Watson v. Simpson

5 Ala. 233

• Court: Supreme Court of Alabama
• Decided: January 15, 1843
• Status: Published

Opinion

ORMOND, J.

The statute by which this question is to be ascertained, declares that “ the following articles shall be retained by and for the use of every family of this State, free and exempt from levy or sale by virtue of any execution or other legal process, that is- to say,” &c. Among the exempted articles is one work horse.”

Statutes of this description have always received a liberal construction to effectuate the intent of the legislature, which was to preserve from levy and sale, under legal process, certain articles necessary to the comfortable subsistence of a family, and we are unable to perceive why this provision, thus made by law for the comfort of the family, should fail of its effect, because the family came into existence after a general lien, by operation of law, had attached on the property in favor of the creditor.

A lien which is not created by the act of the parties, but is given by law, may be taken away by law, and of this we have an example in the same act, which declares that when a term shall elapse after the suing out of an execution, the lien created by the issue of the junior execution be preferred.

But indepependent of this analogy, the language of the act is express, that the exempt articles shall be free from levy or sale, by virtue of legal process, and be retained for the use of the family. This is a direct prohibition to do the act spoken of; there is no room for doubt; and as the power of the legislature, in the passage of the act, cannot be questioned, it follows that the court below did not err, and its judgment is therefore, affirmed.