| Pa. | May 27, 1872
The opinion of the court was delivered, by
The learned judge, in the court below, seems to have overlooked the fact that upon an execution-attachment the only duty of the sheriff is to serve the writ on the defendant and the garnishee, and not to make a levy on goods. What the defendant said at the time of service as to his other property, therefore, neither tended to mislead nor to hinder and delay the sheriff. It is quite proper for the defendant to claim his exemption when the attachment is served upon him, but it is not imperative. He may do so when he appears, and before the plaintiff has taken steps in the cause to his detriment from a want of notice of the claim. See Bancord v. Parker, 15 P. F. Smith 386. In this case both the sheriff and the defendant testified that the latter had claimed his exemption when the sheriff served the writ upon him. This claim related to the debt attached in the hands of the garnishee, for it could apply to nothing else, that only being the subject of the attachment. The second assignment of error is therefore sustained.
The issue directed in this case was not properly made up. Feigned issues are for the trial of disputed facts, and not mixed questions of law and fact. An issue to try the right of a party to anything is too general. If the right depends on disputed facts, these facts may be ascertained by a feigned issue; as, for instance, if the fact in question was whether the defendant had demanded the exemption at the time of the service of the attachment, this fact could be so ascertained. But the right of a party may depend upon law and fact. When this is the case, the court should send the contested facts to trial by a jury, and retain the questions of law for its own decision. This matter has been stated at large with a reference to former decisions in Cobb’s Ex’rs. v. Burns, 11 P. F. Smith 278.
Judgment reversed and the record remitted, with instruction ,to allow the defendant exemption, unless a new issue on some disputed fact necessary to determine the same be claimed by the plaintiff in the attachment, and ordered by the court.