Rogers v. Waterman
Supreme Court of Pennsylvania
Error 'to the Common Pleas of Warren county. This was an action brought to recover of Rogers, the defendant below, for an alleged dereliction of duty as constable in not granting to plaintiff below his right to the benefits of the exemption law of 1849. On the 25th February, 1853, an execution against plaintiff, for $62.49, was placed in the hands of the defendant, who was temporarily resident twenty miles off, engaged in lumbering.
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Error 'to the Common Pleas of Warren county. This was an action brought to recover of Rogers, the defendant below, for an alleged dereliction of duty as constable in not granting to plaintiff below his right to the benefits of the exemption law of 1849. On the 25th February, 1853, an execution against plaintiff, for $62.49, was placed in the hands of the defendant, who was temporarily resident twenty miles off, engaged in lumbering. On the 17th March, 1853, a levy was made by defendant on plaintiff’s boards, and the execution returned “ not time to sell.” An al. ex. issued the same day on…
1Opinion of the Court
The opinion of the Court was delivered by
Black, J. —
This action was against a constable for selling the goods of the plaintiff under an execution, in violation, as the plaintiff alleges, of his rights under the exemption law of .1849. The plaintiff did not demand an appraisement until after the property had been set up for sale and the bidding begun. Nevertheless he was permitted to recover.
A party is not entitled to the exemption provided for by the statute unless he demands it. He waives his right by silently suffering property which would otherwise be exempt from levy to be seized and…
2Cited by1 opinion
- In re Le VayDistrict Court, M.D. Pennsylvania · 1903