Opinion
August Term, 1849.
1. An officer who has an execution is bound to levy it on the property he finds in the defendant's possession, unless he knows or has reason to believe that it does not belong to him, or is by law exempted from execution.
2. An officer having an execution, levied on a gun belonging to the defendant and sold it: Held, that, not knowing or having good reason to believe that it was used by the defendant for mustering, and therefore exempt from execution, he was not liable to him for taking and seizing the gun.
3. It was the duty of the defendant in the execution to have informed the officer, before the sale, that the gun was kept for the purpose of mustering.
APPEAL from the Superior Court of Law of HAYWOOD, at Fall Term, 1848, Manly, J., presiding.
In this action the plaintiff declared in trover for a rifle gun. The defendant pleaded the general issue. The evidence was that the gun was the property of the plaintiff and kept by him as arms for muster. There was no evidence of any knowledge on the part of the defendant of the purpose for which the gun was kept, but, being a constable of the county, and having a valid justice's execution against the goods, etc., of the plaintiff, he levied the same on the gun and sold it.
The defendant contended that trover would not lie, and there was a verdict of the jury for the plaintiff, subject to the opinion of the court upon that point.
The court being of opinion that the action could not be sustained, directed a nonsuit in conformity to an agreement between the counsel, and from this judgment the plaintiff appealed.
Edney for plaintiff.
Fitzgerald for defendant.
The judgment of the court in this case must be affirmed; the plaintiff cannot sustain his action. The gun in question was the property of the plaintiff, and (44) was levied on and sold by the defendant, who was a constable, to satisfy an execution in his hands. The gun was kept by the plaintiff to enable him to comply with the requisition of section 6, chapter 73, Revised Statutes. At the time of the levy and sale the defendant was ignorant of the fact. All of a man's property, both real and personal, is subject to an execution and liable to be sold to pay his debts, except such portion of it as may be exempted by some special law. And an officer, having an execution in his hands, is bound to levy it on such personal property as he finds in the possession of the defendant in the execution, unless he knows or has good reason to believe that it is not his property, or is protected by the law. The defendant in this case, like every other citizen, was bound to know the law, that a man's arms for muster are exempt from execution; but he was not bound to know that this was the only gun owned by the plaintiff, and, if he owned others, that this particular one was used by him for the purpose of mustering. The law exempts from execution "one bed and its necessary furniture, one wheel and cards, one loom, working tools and arms for muster, one bible and testament, one prayer-book, and all necessary school books." Rev. St., ch. 58, sec. 1. How can the officer know, for instance, what school books are reserved and what are necessary, unless he is informed by the owner, or he otherwise comes to the knowledge of the fact, either at the time he makes his levy or at some time before the sale? The execution protected the defendant from being, in this case, a trespasser in levying on the gun, and his sale, in ignorance of the fact for what purpose it was kept by the defendant in the execution, constituted no conversion, without which the action cannot be maintained. It was the duty of the plaintiff, if he (45) wishes to avail himself of the law, to have informed the officer, before the sale, of the fact that the gun was kept for the purpose of mustering, and demanded its restoration.
PER CURIAM. Judgment affirmed.
Cited: Thompson v. Berry, 65 N.C. 484.