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256, § 1. Commissioners of fisheries

1886, chap. 276, § 8. Arrest without warrant... 2118 32. Offense in two counties....

210

IND 25. Liability for common debts 2108 112, 113. Amendment to meet variance.... 220 Criminal Practice Act.

215

778

Wagner's Statutes.

P. 256, § 1. Adoption......

Montana.

Code of Civil Procedure.

25

205

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LAWYERS' REPORTS,

ANNOTATED.

MINNESOTA SUPREME COURT.

William WYLIE, Respt.,

v.

Army GRUNDYSEN, Appt.

*1. A building which is exempt from levy and sale as an appurtenant of an exempt *Headnotes by VANDERBURGH, J.

NOTE.-How far proceeds of exempt property retain the exempt character.

As to judgments affecting exempt property. The proceeds arising from the condemnation of a homestead are not liable for the debts of the owner. Brooks v. Collins, 11 Bush, 622; Kaiser v. Seaton, 62 Iowa, 463.

And a judgment against a railroad for damages caused by fire to the homestead, is not subject to garnishment for the debts of the owner. Mudge V. Lanning, 68 Iowa, 641.

Money paid into the hands of the clerk of the court by the sheriff, in an action of detinue for taking exempt property by attachment, is not liable to garnishment. Falconer v. Head, 31 Ala. 513.

In this case the judgment debtor sued for the goods, and it did not appear that he had consented to take the value instead of the articles.

And the proceeds of a judgment for the conversion of exempt property are also exempt. Stebbins v. Peeler, 29 Vt. 289.

And a judgment for conversion of exempt property should be paid to the plaintiff. The defendant who is a judgment creditor of the plaintiff, cannot have the fund invested under order of the court, to be held until the exemption ceases, so that he then could subject it to his claim. Harrell v. Harrell, 77 Ga. 130.

A judgment obtained for wrongful taking of exempt property is also exempt, and the debtor should be allowed a reasonable time to invest the same. Tillotson v. Wolcott, 48 N. Y. 188.

And a judgment for the conversion of exempt property does not pass to the receiver appointed in aid of execution. Andrews v. Rowan, 28 How. Pr. 126. See also Payne v. Gibson, infra.

But a judgment obtained for conversion of property, some of which was exempt, is not itself exempt from garnishment, where it is not shown how much was for exempt property. Burke v. Hance, 76 Tex. 76, 18 Am. St. Rep. 28.

A judgment for the conversion of exempt property will not be enjoined at the instance of the defendant who is a judgment creditor of the plaintiff, although the plaintiff is insolvent. Collett v. Jones, 7 B. Mon. 586.

homestead does not lose its exempt character by the wrongful severance thereof from the realty by a trespasser; but after a severance the owner may sue for its conversion as personal property.

2. And a judgment recovered for tho value thereof will be treated as a judgment for exempt personal property, within the meaning of Gen. Stat., chap. 66, § 313, and be also exempt from sale upon execution.

| debtor brought suit for a tort done to exempt property, as the plaintiff has no right to complain. Hudson v. Plets, 11 Paige, 180, 5 L. ed. 99.

Damages for trespass in taking exempt property may be garnished. In this case more than one half of the judgment was for punitive damages. Knabb v. Drake, 23;Pa, 489, 62 Am. Dec. 352.

A judgment for a balance due on a voluntary sale of exempt property is not exempt under the Iowa Code, § 3072; which exempts specific property, and 8 3244, which exempts a judgment for exempt property wrongfully taken. Harrier v. Fassett, 56 Iowa, 264.

As to setting off judgments affecting exempt property.

A purchaser of 'exempt property, that was sold so that the proceeds could be used to purchase other exempt property, when sued for the price cannot set up as a defense a note that he holds against the vendor. Mulliken v. Winter, 2 Duv. 256,

87 Am. Dec. 495.

And the purchaser of exempt personal property sold by the commissioner of the court for reinvestment, when sued by the commissioner for its value, cannot set off a claim which he may have against the owner of the exempt property. Sirmans v. Sirmans, 74 Ga. 541.

And a party having a judgment not exceeding $600 in his favor may claim it as exempt, assets, and have it assigned to him as such, and the de fendant cannot then set off a judgment which he has against the plaintiff. Butner v. Bowser, 104 Ind. 255.

And a judgment claimed as exempt because of less value than $500 cannot be defeated by the defendant setting off a counter judgment against the plaintiff, although the consideration upon which the counter judgment was founded was a credit that he was entitled to against plaintiff, but the receipt for which had been lost. Curlee v. Thomas, 74 N. C. 51.

But a note that is not set apart under the statute as exempt cannot be claimed as exempt in the hands of an assignee, so as to defeat judgments which are attempted to be used as set-offs against the note. Lane v. Richardson, 104 N. C. 642. So also in a suit in aid of execution and for an in- In an action for trespass for selling exempt propJunction against the debtor's disposing of his property under an execution, the defendants cannot erty, it is no violation of the injunction that the set up the judgment against the plaintiff on which

See also 26 L. R. A. 415; 27 L. R. A. 808; 33 L. R. A. 264.

3. Where a sheriff collected upon ex-1 new trial after judgment in favor of plaintiff ecution money due upon an exempt in an action brought to recover money alleged judgment, and applied the same upon an exe- to have been collected by defendant on plaincution against the judgment creditor, in his tiff's account and retained by defendant. hands, before a lawful levy thereon, without Affirmed. any notice to such creditor, or opportunity for him to make any demand,-Held, that no subsequent demand upon him was necessary before suit brought to recover the same.

(November 23, 1892.)

APPEAL by defendant from an order of the District Court for Polk County denying a

the execution issued as a set-off. McElroy, 32 Pa. 82.

"Defendant was sheriff of Polk County. Plaintiff bad recovered judgment against certain persons for the wrongful conversion of property belonging to plaintiff. On the day that judgment was entered the sheriff received two executions issued on judgments against

Wylied part colleted the Wylie judgment and applied part of the amount so collected in satis

Wilson v.ceiver in aid of execution a fire policy due on his exempt property. He should have a reasonable time to reinvest the proceeds. Cooney v. Cooney, 65 Barb. 524.

A judgment in replevin, for damages in taking an exempt cow, cannot be defeated by setting off a judgment of defendant against plaintiff, under the statute of Tennessee, which only allows such Judgments to be set off as are matters ex contractu. Duff v. Wells, 7 Heisk. 17.

But in a replevin suit for an exempt horse and for $150 damages, that part of the judgment that was for damages is not exempt. The defendant having a judgment against plaintiff can pay to the sheriff the amount due the plaintiff and subject that to his judgment. Johnson v. Edde, 58 Miss. 664.

The defendant in an action of trover for exempt property, where there was a levy of an execution thereon, cannot have the judgment reduced by setting off in said action & judgment against plaintiff. Ex parte Hunt, 62 Ala. 41.

A judgment for conversion of exempt property cannot be satisfied by the sheriff holding an execution against plaintiff. The debtor does not lose his exemption by the action for conversion instead of replevin, for he may not be able to give a replevin bond. Howard v. Taudy, 79 Tex. 450.

But in New Hampshire it was held that insurance money due on exempt chattels that were burned is liable to attachment in the hands of the company. The statutory exemptions in that state only apply to specific chattels, pension, bounty and wages. N. H. Gen. Stat. chap. 205, § 2, Wooster v. Page, 54 N. H. 128, 20 Am. Rep. 128.

The insurance money due on exempt personal property is not exempt, in Illinois. It is a debt due from a corporation and Rev. Stat. 1877, chap. 52, 13, prohibits claiming the $300 exemption, from a debt due from a corporation. Monniea v. German Ins. Co. 12 Ill. App. 240.

The proceeds of a policy of insurance on a homestead is exempt for a reasonable time for reinvestment, and this applies as against a mechanics' lien. Cameron v. Fay, 55 Tex. 58.

And insurance money due from a burnt homestead is not liable to garnishment in the hands of the company for debts of the assured. Houghton v. Lee, 50 Cal. 101.

But insurance money on a homestead may be attached in another state, notwithstanding the fact that such a policy is exempt where made and that

It was held in Mallory v. Norton, 21 Barb. 424, that a judgment for the conversion of exempt property, may be satisfied by the defendant pay-it had been paid over after garnishment under a ing the amount to the sheriff, to be applied on a judgment against the plaintiff, on the ground that the remedy to recover exempt property is by replevin.

But in Beckman v. Manlove, 18 Cal. 388, it is decided that if a party had brought suit in replevin, the opposing party could give a bond and retain the property, compelling an action on the bond and thus defeat an action for the specific property. That case holds that the defendant cannot set off a judgment in his favor against a judgment for the seizure of exempt property.

And a judgment for the conversion of exempt property cannot be discharged by the defendant paying that amount to the sheriff to be applied on a judgment against the plaintiff, under Wis. Rev. Stat., § 3028, authorizing persons indebted to pay a sheriff having an execution. Below v. Robbins, 8 L. R. A. 467, 76 Wis. 600.

In Minnesota it was decided that a defendant in a judgment for the conversion of exempt property may have a judgment held by him against the plaintiff set off against plaintiff's judgment, as the plaintiff should have pursued the specific property. Temple v. Scott, 3 Minn. 419.

But in 1878 a statute was passed in Minnesota exempting a judgment for exempt property. See main case.

As to proceeds of insurance.

The proceeds of exempt personal property, obtained by insurance from fire, is also exempt against the creditors of the assured. Reynolds v. Hanes (Iowa) 13 L. R. A. 719.

judgment. The Exemption Law of Rhode Island cannot affect the right of the creditor in Illinois. Roche v. Rhode Island Ins. Asso. 2 Ill. App. 360.

And in Mississippi it was held that money duefrom an insurance company as proceeds of homestead is not exempt, it being the result of a personal contract of indemnity founded on an inde pendent consideration in the premium paid. The court holds that the house was not insured but the owner was insured in indemnity against loss. Smith v. Ratcliff, 66 Miss. 683, 14 Am. St. Rep. 606.

Goods acquired by having a chattel mortgage thereon released and the goods conveyed to a third party for the benefit of the owner, are not exempt from seizure for the owner's debts, although the release of the chattel mortgage and transfer are obtained in consideration of an assignment of policies of life insurance, that were exempt. Friedlander v. Mahoney, 31 Iowa, 315.

As to exemption of property purchased with pension money.

The exemption of pension money under the Act of Congress, U. S. Rev. Stat., § 4747, attaches to property bought with the same. Crow v. Brown, 11 L R. A. 110, 81 Iowa, 344; Dean v. Clark, 81 Iowa, 753.

And this is so notwithstanding the judgment was rendered before the debtor received the pension money, and before Iowa Acts, 20 Gen. Assem. chap. 23, took effect. Crow v. Brown (Iowa) Oct. 12, 1892.

In Iowa it was formerly held that pension money after it had been paid and deposited or loaned out not exempt. Webb v. Holt, 57 Iowa, 712

was

A debtor cannot be required to assign to the re- Baugh v. Barrett, 69 Iowa, 495.

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