16 Ind. 156 | Ind. | 1861
Suit on a constable’s bond. The breach assigned was that he had, in violation of his duty, levied upon and sold property claimed as exempt from execution.
On the trial, the Court found the facts, and the conclusion of kiw thereon, as follows:
“ It is proved that the articles set out in the complaint, as levied on and sold by the constable, were of the value charged in the complaint, and were so levied on and sold as charged; that the wife of the execution defendant, acting as his agent, both at the time of the levy and on the day of sale, claimed the said property as exempt from execution, the husband having less than $300 worth of property, including the articles levied on and sold; that the whole amount of personal property owned by the execution defendant was about $150; that at the date of the levy and sale (February, 1859), the execution defendant had left his house, where with his wife and child he had previously resided, for the purpose of avoiding
The conclusion of the Court is not sustained by the facts found. It has already been decided by this Court, that it is not requisite that a man should be in the possession of, and omipying a house to entitle him to the benefits of this statute; but that one in the act of removing from one part of the ■State to another part thereof, was so entitled.
In this case, the finding does not justify the conclusion, that the execution defendant was at any time, before the day of sale, without the limits of the State; even if that should have affected the conclusion. His family were part of the time in the house provided by him, and part of the time temporarily at their friends. This does not show—is far from showing—that he had changed, or lost his residence; nor do we
The judgment is reversed, with costs. Cause remanded, &c.