Thurlow v. Warren

• Decision Date: 11 December 1889
• Citation: 19 A. 158,82 Me. 164
• Parties: THURLOW et al. v. WARREN.
• Court: Maine Supreme Court

19 A. 158

82 Me. 164

THURLOW et al.

v. WARREN.

Supreme Judicial Court of Maine.

Dec. 11, 1889.

(Official.)

Case submitted on agreed statement.

It appeared that at the time the plaintiffs, Benjamin S. Thurlow and another, were judged insolvents they were the sole owners, in their copartnership capacity, of a pair of oxen; that they were the owners of no other oxen, either as copartners or as individuals; and that they subsequently replevied them from their assignee, the defendant, George M. Warren, to whom the oxen had been delivered by the messenger of the court of insolvency.

It was agreed that if judgment should be for the plaintiffs they were to recover nominal damages, with full costs; and, if for defendant, he was to have judgment for $200, with interest and full costs.

E. P. Spofford, for plaintiffs. G. M. Warren, for defendant.

VIRGIN, 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 the pair of oxen replevied to have been, in the language of Rev. St. c. 81, § 62, cl. 7, "one 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 10 clauses of Rev. St. 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," etc., with several like uses of the singular pronoun. Id. 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...