So,

Does this statute of itself sufficiently set ing this question, it is said in Wells, Reapart, from all personal property that a plevin, 2d ed. § 269: "An officer with execuresident of the state may own, so much tion is not bound to consult with the exethereof as is specifically exempted thereby, cution debtor as to what property is exso that, before it could be taken under exe-empt, but he may seize and proceed to sell cution, the officer of the law must inform any or all the debtor's property upon which the debtor of his right to retain it? Or, he can lay his hands; and, if the debtor decontinuing, can it be said that specific sires the protection of the statute, he must amounts of the property exempted are invoke its aid. It does not operate unless placed beyond the reach of an execution in its shelter is sought. When exempt propany case? Both of these questions, we erty is levied on, the debtor ought, at the think, should be answered in the negative. time, or seasonably thereafter, to specially The statute plainly states the duties of claim the benefit of the exemption; he canan officer, such as a sheriff or constable, not sustain replevin for property he has and how such duties shall be performed, not selected and claimed as exempt. but nowhere includes that he shall legally when a certain amount of a particular kind advise a debtor whose property he may be of property is exempt, the debtor must seabout to subject to an execution. Discuss-lect and claim or in some lawful manner shall be sold; but if he be present at the sale citing Baldwin v. Talbot, 43 Mich. 11, 4 and makes no objection, his right of election N. W. 547. is waived, and the sheriff may sell whichever piece he may deem proper." Westerland v. Moreland, 3 Ky. L. Rep. 324 (abstract). And under a statute exempting to a resident householder with a family, two work beasts, or one work beast and a yoke of oxen, the debtor has the right of selection as to which he will retain; but if there are more than two work beasts, he cannot refuse to make an election of those he will retain; and if he fails or refuses to elect, and the officer makes an election for him, leaving in his possession the number of beasts exempted under the statute, the debtor cannot, after the sale, for the first time, claim those levied upon as exempt. Woolfolk v. Lyons, 22 Ky. L. Rep. 918, 59 S. W. 21.

In Baldwin v. Talbot, supra, it was held that a debtor was not precluded from claiming as exempt a horse which had been seized on execution, by reason of having given a fraudulent chattel mortgage on other property.

The selection by the officer of property of the debtor as exempt which was covered by a mortgage amounting to more than its appraised value was said, in Bayne v. Patterson, 40 Mich. 658, to be a fraud on the debtor, who was entitled to the full statutory amount of exempt property, if he owned it.

Under a statute exempting to the head of a family stock in trade not exceeding $400 in value, where a mortgage was given Where the debtor was not present at the on such stock for over $400, and subsequenttime of the levy, and was not consulted as to ly the property was attached by a creditor the property that he wished to retain as ex-who obtained judgment, sold the property, empt, but the sheriff set apart two mules as exempt, and shortly after the levy the debtor was informed that the mules had been left to him as exempt, and made no objection, but acquiesced in the action of the sheriff, it was held that he could not thereafter claim the animal levied on as exempt instead of one of the mules. Cleveland Nat. Bank v. Bryant, - Tenn. , 54 S. W. 73. An insolvent cannot maintain replevin against his assignee for a wagon which he claims as exempt, where he was the owner of two wagons, and upon being requested by the assignee to make a selection, refused to do so, on the ground that he was entitled to both; since, if the insolvent would avail himself of the right of election under the exemption statute, it is his duty to signify his election when requested by the assignee to do so, or he will be deemed to have waived his right, and the selection may be made by the assignee. McKenzie v. Redman, 87 Me. 322, 32 Atl. 962.

-selection of mortgaged property.

An execution debtor need not select mortgaged property for his exemptions. Ganong v. Green, 71 Mich. 1, 38 N. W. 661,

and out of the proceeds paid the mortgage, without the objection of the debtor, who, however, claimed the right of selection in proper time before the sale, it was contended in Rice v. Nolan, 33 Kan. 28, 5 Pac. 437, that as the mortgage given by the debtor upon the stock amounted to more than the exemption to which he was entitled, and that as he had made no objection to its payment out of the proceeds of sale, he must be held to have had the benefit of the exemption. This claim was held untenable, the court saying that where one gives a chattel mortgage upon exempt property, he only waives the right of exemption to the extent of the mortgage given, and that it does not affect his rights against anyone except the mortgagee; that the debtor is entitled to an exemption on his stock in trade, of his own selection, free and clear of all encumbrance or liability for debt, up to the full value of $400.

-particular examples of what amounts to a selection.

The question as to whether particular declarations or acts of the debtor amount to a selection is so closely connected with the

assert his rights. If the sheriff levy execu- | unpaid. It has been very generally held tion on the whole of that class of property, that the right of exemption is a personal the debtor cannot sustain replevin until he select and demand the exempted portion." In Williams v. Brown, 137 Mich. 569, 100 N. W. 786, the same question was considered. It is there said: "Where no duty of selection is imposed upon the officer, the debtor waives his right to the exemption if he fails to demand it."

Judgment debtors should be given an opportunity to claim their exemptions, but this does not mean that they may not waive such right. We have no doubt but that in some instances a debtor may be willing to have a judgment against him satisfied out of exempt property which he may own, rather than have such judgment outstanding question of the sufficiency of the claim of exemptions, that no attempt to cover the question generally has been made. In a few cases, however, the question as to what amounts to a selection has been treated so distinctly from that of the sufficiency of a mere claim of exemptions that they have been included in the note; not, however, with the object of exhausting the cases on this point.

privilege, which, in order to be availed of, must be claimed by the debtor. Scanlan v. Guiling, 63 Ark. 540, 39 S. W. 713; Kahn v. Hayes, 22 Ind. App. 182, 53 N. E. 430; Wilson v. Montague, 57 Mich. 638, 24 N. W. 851; York v. Carlisle, 19 Tex. Civ. App. 269, 46 S. W. 257; Taylor v. Belville, 70 W. Va. 484, 74 S. E. 517; Wicker v. Comstock, 52 Wis. 315, 9 N. W. 25; Stanton v. French, 83 Cal. 194, 23 Pac. 355.

In the present case demand was made over the phone, for the return of the exempt property, before the beginning of the action; but there being more stock than was claimed as exempt, and no selection of the exempt from the nonexempt having been tion, and he will not be entitled to an additional exemption out of the attached property. Strange v. Gess, 111 Ky. 640, 64 S. W. 458.

In Tombow v. Haskins, 15 Ohio C. C. 656, 8 Ohio C. D. 281, it was held that the debtor made a sufficient selection within the meaning of a statute providing for the exemption from levy and sale of real and personal property to be selected by the debtor, not exceeding $500 in value, by the filing of a motion to discharge the attachment and garnishee process on the ground that the money garnished was exempt from execution.

"It is undoubtedly the law that the debtor's selection of exemptions must be so specific and certain that the officer will be appraised of the exact claim made;" but it is sufficient if the selection is made to the levy- If at the time the debtor claims as exing officer in such a way that he cannot or empt $500 belonging to him, in the custody ought not to misunderstand it. Northrup v. of the court, under a statute entitling him Cross, 2 N. D. 433, 51 N. W. 718, holding that to select property as exempt to this amount a selection by the debtor of the "free prop-in lieu of a homestead, he has $500 addierty" was sufficient, where, upon the appraisement list, which was held by the officer, certain property was designated as mortgaged and certain other property as assigned as collateral, and the balance was listed without comment, the term "free property" meaning, it was said, the property that appeared on the appraisement as unencumbered.

tional which he conceals, such concealment or withholding of the other property will be deemed a selection thereof as the debtor's exempt property, and his claim to the fund in court will be denied. Haslage v. Hoover, 16 Ohio C. C. 570, 9 Ohio C. D. 404.

And in other cases (Rogers v. Ayers, 119 Tenn. 340, 123 Am. St. Rep. 725, 104 S. W. 521; Florida Loan & T. Co. v. Crabb, 45 Under the Missouri statute giving to at- Fla. 306, 33 So. 523) the removal or transtorneys at law the privilege, at their option, fer of property by the debtor out of the of selecting such books as may be necessary reach of creditors has been held to be a seto their profession, in the place of other lection of his exemptions pro tanto. See property exempted from execution to the also Cook v. Scott, 6 Ill. 333, and stateheads of families, an attorney owning law ment in Ross v. Hannah, 18 Ala. 125, to a books worth $3,000 and other personal similar effect. But upon the question genproperty worth $700 does not make a selec-erally as to whether the fact that the debtor tion, so as to entitle him to maintain an action against an officer for levying upon and selling part of the books, by giving a list of the books to the officer, and claiming exemption of all of them, as well as of his other property. Brown v. Hoffmeister, 71 Mo. 411. Law books not exceeding in value the other property in lieu of which the books might be selected were regarded as exempt.

has fraudulently concealed or disposed of other property will preclude him from claiming that levied upon as exempt, there is a conflict of authority, and the point is beyond the scope of the note.

As to the sufficiency of the selection of a horse as exempt where the debtor claimed at the time of the levy that he owned only that horse, but it turned out at the trial that he owned two others also, see Plimpton v. Sprague, 47 Vt. 467.

If the debtor appropriates to his own use, after the attachment is levied, part of the attached property of greater value than the exemption claimed, the appropriation may be regarded as a selection of the exemp-v.

b. Right and duty of officer. See cases under II. a, supra, and PARSONS EVANS.

made, the mere demand for so much exempt, selection for him at the time demand was property was not sufficient. It is true that made upon him over the telephone. in this case plaintiff demanded ten of eleven In Schwartz v. Birnbaum, 21 Colo. 21, hogs belonging to him as exempt, but there 39 Pac. 416, it is said in the syllabus: were also three other hogs in the same herd "Where only part of property levied on is held by the defendant belonging to plain-claimed to be exempt, the mere demand by tiff's tenant, and it is reasonable to sup- the execution defendant of his right to sepose that defendant would, if he had made lect is not equivalent to making the selecthe selection for plaintiff, have chosen a tion, so as to perfect the right of exemppart of the hogs belonging to said tenant, tion." for he did not know which belonged to the In Smith v. Chadwick, 51 Me. 515, the tenant. When plaintiff did make his selec- opinion quotes from the case of Clapp v. tion after this action was commenced, he Thomas, 5 Allen, 158, as follows: "If the refused to accept the ten at the time driven debtor, who has a larger quantity of any out of the herd by the defendant, but made kinds of provisions than the law exempts his own selection. This confirms our state- from attachment, sets apart no portion ment that in all probability he would not thereof for the use of his family before have been satisfied had defendant made the it is about to be attached, and makes no | exemptions is not the equivalent of a selection thereof, so as to entitle him to recover damages against the officer for taking the property, but that it was incumbent on the debtor to make a demand, and to select and point out the property which he claimed was not liable to seizure. The demand in this case was for $200 worth of stock in trade, and the court said that such a demand would not put upon the officer the duty of determining what was worth $200, nor what part of the stock should be set apart.

It is the debtor's duty to make the selection, and not the duty of the officer to make the selection for him, if he fails to do so. Johnson v. Larcade, 110 Ill. App. 611. But if the debtor refuses or neglects to select the exempt property, the officer, in levying an execution, may do so for him. Cloutier v. Georgeson, 13 Manitoba, L. Rep. 1.

In Johnson v. Larcade, supra, the debtor made a selection of personal property worth over $800, when the exemptions to which he would have been entitled as the head of a family, residing with the same, were $300 worth of property, to be selected by him. An instruction was held error, in an action against the officer for a wrongful levy, that it was the officer's duty to set off to the debtor "$300 worth of items of personal property beginning with the first item, and setting off the articles consecutively" as they appeared in the selection until the amount of $300 had been set off, the court saying that the officer could not know and was not obliged to inquire whether the debtor wanted to claim the $300 from the items first mentioned in the selection, or from items elsewhere mentioned therein; and that the attempt to select more than double the amount of property the debtor was entitled to was no selection at all.

Under a statute exempting certain property to the debtor at his election, if the debtor does not make a choice at the time of the seizure, the sheriff is not bound to make the choice for him, but may seize all of the property, leaving to the debtor the right to make a selection before the sale. Laverdiere, 7 Quebec L. R. 367; Ross v. Lemieux, Montreal L. R. 2 S. C. 272; Filion v. Chabot, Rap. Jud. Quebec 9 C. S. 327.

Noel v.

In Figueira v. Pyatt, 88 Ill. 402, it was alleged, in an action of trespass against the officer for a wrongful levy, that goods of the value of $100 taken were exempt, and, that the officer was liable because he failed to set off to the plaintiff that amount of goods. But the court held that the declaration was fatally defective for not alleging that the plaintiff selected and claimed $100 worth of goods as exempt, saying that the law required him, if he would avail himself of the provisions of the statute, to select the

And it was said in Schwartz v. Birnbaum, 21 Colo. 21, 39 Pac. 416, that it was not the duty of the officer to set aside the exempt property unless the claimant point-articles and claim them as exempt. ed out the property, when the seizure embraced other property rightfully taken, and the exempt property was not specifically exempt by statute, but merely comprised a portion of the stock in trade, even though it was less in value than the amount exempted by statute. And it was held that there had been no sufficient selection of the exempt property where the debtor only demanded the right of selection, the court saying that the mere demand of the debtor of his right to select was not equivalent to making the selection.

To the same effect is Eisenberg v. Burchinell, 10 Colo. App. 457, 52 Pac. 220, holding that a mere demand by the debtor of his

To a somewhat similar effect is Behymer v. Cook, 5 Colo. 395, where it was contended that the property not attached was worth but $35, and that the plaintiff was entitled to retain a sufficient number of the articles taken to amount to the sum of $200. But it was held that as the property attached was not specifically exempt, the debtor must make a selection, and that in this case no sufficient selection was shown.

In Smith v. Chadwick, 51 Me. 515, the rule was laid down that if exempt property (in this instance furniture) is mingled with other property of the same kind, not exempt, the officer is not liable for attaching the whole, unless the debtor claims and selects

claim to any portion of it when the officer, all, and thereby literally deprive the deis about to attach the whole, he cannot fendant of the benefit of a team. If we maintain an action against the officer, who allow the officer the absolute right of detakes the whole." termining which two of the three horses

And adds: "We recognize that decision shall be exempt, he may in very many

In Pyett v. Rhea, 6 Heisk. 136, it as officer levies under execution on exempt

would render the execution of the process | while in defendant's possession. As to the extremely onerous upon public officers, and property other than the hogs, the undisin many cases would seriously prejudice puted evidence shows it to have been taken, the rights of judgment and execution cred- not by defendant under the execution, but itors." by one Harrison, for the Bank of Cherokee, the mortgagee of such property, and placed in the possession of one Christensen for said bank, and that said Christensen continued in the possession of said property for the bank until after the commencement of the present action. It is true that defendant levied on the mortgaged property "subject to the mortgage," as well as on the hogs, and which levy as to said property was invalid. Moore v. Calvert, 8 Okla. 358,