This is replevin for goods and chattels taken by the defendant a deputy sheriff, in attachment on a writ against one Joseph F. Breitschmidt, a hairdresser, who was in possession of them when attached. The plaintiff claims them by virtue of a mortgage given on them and duly recorded long before the attachment. The defendant claims that *Page 196 the mortgagor being left in possession, his interest was attachable under Pub. Stat. R.I., cap. 208, § 4.1 The plaintiff replies that the goods and chattels were the working tools of the mortgagor, necessary in his own practice, and as such exempt from attachment, under Pub. Stat. R.I. cap. 209, § 4, clause 2.
The Court of Common Pleas where the case was tried ruled that the question of exemption could not be raised, in this suit, by the plaintiff. The plaintiff excepted. The question is, whether the ruling was right. The decisions on the matter are discordant. Freeman on Executions, §§ 211, 212. We think the better view is, that the exemption is the debtor's personal privilege, and that, when the property is attached while in the debtor's possession, it is for him to assert the exemption if he wishes to claim it, and if he does not claim it, no one else can have the benefit of it. There is no reason, in legal contemplation, why a mortgagee under a mortgage duly recorded should have the benefit of it, if the mortgagor does not claim it, since it is the mortgagor's interest, not his, that is attached, his interest being primarily payable out of the proceeds in case of sale under the attachment. In the case at bar it does not appear that the plaintiff offered proof of any claim to the exemption by the mortgagor.
Exceptions overruled.
1 As follows: —
SECT. 4. Personal estate, when mortgaged and in the possession of the mortgagor, and while the same is redeemable at law or in equity, may be attached on mesne process against the mortgagor, in the same manner as his other personal estate.