Wilson v. McElroy , 32 Pa. 82 ( 1858 )

The opinion of the court was delivered by

Church, J. —

This action was trespass, brought by defendant in error against the plaintiffs in error, one of whom was a constable, and the other plaintiff in an execution against defendant in error, for selling his goods on a levy, after a demand or request made in behalf of the debtor for an appraisement, under the Exemption Act of the 9th of April 1849. By the provisions of this act, the officer charged with the execution of any warrant for the levy and sale of any property of any debtor, is required, on the demand of the debtor, to take an appraisement of the property which the debtor may elect to retain under the law. And if the officer neglects this duty and goes on to sell, he becomes a trespasser.

In this case it appears, the debtor, a widower, with a family of children, was from home, having left them and his property in the care and charge of his unmarried minor daughter. The debtor had been absent nearly two months,- working at his trade in another county as a journeyman, when the daughter, for economy or convenience, and under the advice of friends, shut up the house with the property in it, and on the premises, and went to live with some kindred of the family in the vicinity. Some two weeks afterwards the levy was made, and as soon as it came to the knowledge of the daughter, she made the request for the appraisement. The principal question in the cause was fairly and properly met by the affirmative answer of the court below, to the only point presented by the plaintiff there; which was, that if the plaintiff, the debtor, left the house in which he lived, and his tools in the care of his daughter, she is such an agent as could demand the benefit of the exemption law. The plaintiffs in error claimed on the trial, that none but the debtor, or some person specially authorized by him for that purpose, could do it; but the court refused so to instruct the jury. We find no error in this. Any person authorized to take the charge, care, oversight, and protection of the property and rights of the owner therein during a temporary absence, under the circumstances disclosed in this case, and especially a child of the owner, of proper age for that purpose, left with the family, a part of which she was, would be so authorized. The undoubted object of the legislature, in enlarging the exemption, was the protection, somewhat, of the debtor’s family, where there is any; and hence the members of it, so far as relates to notice that it is claimed, in the temporary absence of the debtor, might almost be considered in the light of cesf,uis que trust.

It is also objected by the plaintiffs in error, that the request, even if authoritatively made, was insufficiently specific. But the charge of the court below is a very proper answer to that. It was unnecessary to make any further specification after the levy made, than is implied in the demand, when the apparent value of the whole is less than the amount allowed by law, at least, until after the appraisement is actually taken. It is enough, however, for this case, that another and very different reason was given for not making the appraisement. For, although the officer need not give his reasons for not complying with the request, yet, when he does so, there is very little ground for complaint, if he be treated as having waived all others. There is no soundness in the error assigned to the charge of the court, on the subject of defalcating the amount of the debt extinguished, or alleged so to be, by the sale made. To allow it in an action of trespass for disregarding a debtor’s demand of the benefit of the exemption law, Avould in most cases result in a palpable evasion of the humane provisions of the Act of Assembly. This disposes of all the errors assigned.

Judgment affirmed.