Strange v. Gess

Opinion of the court by CHIEF JUSTICE PAYNTER Affirming- The appellee instituted this action to recover a certain sum for the rent of certain lands in Fayette county. He obtained an order of attachment, and had it levied upon the personal property on the farm. The 'appellant sought to have the court adjudge him $240, being $40 apiece' for each of his five children and $40 for himself, Which he [642] claimed he was entitled to as exempt, because he did not hlave breadstuff, etc., on hand to support himself and. children. The appellee denied his right to have this sum adjudged to him as exempt, because, after the attachment was levied, the appellant appropriated to his own use • part of the attached property of greater value than the exemption claimed. It is insisted on behalf oif the appellant that, even if he did appropriate the property in the manner stated, still he was entitled to his exemption out of the attached property; that, if he was guilty of the wrong in 'appropriating attached property, he should have been prosecuted for it, but not be charged the value of it in determining the question of exemption. By appropriating part of the attached property he diminished, to the extent of the value of the property thus appropriated, the ability of the plaintiff to make his debt. He did not wait for the judgment of the court, but seems to have anticipated it, and took the property in advance. We do not think he had the right to do this, and then not be charged therewith. 'Suppose A. has an attachment levied upon four horses belonging to B., who, being a housekeeper, with a family, is entitled to two of them as ex- • empt property, but before he makes the .selection he runs off two o-f them, and puts it beyond the power of A. to reach them in satisfaction of his debt; could he then claim the remaining two as exempt. We think not. In such case to have seized and appropriated two of the horses which, were levied upon was equivalent to selecting them as his exempt property. ' So in this case, when he appropriated part of the property which was attached, he elected to take it in lieu of the exemption to the extent of its value. As its value was equal to the exemption claimed, he was not entitled to have more adjudged to him. The judgment is affirmed.