
    James G. Dwinell v. H. M. Edwards.
    Under the proviso contained in the act of May 1, 1871 (68 Ohio L. 106), amending section 4 of the homestead act, husband and wife can not each at the same time, hold the exemption provided for in the act. And when the real estate occupied as a family homestead, is owned, either by the husband or wife, neither can hold exempt from execution the personal property allowed by the act in lieu of a homestead.
    Motion for leave to file a' petition in error to reverse the-judgment of the District Court of Hamilton county.
    Dwinell sued Edwards in the Court of Common Pleas of Hamilton county, to recover damages for the seizure by the latter, under an order of attachment, of certain goods and chattels belonging to the former. The order of attachment was sued out by a creditor of Dwinell, and was put in the hands of Edwards as an officer for execution. At the time of the levy of the attachment, Dwinell demanded to have the property set off to him as exempt under section 8 of the homestead act of March 23, 1850 (2 S. & C. 1145), as amended April 9, 1869. 66 Ohio L. 49. Edwards refused to comply with this demand, and held the property under the order of attachment. On the trial, it appeared that Dwinell was married, and resided with his wife and children on certain real estate, which the evidence tended to show belonged to his wife in fee-simple, and which was occupied by them as a homestead. The court instructed the jury, that, if they found such to be the fact, it would not defeat the right of the plaintiff to hold the property in question exempt from the levy of the attachment.
    The District Court, on error, reversed the judgment of the Court of Common Pleas; and it is now sought to obtain a reversal of the judgment of the District Court.
    
      W. Cornell, for the motion.
    
      Hoadly & Johnson, contra.
   By the Court.

Under the proviso contained in the act of May 1, 1871 (68 Ohio L. 106), amending section 4 of the homestead act, husband aud wife can not, each at the same time, hold the exemption provided for in the act. And where the real estate occupied as a. family homestead, is owned either by the husband or wife, neither can hold exempt from execution the personal property allowed by the act, in lieu of a homestead.

The case of Davis v. Dodds (20 Ohio St. 473) was determined on the effect which the act of March 23, 1866, amending the act of April 3, 1861, concerning the rights and liabilities of married women, had upon the previously existing rights of the husband under the homestead act. The statute now in question was passed shortly after Davis v. Dodds was decided, and seems to have been intended to so alter the homestead act, as, thereafter, to obviate the. effect of that decision.

Leave refused.  