It is found as a fact that the wagon in question was a tool of the plaintiff's occupation. Hail v. Nelson, 59 N.H. 573. It was therefore exempt (P. S., c. 220, s. 2, cl. IX), and the attachment was unlawful. Under these circumstances the plaintiff was not bound, even at the defendant's suggestion, to go and take the wagon or lose his remedy. Nor was he bound at once to ascertain and specifically define and demand his rights, on pain of forfeiture.
The case is not like those where the exemption was an alternative one, and where, from the circumstances, a duty of election or selection rested upon the debtor (Buzzell v. Hardy, 58 N.H. 331, 332; Clapp v. Thomas, 5 Allen 158); but rather like those where, having no duty to perform, the debtor merely leaves the officer to act upon his own responsibility. Woods v. Keyes, 14 Allen 236; Dow v. Cheney, 103 Mass. 181, 184.
If the plaintiff's mere non-action when told that he could take the wagon "if he claimed it as exempt from attachment" were sufficient, standing alone, to warrant a finding of waiver, his subsequent action in demanding the wagon, before any sale and even before the return of the writ upon which it was attached, positively forbids such a finding.
If waiver of the exemption and consent to the attachment could be implied from such mere non-action, being without consideration and no prejudice appearing, such waiver and consent were revoked by the subsequent demand. Rice v. Chase, 9 N.H. 178; White v. Phelps, 12 N.H. 382; Carpenter v. Cummings, 40 N.H. 158, 169; Stone v. Sleeper, 59 N.H. 205, 206; Gould v. Blodgett, 61 N.H. 115, 120; 12 Am. Eng. Enc. Law 197, 198.
There should therefore be judgment for the plaintiff, in accordance with the finding of the superior court, for twelve dollars and costs.
Case discharged.
All concurred. *Page 253