Cornman's Appeal

Mr. Justice Sterrett delivered the opinion of the court, The only question in this case is, whether the appellant was too late in claiming the benefit of the exemption law. Suit was commenced against him by attachment- under the Act of March 17th 1869; and after the court had refused to dissolve the attachment, judgment was entered by consent in favor of plaintiffs, coupled with an agreement that the record should “not be used as evidence by he plaintiffs in any pending litigation, for the purpose of sus [256] taining any allegation of fraud on the part of the defendant, either in the contraction of.the debt, or in connection with any other matter or thing whatever.” A vend. ex. which was subsequently issued for the sale of the goods attached, was stayed by order of court at the instance of the defendant, and an alias issued to the next term. About two months prior to the return-day, and so far as appears by the record, before sale was advertised, the sheriff was duly notified by the defendant of his claim under the exemption law. The goods, amounting to $257.65, were appraised and set apart to him and the writ returned accordingly. The plaintiffs thereupon moved the court to set aside the appraisement, on the ground that the demand was not made in time. The motion was allowed, and the learned judge, in his opinion ordering the appraisement to be set aside, says- the claim should have been made before the cause was put at issue; that it came too late after judgment. This action of the court has been assigned for error. The exemption act provides that the officer charged with the execution of any warrant, for levying and selling the property, real or personal of any debtor, shall, if requested by him, cause to be appraised the property which he may elect to retain; “and property thus chosen and appraised, to the value of $300, shall be exempt from levy and sale on the said execution.” It will be observed that the request must be addressed to the officer charged with the execution for levying upon and selling the property. It is against final or execution process that the claim is to be made, and not against original or mesne process, by which property may sometimes be seized or attached and held to answer the plaintiff’s demand. The exemption is declared to be “from levy and sale on execution issued on any judgment,” &c. Hence, the claim need not be made until after judgment has been obtained and execution issued. While attachment in execution is strictly a final or execution process, so far as the debtor is concerned, other forms of attachment are not. In foreign attachment, the first step is the seizure of the non-resident defendant’s property, which, if personal and not perishable, may be held until the claim of the plaintiff is adjudicated; and if he is successful, final process may then issue to sell the same in satisfaction of the judgment. In its inception and before judgment, foreign attachment is a species of mesne process. It is equivalent to a summons for the commencement of a personal action. The proceeding under the Act of 1869, is of the same general nature. When the necessary ground has been laid, the defendant’s property is attached, and may be held to await adjudication of plaintiff’s claim. If he obtains judgment, execution may issue against the property attached. Then, and not before, does the right of the defendant to have the property appraised and set apart to him arise. While he might, perhaps, in anticipation of the execution, make the claim before it is issued, [257] it is only by virtue of his having, in his hands, the execution to levy and sell, that the officer is required to have the property appraised and set apart under the act. There can be no doubt that the defendant below was not required to give notice of his claim before the execution was issued. Did he give it within a reasonable time thereafter? We think he did. In furtherance of the humane and beneficent object of the act, the exemption which it authorizes should always be allowed when it can be done without prejudice to the rights of creditors. In Diehl v. Holben, 3 Wright 213, it is held that, in the case of a fi. fa. levied-on personal property, the 'demand^ must be made before the day of sale, and generally before it is advertised, unless delay is justified by absence from home, ignorance of the levy or other circumstances. When a defendant has waived inquisition on real estate, his right to the benefit of the act still remains as in ordinary proceedings to effect a sale, and his demand may be made at any time before the property is advertised: Commonwealth v. Boyd, 6 P. F. Smith 402. So, also, in the case of an attachment execution, which is a form of final process, the claim must be made in a reasonable time after service of the attachment on the garnishee: Strouse v. Becker, 8 Wright 206. These, and other cases that might be .cited, show that while some consideration is due to the creditor as well as the debtor, the claim of exemption is not too late, unless it has been unnecessarily delayed until costs have been incurred which otherwise might have been readily avoided. In the present case, owing to some doubt as to the validity of the first execution, it was stayed by order of court before any action was taken under it. After the alias was issued and before any expense was incurred, by advertising the sale or otherwise, the claim was made and duly recognised by the sheriff. This, according to all our cases, was in ample time. It follows, therefore, that there was error in setting aside the appraisement returned by the sheriff. The order of court setting aside the appraisement is reversed, and the appraisement-is confirmed.