Pyett v. Rhea

EreemAN, J., delivered the opinion of the court. This is an action of trover brought against an officer for wrongfully levying on and selling a certain gray mare, claimed by defendant in error to have been exempt from sale under the law protecting property of poor persons from such sales. The only question presented in the case for our decision is upon the charge of his Honor the Circuit Judge. He charged the jury in substance, that if the party was entitled to the exemption as being head of a family, &c., and had more than one horse subject to levy, he had a right to elect which one should be exempt, and whether he selected the one in controversy or not as exempt before the levy was made, [138] made no difference, as he had the right to claim the beast in controversy, or make his election at any time before the sale, and offer the other to the officer in its stead. While, the proposition is stated in very general terms by his Honor, we do not think there is any error in reference to the facts of the case. These laws exempting property from execution are to be liberally construed in favor of the party entitled to their benefit, and we hold, that unless the party has expressly made his election at the time of levy, he may make such election, upon offering the other property of like kind in his possession at the time of the levy to the officer before the day of sale. We hold further, that as the party is entitled to his election, it is the duty of the officer proposing to make the levy to require the party to make his selection at the time of the levy, and thus all difficulty can be easily avoided in such cases. We think the proof well warrants the verdict in the case, and affirm the judgment.