
    Rachel Handy v. Conrad Clippert.
    
      Levy of execution — Oppressive acts of sheriff’s deputy.
    
    A sheriff's officer must so execute writs intrusted to him as to do as little needless mischief to respondent debtors as possible; and where it is' important to the debtor’s business to have the benefit of his exemp-' tions, the officer is bound to act promptly in setting them off to him.
    In levying execution an officer has no right to seize and hold the whole of a debtor’s property to satisfy a debt, which, even if all exemptions were allowed, would be more than secured by the remainder; and if' he thereby preclude the debtor from engaging in his customary business, and even from keeping house, his action is oppressive and unjustifiable.
    
      It seems that on execution defendant should lose no rights by failing to demand, the return of goods taken by an officer, if the officer makes . such a demand impracticable by absenting himself.
    Error to Wayne. (Speed, J.)
    April 11.
    April 18.
    Case. Plaintiff brings error.
    Reversed.
    
      C. R. Ford and J. W. Donovan for appellant.
    A sheriff levying execution is bound to set aside exempt goods: Wyckoff v. Wyllis 8 Mich. 48; and is liable as a trespasser if he does not give an opportunity to make the selection: Michels v. Stork 44 Mich. 4.
    
      Geo. W. Coomer and James Athmson for appellee.
   Cooley, J.

The plaintiff, in an action on the case, seeks to recover of the defendant, who at the time of the alleged grievances was sheriff of Wayne county, the damages suffered by her through the seizure by one Haubrick, a deputy of the defendant, of the plaintiff’s household goods.

The evidence of the plaintiff tended to show that in J anuary, 1882, she was engaged in business in Wyandotte, Wavue county, as keeper of a boarding-house; that there was at that time what the witnesses speak of as a business panic ” at Wyandotte, which made the keeping of a board-' ing-house at that place .for the time unprofitable, and she decided to remove her business across the river into Canada temporarily; that for this purpose she packed up her household goods and property used by her in her business, but that before she left witli it, Haubrick, by virtue of a justice’s attachment for the sum of sixty-eight dollars, seized upon all the goods, and took them from her possession; that the value of the goods was eight hundred dollars; that when she found her temporary arrangement was to be thus broken up, plaintiff procured a house in Wyandotte, into which she proposed to remove with a view to remaining there; that ■the levy by Haubrick was made January 31, 1882, and he kept the goods from the plaintiff, allowing her no exemptions, until February 7, 1882, when the attachment suit was called in justice’s court, and the plaintiff failed to sustain Ms action; that the goods not then being returned to the plaintiff, she instituted this suit. In her declaration she counts on the wrongful denial of her exemptions, but she also claims to recover the whole value of the property by reason of the failure of the officer to return’it.

The defense of the officer is that immediately on the termination of the attachment suit the property was taken from his possession by virtue of other writs against the plaintiff, and that if it was finally lost to the plaintiff, it was not through any fault of his. The circuit judge was of opinion that the plaintiff was entitled to recover only nominal damages, unless she could show that she-made a demand upon the officer *for the return of the goods after the attachment suit had terminated. The officer denied that any such demand was made, but he also shows that it was impracticable ; for though he was present in the justice’s court while the attachment suit was being tried, he went out of town before it was disposed of.

The circuit judge overlooked the fact that the plaintiff, if the facts are as she alleges, had suffered serious wrongs at the hands of the officer before the attachment suit was called for trial. The levy itself was grossly excessive; and if the plaintiff had been allowed all the exemptions she claimed, there would apparently have been ample property left to secure the pretended debt. It cannot be tolerated that such a seizure shall go unrebuked. The officer is or should be a minister of justice; not of oppression; and he should execute every writ put into his hands in such a manner as to do as little mischief to the debtor as possible. To seize and hold the whole of a debtor’s property so as to preclude the debtor, not only from engaging in his customary business, but even from keeping house, when the enforcement of his process does not at all require it, is a proceeding which we cannot think the defendant himself would have failed to censure if it had come to his personal knowledge. Arid even if the seizure had been justifiable, the circumstances were such as to demand from the officer prompt action in. setting off, the exemptions ; for every day’s delay was an unnecessary injury. And there is much in this record to raise at least a strong suspicion that the wrong which the officer continued for a week he assisted in perpetuating afterwards. But the questions on this branch of the case are questions of fact.

The judgment must be reversed, with costs, and a new trial ordered.

The other Justices concurred.  