George v. Fellows

59 N.H. 206

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1879
• Status: Published

Opinion

Bingham, J.

Beasts of the plow, not exceeding a yoke of oxen or a horse, when required for farming or teaming purposes, or other actual use, are exempt from attachment and levy on execution. Laws of 1871, c. 30 ; Gen. Laws, c. 224, s. 2. The “ other actual ” use is such other labor as the reasonable necessities of the debtor require. Somers v. Emerson, 58 N. H. 48.

The duty of parents to educate their children is of the greatest importance. 1 Bl. Com. 450, 451. At common law this is said to be a moral but not a legal obligation. Cooley on Torts 40. Blackstone says it is a defect in the municipal laws of some countries that parents are not constrained to .perform this duty. Our constitution declares the promotion of morality and learning to be a public duty, and ten chapters of the statutes are devoted to the cause of education. Const., Part 1, Art. 6; Part 2, Art. 83; Gen. Laws, cc. 85-94. The penalty imposed by Gen. Laws, c. 91, s. 16, for not sending children to school, illustrates the legal necessities of the plaintiff. It is not a matter of law that the use of a horse for conveyance cannot be necessary in the discharge of the duty of supplying a family with mental and moral instruction. The plaintiff’s use of his horse for that and other purposes should have been submitted to the jury in.a more liberal way, on the broad question whether the horse was required for the plaintiff’s actual use. While his mere unperformed duty of using his horse for any purpose is no ground of exemption, his duty and business, and his use of his horse in that duty and business, are evidence on the question of requirement for actual use.

Verdict set aside.

Smith, J., did not sit: the others concurred.