SECTION 5. EXEMPTIONS

FINK v. FRAENKLE

CITY COURT OF NEW YORK, 1891

20 N. Y. Civ. Proc. 402

Appeal by the judgment creditor from an order of the special term denying a motion made by them to punish the judgment debtor for contempt in refusing to deliver to the referee appointed in proceedings supplementary to execution, certain property owned by him.

VAN WYCK, J.: The plaintiff issued an execution against the property of defendant, which was duly returned unsatisfied, whereupon he obtained an order in supplementary proceedings for the examination of defendant, and upon his examination the judgment debtor testified that he was a physician in active practice; lived at 115 Second street; was unmarried; had no children; and owned a set of furniture for his waiting-room, a set for his bedroom, a library of about two hundred volumes, and his surgical instruments; and that all his furniture was worth about $200, and the surgical instruments about $150; and that the books and office furniture were used by him in his business, and, though he does not so testify, it is to be presumed that he also used the instruments in his business. He made no attempt to show that he was a householder, or that he had a family or any person for whom he provided.

At common law neither a judgment debtor nor his family had any way of exempting any portion of his property from execution for his or their benefit,93 so that any privileges that he may now have

93 At common law, under a writ of fieri facias, the sheriff had authority to seize everything that was a chattel belonging to the defendant_except necessary wearing apparel. Tidd's Practice (1828) 1001; Hardistey v. Barney, Comb. 356 (1695). But in distress for rent beasts of the plow could not be taken when there were other sufficient subjects of distress on the premises. Piggott v. Birtles, 1 M. & W. 442 (1836); Keen v. Priest, 4 H. & N. 235 (1859); or as Cooke puts it: "Beasts belonging to the plow, averia carucae, shall not be distrained, which is the ancient common law of England, for no man shall be distrained by the utensils or instruments of his trade or profession, as the axe of a carpenter, or the books of a scholar, while goods or other beasts which Bracton calls the animalia (or catella) otiosa may be distrained." Co. Litt. 47a. By the act of 1888 (51 and 52 Vict.), ch. 51, § 4, the same goods are exempt from distress as are protected from seizure on execution by § 95 of the County Courts Act of 1846 (9 and 10 Vict., ch. 95). These articles are the same as those exempted from execution by the Small Debts Act of 1845 (8 and 9 Vict., ch. 127), § 8 namely: "The wearing apparel and bedding of any judgment debtor or his family, and the tools and implements of his trade, the value of such apparel, bedding, tools and implements not exceeding in the whole the value of five pounds." In re Dawson, L. R. (1899) 2 Q. B. 54; Davis v. Harris, L. R. (1900) I Q. B. 729; Masters v. Fraser, 85 L. T. 611 (1902). In Lavell v. Richings, L. R. (1906) 1 K. B. 480, a cab, the only article on the premises, was held exempt from distress, as an implement of trade although above the value of £5, as the debtor must be left at least £5 worth of tools.

FINK V. FRAENKLE

719 in that direction must be sought for in the statutory law, and in this state the laws which exempt from execution the judgment debtor's personal property are to be found in the Code of Civil Procedure, section 2463, which exempts his earnings for personal service within sixty days, when "necessary for the use of a family, wholly or partly supported by his labor;" section 1390 which exempts certain articles of personal property therein enumerated, "when owned by a householder;" and section 1391, which exempts "furniture, professional instruments, library, and certain other articles, not exceeding in value $250, owned by a person being a householder, or having a family for which he provides." The judgment debtor in this case is left to the necessity of seeking and finding his justification for refusing to deliver his property to his receiver in these three sections of the code.

Perhaps it would be well to state in passing that when the judgment debtor is a woman, she has, by section 1392, the same exemptions as a householder has under sections 1390 and 1391.

The concensus of judicial thought is that the harsh rule of the common law, which stripped judgment debtors of everything except the clothes upon their backs, was mollified by statutory provisions, "as a protection for poor and destitute families," and "to mitigate the consequences of men's thoughtlessness and improvidence.""" Judge Selden, in the Crawford case, in the Supreme Court, 9 How. Pr. (N. Y.) 548, says: "Although our statutes exempting certain articles of prime necessity, belonging to householders, from levy and sale upon execution, were intended for the benefit of the entire family and not of its head alone, still I entertain no doubt that the master of the family may waive the exemption." However, the court of appeals in the Kneettle case, 22 N. Y. 240, has held that the householder can not even waive the right of exemption, as it is for the benefit of the family for which he provides.95 In the Kneettle case

"In several decisions statutes granting exemptions are regarded as in derogation of the common law and to be construed strictly. Rue v. Alter, 5 Denio (N. Y.) 119 (1847); Knabb v. Drake, 23 Pa. St. 489, 62 Am. Dec. 352 (1854); Grimes v. Bryne, 2 Minn. (1 Gil. 72) 89 (1858); Garaty & Armstrong v. Du Bose, 5 S. Car. 493 (1874); White v. Heffner, 30 La. Ann. 1280, 31 Am. Rep. 238 (1878); London & Canadian Loan Agency Co. v. Connell, II Manitoba 115 (1896). But the doctrine more generally accepted is that such statutes, being remedial, beneficial and humane, will be liberally construed. Parkerson v. Wightman, 4 Strob. (S. Car.) 363 (1850); Montague v. Richardson, 24 Conn. 338, 63 Am. Dec. 173 (1856); Deere v. Chapman, 25 Ill. 610, 79 Am. Dec. 350 (1861); Stewart v. Brown, 37 N. Y. 350, 93 Am. Dec. 578 (1867); Pond v. Kimball, 101 Mass. 105 (1869); Good v. Fogg, 61 Ill. 449, 14 Am. Rep. 71 (1871); Heath v. Keyes, 35 Wis. 668 (1874); Astley v. Capron, 89 Ind. 167 (1883); Commonwealth v. Boyd, 56 Pa. St. 402 (1867); Byous v. Mount, 89 Tenn. 361, 17 S. W. 1037 (1890); Yates County Nat. Bank v. Carpenter, 119 N. Y. 550, 23 N. E. 1108, 7 L. R. A. 557, 16 Am. St. 855 (1890); Kennedy v. Smith, 99 Ala. 83, 11 So. 665 (1892); Ferguson v. Speith, 13 Mont. 487, 34 Pac. 1020, 40 Am. St. 459 (1893); Noyes v. Belding, 5 S. Dak. 603, 59 N. W. 1069 (1894); Hutchinson v. Whitmore, 99 Mich. 255, 51 N. W. 451, 30 Am. St. 431 (1892); Nelson v. Fightmaster, 4 Okla. 38, 44 Pac. 213 (1896); Cook v. Allee, 119 Iowa 226, 93 N. W. 93 (1903); In re Swanson, 213 Fed. 353 (1914).

95

Accord: Crawford v. Lockwood, 9 How. Pr. (N. Y.) 547 (1854); Harper v. Leal, 10 How. Pr. (N. Y.) 276 (1854); Maxwell v. Reed, 7 Wis.

the execution was issued upon a judgment recovered on a promissory note containing this provision: "And I hereby waive and relinquish all right of exemption of any property I may have from execution on this debt;" and Judge Denio in that case, writing in support of the contention that the right of exemption can not be waived, reiterates the oft-repeated construction given to these statutes, as follows: "These exemption laws apply only to householders who have families for which they provide."

All of this judicial reasoning goes to establish that only a household's property is exempt; that a householder is the master of a household; and that a household is a family living together, however not necessarily wife and children, but it must be a family, small or large, for which he provides.

This judgment debtor has not in any way shown himself a householder, or a man having a family for which he provides, and hence it follows that he should have been forced to yield up his property to his receiver in order that it might reach his creditor, the plaintiff.96

The order appealed from must be reversed, with costs.
Ehrlich, C. J., concurred.

582 (1859); Denny v. White, 2 Cold. (Tenn.) 283, 88 Am. Dec. 596 (1865); Curtis v. O'Brien, 20 Iowa 376, 89 Am. Dec. 543 (1866); Moxley v. Ragan, 10 Bush (Ky.) 156 (1873); Recht v. Kelly, 82 Ill. 147, 25 Am. Rep. 301 (1876); Branch v. Tomlinson, 77 N. Car. 388 (1877); Wallingsford v. Bennett, i Mackey (D. C.) 303 (1881); Green v. Watson, 75 Ga. 471, 45 Am. Rep. 479 (1885); Mills v. Bennett, 94 Tenn. 651, 30 S. W. 748, 45 Am. St. 763 (1895); Powell v. Daily, 61 Ill. App. 552 (1895); Roach v. Curtis, 191 N. Y. 387, 84 N. E. 283 (1908) semble. Contra: Hewes v. Parkman, 20 Pick (Mass.) 90 (1838); Case v. Dunmore, 23 Pa. St. 93 (1854); Laucks' Appeal, 24 Pa. St. 426 (1855); Bowman v. Smiley, 31 Pa. St. 225, 72 Am. Dec. 738 (1858); Stockett v. Johnson, 22 La. Ann. 89 (1870); Patterson v. Taylor, 15 Fla. 336 (1875); Fogg v. Littlefield, 68 Maine 52 (1877); Keybers v. McComber, 67 Cal. 395, 7 Pac. 838 (1885); Beatty v. Rankin, 139 Pa. St. 358, 21 Atl. 74 (1890); Moss v. Jenkins, 146 Ind. 589, 45 N. E. 789 (1896); Kroenert v. Mead, 59 Kans. 665, 54 Pac. 684 (1898); Wright v. Wright (Pa.), 103 Fed. 580 (1900).

The statutes giving the right of exemption usually confine it to resident "householders" or "heads of families." For the construction of these terms see Herman on Executions, § 94; Freeman on Executions (3d ed.), § 222; 18 Cyc. 1397; 7 A. & E. Encyc. of Law 133, and see further Woodward v. Murray, 18 Johns. (N. Y.) 400 (1820); Bowne v. Witt, 19 Wend. (N. Y.) 475 (1838); Bonnel v. Dunn, 28 N. J. L. 153 (1859); Marsh v. _Lazenby, 41 Ga. 153 (1870); Bunnell v. Hay, 73 Ind. 452 (1881); Linton v. Crosby, 56 Iowa 386, 9 N. W. 311, 41 Am. Rep. 107 (1881); Zimmerman v. Franke, 34 Kans. 650, 9 Pac. 747 (1886); Chamberlain v. Darrow, 46 Hun 48, 11 N. Y. St. 100 (1887); Pettit v. Muskegon Booming Co., 74 Mich. 214, 41 N. W. 900 (1889); Boelter v. Klossner, 74 Minn. 272, 77 N. W. 4, 73 Am. St. 347 (1808); Webster v. McGauvran, 8 N. Dak. 274, 78 N. W. 80 (1899); Rolater v. King, 13 Okla. 37, 73 Pac. 291 (1903); Duffey v. Reardon, 70 Ohio St. 328, 71 N. E. 712 (1904). The exemption in some jurisdictions extends to inhabitants whether married or single. Brown v. Wait, 36 Mass. 470, 31 Am. Dec. 154 (1838); Cobbs v. Coleman, 14 Tex. 594 (1855); Dieffenderfer v. Fisher, 3 Grant (Pa.) 30 (1859).

In a number of states constitutional provisions exempt certain property from sale on execution, in others homestead exemptions are provided and in some states both. Stimson's Amer. Stat. Law, §§ 83 and 84. The kind, value and amount of property exempt varies in the different states. Herman

POND V. KIMBALL

721

POND v. KIMBALL

SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1869

101 Mass. 105

Tort by Sylvanus W. Pond and Hamon E. Leland against the sheriff of Middlesex, for the act of his deputy in attaching, on a writ against the plaintiffs, property belonging to them, but alleged to be exempt from attachment.

At the trial in the superior court, before Brigham, J., it appeared that the plaintiffs were copartners; that all the property attached was partnership property; and that some, if not all, of it came within the exemption of the statute, part as tools and implements, part as materials and stock, unless the fact that it was partnership property prevented its coming within such exemption. The presiding judge ruled that the fact that it was partnership property did not render it liable to attachment if it would otherwise have been exempt; ordered a verdict for the plaintiffs and reported the case to this court." 97

AMES, J.: This report finds that the property described in the plaintiffs' declaration belonged to them as copartners. It had been procured by them to be used in their shop, as appropriate to and usual in the prosecution of their joint business. A portion of it falls within the description of "tools and implements" necessary to the prosecution of their trade and business, and another portion under that of "materials and stock" necessary for the same purpose, and intended to be used or wrought therein.98 The claim of on Executions, § 97; N. Y. Code Civ. Proc., §§ 1389-1404; Mass. Rev. Laws (1902), 1598, ch. 177, § 34; N. J. Comp. Stat. (1910) 2745, §§ 10-17; Pa. Act of April 9, 1849, P. L. 533, P. & L. Dig. (2d ed.) 3342, Mar. 4, 1887, P. L. 4, April 4, 1889, P. L. 23.

In some jurisdictions the exemption is allowed only in actions on contracts. State v. Melogue, 9 Ind. 196 (1857); Kirkpatrick v. White, 29 Pa. St. 176 (1857); Kenyon v. Gould, 61 Pa. St. 292 (1869); Massie v. Enyart, 33 Ark. 688 (1878); Northern v. Hanners, 121 Ala. 587, 25 So. 817, 77 Am. St. 74 (1898); De Hart v. Haun, 126 Ind. 378, 26 N. E. 61 (1890). Contra: Smith v. Omans, 17 Wis. 395 (1863); Conroy v. Sullivan, 44 Ill. 451 (1867); Dellinger v. Tweed, 66 N. Car. 206 (1872); Loomis v. Gerson, 62 Ill. 11 (1871).

Part of the statement of facts is omitted.

Many exemption laws specify tools of trade but there is great diversity of opinion as to what articles come within that description. See Kilburn v. Demming, 2 Vt. 404, 21 Am. Dec. 543 (1829), spinning machine exempt; Richie v. McCauley, 4 Pa. 471 (1846), expensive stamping blocks not exempt; Goddard v. Chaffee, 84 Mass. (2 Allen) 395, 79 Am. Dec. 796 (1861), musicians' violin exempt; Wallace v. Bartlett, 108 Mass. 52 (1871), shop furnishings not exempt; Wilkinson v. Alley, 45 N. H. 551 (1864), farming implements exempt; Allen v. Thompson, 45 Vt. 472 (1873), barbers' chair exempt; Amend v. Murphy, 69 Ill. 337 (1873), music teacher's piano exempt; Bitting v. Vanderburgh, 17 How. Pr. (N. Y.) 80 (1859), watch exempt. Contra: In re Turnbull, 106 Fed. 667 (1901); Allman v. Gann, 29 Ala. 240 (1856); McCue v. Tunstead, 65 Cal. 506, 4 Pac. 510 (1884); Kirksey v. Rowe, 114 Ga. 893, 40 S. E. 990, 88 Am. St. 65 (1902), work horse exempt. 46-CIV. PROC.

the plaintiffs is, that on both these grounds a portion at least of the property was exempt from attachment; and that the defendant is liable in this action for the wrongful act of his deputy in making such attachment.

This claim, then, raises the question whether the exemption of certain property from attachment, provided for in the General Statutes, chapter 133, section 32, clause 5, 6 and chapter 123, section 32, applies to the case of property belonging jointly to two or more copartners. It does not appear that, at the time of the attachment, the plaintiffs had dissolved partnership, or had divided their joint property, or had had a general settlement and winding up of their business. We agree with the plaintiffs' counsel, that the statute is humane and beneficial in its purpose and operation, and fairly entitled to as liberal a construction as can be given it, consistently with its true and just interpretation. There are many difficulties, however, in the way of applying it to the case of copartners and joint owners, and these difficulties we find to be insuperable. Property purchased with the joint funds of the firm, and constituting a portion of its capital, must necessarily be subject to all the incidents of partnership property. On the decease of one member of the firm, it would go to the surviving member, and he would have a right to hold it, to be used in settling the affairs of the concern, and paying its debts. In the case of numerous partners can it be said that each would have the right to claim, as exempt from attachment for the joint debts, one hundred dollars' worth of tools and implements, and another hundred dollars' worth of materials and stock; or is the whole firm to be considered as one debtor only? Does the exempted property in that case belong to the partners jointly, or does each take a separate share? It appears to us that the statute is intended to apply only to the case of a single and individual debtor. The exemption which it gives is strictly personal. The statute speaks in the singular number throughout, unless possibly the clause as to fishermen (Gen. Stats., chapter 133, section 32, clause 9) be an exception. Its apparent object is to secure to the debtor the means of supporting himself and his family, by following his trade or handicraft with tools belonging to himself. It also provides that his family are to be secured in the enjoyment of certain indispensable comforts and necessaries, Compare Robert v. Adams, 38 Cal. 383, 99 Am. Dec. 413 (1869); Fowler v. Gilmore, 30 Tex. 432 (1867); Brown v. Hoffmeister, 71 Mo. 411 (1880); Equitable Life Assur. Soc. v. Goode, 101 Iowa 160, 70 N. W. 113, 35 L. R. A. 690, 63 Am. St. 378 (1897); State v. St. Paul, 111 La. 71, 35 So. 389 (1903), professional books; Patten v. Smith, 4 Conn. 450, 10 Am. Dec. 166 (1823); Sallee v. Waters, 17 Ala. 482 (1850); Prather v. Bobo, 15 La. Ann. 524 (1860); Green v. Raymond, 58 Tex. 80, 44 Am. Rep. 601 (1882); Bliss v. Ved. der, 34 Kans. 57, 7 Pac. 599, 55 Am. Rep. 237 (1885); Brummage v. Kenworthy, 27 Okla. 431, 112 Pac. 984, Ann. Cas. 1912C, 607n (1910); Harris v. Townley, (Tex.) 161 S. W. 5 (1913), printing press exempt. Contra: Buckingham v. Billings, 13 Mass. 82 (1816); Spooner v. Fletcher, 3 Vt. 133, 21 Am. Dec. 579 (1830); Danforth v. Woodward, 10 Pick. (Mass.) 423, 20 Am. Dec. 531 (1830); Oliver v. White, 18 S. Car. 235 (1882); Frantz v. Dobson, 64 Miss. 631, 2 So. 75, 60 Am. Rep. 68 (1887). In Peevehouse v. Smith (Tex. Civ. App.), 152 S. W. 1196 (1913), an automobile was held a "carriage" within an exemption law allowing the head of a family one carriage or buggy.