and kept for the purpose of carrying on his trade or business, not exceeding $200 in value.' It has generally been held in this state that an individual merchant may, under this provision, hold $200 of his stock as exempt, though the supreme courts of Minnesota and Kansas, under statutes similar but not identical in terms, have held that the provision did not extend to this class of traders; and a strong argument might be made, upon the language of the statute, that it was intended to apply only to mechanics, miners, or other persons similarly situated, and requiring tools and implements, and perhaps stock in trade, to carry on their business, such as well diggers and the like. Otherwise, according to a familiar rule of construction, why should not the merchant have been mentioned, which is quite as prominent a class, as well as the mechanic and miner, and not left to be included by inference under the term, 'other persons?' But, conceding that a mere liberal interpretation would allow an individual merchant the exemption, does the right extend to each and all the members of a partnership firm so that the exemption may be doubled and quadrupled and indefinitely multiplied according to the number of the partners, and without any reference to the amount of actual or equitable interest they may severally have in the partnership assets, how much capital each has contributed to the firm, or the condition of the accounts as between themselves, or as between them and the creditors, at the expense and perhaps ruination of the joint creditors' claims? If this were any way an open question, I should have no hesitation in saying that such claim could not be sustained; that the exemption is a personal privilege given to a debtor who owns the goods, and was never intended to apply to mercantile partnerships or corporations. One partner cannot be said to be the owner of the goods held by the firm; he has no exclusive interest in them. It is entirely uncertain whether any of them will belong to him until the affairs of the partnership are wound up." In MacKinnon v. Beals (1917) 10 Alberta L. R. 503, 1 West. Week. Rep. 1328, an action was instituted to compel defendants, who were members of a partnership which made an assignment for the benefit of creditors, to turn over to plaintiff, the assignee, some horses owned by such firm. The members of the firm claimed the horses as exempt. It was held that partnership property was not exempt. The court said: "At the close of the argument we dismissed the appeal of the other defendants, who claimed that each was entitled to an exemption of three horses. It is admitted that the horses in question were the property of the partnership, and not of the individual members. A reference to the Exemptions Ordinance (chap. 27, C. O. 1898) shows that the exemption that is granted is to a 'debtor and his family,' and all the provisions appear to be applicable only to an individual who may have a family, and to the family. We were of opinion, therefore, that it had no application to a partnership." But in Re Richardson (1874) 11 Nat. Bankr. Reg. 114, Fed. Cas. No. 11,776, wherein it appeared that one of the members of a bankrupt partnership, all of whom were heads of families without any individual estates, claimed an exemption as head of a family, it was held that where there was no individual estate, exemption could be allowed out of the partnership property. The court said: "At an early day this court held that, when there was no individual estate, exemptions could be allowed out of the copartnership assets." And in Re Young (1869) 3 Nat. Bankr. Reg. 440, Fed. Cas. No. 18,148, each member of a bankrupt partnership claimed an exemption which was allowed by the assignee in bankruptcy, but disallowed by the register. It was held by the court that, where a member of a bankrupt firm had no individual estate, he could claim an exemption out of the partnership property. After stating the opinion of the register, the court said: "While the foregoing views of the register would, in many cases, control the action of an assignee, yet, as the Bankruptcy Act contemplates that the bankrupt shall retain as exempt, specified property or its equivalent, in some instances, it is lawful and proper, when there is no individual ownership by the head of a family of the property referred to in § 11 of the said Missouri statute, to make the allowance out of partnership assets. It is true, as a legal proposition, that the individual interest of a partner in partnership property is as stated by the register, yet his right of exemption in his individual property disregards the otherwise legal rights of his creditors. The policy of exemptions, and the legal rules on which they rest, modify the strict technical rules by which rights of creditors are otherwise enforceable. In this case the exemptions claimed should be allowed." 2. Levy on firm property. Where firm property is levied on, no member of the firm is entitled to an exemption therefrom. Alabama. - Giovanni v. First Nat. Bank (1876) 55 Ala. 305, 28 Am. Rep. 723; Schlapback v. Long (1890) 90 Ala. 525, 8 So. 113. Arkansas. Richardson V. Adler (1885) 46 Ark. 43; Porch v. Arkansas Mill. Co. (1898) 65 Ark. 40, 67 Am. St. Rep. 895, 45 S. W. 51. Colorado.-McCrimmon V. Linton (1894) 4 Colo. App. 420, 36 Pac. 300. Illinois. Trowbridge V. Cross (1886) 117 Ill. 109, 7 N. E. 347. Indiana. Smith v. Harris (1881) 76 Ind. 104; State ex rel. Miller v. Day (1891) 3 Ind. App. 155, 29 N. E. 436. Indian Territory.-Hart v. Hiatt (1899) 2 Ind. Terr. 248, 48 S. W. 1038, 2 Am. Neg. Rep. 532. Iowa.-Drake v. Moore (1885) 66 Iowa, 58, 23 N. W. 263. See the reported case (JENSEN V. WIERSMA, ante, 298). Kansas. Guptil v. McFee (1872) 9 Kan. 30. Kentucky.-Green v. Taylor (1895) 98 Ky. 330, 56 Am. St.. Rep. 375, 33 S. W. 945; Bright v. Buhr (1889) 11 Ky. L. Rep. 579. Massachusetts.-Pond (1869) 101 Mass. 105. V. Kimball V. Sheehan Minnesota. Baker (1882) 29 Minn. 235, 12 N. W. 704. Missouri.-State ex rel. Billingsley v. Spencer (1877) 64 Mo. 355, 27 Am. Rep. 244; State ex rel. Hinde v. United States Fidelity & G. Co. (1909) 135 Mo. App. 160, 115 S. W. 1081. Nebraska.-People ex rel. Till v. Roy (1874) 3 Neb. 261; Wise v. Frey (1878) 7 Neb. 134, 29 Am. Rep. 380; Lynch v. Englehardt-Winning-Davison Mercantile Co. (1901) 1 Neb. (Unof.) 528, 96 N. W. 524. Nevada. Terry v. Berry (1878) 13 Nev. 514. Ohio.-Gaylord v. Imhoff (1875) 26 Ohio St. 317, 20 Am. Rep. 762. Pennsylvania.-Clegg v. Houston (1852) 1 Phila. 352; Hubbard v. Evarts (1891; Com. Pl.) 12 Pa. Co. Ct. 132; Gazette Pub. Co. v. McMurtrie (1898) 7 Pa. Super. Ct. 617. Tennessee.-Spiro v. Paxton (1879) 3 Lea, 75, 31 Am. Rep. 530; Chalfant v. Grant (1879) 3 Lea, 118. In Schlapback v. Long (1890) 90 Ala. 525, 8 So. 113, it appeared that defendants were husband and wife, doing business as partners. An exemption having been allowed in garnishment proceedings against the firm, the plaintiff excepted. In sustaining the exception, the court held that an individual partner was not entitled to an exemption out of the partnership property, when taken under process for partnership debts, saying: "It is well settled that a partner cannot claim, during the existence of the partnership, an individual exemption in partnership property, when taken under legal process for partnership debts." In Giovanni v. First Nat. Bank (1876) 55 Ala. 305, 28 Am. Rep. 723, it appeared that the plaintiff was a member of a partnership whose goods had been levied on and sold under attachment for rent at the suit of the defendant. Each of the partners claimed an individual exemption out of the partnership property. The court held that partners could not, during the existence of the partnership, claim an individual exemption in the partnership property when taken under legal process for partnership debts. The court, after quoting the Constitution, which provided for the exemption of selected personal property of a resident of the state from any final process of the court, said: "Without protracting the discussion further, which is exhausted in the decisions hereinafter referred to, we must say that we can reach no other conclusion than that the Constitution and statute have no reference to partnership property, and are incapable of just application to it when it is seized under process against the partnership while the partnership is continuing, no severance or division of the property among the partners having been made. The claim of exemption which was interposed by the appellant and his partner to a several exemption may, as between them, have worked a severance of their joint interest in the property. Before the claim was interposed, the levy of the attachment had created a lien on the goods, which they could not destroy or impair by such severance. What would have been the effect of such severance, if it had occurred before the levy of the attachment, it is not material to inquire." In Porch v. Arkansas Mill. Co. (1898) 65 Ark. 40, 67 Am. St. Rep. 895, 45 S. W. 51, the defendant claimed an exemption in partnership property which was about to be sold under an execution for firm debts, as a resident head of a family. The plaintiff demurred to the defendant's answer. In sustaining the demurrer, the court held that, under the statute which provided that specified personal property of a resident should be exempt, a partner could not claim an exemption in personal property belonging to the firm while the partnership continued. The court said: "Following the decided weight of authority, it is held in Richardson v. Adler (1885) 46 Ark. 43, that 'the members of an insolvent firm are not entitled to the exemptions allowed by law, out of the partnership property, after it has been seized to satisfy the demands of the creditors of the firm.' The court said: "The interest of each partner in the partnership assets is his portion of resid uum after all the liabilities of the In Richardson v. Adler (Ark.) supra, it appeared that an attachment was levied on the property of a partnership, each of whose members claimed an exemption, subsequent to the judgment of condemnation in the attachment suit. The court held that an individual member of a partnership could not claim an exemption out of partnership property, after the property had been seized to satisfy the demands of creditors of the firm, saying: "The members of an insolvent firm are not entitled to the exemptions allowed by law out of the partnership property, after it has been seized to satisfy the demands of creditors of the firm. This proposition is well settled, both upon reason and authority." In McCrimmon v. Linton (1894) 4 Colo. App. 420, 36 Pac. 300, it appeared that the defendants, as officers, levied on the partnership goods, and sold them. Plaintiff, who was a member of the partnership, claimed an individual exemption in the goods, and brought action for the recovery of the amount allowed by statute as exempt, and the penalty for such sale. The court held that a partner could not claim an individual exemption in the partnership property, under the provisions of the statute which provided that a resident should have certain tools, working implements, and animals, books, and stock in trade, to a certain value, exempt from levy and sale on any execution or writ of attachment, saying: "The only question necessary to be determined for the solution of this case is whether the individual members of a mercantile partnership each has and holds the statutory amount in value and interest, in the joint partnership undivided stock, exempt from execution There is no for partnership debts. such thing as joint or copartnership exemption to a trading firm. The statutory right to exemption is a personal and individual right that may be asserted or waived by the individual, and must, of necessity, be exercised in relation to individual property, and for obvious reasons cannot be exercised in regard to joint or common property of the partnership. The wording of the statute is such as to preclude the presumption that it was intended to apply to goods owned jointly by a partnership; it is in the First. singular in each instance: "The following property when owned by any person being the head of a family.' Second. "The tools not exceeding three hundred dollars in value of any mechanic, miner or other person, not being the head of a family.'" partnership creditors, said: "Section 1 of our statute in relation to homestead exemptions provides that every householder having a family shall be entitled to an estate of homestead to the extent in value of $1,000, in the farm or lot of land, and buildings thereon, owned or rightfully possessed, by lease or otherwise, and occupied by him or her as a residence.' The statute also provides that such homestead shall be exempt from sale on judgment for the payment of debts. This statute has always received a liberal construction in favor of those claiming its protection, it being the policy of our law to afford a home for a failing debtor and his family, out of his property, not exceeding in value $1,000, when actually occupied as a residence by a householder. whether this statute has any application to partnership property is a question which has never been presented If the directly to this court. But property here involved is to be regarded as personal property as to the rights and interest of the partner Cross, so long as there were partnership debts, then it would seem plain that the right of homestead provided by the statute could not be invoked, as an estate of homestead cannot be predicated on personal property. Or, if the copartner Cross took the property clothed with an implied trust that it should be applied in the payment of partnership debts, as held in the case cited, he could have no interest whatever in the land after it had been ap In Trowbridge v. Cross (1886) 117 III. 109, 7 N. E. 347, an action of eject-propriated to that purpose, as was ment was instituted against a member of a partnership which carried on the manufacture and sale of tile on the piece of property in question. The property was owned by the partnership. The defendant had built a house thereon, which he occupied with his family. The firm had contracted a debt, on which judgment was obtained. The plaintiff obtained title on execution, levy, and sale. The defendant claimed a homestead in the property. The court, in holding that a partner could not acquire and hold a homestead in real property belonging to the partnership, as against done when it was sold in satisfaction of a partnership liability. After the property had been taken and sold for partnership liabilities, there was nothing left upon which a homestead right could be predicated. We are committed to the rule that the right of dower will not attach to partnership real estate as against partnership liabilities, and, if dower will not, it is difficult to perceive any principle upon which it can be held that the right of homestead can be sustained. The right of dower is denied because the partner has no beneficial interest in the property, distinct from partnership pur poses. The right of homestead may be denied for the same reason, upon the ground that the property must primarily be devoted to the payment of partnership liabilities, and that a partner has no interest in the property upon which a homestead can be based, until the partnership debts are paid. As was said before, we do not think that our statute in regard to homestead was intended to apply to partnership property, but the object was to exempt individual property, such property as a householder might acquire, not as a partner of a firm, but in his own individual right; and where property is purchased by a firm, the title is held subject to all the incidents of partnership property." In Smith v. Harris (1881) 76 Ind. 104, it appeared that the defendant, as sheriff, levied on certain property of a partnership by virtue of an execution. In an action to recover the possession thereof, the court held that partnership property, or any interest therein, could not be claimed as exempt from execution by an individual member, saying: "The property in controversy had been seized by the appellee Harris, a constable, by virtue of an execution issued upon a joint judgment against the appellant and one Potts. The appellant claimed the property as his own, and as exempt from sale on execution, under the Exemption Law. The court instructed the jury, in effect, that the lien of the writ attached to the goods when it came to the constable's hands, and that if at that time the property was partnership property, and was subsequently made the property of the plaintiff by Potts releasing his interest to the plaintiff, this would not defeat the lien of the writ, and the appellant would not be entitled to claim it as exempt. This presents the main question which counsel have discussed; that is to say, whether partnership property, or an interest therein, can be claimed as exempt from execution by the individual member of the firm. The question has been already decided in the negative by this court. Love v. Blair (1880) 72 Ind. 281. Whether the exemption could be 4 A.L.R-21. claimed depended on the ownership at the time the writ issued and became a lien, and so the issue was distinctly submitted to the jury. There was no error in the instruction in this respect." Sub In State ex rel. Miller v. Day (1891) 3 Ind. App. 155, 29 N. E. 436, the action was instituted against defendant, a constable, and the sureties on his bond, for having refused to set off to the relator certain property which he claimed as exempt, out of partnership property levied on. The relator was a member of the partnership. sequent to the issuance of the execution the partnership was dissolved by mutual consent. The court held that an individual member of a partnership could not claim partnership property as exempt from execution or sale for a partnership debt. A transfer of partnership property carried with it all the encumbrances that had attached to the property under the former ownership. It was said: "As in that case, so in the case at bar, the execution issued before the dissolution of the partnership, and the lien attached the moment the writ came into the officer's hands. At that time it is conceded that the property claimed as exempt was partnership property, and subject to the payment of partnership debts. While such property belongs to the firm, it cannot be said to belong to either partner separately. The only interest he has in it is one in common with his partner, and so long as it remains undivided it cannot be appropriated, in whole or in part, to the benefit of his family. Pond v. Kimball (1869) 101 Mass. 105; Henry v. Anderson (1881) 77 Ind. 361; Deeter v. Sellers (1885) 102 Ind. 458, 1 N. E. 854; Goudy v. Werbe (1889) 117 Ind. 154, 3 L.R.A. 114, 19 N. E. 764. By the dissolution and the release of Minerva Miller's interest in the property the ownership was changed, and the goods became the individual property of the relator; but this did not defeat the lien which had attached while the property was owned by the firm as firm property. The law clearly recognizes an ownership in firm assets which is separate |