
    Edward Grieb, Appellant, v. Joseph Northrup and Alonzo E-Skinner, Respondents.
    
      Sureties upon a constable’s bond — liability of, where exempt property is seized and sold under a judgment in part for exempt property — objection by the householder is unnecessary — the constable need not be first sued.
    
    The sureties upon the official bond of a constable, who, under an execution against a householder, seizes a stove, sewing machine, linen and wearing apparel and other personal property, the value of which amounted to less than fifty dollars, and which comprised all of the household furniture belonging to the householder, and was, therefore, wholly exempt, are liable to the householder for the value of the property, notwithstanding the fact that the latter did not forbid the sale.
    The fact that the execution, under which the' levy was made, was issued upon a judgment against the householder, obtained in part for exempt personal property vdoes not relieve the sureties from liability.
    The official bond of the constable covers his illegal acts, and it is not necessary to sue the constable first in order to enforce the liability of the sureties thereon.
    Appeal by the plaintiff, Edward Grieb, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of St. Lawrence on the 17th day of January, 1901, upon the report of a referee dismissing the complaint.
    This action was brought against the defendants as sureties upon the official bond of a constable for damages by reason of a levy upon exempt property under execution against the plaintiff. The referee has found that in or about November, 1898, the plaintiff was a householder and the owner of certain personal property which included a stove of the value of eleven dollars, a sewing machine of the value of seven dollars and seventy-five cents, and linen and wearing apparel of the value of twenty-nine' dollars and ninety cents, besides other personal property. At about that time one Beebe, a constable, whose sureties the defendants were, upon an execution against the plaintiff, levied' upon ánd sold this personal property. The referee has further found that the personal property all told was worth less than fifty dollars ; that it was all the household furniture which the jffaintiff owned; that this property was exempt. He has found that the plaintiff did not forbid the sale, and as a conclusion of law, he finds that the exemption was waived by the plaintiff, and dismissed the plaintiff’s complaint.
    Further facts appear in the opinion.
    
      Richard E. Fitz Gerald, for the appellant.
    
      Anson Harder, for the respondents.
   Smith, J.:

In Frost v. Mott (34 N. Y, 253) it is held : “An officer who seizes all the property of a debtor, knowing that part of it is exempt, cannot justify the seizure by the omission of the debtor to designate a particular portion of it as not subject to execution or attachment.” .In this case an officer had levied upon an entire flock of sheep. At page 257, Judge Porter, writing for the court, says: “ As between the plaintiff and the defendant there was no waiver of the exemption, and the appellant who took the entire flock cannot justify the wrong by the claim that he did not know'which of them to leave. He neither requested the plaintiff to designate them nor made any designation himself. The mere silence of the party while the officer is stripping him of property exempt from seizure, under color of legal authority, furnishes no protection to the wrongdoer.”

The stove and sewing machine, if not the wearing apparel, were clearly exempt within the presumed knowledge of the officer, and within the authorities the. silence of the plaintiff constituted no waiver of the exemption, as there was no selection to be made by him. In 12 American and English ’Encyclopaedia of Law (2d ed.), 225, the rule is stated that no claim of exemption is necessary where the statute exempts a certain number of animals or articles of a particular kind or property of a particular kind not exceeding a certain value or amount and the debtor has only so much as is thus exempted. To this rule is cited Stirman v. Smith (10 S. W. Rep. 131); Lynd v. Picket (7 Minn. 184); State v. Haggard (1 Humph. [Tenn.] 390).

The respondents cannot justify this judgment on the ground that the execution under which the levy was made was upon a judgment against the plaintiff in part for personal property exempted. The. statute renders certain property, otherwise exempt, subject to. an execution upon a judgment wholly recovered for the purchase price of certain other exempt property,, but under that statute the stove and sewing machine would in no wise be subject to levy.'

Defendants contend further that the bond does not cover the. acts of the constable which were illegal. . To uphold this contention would be to nullify the effect of the bond, as every trespass is illegal, and for a trespass only could damages be recovered. It is further contended that the constable should first be sued. In Berry v. Schaad (50 App. Div. 132) the contrary rule is held. Inasmuch,, therefore, as the plaintiff was, upon the findings of the referee,, entitled to a substantial judgment, the judgment entered must be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment reversed on the law and facts and new trial granted,, with costs to appellant to abide event.  