
    The State vs. Haggard.
    The penalty of the act of 1820, ch. 11, sec. 1, applies with equal force to violations of the acts of 1827, ch, 20, sec. 1, and 1833, ch. 80, sec. 1; therefore when any officer shall seize and sell for the satisfaction of an execution the only farm horse, mule or yoke of oxen which the head of a family engaged in agriculture may have, he is indictable for a misdemeanor in office*
    Where the defendant in the execution has but one farm horse, mule or yoke of oxen, it is not necessary that he should select or set apart such horse, mule or yoke of oxen.
    Where he has several he has the right of selection.
    The defendant in the execution may waive the benefit of the act, but in the absence of proof it will not be presumed that he does waive it; on the contrary the defendant indicted for violating the statute must prove the waiver.
    Robert Haggard, a constable of Roane county, was indicted in the circuit court of that county for a misdemeanor in office, in levying upon and selling a mare, the property of one Henry Boyd. The indictment charges that Haggard was a constable in the county of Roane; that an execution against the property of Henry Boyd came to his hands; that Boyd was the head of a family engaged in agriculture; that he possessed and owned one mare and no other horse beast, mule or yoke of oxen; that said Haggard, constable, levied upon said mare and sold her by virtue of said execution.
    The defendant pleaded not,guilty to the indictment, and being put upon his trial, a jury of Roane county returned a verdict of guilty against him. The defendant by his counsel moved the court to arrest judgment, which motion prevailed and the judgment was arrested. The attorney general appealed in error to the supreme court.
    
      Attorney General, for the State.
    
      Jarnagin, Churchwell and Lyon, for defendant in error.
    For defendant it is insisted he is not subject to an indictment for the acts charged, because:
    1. The act of 1820, ch. 11, (Caruthers and Nicholson’s Dig. 533,) says, “it shall and may be lawful for each individual in this State against whom an execution may issue to select and set apart one cow,” áre. “which article such individual shall be protected in the enjoyment of.” This act further provides “if any levying officer shall presume to act in contravention of this act, or attempt to evade the same, it shall be deemed a misdemeanor in office,” áre. The bill of indictment does not allege the mare levied upon was selected and set apart by the defendant in'the execution; and therefore, if such property had been exempt by the act of 1S20, defendant committed no offence by the levy.
    2. The act of 1827, ch. 20, (Caruthers and Nicholson, 534,) says, “it may be lawful for any person in this State against whom an execution may issue' to set apart ten barrels of corn,” áre. The language of this act deserves notice, because it in express terms grants a privilege to defendant in execution, and does make it a misdemeanor to levy upon the property exempted.
    3. The act of 1833, ch. 80, (Caruthers and Nicholson, 535,) is the first act that exempts a farm horse, mule or yoke of oxen, and uses this language: “In addition to the property heretofore exempt from execution by the several acts of the general assembly of this State there shall also be exempt in like manner a farm horse,” áre. The 5th section of this act limits the benefit of it to the heads of families, and says not one word about it being a misdemeanor in an officer to levy, áre. An act cannot subject a person to indictment by intendment of law. The injury in this case, if any, was of a private nature, and not the subject of an indictment. Rex vs. Sermon, 1 Burrow, 516: Rex vs. Gill, 1 Strange, 190: Castle’s case, Cr. Jac. 643:1 Russell on Crimes, 54. The j udgment of the circuit court should be affirmed.
   Gkeen, J.

delivered the opinion of the court.

By the act of 1833, ch. 80, it is provided that, in addition to the property heretofore exempt from execution by the several acts of the general assemby of the State, there shall also be exempt in like manner, in the hands of a person engaged in agriculture, a plough, áre. and one farm horse, mule or yoke of oxen. The first act upon this subject was passed in 1820, ch. 11, (N. and C. 533,) which, after specifying a number of articles to be set apart by each individual against -whom an execution might issue, provides that these articles shall be exempt from execution; and that any levying officer who might presume to act in contravention of the act, or attempt to evade the same, shall be deemed guilt;/ of a misdemeanor in office and punished accordingly.

The act of 1827, ch. 20, next came and authorized the setting apart the additional articles of ten barrels of corn and three hundred pounds of bacon or pork, under the regulations and restrictions prescribed by the first section of 1820. Then comes the act of 1833, now under consideration.

In construing these acts of assembly we are to give them that sense they would have if they were but different parts of one act. They are upon the same subject, are based upon the same principles, and each of the subsequent acts refer to the preceding one. Construe them all as but one act, and we cannot doubt but that the property which was exempted from execution by the acts of 1827 and 1S33 is also protected by the same penalties which were inflicted by the act of 1820. The subsequent acts do but introduce into the act of 1820 additional articles of property to be exempt from execution; and to these articles the rights and duties of the parties attach, as they are fixed by that act. We think, therefore, that a levying officer who may presume to act in contravention of the act of 1833, or attempt to evade the same, shall be deemed guilty of a misdemeanor in office in like manner as by the act of 1820 he is declared to be guilty.

But it is insisted that this judgment ought'to be arrested because the indictment does not allege that the horse, for levying on which the defendant was prosecuted, was selected and set apart by the defendant in the execution, as he is permitted to do by the act of 1820.

The indictment alleges that Boyd, the defendant in the execution, is the head of a family, engaged in agriculture, and owning or possessing no other farm horse, mule or yoke of oxen than the one levied on.

To “select and set apart” means the taking one or more articles from other articles of alike character. But here there was but one farm horse owned by the party, and as the law exempts one from execution, it would be absurd to make the right of the defendant in the execution depend upon his declaration to the officer that he claimed the benefit of the law. Whether, if there had been several horses, the officer could have taken them all, unless the defendant in the execution had selected and set apart one for himself, is a question we need not now decide. In such case, the right to select and set apart one of several horses, would give the defendant in the execution the right to take the best and most valuable of these animals; but it does not follow that because he may select and set apart, that in case he is absent when the levy is made, or may fail to make such selection from any other cause, he forfeits his right to the benefit of these acts. How this may be it will be time enough to decide when the case may arise.

Note. This case was recognized and affirmed at the December term, 1839, at Nashville. ^Reporter.

But it is insisted that as the act was made for the benefit of the defendant in the- execution he had a right to waive such benefit, and that it does not appear but that he did so. It is true a party may waive a benefit; but it is not to be presumed that he would do so. If such were the fact, it would be matter of defence, and proof of the fact must come from the defendant. 1 Chitty, 232. The judgment must be reversed; and this court, proceeding to render such judgment as the circuit court should have given, order that the defendant be fined five dollars and pay the costs of prosecution.  