessary for the exercise of the trade or profession by which he gains a living.” In the French text the language is, “ ni les outils ou instruments indispensables á 1’exercise du metier ou de la profession dont il vit.”

It is argued, that a doctor’s horse is fairly to be comprehended under the denomination of tools and instruments necessaiy for the exercise of his profession. But this seems to us straining the expression beyond its natural and fair import. His surgical instruments, those for the preparation of medicines usually employed by country practitioners, and possibly under the dictum in Milton’s case, 2 R. R. 81, his medical library, are protected by the code. But we cannot go further, and treat as tools and instruments of his profession all other things that contribute to its convenient exercise. For the convenient practice of his profession, a physician requires an office where he may be found or consulted by his patrons, a servant to groom his horse, food to nourish him, and a stable to shelter him ; yet, it would be unreasonable on that account to consider the office, the slave, the provender, or the stable protected from his creditors. The general rule under our system is, that every species of property is liable for the payment of debts. C. C. 3149. All exceptions to this general rule are the creatures of express legislation, and being in derogation of a general principle ought not to receive a latitudinarian construction.

In Wallace v. Collins, 5 Pike, 41, it was held, that a horse used by a tanner was not an implement of his trade exempt from execution. U. S. Dig., Sup., Execution, No. 358. We have not been able to examine the report of the case; but it was probably shown there, as here, that the horse was employed in the .debtor’s business, and was necessary for its prosecution. We have met with no case in our own reports, or elewhere, were the legislative exemption was enlarged by construction to the extent claimed at bar.

II. It is said, that the sheriff made no legal seizure of the judgment obtained by Hanna and Norwood v. Bry and Wife, “ he not having taken it into actual possession, the same being in the possession and custody of the clerk of the court.” — We cite the language of the plaintiff’s brief.

We understand the proper mode of seizing a debt existing in the form of a judgment is, a notification of seizure by the sheriff to the judgment debtor ; and such notification, we think, was effected in the present case by the process of garnishment served upon the judgment debtors. The sheriff had no right to seize the record of judgment, and disturb the possession of the clerk, its lawful custodian. See Daley v. Cunningham, 3rd Ann. 55. The ease of a judgment is improperly assimilated by the plaintiff’s counsel to that of a promissory note or a bond, which we have held should be taken into possession by the sheriff in order to effect a valid seizure.

It is therefore decreed, that the judgment of the district court be reversed ; that the injunction bo dissolved; and that the said H. M. Bry, executor, recover from the said William Ii. Hanna and Shepherd Wood, his security, in solido, the sum of forty dollars damages; and that the said Hanna pay costs in both courts.  