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was exempt from execution, as prorisions, and forbid the sale of it, but Atkinson sold it, and it was measured out to the purchaser, and taken away.
1. At the instance of the plaintiff, the court instructed the jury as follows: (1.) “ If the jury find from the testimony that the defendant, Atkinson, took and sold corn belonging to the plaintiff, against the consent and protestation of plaintiff, and that the plaintiff, at the time of such taking and sale of the corn, did not have on hand more corn than was sufficient for family use, including the corn so taken and sold, they must find for the plaintiff against defendant, Atkinson, and also against defendant McClure, if they find that he instigated the taking and selling.”
The statute exempts from execution "all such provisions as may be on hand for family use.” Gould's Dig. ch. 68, sec. 23.
It is certainly not an unreasonably liberal construction of this statute, to hold that corn, so generally used in this country for bread, is embraced by the term provisions. Whether the plaintiff had on hand a surplus of corn, or only such quantity as was necessary for family ure, was a question to be determined by the jury, from the evidence, and the instruction properly test it to them.
II. At the instance of the plaintiff, the court instructed the jury as follows:
(5.) "That the plaintiff is not estopped from a recovery and verdict herein, by the delivery bond read in evidence, if the jury find that he protested against the taking of the corn by levy, under the supposed execution, and protested against the sale of the corn under the supposed levy.
(6) “ That the plaintiff is not estopped from a recovery and verdict, by the delivery bond read in evidence, unless the jury find there was a delivery under said bond."
And the defendants moved the following instruction, on the same point, which the court refused to give:
(4.) "If the jury believe from the evidence, that the plaintiff executed a bond for the delivery of the corn, to be sold at such
time and place as it was sold, he thereby waived his right to claim it as necessary provisions, and they may find for defendants."
The plaintiff was not estopped by the delivery bond from claiming the benefit of the exemption act. When Atkinson went to levy on the corn, the plaintiff claimed that it was exempt from execution, forbid the levy, and told him he would act at his peril. He executed the delivery bond under protest, and on the day of sale, the corn remaining where it was when it was levied on, he did not consent for it to be sold, but again claimed the benefit of the exemption act, and forbid the sale. See Norris et al. vs. Norlon, 19 Ark. 321; Tumlinson vs. Swinney ante.
III. The defendants also moved the following instruction, which the court refused:
(6.) “ If the jury believe from the evidence said corn was sold by virtue of the process specified in the delivery bond, they will find for defendants, unless they find that the plaintiff had no other property subject to execution, and further, before said sale, furnished said officer with a schedule under oath of his effects.” It was of no consequence whether plaintiff
' had other property subject to execution or not. The eighth clause of the statute exempts “all such provisions as may be on hand for family use,” regardless of what other property the execution debtor may have.
The filth clause of the statute exempts “all wearing apparel of the family, two beds with the usual bedding, and such other house-hold and kitchen furniture as may be necessary for the family, agreeably to an inventory thereof, to be returned on oath, with the execution, by the officer whose duly it may be to levy the same.”
It is under this clause of the statute that the inventory is to be made, and returned by the ollicer, and not under the eighth.
IV. The defendants also moved the following instruction, which was refused.
(5.) “ If the jury believe from the evidence that the plaintiff
forbid the sale of the corn, and was opposed to it; yet if they further believe he has since sanctioned it by receiving a credit in the settlement of said debt for said sale, they will find for defendants.”
John Jeffrey testified, that after the corn was sold, and the sum for which it sold crelited on the execution, he settled the balance of the execution by giving his note for it. Plaintiff' did not authorize him to make the settlement. Witness told him of the settlement, and he did not object, but never ratified it. Witness had paid the note. Plaintiff had never settled it with him, but witness expected that he would pay him.
This was the only evidence tending to show that plaintif had sanctioned the sale of the corn, and compromised his right of action; and it was not sufficient to warrant the instruction above copied:
V. The defendants also moved the following instruction, which the court refused.
7. “ Unless the jury believe from the evidence that defendants forcibly took and carried away the corn, they must find for the defendants."
This instruction was properly refused. If the corn was exempt from execution, and Atkinson sold it against the consent of the plaintiff, he was a trespasser; and so was the defendant, JcClure, the plaintiff in the execution, if he directed the corn to be levied on, or sold. 1 Chilly Plead. 166, 185.
VI. The defendant offered in evidence the execution under which the corn was sold, which the court excluded, on objections made by plaintiff.
The judgment was recovered before Clary, a justice of the peace of Alabama township, Columbia county, in which township McClure and Gatcher both resided.
The execution was first issued 11th October, 1858, directed to the constable of Alabama township, and placed in the hands of Holton, the constable of the township, who levied it upon some cotton, which was released upon the claim of strangers, and the execution endorsed by Holton, no property, etc.
The justice renewed the execution on the 30th November, 1858, by endorsement, for twelve months. It seems that the renewed execution was in the hands of Hollon, who refused to execute it; and McClure applied to the justice to issue an execution to defendant, Atkinson, who was constable of Harrison township, in the same county; and the justice told McClure to tell Molton to strike " Alabuma" township from the execution in his hands, and insert · Harrison," which was accordingly done, and the execution thus changed and directed to the constable of Harrison township, was placed in the hands of Atkineon, who levied upon the corr., sold it, and returned tlie execution to the justice, etc.
The court excluded the execution on two grounds: 1st, that the change in the direction of the execution was not made in the presence of the justice, and that he could not delegate his power to another to change the process: 2d, that there being a constable in Alabama township, where the judgment was rendered, and where the defendant therein resided, the justice could not issue an execution to the constable of Harrison township, though the constable of Alabama township refused to act.
In Price is llubbard, 10 Join. R. 404, the court said that any general authority, by a justice to a constable, to fill up or alter process, would be void and highly improper; but where a constable, by direction of the justice, changed the date of a particular execution, by way of renewal, it was held that the process was not thereby invalidated, and that the constable might justily under it.
llere, the change was made in the execution, by direction of the justice, before it went into the hands of Atkinson to be executed; and though the change was irregularly made, we think the process was not null and void n'that account.
Being, upon its face, directed to the constable of Harrison township, and having been placed in the hands of Atkinson, as such constable, he had power under the statute to execute it any where within his county. Go. Dig., ch. 35, s.cs. 34, 39.
It follows that the court erred in excluding the execution from
The 2d, 3d, 4th, and 7th instructions given by the court, at the instance of the plaintiff, in relation to the validity of the execution, were out of place and had nothing to rest on, the execution being excluded from the jury. So with the instructions moved by the defendant in regard to the validity of the process, and refused by the court.
For the error above indicated, the judgment must be reversed, and the cause remanded with instructions to the court below to grant appellants a new trial.
On certiorari to remove a judgment of a justice of the peace into the Circuit Court
for review, the case is not properly before the court for final adjudication until, in
Appeal from Independence Circuit Court,
Hon. William C. Bevens, Circuit Judge.