
    Sallie Wallingsford vs. William H. Bennett.
    At Law.
    No. 19,856.
    { Decided December 5, 1881.
    ? The Chief Justice and Justices Wylie and James sitting’,
    1. Section 797’of the Bevised Statutes of the District of Columbia, exempting certain property of the head of a family or householder from execution, rests upon public policy. The statute was intended for the protection and preservation of the family notwithstanding the improvidence of its head, and an executory agreement to waive its benefits is inoperative and void.
    2. In a landlord’s proceeding by attachment before a magistrate, the return of that officer to a writ of certiorari showed that a writ of execution upon a judgment in personam (unappealed from) had issued against such of the goods and chattels of the defendant as were not exempt-from execution■ Held., That the question of the exempt character of the property, not appearing to have been adjudicated by the magistrate, might be raised in an action of replevin against the constable for seizing the goods.
    3. Beplevin against the officer will lie by the execution debtor when his. exempt property has been levied on.
    STATEMENT OE THE CASE.
    This was an action of replevin brought by a defendant in execution to recover certain of her goods and chattels levied upon by a constable under a writ of execution issued by a justice of the peace of this District on a judgment rendered in a case of attachment for rent.
    The facts of the case are as follows : On the 20th of March,,, 1878,(the plaintiff, Sallie Wallingsford, a resident of the District and the head of a family, leased from Frank T., Browning, trustee, a dwelling house situated on Missouri avenue in this city. One of the clauses in the lease signed' by Mrs. Wallingsford was as follows :
    “And it is hereby further understood and agreed between the parties hereto, that said party of the second part shall,, and does by these presents, waive, relinquish and release all her rights, benefits and advantages extended to her as tenant under and by virtue of a certain act of Congress, entitled “ An act exempting certain property of debtors in the District of Columbia from levy, attachment or sale and execution,’ approved February , 1867.”
    After having taken possession of the premises under the lease, the plaintiff became indebted to her landlord for ninety dollars rent, and to enforce his lien for this rent upon such ■of the tenant’s goods and chattels as were upon the premises, the landlord brought suit by attachment before a justice ■of the peace. The writ was issued on the 26th of July, 1878, and the property having been attached, Mrs. Wallings-ford appeared and defended the suit. It does not appear whether she set up her exemption rights as a defense in this proceeding before the magistrate or whether that issue was tried by him. It does appear, however, that on the 1st of August, a judgment in personam for ninety dollars and costs, and condemnation of the goods attached wrs rendered against her. Upon that judgment there was issued a writ of execution, not in rem of the goods attached and condemned, but an ordinary writ of execution in personam, as follows :
    
      u DisTRXct oe Columbia,
    “ County of Washington, ss.
    
    “You are hereby commanded, that of the goods and chattels, lands and tenements, rights and credits, so far as the same are not exempted by lato, of Sallie Wallingsford, being in the County of Washington, you cause to be made as well the sum of ninety dollars certain debt, on interest from the first 'day of August, 1878, as the sum of twenty dollars and sixty-five cents (|20.65), costs, which sums were recovered, &c., by a certain Frank T. Browning, trustee, against the said Sallie Wallingsford before C. S. Bundy, esq., one of the justices of the peace for the county aforesaid, on the first day of August, 1871, and that you lawfully account for those sums of money within twenty days from the date hereof, before me, the subscriber, and also all additional costs thereon.
    “ Hereof fail not at your peril, and have youthen and there this writ.
    “ Given under my hand and seal, this 8th day of August, 1878.
    [l. s.] ’ “ C. g. Bundy, J. P.
    
      “ To William II. Bennett, Constable.”
    
      When the property in question was seized by the constable ■under this writ, Mrs. Wallingsford replevied it under a writ of replevin sued out of this court, at the sanqe time filing with her declaration an affidavit as required by section ■815 of the Revised Statutes of the District, stating:
    First. That she was entitled to recover possession of the -chattels proposed to be replevied, being .the same described in the declaration.
    Second. That the defendant has seized and detains the same.
    Third. That the said chattels were not subject to such .seizure or detention, and were not taken upon any writ of replevin.
    A plea of not guilty was entered by the defendant constable and, issue having been joined, the case carne up for trial before the court below on the following agreed statement of facts:
    AGREED STATEMENT OE EACTS.
    “It is hereby stipulated by and between counsel for the respective parties hereto, that the following ease be stated for the opinion of the court in the nature of a special verdict.
    “ 1. That the goods and chattels mentioned in the declaration filed in this case, were seized by the defendant, as the goods of the plaintiff, under and by virtue of a writ of execution issued by C. S. Bundy, Esq., a justice of the peace in and for the District of Columbia, on a judgment rendered in an attachment case for rent in a case then pending before said Bundy, wherein Frank T. Browning, trustee, was plaintiff, and Sallie Wallingsford, the plaintiff- herein, was defendant, said writ of execution being directed to said defendant, who was then, and still is, a duly qualified constable in and for said District. That said writ of execution is now on file in the clerk’s office of this court with other papers in the case of Frank T. Browning, Trustee, vs. Wall-ingsford,Law, No. 19,905, and is, together with all the papers in said cause, made a part of this statement. That though said writ of execution purports on its face to have been issued on the 8th day- of August, 1878, yet, in point of fact, it was not issued until the 9th day of August, 1878.
    “ 2. That said goods, at the time of seizure as aforesaid,, constituted the entire household furniture of the plaintiff, of the class mentioned in section 797 of the Revised Statutes, and did not exceed the sum of three hundred dollars in value^ And the plaintiff herein, at the time of .said seizure, was, and still is, a head of a family or householder, and a resident of the District of Columbia.
    
      “ 3. That the lease on file in case No. 19,905 at law, aforementioned, was signed by the plaintiff' therein, and is the lease under which the plaintiff' herein occupied the premises upon which said goods and chattels were seized by said defendant, which said lease was used as evidence before said Bundy at the trial had before him, and at which trial judgment on said attachment was rendered, and the said execution issued, which said lease is made a part of this statement.
    “4. That at the said attachment trial had before said Bundy, the plaintiff herein appeared, with counsel, and contested against a judgment being rendered on said attachment.
    “5. Judgment to be entered for the plaintiff or defendant as the court may deem lawful under the above state of facts, the costs to follow the judgment, and both parties' herein reserving the right of appeal, and of any other remedy at law or equity, the same as if the said judgment had been regularly entered upon the verdict of a jury.”
    The court below rendered judgment for the plaintiff, from which the defendant appealed.
    Frank T. Browning for appellant :
    In the first place it has been laid down as a proposition of law that replevin will not lie to take goods out of the custody of the law. Evans’ Practice, p. 46, Cromwell vs. Owings, 7 Har. and Johns., 55.
    The correctness of this principle has been disputed and authorities against it are extant, but it maybe safely said that the execution debtor cannot replevy goods out of the custody of the law. 2 Gr. Ev., 615 ; Ringgold :vs. 'Williamson, 4 Co., 39 ; Taylor os. Carryl, 20 How., IJ. S., 595 ; Freeman vs. Howe, 24 How., TJ. S., 456.
    It is claimed, however, that since the statute of exemption the law is different, and that the execution debtor may replevy exempt property, but on an examination of the authorities it will be seen that in those States in which that doctrine is held it is. under construction .of the statute.' In Pennsylvania, Kentucky and Illinois it has been held that replevin js not the proper remedy for a disregard of a claim under exemptions. Bonsell vs. Cowley, 8 Wr., 442 ; Hammer vs. Fresi, 7 Harria, 253 ; 60 Ill., 380; and see Herman on Execution, §173 ; 4 Cush., 85 ; 7 Vt., 465, and Reynolds vs. Sallie, 2 B. Mon., 18.
    Again, in the present case the plaintiff waived her exemptions. The authorities cited to support the position that this waiver was inoperative, will be found to be based on statutes. On the other hand the authorities are abundant that the exemption being a statutory privilege which the debter alone can avail himself of, he may, if he elects, waive it. Wells on Replevin, §270 ; Bowman v. Sunley, 21 Pa., 225; Lines’Appeal, 2 Grant’s Oases, 197; Smiley os. Bowman, 3 Grant’s Cases, 132 ; McCaffrey vs. Wooden, 65 N.T., 459
    But again, exemptions cannot be claimed, when an execution is levied on an attachment, after judgment and order of sale. Herman on Executions, §98 ; State vs. Manley, 15 Ind., 8 ; Perkins vs. Bragg, 29 Ind., 507'; 15 Ind., 49.
    Finally, this question as to the plaintiff’s right of exemptions is res adjudícala, for that question was in issue in the attachment case, and adjudged against the plaintiff herein and that decision is binding and could not be inquired into m this action. Freeman vs. Howe, 24 How., U. S., 457 ; Perkins vs. Bragg, 29 Ind., 507.
    FRANKLIN H. Mackey for appellee ;
    An agreement to waive the benefit of the exemption law is not binding. So decided by the courts of last resort of the'folio wing States :
    
      New Yo.rk : Kneetle vs. Newcombe, 22 N. Y., 249 ; Crawford vs. Lockwood, 9 How., N. Y. Prac.
    Tennessee : Denny vs. White, 2 Caldw., 283.
    Wisconsin : Maxwell vs. Need, 7 Wis., 583.
    Iowa : Curtis vs. O’Brien, 20 Iowa, 376.
    Kentucky : Moxley vs. Began, 10 Bush., 156.
    Texas : Boss vs. Lister, 14 Texas, 469.
    Louisiana : Levicks vs. Kuen, 9 Am. Law Beg., 112.
    Indiana : Eltzroth vs. Webster, 15 Ind., 21.
    By the authority of the foregoing cases the law upon this ■subject may be stated as follows :
    1. That a waiver in futuro of the benefit of any law passes no right.
    2. That the right given by the Statute of Exemptions to the head of a family is as much for the benefit of the other members of the family as himself, and that he has no power to waive for them this right.
    3. That waivers of exemption laws are against public policy.
    4. That, independently of this particular policy, it is not within the power of parties to give by their contracts any other effect to judgments and executions than that which the law attributes.
    I have been unable to find any case which has decided that where the benefit of the exemption law is given to the head of a family, he may waive, by an executory agreement, the benefit of that law.
    As to the remedy : it is not disputed that trespass d. b. a. would lie in this case ; indeed we are directed to that action as the proper remedy. But the authorities are almost as numerous as the books of reports themselves that replevin will lie wherever trespass de bonis asportatis will lie. Cr. C. C. 39, 20 Johns, 465; 7 Johns, 140; 1 Wend., 109; 3 Zab., 170 ; 12 Wend., 39 ; 6 Halst., 370 ; 23 Me., 196 ; 4 Mo., 93 ; 1 Eng. B., (Ark.) 21 ; and the numerous old common law authorities cited in those cases.
    It is settled in this District by the decision in Binggold vs. Williamson, 4 Cr. C. O., 39, that replevin will lie where the goods of a party not the éxecution debtor h'avé been taken in execution. That case was decided before the passage of the exemption laws, and every argument used there to sustain the right of a third party to replevy his goods when taken under execution against another, applies with equal force since the enactment of this beneficent statute to the case of a debtor in execution whose exempt property has been levied upon. In both cases the officer takes goods for which the writ gives no authority : “ There cannot, we think,” said the court in Williams vs. Miller, 16 Conn., 147, “ be any difference in the law applicable to the levy of an excution on property exempt from such levy, and a levy on the property of a third person, not the execution debtor ; we can discover no difference in the principle that should apply to the two cases.” See also Wells on Replevin, sections 245, 248 and Wash. Law Rep., Vol. VIII, No. 48.
    The point raised by the defendant that the question of the exempt character of the property was finally adjudicated upon the trial before the magistrate, and cannot be raised here in this action, is sufficiently answered by the fact that such adjudication by the magistrate is not shown by anything in the record.
   The Chief-Justice,

after stating the case as above, delivered the opinion of the court.

In examining the questions of law presented in this case we will consider :

First. Whether an agreement to waive the benefit of the exemption law is binding.

Second. Whether the judgment, unappealed from, rendered by the magistrate in the attachment proceeding, in which the question of the exempt character of the property could have been raised, operates as such a final adjudication of that question as to prevent its being considered here.

Third. Whether an action of replevin will lie by a debtor in execution against the officer serving the writ, when the debtor’s exempt property has been seized by him.

Section 797 of the Revised Statutes of the District of Columbia, provides that certain “property, being the property of the head of a family or householder shall be exempt from distraint, attachment, levy and sale on execution or decree of any court in the District.”

It is claimed by the defendant that this statute, exempting property from execution, creates in the plaintiif merely a privilege to be exercised for his benefit, or waived in the interest of the defendant, at his option,'and that the stipulation in the lease, viz.: “And it is hereby further understood and agreed between the parties hereto, that said party of the second party shall, and does by these presents waive? relinquish and release all her rights, benefits and advantages extended to her as tenant under, and by virtue of a certain act of Congress, entitled, ‘ An act exempting certain property of debtors in the District of Columbia from levy, attachment or sale, and execution, approved February 5th, 1867/ ” constitutes such waiver.

On the other hand, it is urged by the plaintiff that the exemption provided by the statute, is an injunction in the interest of public economy, and beyond the contract control of the parties to an executory agreement. Over this question, courts have divided and authorities conflict. Most of the authorities justifying the power of the parties to supersede the law by express contract, antedate the history of the laws exempting property from execution, and ignore, as we think, the tone, spirit and public purpose of the law. If the legislature had not intended this law to be observed in the interest of the public welfare, it never would have been enacted, and parties would have been left where the law found them, to exercise their personal discretion in the disposition of the subject by contract. The objective purpose and provision of the law is the household and the family, and the necessities and conveniences of the family community, as an important if not the most important integral element of the State. Evidently the law maker had the preservation of the integrity of the family as the chief purpose ; the law maker was providing against its dispersion and extinction, seeking to protect families and communities from vagrancy, poor-houses and prisons, recognizing the important fact that industries, economies and public order, take root in the family. Yet it is evident from the nature of the statute and the subject it treats of, that the legislas ture was not making law for the benefit or to the prejudice of the head of a family, but a law for the protection and preservation of the family, notwithstanding the improvidence of its head. This view of the office of this law is strengthened by the provision of section 798. The leading -case in support of the view that the statute under consideration is a statute in the public interest, and may not be superseded by the executory contract of the head of a family, is found in the 22d N. Y. Rep., Kneetle vs. Newcomb et al., p. 249, the unanimous decision of the court of appeals of that State delivered when that court was in its best state. T refer to it not only as high authority in itself, but for the ■exhaustive and unanswerable reasons of Judge Nenio, delivering the opinion which I adopt as my own. If correct in this view, the stipulation in the lease subjecting the property to execution is against public policy and void. 'This view of the question is supported by the highest courts of the States of Wisconsin, Tennessee, Iowa, Kentucky, Texas, Louisiana and Indiana.

It is urged again that the plaintiff cannot sustain the .action and avail herself of the exemption laws, for the reason that by the judgment of the magistrate in the attachment suit, this question was finally adjudicated and may not be revived or reviewed here. If the premises are -correct the conclusion follows. Unfortunately for the enlightenment of the question, the issues tried by the magistrate do not find explanation in the record. His judicial inquiry is conducted without pleading, which, in this court, ■would define the issues heard and determined and which would enlighten judgment here. We are, therefore, left to inference as to what was decided in detail, from what was expressly determined in result. What the court did was to render a judgment of condemnation of the property attached, .and a judgment in personam for ninety dollars aud costs, and as an interpretation of what he had done, sent out an execu-tion against the goods and chattels of the defendant not exempt from execution. In the absence’ of any other explana-: tion of, what was determined in fact, the issue made here was hot determined, there. t Our province'here in this behalf is" to find out what was done, rather than what ought to have héen done. This rule is the only safe one, especially when brought into application to inferior courts not of record.

ihis disposition of the two questions already considered brings us to the consideration of the only remaining question in this case, namely, is 'the process of replevin available to the plaintiff, who is also the defendant in the execution under which the property was taken? In resolving this question, we are invited to an examination of the statute,, section 815, of the Revised Statutes of the District, providing that a writ of replevin as a remedial process can only'issue upon the authority of the affidavit of the plaintiff', his agent, or attorney. The third clause of the same section also provides that it shall appear by the affidavit upon which its issuance is predicated, “ that the chattels-were not subject to such seizure or detention, and were not taken upon a writ of replevin.”

This statute declaring the necessity and defining the substance of the affidavit declares and defines the functionsuf the-writ in this respect. It cannot issué to recover the possession of property subject to seizure on execution, or propez’ty in the custody of a writ of replevin. From the language of these statutes we are left to conclude that the writ of replevin may be employed in all other cases relating to preexisting process. Was this property subject to seizure upon execution? Section 797, before referred to enlightened by the agreed facts in this case, makes it conclusive that it was not subject to seizure. It is not pretended that it was taken by virtue of a writ of replevin. The statute is decisive of' the question, and the argument might close here, but it is ■seriously claimed by counsel that, although exempt from levy, it was, nevertheless, taken in execution, and thereby transferred to the custody of the law. That to disturb this. custody of the law, would be in contempt of the writ of execution, and the judicial authority of the court that issued it, demoralizing the authority of the court and the integrity of the writ. To my mind this involves a misconception of the rule invoked to defeat the appropriate powers of the writ of replevin. The' rule insisted upon' contemplates a case where the property is within the scope and power of the execution, and where the remedy for the abuse of the power and process may be obtained in'the forum issuing the writ. In the case before us, under the express limitations of the execution., the defendant was authorized to levy upon goods and chattels of the plaintiff not exempt from execution-As is shown by the agreed statement of facts, the property in controversy was exempt from execution and not within the mandate of his writ, thus fixing upon the officer, defendant, the contempt of his process* and its authority,, instead of the plaintiff'. • The law does not acquire possession of property by trespass or wrong, and it is no infraction of its dignity to surrender property, that may have strayed into the keeping of its officers without - authority of itg process. To hold any other view would be to hold that the injured party was without adequate remedy. It is no sufficient answer that the plaintiff may have redress by the action of trespass, or by.bill in chancery. While such remedies are being discussed in the courts, the family is despoiled of the possession and use of the essential means which the law has. provided for its preservation and comfort.

The judgment below is affirmed.  