Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-27

that four head were needed for that
purpose. This witness further said
that the plaintiff herein declared that
his wife expected to fall heir to 200
acres of land near Pendleton, Oregon.
and that If she inherited it he wanted
the horses to use in cultivatlng the
tract Laird also stated upon oath
that Gollnick never had actual nos
session of either Of the horses. and he
understood from the plaintiff that he
intended to go to the state of Wash
ington when a sale Of his land was
effected.
The material part Of the statute
rendering certain chattels immune
from levy or sale without the owners
consent are as follows "The follow
ing property shall be exempt from
execution, If selected and reserved by
the judgment debtor or his agent at
the time Of the levy, or as soon there
after before sale thereof as the same
shall be known to him, and not other
wise: 8. The team neces-
sary to enable any person to carry
on the trade, occupation or profession
by which such person habitually earns
his living, to the value of 100000. =
The word team in this subdivision.
shall not be construed to include
more than one yoke of oxen or a span
OF horses or mules, as the case NAV
be-" L. o. L. sec. 227.
A persons occupation at the time
his property is siezed for the payment
of his debts affords the test of his
right to the exemption which the
statute sanctions Hay V. Hayes, 2S
La. An. GAL. In order to render a
horse exempt from attachment it is
not necessary that the animal should
have been used when it was siezed
by an officer. for If its owner keeps
1t with the honest intention of en-
ploying 1t within reasonable time to
enable him to procure a livelihood,
he Is entitled to the immunity which
the law furnishes, and the future in
tended use is as controlling upon the
question of exemption as the past en-
ployment. Rowell V. Powell, SO VT.
SO2; Steele V. Lyford, SO VT. 2SO.
The burden of proof to substanti-
ate a right to an exemption of prop
erty from an enforced sale devolves
upon the claimant who asserts an
exercise of the privilege which the
statute grants debtors to enable them
to support themselves and their fam
lilies. Porch v, Arkansas Milling CT
81 Am. ST. Rep. S95; Murphy V. Har-
ris, n Cal. 1874 1t was incumbent
upon the plaintiff herein to estab.
lish the fact by competent evidence
that he habitually earned his living
by farming, in which occupation the
use of the demanded horses
was necessary. Dove V. Nunan
62 Cal 800. Through Coll.
nick had been engaged in farming
in the pursuit Of which occupation
the use of a team was essential, II
he had obtained the horses in ques-
tion for speculative purposes they
were not exempt. Boyle " Walsh
63 N. w. 435
The evidence disclosed that priol
to the attachment of the horses the
plaintiff had been engaged in farm.
ing and that he had made some
preparation for cultivating a tract oil
land which he had leased. II will be
remembered that he never had DOS.
session Of the horses in question and
for that reason no inference or pre-.
sumption could arise from an ex,
change of property that he intended
to use the team for any particular
purpose. 1t might seem from Lalrd's
testimony that Gollnick expected tC
sell or trade the horses to his broth.
er-in-law at Walla Walla, Washing
ton, and If so they were evidently OBJ
tained in contemplation of specula
ton and were not exempt from exc,
cution. Laird was told by plaintif
that If his wife inherited real prop,
! erty near Pendleton, Oregon, h,
would use the horses in cultiyatine
the land. From this testimony 1t Is
impossible correctly to deduce 6
finding as to plaintiffs intention re.
specting his Disposal or use of the
team. He was in California whe1
this cause was tried but his deposi.
ton could have been secured and as
his intention could have clearly beer
determined from his sworn declara.
tions there was a failure of proof as
to material fact. and an error was
committed in refu sing to grant the
judgment of nonsuit.
The defect in this respect was moi
cured by the testimony introduced
by the defendant and such being the
case, 1t affirmatively appears that
there Is no evidence to support the
verdict, and 1t is impossible to say
with certainty what judgment should
have been rendered as required by
the organic act Const. Ore. Art 7
Sec.3, as amended November s. 1910
AS 1t Is impossible to remedy the
defect to which attention has been
called, the judgment is reversed and
the cause remanded for such further
proceedings as may be necessary, moi
inconsistent with this opinion.