
    NEVLING VS. ARNOT.
    An officer who seizes property under a lawful execution and does not allow the exemption to which defendant is entitled, becomes . a trespasser ab initio.
    
    No new consideration is necessary for a withdrawal of a claim for •a debtor’s exemption.
    Error to Common Pleas of Clearfield County. No. 147 January Term, 1885.
    The charge of the Court was as follows, per:
    Krebs, P. J.
    
      ■Gentlemen of the Jury:
    
    This is an action of trespass brought against Boynton Nev-ling, who was acting in the capacity of constable, by Wm. Arnot, on the 13th day of March, 1884, for levying upon and selling his property (one bay mare, &c.) in violation of his alleged claim of the benefit of the $300 exemption law.
    An execution was issued by Justice McNamara, and put into the hands of Boynton Nevling, for the purpose of executing’ and collecting a claim against the plaintiff (Arnot) who was the defendant in the proceeding before Justice McNamara.
    When this execution came into the hands of Nevling, it was his duty as constable to go and find the defendant in the execution, and demand the payment of the the debt, interest and costs that had accrued, and on the failure of the defendant to pay, it was his duty to make a levy upon such personal property as the defendant had.
    Under the laws of Pennsylvania the defendant was entitled to the benefit of an exemption of $300 in property under the Act of Assembly which is generally known as the “$300 exemption law.”
    It became his duty when the constable made a demand for payment and at the time when he was making the levy, if he (Arnot) was there, to demand the benefit of this exemption and avail himself of the privilege of this Act of Assembly. He could make this any time before the sale, but he must make it a reasonable time before the sale, so as to enable the officer of the law to summon appraisers to appraise this property.
    It is not contended that there was any waiver in the proceedings before Justice McNamara; therefore, you are brought to the consideration of the question whether or not Arnot claimed this benefit of exemption at any time before Nevling made this sale.
    Now what is the evidence? Arnot testifies that on the evening of the 10th of March, when Nevling came there with the execution, he stated to Nevling that it was for a very unjust debt, and there was some talk between the constable (Nevling) and Arnot about the debt; that then, he (Arnot) claimed the benefit of the exemption law; that afterwards, on the same evening, they went to ’Squire Redifer’s and he (Arnot) asked the ’squire if he was entitled to the benefit of the execution law, and that ’Squire Redifer informed him that he was; that he (Arnot) again made a claim for the benefit of the exemption law; that afterwards, when they went back to the house, there was some controversy between Constable Nevling, Arnot and Mrs. Arnot — some talk between them about the appointment of appraisers, who ordinarily are appointed to appraise and set out to the defendant $300 worth of property, if there is that much-in the place. It is only important to remember as bearing upon-the question of whether or not Arnot claimed the benefit of the-exemption law. He (Arnot) also testifies that when Nevling' came to him at Bridgeport and asked him, the night before the-sale, whether or not he claimed the benefit of the law, that he replied to him that he already claimed it, and that he did not think.' it was necessary, to claim it again.
    Mrs. Arnot (wife of plaintiff) testifies that she was at the-house when Nevling came there the first time; that Nevling and. her husband (Arnot) went to see ’Squire Redifer, and after they came back her husband (Arnot) claimed the benefit of the-exemption law; that she spoke to him of it and said: “We claim* the benefit of the exemption law.”
    Nevling (defendant) testifies that no such claim was made at any time; that when he went to Bridgeport to see Arnot he-made no reply and would not say whether he claimed it or not that he (Arnot) did riot say anything when asked whether or not he claimed the benefit of the exemption law.
    [Now, gentlemen of the jury, under the laws of Pennsylvania, as we have already instructed you, the defendant can and' must make his claim before the sale; he must make it distinctly to the officer, and if he does so make it he cannot afterwards be-deprived of it unless he waives it in consideration of some benefit received by him in lieu of it.] (4th Error.)
    [If he made it on the night that Nevling made the levy, and afterwards, when Nevling went to Bridgeport, if the jury believe that he told him (Nevling) there that he (Arnot) had', made the claim and had nothing more to say, or if he reiterated that he had made this claim, then we think that: he would be entitled to recover under the other instructions that we shall give you in this case.] (6th Error.)
    The first question is, whether or not there was a demand for this exemption. If you find that there was, and if the officer-failed to heed it because of carelessness or excitement, or anything of that kind, that may be the misfortune of the officer ¡and the person who indemnified him. [If the.plaintiff distinctly made that claim he could not be deprived of it.] (5th Error.) Of course he must make it to the officer; he could pot make it to somebody else.
    If you find that he did not waive the benefit of this exemption the next question for you to consider will be, how much this property was worth. If the officer neglected to make an appraisement he is answerable at law for the value of the property sold. What was the value of this bay mare that was sold? You have heard the evidence.
    Now, gentlemen of the jury, all this evidence is for you. If you find first that there was a demand for the benefit of this exemption, you must then consider the value of the property sold.
    DEFENDANT’S POINTS.
    3. The holding of the property by the constable from the evening of the nth of March, 1884, to the 13th of March, 1884, the day when this suit was brought, without either appraisement or sale, did not make him a trespasser on the 13th ■day. of March, 1884.
    The Court: — This point, with the several others succeeding and which cover the real question in this case, we reserve for ■our future consideration. ,,
    4. The plaintiff had no such cause of action on the 13th day of March, 1884, against the defendant as would enable him to maintain this suit, and therefore your verdict must be for the defendant.
    The Court: — We also reserve this point.
    5. Under the pleadings and evidence in this case, the plaintiff cannot recover. Your verdict must be for the defendant.
    The Court: — We also reserve this point.
    6. It was the duty of the defendant to act fairly with the officer of the law who had the execution against him, and if he claimed the benefit of the $300 law to apprise the officer clearly and distinctly of the fact that he made such claim. Especially so when the officer called on him and asked him whether he made the claim.
    The Court: — We also reserve this point. . .
    
      7. His refusal to give the officer such distinct information of his claim when called on to do so, was an abandonment of his claim, which would prevent a recovery on part of plaintiff in this suit.
    The Court: — If, when Nevling went to Bridgeport and asked him if he demanded or claimed the benefit of the exemption law, and there seemed to be some misunderstanding, and he (Ar-not) said nothing or refused to say anything, then plaintiff could not recover; but if you find, as he (Arnot) said, that he made the claim, we think that would be sufficient. We qualify this point in that respect.
    8. The defendant is not to be held liable unless he wilfully or maliciously disregarded his duty. If Mr. Arnot, at the time the levy was made, claimed the benefit of the $300 law, but in such a way that the officer did not understand that he claimed the benefit of the law, then the failure of Mr. Nevling to appraise property under the $300 law did not make Nevling a trespasser so as to enable the plaintiff (Mr. Arnot), to maintain the suit commenced on the 13th of March, 1884.
    The Court: — We affirm this point with this explanation: That if the failure of the officer to understand that Arnot made the claim was caused by Arnot making it in such a way that the officer could not understand it fairly and reasonably, then the officer would not be liable; but if the failure to understand arose from the fault of the officer and not from the fault of Arnot, then Arnot could recover. We affirm that point with this explanation.
    The jury rendered a verdict for plaintiff for $61.80. The ■Court entered judgment for the plaintiff upon the questions of law reserved in the following opinion, per:
    Krebs, P. J.
    The principal question arises upon the points or questions of law reserved, which is, can the plaintiff maintain his action under the evidence in the cause? The levy was made on the evening of the nth of March, 1884, late — the evidence would seem to indicate after dark — the property levied on, a horse, was removed and taken from plaintiff’s possession that night. On the 13th of March, 1884, this action was begun, and on the-• day of March the property was sold by the constable. By the finding of the jury, the question whether or not plaintiff demanded the benefit of the exemption law on the night when the levy was made and actually seized and afterwards at Bridgeport, is settled in favor of the plaintiff. And it must be so treated in disposing of this question.
    [The right of exemption under the first section of the Act of 3d of April, 1849, is that $300 worth of property “shall be exempt from levy and sale on execution or distress for rent.” The idea not only is that the debtor shall have this amount of property free from sale on execution, but it shall not be levied on, or else the words “shall be exempt from levy and sale” are meaningless.] So that where an officer goes to a defendant in an execution and demands payment of a judgment or writ in his hands and the defendant demands the benefit of the $300 exemption, the first duty is to appraise the property and set out that amount to the defendant before he can rightfully levy upon anything. That it is usual for the officer to first make a levy by taking a schedule of all defendant’s property, and then summoning the appraisers who cannot change the law and the language of the Act of Assembly, that property to the amount of $300 shall be exempt from levy as it is from sale. The learned counsel has argued that no right of action was completed until the sale was made; that the officer could, any time before the sale, set out to the defendant his exemption. If he did this it would no doubt go in mitigation of the damages; but we do not agree that the right of action must await the sale. If an officer may disregard a demand for the benefit of exemption, remove the defendant’s property and keep it from him for' twenty days, as argued, then, indeed, an execution process may be made the means of great wrong- and hardship, and the benefit of the Act of 1849 become of no effect. [We think that the defendant in the execution, having demanded the exemption, the officer becomes a trespasser by disregarding the demand and seizing and removing the property, in question, and that the right of action had accrued; Purdon’s Dig., page 636; Sec. 1, Act of 1849, April 9.] Trespass de bonis asportatis against a Sheriff may be by proof that he unlawfully exercised authority over the chattels, against the will and to the exclusion of the owner, though, there was no manual taking or removing when he took them under process of law and by virtue of his office; Paxton vs. Steckel, 2 Barr 93; Miller vs. Baker, 1 Metcalf 27; Gibbs vs. Chase, 10 Mass. 128.
    In the case in hand the levy was unlawful and the removal more so, because the plaintiff was prevented from having $300-worth of his property exempt from levy. We think, too, that this is what the Supreme Court intended when they reversed the Court below in the case of Graham vs. Lane, 3 Brewster 92. The offer rejected being to show that the taking was before suit brought although the sale was afterwards, for which rejection reversal was ordered.' In this case not only was the property seized and removed before suit was brought, but was after-wards sold. Counsel concedes that this made the officer a trespasser ab initio if there was a demand for the exemption. Under the ruling of the Supreme Court, Wilson vs. Ellis, 4 Casey 238; Freeman vs. Smith, 6 Casey 264; Vandresor vs. King, 10 Casey 201, whether such demand was made was submitted to the jury as a question of fact — their finding settles it in favor of the plaintiff, and therefore the sale made the entire proceeding unlawful from the beginning. But we are further of the opinion that all that was done after the levy and removal on the night of the nth of March, 1884, would be evidence and go, either to increase or decrease the plaintiff’s damages. If no sale had been made the damages would not have been, not for the value of the property sold, but compensation for the loss of the use of the horse while detained and costs; Freeman vs. Smith, 6 Casey 266. Being of the opinion as herein set forth we think the action of plaintiff may be maintained and we therefore direct judgment to be entered on the verdict in favor of plaintiff..
    Nevling then took a writ of error, complaining of the answers to the 3rd, 4th, 5th, 7th and 8th points, and the portions of the charge and the opinion in brackets.
    
      Messrs. McEnally and McCurdy, for plaintiff,
    argued that the defendant could withdraw his claim for the exemption without a new consideration; Kyle’s Appeal, 45 Pa. 353; White Deer Township’s Appeal, 95 Pa. 191. They also cited McKinney vs. Reader, 6 Watts 123; Gates vs. Lounsberry, 20 Johnson 427; Wilson vs. Ellis, 28 Pa. 238; Freeman vs. Smith, 30 Pa. 264; Wilson vs. McElroy, 32 Pa. 82; Van Dresor vs. King, 34 Pa. 201; Diehl vs. Holben, 39 Pa. 213; Emerson vs. Smith, 51 Pa. 90.
    
      Messrs. Wallace Bros., contra,
    
    cited the following additional cases: Hutchinson vs. Campbell, 25 Pa. 273; McCabe vs. Snyder, 3 Phila. 192; Kee vs. Hobensack, 2 Phila. 82; Graham vs. Lane, 3 Brews. 92; Paxton vs. Steckel, 2 Pa. 93; Miller vs. Baker, 1 Met. 27; Gibbs vs. Chase, 10 Mass. 128; Hill vs. Johnston, 29 Pa. 363; Case vs. Dunmore, 23 Pa. 93; Bowman vs. Smiley, 31 Pa. 225; Diehl vs. Holben, 39 Pa. 213; Hetrick vs. Campbell, 14 Pa. 266.
   The Supreme Court affirmed the judgment of the Common Pleas on May 29th, 1885, in the following opinion, per: .

Trunkey, J.

It is settled by the verdict that at the time of the seizure of the property, Arnot demanded of the constable his right under the statute exempting property to the value of $300 from levy and sale. In utter disregard of the demand the constable sold the property. An officer who seizes property of the defendant under a lawful execution, and refuses to permit him to have the benefit of the exemption Act of April 9, 1849, P- Laws 533, suchdefendant being entitled to the exemption and having made demand, becomes liable as a trespasser ab initio; Wilson vs. Ellis, 28 Pa. St. 238. When a sheriff makes a lawful levy and sells the goods without giving the requisite notice, he is regarded as a trespasser from the beginning. In such case he has no authority to sell; Carrier vs. Esbaugh, 70 Id. 239. Nor has a constable or sheriff any authority to sell goods which the debtor is entitled to retain under the exemption Act, unless the debtor lias waived his right or neglects to make request for an appraisement. If the levy was lawful, by abuse of the authority conferred by the writ, in the denial of the debtor’s right of exemption, the officer puts himself in the same situation as though he had acted without authority. It follows that the defendant must be regarded as having committed the trespass on the day he seized the property and the plaintiff requested the benefit of the exemption, and therefore the plaintiff had a right of action: on the 13th day of March, 1884. The defendant’s third, fourth and fifth points were rightly refused.

We shall express no opinion upon the subject of the seventh assignments of error, for that was no part of the instructions to the jury; on the contrary, they were instructed that it was the right of the constable when he received the execution to promptly levy on Arnot’s property, take it into possession, even if Ar-not was entitled to the benefit of the exemption law and made the demand, and to hold it a reasonable time to consider and perform his duty after he had made the levy. No question is-raised in this record whether such instruction was correct.

The officer charged with the execution of any warrant for the-levying upon and selling the property of a debtor, shall, if requested by the debtor, summon three persons to appraise the-property which said debtor may elect to retain, and the property thus chosen and retained, to the value of $300, shall be exempt from levy and sale on said warrant. Unless so requested, the officer is not required to summon appraisers, and may levy and sell regardless of the debtor’s right of exemption. The debtor may lose his right by neglect as well as by express waiver. And' if he made the request he may withdraw it within the life of the writ, and suffer the property to be sold in satisfaction of the debt. No consideration is required to support his waiver of the right at the time he contracts the debt, or his withdrawal of a request for an appraisement, other than the existence of the debt he owes. Hence it was error to say to the jury that the debtor, having distinctly made his claim to the officer, “cannot afterwards be deprived of it unless he waives it in consideration of some benefit received by him in lieu of it.” If that could have been hurtful to the defendant the cause must go back for another trial. The evidence was ample to warrant the finding that Arnot demanded the exemption at the time of the levy. After the beginning of this suit, and on the day before the sale, the defendant took some pains, not to summon appraisers, but to get witnesses to an interview between Arnot and himself; but under the circumstances Arnot declined to talk. The defendant states the interview thus: “I told him there was some misunderstanding, as I did not understand that he claimed the benefit of the exemption law, and that I was there to know if he wanted to have the benefit of that law before I went on with the sale; he would not give me any reply; I told him I had witnesses to his action on this occasion.” “Q. He gave you no reply? A. No reply.” From that, there can be no legitimate inference of a waiver or of a withdrawal of a previous request. There being no evidence of such waiver or withdrawal the erroneous remark set out in the fourth assignment is not cause for reversal. A request had been made, a suit was pending for its refusal, and waiver or withdrawal cannot be justly inferred from the fact that the plaintiff would have no more talk about it with the defendant.

The rulings complained of in the assignments not specially, mentioned are clearly right.

Judgment affirmed.  