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68 N.C. 325

Ebenezer v. Naylor

Supreme Court of North Carolina

Decided January 5, 1873

Supreme Court of North Carolina · decided 1873-01-05

, at Fall Term, 1872, of the”said court of Davie county. The proceedings were instituted upon the affidavit of the plaintiffs suggesting that the defendant, a judgment debtor, had property which could not be reached by an ordinary execution, and asking an order subjecting him to an examination in relation thereto.

Cited by 2 later decisions — most recently January 1900

1 district ·

Key passage — most relied on by later courts

““A chose in action can he selected by the debtor as a part of Ills personal property exemptions. The phrase ‘such other property,’ used in the constitution, must be understood to mean such like property as had been expressly named. But; the language of our constitution is different. It does not; mean any property, but exempts ‘personal property of the value of five hundred dollars, to be selected by the debtor.’ The allotment may be made from time to time, and as often as the debtor may be pressed with executions; the policy being to enable the debtor not only to have the exemptions allotted to him once, but to keep them about him ail the time, for the comfort and support of himself and family. Such is the policy of our constitutional provision, and it allows the debtor to select what he thinks most useful.””

quoted by 1 later decision, including In re Grimes

Good law ✅— No negative treatment on recordhow we know

Decided 1873-01-05

View the full empirical analysis of this case →

Reade, J.

¶1 1. The first question is, whether a chose inaction can be selected by a debtor, as a part of his personal’ property exemption.

¶2 Under our statute, (Rev. Code, ch. 45, s. 89,) prior to our present State Constitution, certain articles were exempt from execution; “ one cow and calf, ten bushels of com, fifty-pounds of bacon, farming tools for one laborer, one bed, &c.„ for every two members of the family, and such other property as the freeholders shall deem necessary for the comfort and support of the debtor’s family — such other property not to exceed in value fifty dollars at cash value.” And in Ballard v. Waller 7 Jones 84, the question was, whether a chose in action might be assigned under “ such other property,” &c. It was decided that it could not, for the reason that “ such other property ” must be understood to name-such like property as had been expressly named. But the language in our Constitution is different. It does not mean any property, but exempts “ personal property of the nature-of five hundred dollars, to be selected by the debtor.” A chose in action is property, and, if selected by the debtor, it-must be exempt.

¶3 2. The second question is, whether the debtor is restricted-to the first allotment of exempted property, or whether he-may have it renewed from time to time, so as to keep constantly about him exemptions to the value of five hundred dollars ? A like question arose under the former statute of exemptions, supra; and it was decided that the allotment, should be made from time to time, and as often as the debtor might be pressed with executions ; the policy being-to enable the debtor not only to have the exemptions allotted to him once, but to keep them about him all the time,, for the comfort and support of himself and family. Dean v. *327 King, 13 Ired. 20. And such is the policy of our constitutional provision; and it allows the debtor to select what he may think most useful. In this it differs from the former law, which either named the articles which might not be the most useful in certain cases, or allowed the “ freeholders ” to name the articles.

¶4 There is no error.

Per Curiam.

¶5 Judgment affirmed.

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