great advantage to a farmer to own and control implements for thrashing, in whole or in part, for the reason that the grain, while in stack waiting to be thrashed for hire by thrashing implements of others, was liable to be injured by fire, early rains, shelling out, etc.; that it was not an unusual thing for several farmers to purchase, and use in common, thrashers, engines, derricks, and forks, feeding-machines, cleaners, headers, mowers, seedsowers, plows, and other implements, for the reason that the size of their own farms, and the amount of their capital would not warrant the investment by each individual farmer in the whole of such implements; that only about one farmer in forty or fifty owned a thrashing rig, and only farmers owning tracts of land several thousand acres in extent could afford to have a complete thrashing outfit; and that most of the thrashing was hired done, and the men generally who owned thrashing outfits operated them for profit outside the regular business of farming.

The petitioner offered to prove that by reason of his land being principally river-bottom land, his grain largely grew up with sun-flowers, and hence he could not raise grain, and make a living, if compelled to hire it thrashed at current prices for thrashing; therefore he was compelled to own and control an interest in a thrasher so as to be enabled to entirely harvest his own grain.

The creditors and assignee objected to this evidence as irrelevant and immaterial, and the objection was sustained, the petitioner reserving an exception.

After hearing the evidence, the court refused to set aside as exempt any of the implements above mentioned, but ordered them turnd over to the assignee; and the appeal is from that order.

Section 60 of the Insolvent Act of 1880 makes it the duty of the court having jurisdiction of the proceedings to exempt and set apart for the use and benefit of the

insolvent such real and personal property as is by law exempt from execution.

Subdivision 3 of section 690 of the Code of Civil Procedure exempts from execution "the farming utensils, or implements of husbandry of the judgment debtor; also two oxen, or two horses, or two mules, and their harness, one cart, or wagon, and food for such oxen, horses, or mules. for one month."

The principal question presented for decision is: Does the code exempt from execution an expensive thrashing outfit, which is owned by two or more farmers in common, and is used by them to a limited extent on their own lands, but is used principally in doing work for others for hire?

In Brewer's Lessee v. Blougher, 14 Pet. 178, it is said on page 198: "It is undoubtedly the duty of the court to ascertain the meaning of the legislature from the words used in the statute, and the subject-matter to which it relates; and to restrain its operation within narrower limits than its words import, if the court are satisfied that the literal meaning of its language would extend cases which the legislature never designed to embrace in it."

to

It should be observed that the subdivision above quoted does not by any express words limit the exemption provided for to judgment debtors who are farmers, nor say that to be exempt the oxen, horses, or mules must be work oxen, horses, or mules; and yet it has been held by this court that the language used must be so construed as to make the exemption applicable only to such judgment debtors as are engaged in the business of farming, and only to such oxen, horses, or mules as are suitable and intended for the ordinary work conducted on a farm. (Brusie v. Griffith, 34 Cal. 302; Roberts v. Adams, 38 Cal. 383.)

In the case last cited, after reviewing the different provisions of the sections, providing for exemptions, in the

old Practice Act (section 219), the court said: "From this summary of the act it is entirely plain that its purpose was to secure to the judgment debtor the means to prosecute his vocation, and thus earn a support for himself and family. In securing to a farmer two oxen, horses, or mules, with their harness, a wagon or cart, his farming implements and his seed, grain, or vegetables for planting, the legislature intended, by this exemption, to enable him to prosecute his business of farming in the ordinary sense of that term; and the oxen, horses, or mules which are reserved to him must be such as are suitable and intended for that use."

In our opinion the legislature meant by the words, "the farming utensils or implements of husbandry of the judgment debtor," such utensils or implements as are needed and used by the farmer in conducting his own farming operations; and it was not intended that all farming machinery which a farmer may own should be exempt, because, while he uses it chiefly by renting it out, or in doing work on others' farms for hire, he still uses it to a small extent on his own land.

To hold otherwise would enable the farmer, who cultivates forty acres, to invest a large amount of money in expensive implements, and to hold them free and clear of his creditors, though they were used but for a day on his own land, and for all the balance of the year were rented or hired out to others.

A reasonable construction should be given to the statute, and not one which would pervert its benevolent design, and enable gross frauds to be perpetrated under color of law.

In support of their claim that the property should have been set aside, counsel for appellant cite McCue v. Tunstead, 65 Cal. 506. In that case the plaintiff owned and cultivated in grain, etc., a farm of 150 acres. He also owned a stallion which he used as a work-horse on the farm and in serving mares which were brought to the

farm and agisted thereon. In summing up the case this court said:

"On the question of the value and gender of the horses used in husbandry, the code is silent. It is restrictive as to the number and use only. If the plaintiff is engaged in husbandry, he is entitled to the exemption of two horses, if the same be used by him in such husbandry, the value and gender of which are immaterial.

"The findings of the court, in our opinion, establish two propositions: 1. That plaintiff is a farmer; and 2. That the horse which he claims as exempt, was one of two which he used on his farm, in the cultivation and tillage thereof."

It was accordingly held that the horse was exempt, and the judgment of the court below, holding otherwise, was reversed.

We do not think that case a controlling authority in this case. The result reached might have been different if it had appeared that the stallion, though sometimes used to work on the farm, had been principally used to stand for mares in other places.

As to the Cahoon seed-sower, it was worth but ten dollars, and the petitioner had another seed-sower which was worth ninety dollars, and was set aside to him, both being used for the same purposes, though operated in a different manner. The cheaper implement may have been useful to the petitioner, but as it did not appear that the one set aside was not sufficient for all his purposes, we cannot see any such violation of duty on the part of the court below in refusing to set it aside as should lead to a reversal of the order.

There was no error in refusing to strike out the paper filed by Bailey. It was not necessary that it be verified or served on the petitioner or his attorneys. The creditors had the right to appear and object to the property being set aside, without filing any papers setting forth their objections.

So we can see no material error in the ruling of the court excluding certain evidence offered by the petitioner. If admitted, it could not have changed or affected the result.

On the whole we think the order appealed from should be affirmed.

SEARLS, C., and FOOTE, C., concurred.

The COURT.

For the reasons given in the foregoing

opinion, the order is affirmed.

[No. 20217. Department One. September 24, 1886.]

THE PEOPLE, RESPONDENT, v. LEE WAH, APPELLANT.

PRACTICING MEDICINE WITHOUT CERTIFICATE

ID.

- Under the act of April 3, 1876, as amended April 1, 1878, the mere fact that a sick person has been given up as incurable by physicians of the schools provided for by the statutes does not create a case of emergency authorizing a person who has not procured a medical certificate to render him gratuitous medical services. A case of emergency within the meaning of the statute is one in which the ordinary and qualified practitioners are not readily obtainable.

APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

William L. Gill, for Appellant.

Attorney-General Marshall, for Respondent.

MYRICK, J. The defendant was accused of a misdemeanor in that he did willfully and unlawfully engage in the practice of medicine without having procured a certificate as provided by the act of April 3, 1876 (Statutes