Thurlow v. Warren

Yieg-in, J. Replevin of a “pair of oxen,” by a partnership duly adjudged insolvent, against the assignee of the estate. The only question is: whether the oxen owned by the firm were exempt from attachment and seizure on execution. Whether the particular business of the partnership was such as required the use of oxen does not appear. But even assuming that the “pair of oxen” replevied to have been (in the language of R. S., c. 81, § 62, cl. 7), “a pair of working cattle” actually used in and about the firm’s business, we are of opinion that they were not exempt. Joint debtors are not within the letter of the statute. The language of the whole te2i clauses of R. S., c. 81, § 62, specifying the property exempted is predicated upon the idea that the beneficiary is an individual. Exemption therein provided is recognized as the privilege of an individual and not of a firm or other joint association or corporation. No suggestion of partnership or other joint ownership appears in the statute. The single “debtor,” “he,” “himself” and “his family” are the terms adopted. The clause under which this case falls provides, “If he has more than one pair of working cattle, he may elect,” [166] etc., with several like uses of the singular pronoun. R. S., c. 81, § 62, cl. 7. It would seem, therefore, that the property, which can claim exemption from writ and execution, must be owned in severalty and not jointly. The various insuperable difficulties in attempting to apply exemption to the property of a partnership are very clearly pointed out in Pond v. Kimball, 101 Mass. 105. Moreover, although in some jurisdictions the contrary view is taken, still the great weight of deliberate and well considered cases hold that individual and not partnership property is exempt. Pond v. Kimball, supra ; Bonsall v. Cornly, 44 Pa. St. 442; Guptil v. McFee, 9 Kans. 30; In re, Handlin, 3 Dill. C. C. Rep. 290; Russell v. Lennon, 39 Wis. 573, overruling Gilman v. Williams, 7 Wis. 336 cited by the plaintiff. Pars. Pr. Part. 314. Hence in accordance with the agreement of the parties the entry must be ■ Judgment for defendant for $200, and interest from date of writ, with full costs. Peters, C. J., Walton, Emery, Foster and Haskell, JJ., concurred.