self. "The privilege of the debtor to enjoy the necessary comforts of life, should be recognized by wholesome laws exempting a reasonable amount of property from seizure or sale.' This principle makes all constitutional exemptions a personal privilege of each debtor, secures to him individually, not in mere benevolence only, but also in the interest of the State in the personal well being of each citizen. And the statutes of exemption appear to be framed on this principle. They go to secure the necessary comforts of life to families by exemption to heads of families; and the letter and spirit of exemptions follow the constitutional principle, in securing a personal privilege to each debtor individually. There may be joint debtors, but our constitution and statutes sanction no joint exemption." The exemption applies to the debtor in the singular number, and is personal and individual only.9 In Guptil v. McFee, 10 a firm, McFee & Riley, obtained judgment against Guptil & Hinton, and had executions levied on a lot of fresh pork, fresh beef, hams, shoulders, etc., sausage machine, kettle and furnace, wrapping paper, knives and cleavers and other things of the value of $241.80, used in carrying on the trade and business of butchering in which Guptil & Hinton, were engaged. They brought an action of replevin as partners against the Sheriff holding the property, claiming that the property was "exempt by law from seizure upon said execution." In the supreme court, on petition in error of Guptil & Hinton, after quoting Exemption law:11 "We suppose it will be admitted that the said goods were not exempt at all, unless they were exempt under the provision of the statute just quoted. We are of the opinion that they were not exempt a tall, and for the following reasons: First, they were all partnership goods, still in the hands of the firm against whom the execution was issued, and hence said exemption law does not apply. Second, they were (principally if not entirely) goods bought to be sold again as merchandise, and were not the goods, the tools, implements or stock in trade, of a mechanic, miner or some other person, who earned his livelihood in whole or in part by the use of tools or implements, and to the exercise of

9 Pond v. Kimball, 101 Mass. 105.

10 9 Kan. 30.

11 Gen. Stat. 473, sec. 33.

whose trade or business tools or implements were necessary." But, from the first reason would it make any difference if the facts were the converse of the second reason, and the firm composed of mechanics or miners associated for the purpose of carrying on their trade, and the property levied on was their tools, implements, or stock in trade logically, certainly not as to the partnership.

On the other hand, in Till's case, 12 it is said: "The law, undoubtedly, is that one member of a firm cannot hold his interest in the partnership effects exempt from the payment of the debts of the concern without the consent of his co-partners," even though the head of a family. In North Carolina one of the partners, by consent of the firm, may, but not without it.13

Prominent among the purposes of the exemption laws is the protection of the poor, by allowing them the implements of, and their stock in, trade, and the other means essential to enable them to gain a livelihood. "And when a man is supporting his family by the aid of a team, or of tools, or of provisions, which he would be entitled to retain if owned by him in severalty, it seems to be a clear perversion of the spirit of the exemption laws to deprive him of a moiety of the property because he is unable to own the whole. Hence, as a general rule, a part interest is, in most of the States, as much exempt from execution as though it were an interest in severalty; and this is true whether it be held in co-partnership or co-tenancy, and whether the execution be for the debt of one owner or for the debt of all the owners. 14

In Stewart v. Brown, the facts as found were, that John Stewart and Peter Stewart were partners in the ownership of the horses and harness, worth $160. They had no other property, except a few articles of household furniture of trifling value. Each was a householder and each had a family for which he provided. Both were teamsters and respec

12 Tilis case, 3 Neb. 262.

13 Herman on Exemptions, 118; Burns v. Harris, 67 N. C. 140.

14 Stewart v. Brown, 37 N. Y. 250; 21 Am. Dec. 551; Burns v. Harriss, 67 N. C. 140; Gaylord v. Imhoff, 1 Cin. Sup. Ct. 404; Howard v. Jones, 50 Ala. 67; Radcliff v. Wood, 25 Barb. 52; Newton v. Howe, 29 Wis. 531; 9 Am. Rep. 616; Servanti v. Lusk, 43 Cal. 238; Freeman on Exemptions, sec. 221; Thompson on Homestead and Exemptions, sec. 216; Gaylord v. Imhoff, 26 O. S. 317.

the partners so that each partner may have his several exemption," say, it will be seen that there is here a clear and distinct intimathat each member of a partnership is entitled to his separate exemption out of the partnership property, and the chief justice says that after the levy the partnership property may be severed by the partners so as to give each partner his several exemption. 23

IV. Out of what property?-We may say, from the authorities cited, there seems to be no conflict as to how this question should be answered, either as to those States where the exemption is allowed directly to the copartnership, or indirectly to them by formal, or informal, dissolution and claim. It is to be taken out of the same property, as in the several States, is allowed to the individual and under the same restrictions.24

In conclusion, our logicians teach us that, things that are equal to the same thing are equal to each other;" our geometricians say, "the whole is equal to the sum of its parts." But our authorities teach us that we cannot, generally, sue a partnership, but must sue the individuals, and then some of them say, the partnership (which is simply the individuals) can not have any right under the exemption laws if the individual members claim jointly, but if they all claim separately, that that works a severance of the partnership, and the individuals have the exemption. Some hold

this may be done even after levy. Even after the creditor has subjected the effects of the partnership, liable to his execution, to the custody of the officer, that even then by claiming as individuals, the exemption law defeats the creditor.

I can not refrain from giving in this connection the sharp criticism of the Ohio court in Gaylord v. Qinhoff,25 on allowing the exemption out of partnership property after levy. Wherein they say, that it makes a positive statutory right, which in a proper case, may be asserted against all the world, depend for its enforcement upon the mutual consent of the partners, and thus degrades it to a mere privilege.

Girard, Kansas.

VAN SYCKEL & WELLS.

23 15 N. W. Rep. 773.

249 Kansas 34; 37 N. Y. 351.

25 26 O. S., 321.

HABEAS CORPUS — CIVIL PROCEEDING FEDERAL SUPREME COURT.

EX PARTE TOM TONG.

United States Supreme Court, May 7, 1883. Suing out a writ of habeas corpus is a civil proceeding, although the object of the petitioner be to be released from custody under a criminal charge. In such a case the Federal Supreme Court has no jurisdiction on certificate of division of opinion.

On a certificate of division in opinion between the judges of the Circuit Court of the United States for the District of California.

S. F. Phillips, Thos. Simons and Hall McAllister, for petitioner; L. D. Latimer, in opposition. WAITE, C. J., delivered the opinion of the

court:

This is a writ of habeas corpus sued out of the Circuit Court of the United States for the District of California by the petitioner, Tom Tong, a subject of the emperor of China, for the purpose of an inquiry into the legality of his detention by the chief of police of the city and county of San Francisco, for an alleged violation of an order or ordinance of the board of supervisors of such city and county regulating the licensing, etc., of public laundries, and the case comes here, before judgment below, on a certificate of division of opinion between the judges holding the court as to certain questions which arose at the hearing. The allegation in the petition is that the order, for the violation of which the petitioner is held, is in contravention of the Constitution of the United States and of a treaty between the United States and the emperor of China. A question which meets us at the outset is whether we have jurisdiction, and that depends on whether the proceeding is to be treated as civil or criminal. Section 650 of the Revised Statutes provides that whenever, in any civil suit or proceeding in a circuit court, there occurs a difference of opinion between the judges holding the court as to any matter to be decided, ruled, or ordered, the opinion of the presiding judge shall prevail and be considered the opinion of the court for the time being; and sec. 652, that when final judgment or decree is rendered, the points of disagreement shall be certified and entered of record under the direction of the judges. That being done, the judgment or decree may, under the provisions of section 693 be brought here for review by writ of error or appeal, as the case may be. By section 651 it is provided that whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court and the judges are divided in opinion, the point on which they disagree shall, during the same term, upon the request of either party, or of their counsel, be stated under the direction of the judges, and certified under the seal of the court to this court at its next session. It follows from these provisions of the statutes, that, if this is a civil suit or pro

ceeding we have no jurisdiction, as there has been no final judgment in the circuit court, but, if it is a criminal proceeding, we have.

The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes; but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offense; but if he succeeds he must be discharged from custody. The proceeding is one instituted by himself for his liberty, not by the Government to punish him for his crime. This petitioner claims that the constitution and a treaty of the United States give him the right to his liberty, notwithstanding the charge that has been made against him, and he has obtained judicial process to enforce that right. Such a proceeding on his part is, in our opinion, a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution. It was said by Chief Justice Marshall, speaking for the court, as long ago as Ex parte Bollman, 4 Cranch, 101: "The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts."

The questions that may be certified to us on a division of opinion before judgment are those which occur on the trial or hearing of a criminal proceeding before a circuit court. It follows that we cannot take jurisdiction of the case in its present form, and it is consequently remanded to the circuit court for further proceedings according to law.

CUSTODY OF THE LAW-LEVY OF PROCESS.

PIPHER v. FOREDYCE.

Supreme Court of Indiana, May 19, 1883. Personal property in the possession of the plaintiffs in a replevin suit, who have given bond for such property, is, during the pendency of such replevin

proceedings, in the "custody of the law," and not liable to seizure under other process.

ELLIOTT, J., delivered the opinion of the

court:

On the 20th day of November, 1880, the appellees were in possession of the personal property here in controversy claiming to have acquired title through the Nelson Iron and Coal Company. On that day an execution issued on a judgment rendered against that corporation was levied on the property and a writ of replevin was sued out by the appellees under which they obtained possession of the property. Afterwards, and while the appellees were in possession under writ of replevin and while the action of replevin was still undetermined, the appellant levied another execution issued against the Coal Company upon the same property.

It is the general rule that property in legal controversy cannot be seized by other judicial process than that under which it came into custody of the law. In Stout v. LaFaulett, 64 Ind. 269, the general principle is recognized and enforced. The only inquiry, therefore, is whether the principle can be deemed applicable to such a case as the one under examination. The possession of the appellees secured to them by the undertaking, given in the replevin proceedings, was in legal contemplation, that of the law. Because they instead of the sheriff were in actual possession, did not change the character of the possession: they were in custody by virtue of the process of the court and really as its agents. Of a similar case, the Supreme Court of the United States said: "On the giving of the bond the property is placed in the possession of the claimant. His custody is substituted for that of the sheriff. The property is not withdrawn from the custody of the law." Hagan v. Lewis, 10 Pet. 380.

Where vendees of a judgment debtor obtain possession of property by virtue of a writ of replevin and by this process take it from the hands of the sheriff, it cannot, while the action of replevin is pending undetermined, be again levied upon under another execution issued against the vendee.

This conclusion necessarially follows from the general principles we have stated, for the denial of this conclusion involves the affirmance of the proposition that property in custody of the law may be seized under judicial process. The case Rhines v. Phelps, 3 Gilm. 455 is directly in point and also are the cases of Archer v. White, 25 Wend. 614; Shelleck v. Phelps, 11 Wis. 380. The text writers approve the doctrine. Hillard's Remedies for Torts, (3rd ed.) p. 51, sec. 29; Freeman Executions, 135. Judgment affirmed. Howк, J., did not take part in the decision

MURDER-EVIDENCE- EXPERT WITNESS -SCIENTIFIC BOOKS.

BOYLE v. STATE.

Supreme Court of Wisconsin, May 31. 1883.

1. The evidence shows that immediately preceding the discovery of the dead body of deceased, by a neighbor who was called into the house by the hus. band, both the deceased and her husband had been on a drunken debauch to the village of Columbus, and returned in a sleigh to their house with one gallon of whisky and one half gallon of wine. When discovered the deceased was lying on her bed fully dressed and with shawl on, apparently just as she had returned from Columbus the day be fore. Between the time of discovery and the time when last seen alive riding with her husband no one except her husband had access to her. The experts engaged in the examination came to the conclusion that the immediate cause of her death was suffocation, strangulation or asphyxia.

2. The evidence also shows that there were discolored spots on the neck of the deceased, but that thirteen days later when the body was exhumed for re-examination such spots had disappeared.

Held, from an examination of the expert testimony in the case, it is not made perfectly clear that deceased came to her death by violence inflicted by any one; and that the most important question in the case for the jury to determine was whether there was such violence, or whether the death of the deceased was the natural result of her debauch.

Held, that the court erred in permitting Dr. Cody, a witness for the State, to testify upon the trial as to what was said in standard medical works upon the subject of strangulation, and what effects would be produced upon the body of the deceased when death resulted from such cause. Held, error also to permit the counsel for the State to read from medical works to the jury.

Error to Circuit Court, Dodge County.

E. Elwell, for plaintiff in error; H. W. Chynoweth, Assistant Attorney-General, for defendant in error.

TAYLOR, J., delivered the opinion of the court: The plaintiff in error was tried in the circuit court upon an information charging him with the murder of his wife, the jury found him guilty of murder in the second degree, and the court sentenced him to imprisonment in the State prison for the term of fourteen years. After verdict and before sentence, the plaintiff in error made a motion to set aside the verdict and for a new trial, for errors occurring in the course of the trial and because the verdict is not supported by the evidence. The death of the wife of the accused occurred either on Wednesday, the 11th, or Thursday, the 12th of January, 1882, at the house of the accused. The evidence shows that for several days previous to the 12th of January, the accused and his wife had been on a drunken debauch, and that on Wednesday, the 11th of January, they had been to the village of Columbus, drinking quite freely, and when they went home in the afternoon, took with them one gallon of

whisky and half a gallon of wine. They went home in a double sleigh, were seen by several persons on the way; most of the way home the deceased sat with the accused on the seat, but at one time she got down from the seat and was leaning over the dashboard with her breast against it, and accused helped her on the seat again. After they got home on the evening of Wednesday, they were not seen by any one until the afternoon of Thursday, when the accused came out of his house with his overcoat on and called to a neighbor who was near by to come quick, that his wife was dead. He said to another witness that she died about two o'clock. The accused seemed stupefied and could not talk plainly. When the deceased was first seen by the witnesses after her death, she was lying on the front side of the bed on her right side, face toward the wall, head to the east, on a pillow, all her clothes on, shawl and nubia, apparently the same she wore on her return from Columbus, the day before. A post-mortem examination was made and the deceased buried. Thirteen days later her body was taken up, and a second examination made. It is unnecessary here to give any particular statement of the result of such examination. It is sufficient for the purposes of this case to state that all the experts engaged in the examination came to the conclusion that the immediate cause of the death of the deceased was suffocation, strangulation or asphyxia. The theory of the prosecution was that the strangulation was produced by the accused by choking with his hand, pressing upon her neck, and as supporting this theory the medical witnesses who were present at the first examination testified that there were discolorations upon her neck which might have been made by the hand of a man clasping her neck. These discolorations had disappeared when the second examination was made. Some of the expert witnesses thought the death of the deceased might have resulted from causes other than the application of pressure upon her throat by the hand of the accused or any other person; that death might well have ensued as the consequences of the drunken debauch in which she had been indulging immediately previous. As the case now appears to us, the most important question in the case for the jury to determine was whether the deceased's death was caused by violence applied by some other person, or whether her death was the result of her debauch. If it had been clearly shown that her death was the result of the force and violence of some person other than herself, there would be little doubt as to the person who must have applied such violence, as the evidence tended very strongly to show that no person had access to her after she entered her house on the evening of Wednesday until her death on Thursday, except the accused. Whether or not a homicide had in fact been committed was the real difficult question in the case. If that fact was once satisfactorily established, there could be little room for