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..178 ..221 ..338
55 ..269 ..416 ..429 ..472
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.173 Wisconsin Marine & Fire Ins. Co. Bank ads. Robinson. .117 Wood vs. Wright..... Wright vs. Thomas.
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. 63 CASES
ARGUED AND DETERMINED
CIRCUIT AND DISTRICT COURTS
SEVENTH JUDICIAL CIRCUIT.
In re JORGEN BJORNSTAD.
DISTRICT COURT— WESTERN DISTRICT OF WISCONSIN–MAY,
1. EXEMPTIONS OF MERCHANTS-CONSTRUCTION OF STATUTE.—The pro. vision in the statutes of Wisconsin providing for the exemption of “The tools and implements or stock in trade of any mechanic, miner or other person, used and kept for the purpose of carrying on his trade or business, not exceeding $200 in value," applies to merchants.
2. DISSOLUTION OF PARTNERSHIP-INDIVIDUAL EXEMPTION.—If a partnership is dissolved and the partnership stock is transferred to one of the partners, the right of exemption, under the exemption laws, attaches on the part of such owner of the property, even against partnership creditors.
In re Bjornstad.
J. II. Carpenter, and Rufus B. Smith, for bankrupt.
H. M. & H. A. Lewis, for opposing creditors.
BUNN, J.—The facts as stipulated by the parties are these: That in October, 1875, the bankrupt and one Martin Madson formed a copartnership for general merchandising which they carried on until about February 27, 1878, under the firm name of Bjornstad & Co., during which time they contracted debts, which are still unpaid, to the amount of about $5,000; that about February 27, 1878, they dissolved the partnership, Madson selling out his interest in the concern to Bjornstad, who took the stock, amounting to about $2,650, assumed the partnership debts, and thereafter till the time of filing the petition in bankruptcy carried on the business in his individual behalf.
The question submitted is whether the bankrupt is entitled to $200 exemption of the stock in trade, under subdivision 9, section 32, chapter 131. 2 Taylor's Statutes of Wisconsin, page 1551. That subdivision is as follows: “The tools and implements or stock in trade of any inechanic, miner or other person, used and kept for the purpose of carrying on his trade or business, not exceeding two hundred dollars in value.”
It is insisted by the attorneys for the assignee that this provision does not extend to merchants, but only to miners and mechanics and to other persons to whom tools and implements are necessary to carry on their business, on the principle of noscitur à sociis; and the argument seems very plausible to say the least. The question is, whether it is conclusive. There is one circumstance which in my judyment should have great weight in determining the question of exemption, and that is the uniform construction that las been placed upon the language of this subdivision in the state. Though, strange to say, the question has nerer been
In re Bjornstad.
directly decided by the Supreme Court of the state, it has been decided again and again in the several circuit courts, and so far as my information goes, always in favor of the more liberal construction that would extend the exemption to merchants as well as mechanics and miners. And I think this has been the general practice and understanding of the courts and of the profession, to allow the exemption.
In some of the circuits at least, of my own knowledge, the statute has been so construed by successive circuit judges for upwards of twenty years, and the rule become well settled and undisputed; and I am informed that such is the case in other circuits.
In the absence of any decision to the contrary by the highest court of the state I think it is not too much to say that the decisions and practice of the circuit courts may be taken as the law. And accordingly it has been the uniform practice in this court, and I understand also in the Eastern District, ever since the bankrupt law went into effect, to allow the exemption. This uniform and concurrent practice, acquiesced in for so long a time in the State and Federal Courts, might be taken as conclusive of the law. But as the question may arise again it may be well enough to look at it a little de novo.
Our constitutional provision is as follows: “The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure and sale for the payment of any debt or liability hereafter contracted.” 1 It was incumbent on the Legislature to carry out this beneficent provision of the Constitution, and it did so at an early day, in an enlightened and liberal manner according to the spirit and purpose of the provision.
i Constitution of Wisconsin, Article I, Section 17.