Everett v. Herrin , 46 Me. 357 ( 1859 )

The opinion of .the Court was drawn up by

Kent, J.

A statute of this State, c. 81, § 36, art. 12, exempts from attachment and execution “ one or two horses, not exceeding in value one hundred dollars;” and, if the two horses exceed that sum in value, the debtor may elect which of the horses shall be exempt. In this case the debtor had two horses, one of the value of eighty dollars, and the other of the value of one hundred and twenty-five dollars, both of which were attached by the defendant. The debtor claims, in this suit, to recover for the one valued at a sum less than one hundred dollars, on the ground that that horse was exempt from attachment.

It seems clear that the Legislature intended to exempt only a horse not exceeding in value one hundred dollars. A horse worth more than that sum is not exempted, although it may be the only horse the debtor owns; and the debtor cannot protect any portion or interest in such horse. But the debtor may hold as exempt two horses, if the aggregate value of both does not exceed one hundred dollars. The right of election in the debtor exists and can be exercised only where both horses are of greater aggregate value than the above sum, but neither of them of the value of one hundred dollars.

In this case no right or duty of election existed. One of the horses was exempt, and one was not exempt. There was no right or obligation on the part of the debtor to elect, and all that was said or done by him, in relation to such election, was void and inoperative, and left the rights of the parties unaffected. The horse sued for was exempt by law from the attachment made by defendant, and his act was illegal, and a violation of the rights of the plaintiff.

An objection is made that the debtor, not being a citizen of this State, but a resident of New Brunswick, is not entitled to avail himself of any of the provisions of our law exempting property from attachment. This objection cannot prevail. If a citizen of this State attempts to secure the payment of his debt or claim against a foreigner temporarily within our jurisdiction, by availing himself of the provisions of our laws authorizing a suit and attachment of the “ debt- or’s” property, he cannot claim any greater rights, or cause the precept to be executed in any different manner, than when it is against a citizen of Maine. The statute exempts certain property of the “ debtor,” and does not limit the exemption to the property of a citizen, except in the single case of a fishing boat.

The exception in this single case strengthens the presumption that the Legislature intended that, in all other cases, the specified property of the debtor should be free from attachment, without any limitation as to citizenship. In the absence of any statute distinction, the general principle must prevail that the forms of remedies, and the modes of proceedings, and the service and attachments on processes, are to be regulated by the laws of the place where the action is instituted. Story’s Conflict of Laws, § 556.

Judgment for plaintiff for $90 and costs.

Tenney, O. J., and Appleton, Cutting, May, and Davis, J. J., concurred.