majority">

The opinion of the court was delivered,

by Sharswood, J.

— The settled construction of the Act of Assembly of April 9th 1849 (Pamph. L. 533) undoubtedly is, that where a defendant claims the benefit of the exemption provided by that law he must elect to retain such articles as he desires, and such election must be notified to the officer at the time: Hammer v. Freese, 7 Harris 255. But the questions in this case are, whether there was not sufficient evidence that the plaintiff below did make such election, and whether it was not fairly submitted to the jury to decide.

The defendant himself, who was examined as a witness, testified that the plaintiff “ asked about the wagon, wood, posts and rails; he calculated the amount; said, taking out what he didn’t own, he wasn’t worth $300, and wouldn’t claim anything.” Wentzel, who was a witness for plaintiff, said that the defendant told him “Bricker counted up wagon, wood, posts, rails and logs, and subtracted from amount, and told Keller these articles did not belong to him, and the balance did not amount to $300and Bricker’s testimony was, “Keller asked me after the appraisement what I claimed — if I claimed anything? I said not, except that which belonged to me.” There is no discrepancy in any part of the testimony. The whole amount of the appraisement was $392.25. The articles, the ownership of which Bricker disclaimed, were appraised at $161, leaving the value of the goods which Bricker claimed as his own, $231.25. He claimed to retain the whole. What other election could he be required to make ? How would he more clearly indicate his determination to retain these goods which he said belonged to him, leaving it to the officer to sell the remainder, if he chose to incur the risk of so doing ? Had he done so, Bricker could not have set up any claim to these goods under the exemption law. If they were subject to the execution in consequence of their being in his possession through fraud upon creditors, that was a question between the claimants and the officer. It is strenuously contended that his disclaimer of ownership ought to have been accompanied with information to the officer as to the alleged claimants. Certainly the conduct of a defendant must not appear to have been intended to baffle the *383officer. But according to Keller’s own account he did give the name of one, and it is rather to be inferred from the evidence that it was well known who they both were. At all events, it does not appear that he was asked for their names. There is no prescribed form for an election to retain by the debtor. It is enough that it was made to the officer in a way in which he could not or ought not to misunderstand it. Men whose property is levied on are generally under some degree of mental excitement. It is not to be expected that their words should be calmly weighed. It is eminently a case in which the jury are to judge under all the circumstances. We think there was ample evidence from which they might infer, that the plaintiff below did elect to retain those of the appraised goods amounting to $231.25, which he asserted to be all that belonged to him.

This we think was fairly submitted to the jury for their determination by the learned judge below. He left the entire disposition of the cause to them. He went further — he left to them the question of actual fraud in Bricker in regard to the goods, the ownership of which he disclaimed. As it was open to the officer to seize and sell these goods — after Bricker’s disclaimer — at least so far as his demand of exemption was concerned, it may be questioned whether it was really involved in the issue. Certainly no mere legal fraud arising from retained possession was. The assignment of this is not secundum regulam, but if it were, it would not avail the plaintiff in error.

Judgment affirmed.

Citation profile

How this case has been treated — in progress