McKenzie v. Redman

Foster, J. Eeplevin by an insolvent against his assignee for a double two-horse team wagon. The wagon was owned by the plaintiff when he went into insolvency. He claims it as. exempt under the statute. There was evidence tending to prove that the plaintiff had two wagons and pointed both out to the assignee as belonging-to him. The assignee testified that he told the plaintiff he could, keep one, and requested him to make his selection, but that he-refused so to do, saying that he thought he was entitled to-both. On this point the evidence is conflicting, but the jury by their verdict have found in accordance with the defendant’s-position. If the plaintiff pointed out these wagons to the assignee as a part of his estate, as claimed in defense, and refused, upom request by the assignee, to select which one he would retain,, but claimed to be entitled to both, and the assignee relied upon-his acts and representations, and from them understood that the-two wagons were the property of the estate, and thereupon took the wagon in suit, leaving the other as exempt, then the plaintiff*' would be estopped by his acts and representations from maintaining this suit. The exemption provided by statute is for the* benefit of the insolvent, and the right of election is in him-.. But if he would avail himself of this right, it is his duty to signify his election when requested by the assignee so to do ; otherwise he will be deemed to have waived his right, and the law through the acts of the assignee, makes it for him. A party may waive a statute made for his benefit. It is analogous in principle to cases where there has been an attachment of property which a debtor has a right to claim as exempt, but which, either by his consent or a waiver of his privilege, he has allowed to be applied to the payment of his debts. This principle is fully illustrated in the following cases, a reference to which is all that is necessary : Smith v. Chadwick, 51 Maine, 515; Smith v. Morrill, 56 Maine 566; Colson v. [324] Wilson, 58 Maine, 416; Shumway v. Rutter, 8 Pick. 447; Dow v. Cheney, 103 Mass. 181. There was evidence upon which the jury were warranted in the conclusion reached by them. They were the judges of the facts, and we perceive no reason for disturbing the verdict. Motion overruled.