Herschbach Bros. v. Cassout

<p>Abstract of the Decision.</p> <p>1. Execution, § 6*—when exempt property should not be subjected to sale under execution. Where the court is satisfied, that personal property is exempt," such property ought not to be subjected to sale under an execution, except it is clearly made to appear that the debtor has in some manner forfeited his right to the exemption.</p> <p>2. Exemptions, § 26*—when description of property in schedule of exemption controlling. Where a description of property listed in a schedule of exemptions may reasonably be construed as applying to property sold under an execution, such construction will be adopted.</p> <p>3. Replevin, § 105*—when burden on plaintiff to prove property acquired after filing of schedule of exemptions. In an action of replevin to recover property levied on under execution and alleged to be exempt, by defendants, the burden of proving that the property was acquired after the filing of a schedule of exemptions is upon the plaintiff.</p> <p>4. Exemptions, § 38*—when levy on and sale of exempt property evasion of law. A levy upon and sale of property which the levying officer knows is sought by the debtor to be exempted by his schedule will be treated as an evasion of the law.</p> <p>5. Exemptions, § 25*—what is duty of officer holding execution towards debtor. An officer holding an execution is required to deal fairly and in good faith with the debtor and not to use the provisions of the exemption law to trap or catch debtors who are honestly and in good faith seeking to avail themselves of the benefit of its provisions.</p> <p>6. Exemptions, § 3*—how exemption laws construed. The exemption laws are made for the purpose of protecting the poor and unfortunate and should be liberally construed by the courts, and the right of such debtors should be fully upheld without stint or grudging.</p>