684; Westerland v. Moreland, 3 Ky. L. Rep. 324; Whittington v. Pence, 18 Ky. L. Rep. 942, 38 S. W. 843; Woolfolk v. Lyons, 22 Ky. L. Rep. 918, 59 S. W. 21; Colson v. Wilson, 58 Me. 416; Ostrander v. Packer, 35 Mich. 430; Ashby v. Dillon, 19 Mo. 619; Duncan v. Frank, 8 Mo. App. 286; Conway v. Roberts, 38 Neb. 456, 56 N. W. 980; Elder v. Williams, 16 Nev. 416; Lockwood v. Younglove, 27 Barb. 505; Frost v. Naylor, 68 N. C. 326; Wilson v. Ellis, 28 Pa. 238; Jordan v. Gower, 1 Baxt. 103; Clark v. Bond, 7 Baxt. 288; Pyett v. Rhea, 6 Heisk. 136; Beck v. Avondino, 82 Tex. 314, 18 S. W. 690; McClelland v. Barnard, 36 Tex. Civ. App. 118, 81 S. W. 591; Fuller v. Sparks, 39 Tex. 137. And see Smith v. McBryde, Tex. Civ. App. 173 S. W. 234, holding that in an action by a debtor against an officer for wrongful attachment, the debtor could recover as damages the value of any two horses or mules he might select of those attached; also Ramsey v. Barnabee, 88 Ill. 135, and McClelland v. Barnard, 36 Tex. Civ. App. 118, 81 S. W. 591, discussing the question as to what property can be selected by the debtor.

The fact that the debtor has other property than that claimed by him as exempt is immaterial on the question of his right to claim the exemption; no matter what other property he may have, he has the right to select and claim any particular property up to the limit fixed by law. State use of Codding v. Finn, 8 Mo. App. 261. To a similar effect, see Bray v. Laird, 44 Ala. 295; Williamson v. Harris, 57 Ala. 40, 29 Am. Rep. 707; and Austin v. Swank, 9 Ind. 109.

A debtor is not prevented from claiming as exempt, property in one county seized on execution, because he has property in another county which is not levied on, and which he would have the right to claim as exempt. Baldwin v. Talbot, 43 Mich. 11, 4 N. W. 547.

As to the right of the debtor to make a selection, it was said in Lockwood v. Younglove, 27 Barb. 505: "But where one or more animals or articles of a particular kind, or a particular quantity, in value,

The facts are stated in the Commissioner's opinion.

Messrs. Titus & Carpenter for plaintiff in error.

Mr. A. C. Beeman, for defendant in er

ror:

finding that there was a demand made by The evidence was sufficient to justify the the plaintiff upon the defendant prior to the filing of the suit, and that the defendant refused to release the property which he had levied upon.

Chicago, R. I. & P. R. Co. v. Newburn, 39 Okla. 704, 136 Pac. 174; Citizens' State Bank v. Chattanooga State Bank, 23 Okla. 767, 101 Pac. 1118; Maddox v. Dowdy, 31 Okla. 169, 120 Pac. 651; Hutchings v. Cobble, 30 Okla. 158, 120 Pac. 1013.

out of several kinds, are exempt, and the debtor has a larger number, or quantity in value, as someone must determine which shall be taken and what left, it is but reasonable that the debtor should determine which he will claim as exempt. The statute giving this exemption is for the benefit of families, from motives of public policy, and it has repeatedly been held to confer a personal privilege upon the debtor, the benefit of which he may waive altogether, or insist upon, as he may elect. He may waive his privilege, as to every article but one, and insist upon it as to that article, if it belongs to the kind or class of exempt property. This shows, I think, that the right of choice necessarily belongs to the debtor."

or

And in Finnin v. Malloy, 1 Jones & S. 382, it was said that "a judgment debtor owning several articles of property, animals, falling within the description in the statute of exempt property, but greater in number, or exceeding in value, those exempted by the statute, may claim as exempt any number or portion of them to the extent or value specified in the statute; and where there are several articles used together, that answer to the descriptive words in the statute, as 'working tools,' or 'working team,' 'necessary household furniture,' etc., and the same exceed in value the sum stated in the statute, the debtor has the right to separate and divide the articles, and break up the combination, and retain any number or portion of the same, whose total value does not exceed the statutory sum. As, for instance, if the debtor's working team consists of two horses, each valued at $250, and a wagon valued at $200, and harnesses valued at $50, he may claim as exempt any portion of the team not exceeding $250 in value. He may take either horse, or he may take the wagon and harness.'

Although the general rule is now well established that the debtor has the right of selection, it seems that under an early statute in Pennsylvania, the debtor was held not to have the right to select which of several chattels he would retain as exempt. Lind

627; Seip v. Tilghman, 23 Kan. 289.

Sharp, C., filed the following opinion: This is an action in replevin, filed February 8, 1910, by J. P. Evans against W. H. Parsons, a constable, to recover certain personal property, most of which had on February 5th, prior thereto, been taken from the possession of the plaintiff by defendant, by virtue of an execution issued out of a justice court, in the case of J. W. Howard v. J. P. Evans; judgment having been obtained against the defendant in that action, who is the plaintiff in the present action. After sey v. Fuller, 10 Watts, 144; Trovillo v. Shingles, 10 Watts, 438; Hetrick v. Campbell, 14 Pa. 263, in the first case cited, the court said that if the debtor had two cows in his possession, he could only claim exemption for one of them; that the statute had not given him the right to elect which of the two it should be, and the officer therefore would seem to have the right of taking either. But from the Hetrick Case, it appears that in 1846 a statute was passed exempting one horse or yoke of oxen, etc., "at the option of the defendant."

Where the debtor had a pair of oxen and also a horse, and was entitled to claim as exempt the horse or the oxen, it was said that he might hold either of them exempt from attachment; that "the one may be more valuable or desirable to the debtor than the other, and it would be contrary to the policy of the law to allow the creditor to deprive him of the right of choice. The exemption is for the benefit of the debtor, and the right of election is in him." Colson v. Wilson, 58 Me. 416.

In regard to the debtor's right of selection under a statute exempting from attachment and execution "one yoke of oxen or steers, as the debtor may select," it was said in Haskins v. Bennett, 41 Vt. 698: "The debtor may own a yoke of oxen or steers, of little present value for a team, but valuable to keep on account of their yearly growth. He may at the same time own another yoke of oxen of great present value for a team, but they are full grown and continually depreciating in value. Either pair will answer his present purpose or use for a team. His creditors have the right to take from him one pair or the other. The reason of the rule giving him the right to select the pair he would keep is obvious. His superior knowledge of the cattle, and of the pair from which he could derive the greatest present and future advantage and profit in view of the purpose for which he might desire to keep such cattle would enable him to make the selection according to the spirit as well as the letter of the statute giving him that right, a right which, in view of the apparent ob

which was alleged to be exempt under the laws of the state, plaintiff in his petition asked for damages in the sum of $100 for the wrongful detention of said property. With the exception of four hogs taken under the execution, three of which belonged to the tenant of plaintiff, living on the farm from which the property was taken, the other one not being claimed an exempt, and two horses, the property replevined was identical with that taken under the execution. The hog and two horses not claimed as exempt in the present case were sold by defendant in satisfaction of the execution,

ject of the statute, should not be exercised by an interested creditor."

And under a statute exempting from execution all provisions and forage on hand for home consumption, it was said in Anderson v. Larremore, 1 Tex. App. Civ. Cas. (White & W.) 532, that "the debtor, owning a farm and raising grain upon it, has the right to select from such grain what he will use, and to an amount reasonable in quantity. Neither creditor nor officer can determine for him what kind of bread of the grain he has raised, he and his family shall use; nor whether his stock shall be fed on oats or barley. It is no defense to the charge of seizing all the wheat that a debtor has, that he had left a growing crop of corn, or had oats in a stack. The debtor's motives in regard to the exemption are not material, and cannot be inquired into. The question is whether the property is within the exemption. If it is, the claim set up to it by the debtor could not, as to the creditor, be fraudulent, no matter what might be the motives of the debtor."

The election of what animals the debtor will retain as exempt if he has more than the number exempted by the statute lies with him, and not with the creditor who procures the attachment. Nuzman v. Schooley, 36 Kan. 177, 12 Pac. 829.

And in Rice v. Nolan, 33 Kan. 31, 5 Pac. 437, the court said that where the debtor has a greater number of animals or articles than are enumerated as exempt, or where he has property which exceeds in value the limit of his exemption, the law does not prescribe when or by whom the selection shall be made; and that in view of the fact that the statute was enacted mainly for the benefit of the debtor and his family, it appeared that he should be afforded the privilege of making the selection at any time before the sale.

A debtor is not authorized to make two selections by a statute entitling him to select as exempt property of the value of $100, and in addition thereto $300 worth of property if he is the head of a family, residing with the same. Johnson v. Larcade, 110 Ill. App. 611. The statute, it was said, only

"(1) This defendant admits that he was in possession of the property described in plaintiff's petition.

“(3) That upon demand of said plaintiff for the possession of the property described in said petition, claiming said property by reasons that same were exempt under the laws of this state, this defendant immediately delivered the property to said plaintiff, and has not at any time made claim to said property since said date."

Trial was had December 9th and resulted

And the rule was laid down in Lindley v. Miller, 67 Ill. 244, an action of replevin by a tenant for property distrained by the landlord for rent, that to entitle the plaintiff to recover a portion of the property on the ground that it was exempt from distress, selection of the portion claimed as exempt should be made in apt time, and the property demanded before replevin was brought.

In Harley v. Procunier, 115 Mich. 53, 40 L.R.A. 150, 69 Am. St. Rep. 546, 72 N. W. 1099, it was held that a married man might, without his wife's consent, select the cows which he would claim as exempt, by giving a chattel mortgage on other cows, under a statute providing that two cows shall be exempt to each householder from any final process, and that a chattel mortgage created on any part of such exempt property shall be void unless the mortgage is signed by the wife of the mortgagor. As to selection of exempt property by the giving of a chattel mortgage, see also Grover v. Younie, under IV. a.

And in Malvin v. Christoph, 54 Iowa, 562, 7 N. W. 6, it was held that the wife of an absconding debtor might select the horse which she desired to retain as exempt, if there was more than one horse left with her, under a statute exempting to the head of a family one horse, and providing that when a debtor absconds and leaves his family, such property shall be exempt in the hands of the wife and children.

The debtor cannot replevy property levied upon under execution on the ground that it is exempt, under a statute exempting $100 worth of property suited to the debtor's condition in life, to be selected by the debtor, where the property levied upon is of greater value than $100, unless he has made a selection before the levy or when he had notice thereof. Amend v. Smith, 87 Ill. 198.

And in Frost v. Shaw, 3 Ohio St. 270, it was held that a debtor could not maintain an action for the seizure and sale on execution of an article which by statute he was authorized to select and hold as exempt, unless he showed that he made the selection, because without such selection the benefit of the exemption statute did not attach, and the officer might proceed to levy and sell the property.

Also in Seaman v. Luce, 23 Barb. 240, at least two of the four justices approved the rule that the debtor could recover damages from an officer for detention of a horse taken on execution, on the ground that it was exempt, only after the debtor had claimed and selected the horse as the exempt property, where he had other horses which might have been levied upon; and that such claim and selection must be made within a reasonable time after notice of the levy and before the bringing of the action. (See quotation from this case in PARSONS V. EVANS.)

"The true principle, sustained by reason, and, as we think, by the better and more numerous authorities, is, that whenever the exemption is not specific and certain, and a selection is necessary, that selection devolves upon the debtor. In such a case the law has favored him with the personal privilege of a choice and election what specific articles, to be taken out of the general stock, he will claim and withhold as his exempted

sum of $5 and costs. Motion for a new trial, being filed, was sustained. July 26, 1911, defendant filed a second amended answer, in which the further defenses were set up that the ten hogs replevined were turned over to plaintiff as soon as selected from the fourteen taken under the execution, and that, as to the other property, it had never been in the possession of defendant under the execution issued in the case of Howard v. Evans, but instead was in the possession of one D. B. Harrison, for the Bank of Cherokee, which at the time held a mortgage on it. The second trial resulted in a verdict for $25, and judgment was rendered accordingly. Motion for new trial having been overruled, the case is brought here on appeal.

property, of the value of $200. That being so, he would certainly not be bound by the choice and election made by the officer, either in his absence or in his presence, unless assenting to it." Zielke v. Morgan, 50 Wis. 560, 7 N. W. 651, holding that where the debtor had made no selection from a larger stock of the $200 worth of stock in trade which he was entitled to claim as exempt, one whose purchase of the entire stock was fraudulent and void could not recover from the officer who attached the same, for conversion, on the ground that a part of the goods attached, of the value of $200, was the lawful exemption of the debtor, and therefore passed by the sale. To a similar effect is Berge v. Kittleson, 133 Wis. 664, 114 N. W. 125, holding that where the debtor had made no selection of the exemptions from among a larger number of chattels, the property was subject to execution in the hands of a fraudulent vendee.

Under the Illinois statute requiring the debtor to make a schedule of all his personal property, and deliver the same to the officer, and providing that after the appraiser shall have fixed a fair valuation upon each article in the schedule, the debtor shall then select the articles he may desire to retain as exempt up to a certain value, the debtor is bound to make the selection, and the officer cannot select for him, or change the selection he has made. Moffett v. Sheehey, 52 Ill. App. 376.

So, in Parketon v. Pugsley, 142 Mo. App. 537, 121 S. W. 789, the rule was laid down that the debtor might make the selection, and that the officer, in levying on the property, cannot do so for him, under a statute permitting the debtor to select as exempt, in lieu of certain personal property, any other real or personal property up to a stated value; and it was held that a demand by the debtor that the officer set aside his exemp tions was not the equivalent of a selection, so as to render the plaintiff in the execution liable for directing the officer to levy on the property, although it was intimated that the officer would be liable for disregarding the request, and for failure to inform the debtor of his rights.

The defendant by his amended answer having disclaimed right of possession to the property, and conceded it to be in plaintiff, the court very properly instructed the jury that the only questions to be determined by them were whether the property was wrongfully detained by defendant before being released, and, if so, the amount of damages suffered, if any. The principal ques

(1)

tion for our determination is whether the defendant wrongfully detained the property, or any part of it, from the plaintiff. This involves other considerations, namely: Is it a duty of an offcer, when levying an execution, to inform the debtor or his agent of his statutory exemption rights; (2) is the statute self-executing, or must the debtor claim the exemptions allowed him;

To a similar effect is Davis v. Williamson, 68 Mo. App. 307, where it was held that the execution plaintiff was not liable to the debtor for directing the garnishment of a debt owed to the defendant in the execution, where the debt could be claimed as exempt only by selection, and had not been selected by the debtor, even if the officer had failed to advise the latter of his exemption rights.

The defendant in an execution, under a statute giving him the right of designating the property to be levied upon, cannot defeat a levy by neglect or refusal to exercise his statutory right. Frink v. Roe, 70 Cal. 296, 11 Pac. 820.

In O'Donnell v. Segar, 25 Mich. 367, the rule was laid down that it is incumbent on the debtor in a replevin action against an officer for attaching a yoke of oxen, to show, if he had another team which, with the one levied upon, exceeded in value $250, that he had taken the proper course to select the oxen seized, or that he had been wrongfully prevented from making such selection.

It is the duty of the referee in a judgment creditor's suit, and not of the receiver or of the debtor, where they cannot agree as to what articles shall be retained by the debtor as exempt from execution, to make the selection, under the New York Revised Statutes designating certain articles as exempt, and the act of 1842, exempting necessary household furniture up to a certain value. Dickerson v. Van Tine, 1 Sandf. 724.

Whether or not the debtor had other horses, so that the statutory method of selection should be followed in order to determine which was exempt, was held material in Gass v. Van Wagner, 63 Mich. 610, 30 N. W. 198, where the debtor replevied the horse seized by the defendant under an execution, and the defendant testified on the trial that the horse was replevied before he had time to complete his inventory.

A selection by a merchant of certain goods as exempt is not binding, as to the amount and value of the selected goods, on creditors who are not parties to the selection, but the property so selected in the hands of an assignee who paid no consideration, may be levied upon, subject to the