more v. Brenham, 3 La. Ann. 32. And upon this state of facts, it has been urged, and not without plausibility, by Brenham, who claims under the execution of Gilmore & Henderson, that the absence of title in James is res judicata. Without expressing an opinion upon that point, we deem it sufficient to say, that there was such a vested legal interest in Brenham, at the time of the insurance and of the loss, by reason of the sheriff's deed, and the long, continuous, and undisturbed possession under it, as gave Brenham an insurable interest in the entire freight. He is consequently entitled to recover the entire amount insured.

What may be the equitable recourse of James against Brenham, by reason of the alleged frauds, which resulted in the judicial transfer of the entire vessel to Brenham, is a matter to be settled between them elsewhere, and which we do not consider as affecting the right of Brenham to recover from the underwriters. The motion to dismiss this appeal can not be sustained. The motion for appeal was properly made in the month in which the judgment was signed.

It is therefore ordered, adjudged, and decreed that the judgment of the inferior court be reversed; that the defendant Charles J. Brenham recover from the plaintiff, the Memphis Insurance Company, the sum of money in controversy, amounting to five thousand one hundred and forty-seven dollars and forty-four and one half cents. That the demand of John H. James for the said sum of money be rejected; that the demand of the plaintiff, the Memphis Insurance Company, to recover the said sum of money presented in their supplemental petition be rejected. That the costs of this appeal be paid equally by the said Memphis Insurance Company and the said John H. James. That the costs of the inferior court accrued before the filing of the supplemental petition by the said plaintiff, be paid by said John H. James; and that the costs accrued since the filing of said supplemental petition by the said plaintiff be paid equally by the said insurance company and John H. James; and that the said sum of money be paid over to the intervenors, according to an agreement of the counsel of Brenham and the intervenors, filed of record.

INSURABLE INTERESTS, WHAT CONSTITUTE.-When the insured takes a policy in his own name for the benefit of whom it may concern on a vessel which is nominally his under a contract termed a sale, which is nothing beyond being a mere pledge of contract of mandate, and the vessel insured is lost by the barratry of the master, the pledgees may recover notwithstanding the policy which excludes the barratry of the master in case the

insured be the owner of the vessel: Pike v. Merchants' Mutual Insurance Co., 26 La. Ann. 393. When a vessel was seized, and previous to the sale the assignees of the creditors claiming the vendor's privilege stated the facts to the insurers, who consented to permit his insurable interest to continue, and the vessel was afterwards sold by the marshal, it was held that such sale vitiated the policy, and the insurance company was not bound by an estoppel in pais: Id. Interest at the time of the loss is all that is required of the holder of the policy issued and payable to him for the benefit of whom it may concern: Martin v. The Fishing Insurance Company, 32 Am. Dec. 220; De Bolle v. Pennsylvania Insurance Co., 33 Id. 38.

HANNA V. BRY.

[5 LOUISIANA ANNUAL, 651.]

PHYSICIAN'S HORSE IS LIABLE TO SEIZURE ON EXECUTION.

JUDGMENT MAY BE LEVIED UPON UNDER EXECUTION by a notification of seizure by the sheriff to the judgment debtor.

SHERIFF HAS NO RIGHT TO SEIZE RECORD OF JUDGMENT and disturb the possession of the clerk, its legal custodian.

APPEAL from the Ouachita district court. The facts are stated in the opinion.

O. D. Stillman, for the plaintiff.

McGuire and Ray, for the defendants.

By Court, 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, Ex'r, v. Hanna. There was judgment in the court below perpetuating the injunction, and the defendants have appealed.

1. The first 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 can not 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 accouterments, 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 à l'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 necessary 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 Lambeth v. Milton, 2 Rob. (La.) 81, his medical library, are protected by the code. But we can not 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 pecies of property is liable for the payment of debts: C. C. 8149. All exceptions to this 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 Ark. 41 [39 Am. Dec. 359], it was held that a horse used by a tanner was not an implement of his trade exe.apt 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 elsewhere, where the legislative exemption was enlarged by construction to the extent claimed at bar.

2. 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 real case by the process of garnishment served upon the dent 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, 3 La. Ann. 55. The case 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 be dissolved; and that the said H. M. Bry, executor, recover from the said William H. Hanna and Shepherd Wood, his security, in solido, the sum of forty dollars damages; and that the said Hanna pay costs in both

courts.

RULE THAT NOTICE TO JUDGMENT DEBTOR of the seizure of assets in the hands of the garnishee is not necessary, and which is expressed in the principal case, will be found cited and affirmed in the cases of Walker v. Creevy, 6 La. Ann. 535; De St. Romes v. Levee Steam Cotton Press, 21 Id. 291; Daigle v. Bird, 22 Id. 139.

GARNISHMENT OF JUDGMENT DEBTOR.

A judgment debtor can not be

garnished in Arkansas: Trowbridge v. Means, 39 Am. Dec. 368.

WALLING V. MAYOR ETC. OF SHREVEPORT.

[5 LOUISIANA ANNUAL, 660.]

CORPORATION IS RESPONSIBLE for the unskillful and improper manner in which its officers exercise the powers vested in it by its charter.

APPEAL from the Caddo district court. The facts are stated in the opinion.

Roysdon and Spoffard, for the plaintiff.

Crain, for the defendant.

By Court, ROST, J. The plaintiff claims from the mayor and trustees of the town of Shreveport and Joseph Howell, in solido, five hundred dollars damages, alleged to have been sustained by him, in consequence of the cutting down of trees upon his land, within the limits of the town, and of an attempt, on their part, to lay out a road thereon, without giving notice or making previous compensation to him. He alleges that Howell acted in the premises as the agent and under the orders of the corporation, and has enjoined the corporation from proceeding any further in the construction of the road. Howell answered that he acted under the authority of the corporation. The mayor and trustees recognized his agency, and averred their power to

run the road as laid out, and in the manner pursued by them. They offered to pay the plaintiff such damages as might be assessed by the court, and prayed for the dissolution of the injunction. In a supplemental answer, they alleged, that, as a municipal corporation, they could not be liable in damages in the manner claimed. The jury before whom the case was tried found in favor of the plaintiff, twenty-five dollars damages, and that the injunction be perpetuated until the defendants proceed according to law in the opening of the road. The defendants have appealed from the judgment rendered on this verdict.

The act of incorporation of the town of Shreveport gives to the mayor and trustees within the corporate limits, all the powers previously exercised by the police jury of the parish of Caddo. They have, therefore, the power to lay out roads in that portion of the land under their jurisdiction, which is not laid out into streets; but they must, in doing so, pursue the mode prescribed for the laying out of roads by police juries, by the act to provide further and more effectually for the police of public roads in this state, approved March 12, 1818.

It is not pretended that the formalities required in the laying out of new roads have been complied with in this case, or that the indemnity due the plaintiff has been paid or even assessed. The case, as the records present it, is that of a corporation exercising, through its officers, in an unskillful and improper manner, powers avowedly vested in the said corporation by its charter. It does not differ in principle from that of McGarey and Wife v. The City of Lafayette, 4 La. Ann. 440, in which the plaintiff's recovered large damages from the city of Lafayette, because the agents of that corporation had executed, in an improper manner, the corporate power delegated to them: McLaughlin v. Second Municipality, 5 Id. 504.

We understand the exception pleaded by the defendants to be applicable only to cases in which officers or agents of corporations do acts injurious to others, in the pursuit or accomplishment of objects not within the scope of the powers of the corporation. The distinction appears to us clearly stated in the case of Anthony v. The Inhabitants of Adams, 1 Met. 286.

Upra the defendants' own averment, that they had power to lay ot the road complained of, they do not come within the exception. We are of opinion that there is no error in the judg ment.

It is therefore affirmed, with costs.

AM. DEO. VOL, LII-39