| Cal. | Jul 1, 1863
delivered the opinion of the Court—Cope, C. J. concurring.
This is an action against the defendant, Sheriff of Marin County, to recover damages for the sale of certain personal property on an execution against the plaintiff, and claimed by him as exempt from levy and sale. The defendant recovered judgment, from which, and from an order refusing a new trial, the plaintiff appeals.
The Court below permitted the defendant to amend his answer by adding an averment of the levy upon the property, and this is assigned as error. The amendment was properly allowed, and this point is therefore overruled.
On the trial the defendant offered in evidence an amendment to his return upon the execution, which had been made in pursuance of an order of the Court, on that day or the day before, to which the plaintiff objected. The material part of the amendment to the return was that which included in the levy and notice of sale a yoke of oxen and two cows, which the plaintiff claims were exempt fromexecution. It is not contended that this property was not in fact levied upon and sold under the execution, or that the return as amended is not in strict accordance with the facts; nor does it
In Maherin v. Brackett (5 N. H. 9) an officer having an execution in a case where bail had been given, returned that he had given notice to the bail, but omitted to make a return of non est inventus as to the principal, and it was held that he might amend, and insert a return to that effect in order to charge the bail. In Smith v. Hudson (1 Cowan, 430) the Sheriff had sold three parcels of land under an execution, but in the certificate of sale which he had made and filed, he omitted one of them by- mistake, and the Court ordered him to amend by inserting therein the omitted tract. In Smith v. Daniel’s Executors (3 Murphy, 128). the Sheriff had sold some property on execution, which in fact belonged to a third party, who had sued him and recovered the value, and the Court allowed hiin to amend his return by striking out the levy and sale of the property, and return the execution “ no property found,” and withdraw the sale money which he had paid into Court. In the present case the Court properly allowed the amendment.
The plaintiff claimed to be a farmer, and that the property was exempt under the third clause of the two hundred -and nineteenth section of the Practice Act. The property was levied on by the attachment March 10th, 1858, and it was not sold until the twenty--sixth day of August—a lapse of more than five months. The evidence shows that the plaintiff kept a sort of tavern or drinking saloon, and cultivated about twenty acres of land adjacent thereto in vegetables. He also owned a sloop which he navigated, and one
In the case of Borland v. O’Neal (22 Cal. 504" court="Cal." date_filed="1863-07-01" href="https://app.midpage.ai/document/borland-v-oneal-5435204?utm_source=webapp" opinion_id="5435204">22 Cal. 504), we have laid down the rules of law upon this subject. In that case we held that it was the duty of the debtor to make his selection and notify the Sheriff within a reasonable time after notice of the levy. Under the circumstances of this case, the jury might very properly have concluded that the plaintiff waived his right to claim the exemption by his delay, and the verdict and judgment ought not therefore to be disturbed on this ground. The presumption is that the Court gave the jury proper instructions as to the law governing the case.
The judgment is affirmed.