Rogers v. Waterman

The opinion of the Court was delivered by Black, J. — This action was against a constable for selling the goods of the plaintiff under an execution, in violation, as the plaintiff alleges, of his rights under the exemption law of .1849. The plaintiff did not demand an appraisement until after the property had been set up for sale and the bidding begun. Nevertheless he was permitted to recover. A party is not entitled to the exemption provided for by the statute unless he demands it. He waives his right by silently suffering property which would otherwise be exempt from levy to be seized and sold. There must be some period fixed at which this demand should be made, and after which it cannot be made. In Hammer v. Freese, 7 Harris 255, we said it was clearly too late after the sale had begun. We see nothing in the circumstances of' this case to require a departure from that rule. If a constable should fraudulently take advantage of a debtor’s absence, and sell without giving him a possible chance to get an appraisement, it might, afford a good cause of action. But such fraud should be distinctly proved. There is nothing like it here. The fact that the present plaintiff lived twenty miles away from the place where the property was taken and when it was sold is no excuse. If he could afford to spend time and money in prosecuting this suit to redress the supposed wrong, he might have spent a little to prevent it from being committed. He knew of the intended sale several days before it took place; and he was in the village where the constable was some hours before the sale began. We are quite clear that the written propositions which the defendant’s counsel submitted to the Court ought to have been answered in the affirmative. Judgment reversed and venire facias de novo awarded.