The opinion of the court was delivered, May 17th 1873, by
Agnew, J.The auditor making the distribution of the proceeds of the sheriff’s sale, found the fact distinctly, that on the day of the levy by the deputy sheriff, Daniel Seibert properly claimed the benefit of the exemption law. The sheriff, from some unexplained cause, omitted to make an appraisement; but on the day of sale, the new sheriff, on the application of the defendant, made the day before, set apart $30.25 of the personal property, and $269.75, to come out of the proceeds of sale of the real estate, the appraisers finding that the real estate could not be divided without prejudice. The auditor allowed the exemption, but the court below set it aside on the ground that the request to appraise came too late. In this, we think the court erred. The fact that Daniel Seibert made claim to the exemption on the day of the levy, is not disputed. The sheriff failed to perform his duty in time, but this was no fault of the defendant in the writ. He could do no more than he did. True, if the sheriff had entirely omitted to allow the exemption, the defendant had his remedy against the sheriff: Marks’s Appeal, 10 Casey 36; Freeman v. Smith, 6 Casey 264; Wilson v. Ellis, 4 Casey 238. But when the sheriff finally complied with the claim, and had. an appraisement made, why should we encourage litigation, and suffer the officer to be harassed with a suit, when justice can be so easily done, by allowing the defendant his right in this proceeding ? It does no injury to the plaintiff in the execution, for the defendant had entitled himself to the exemption by his prompt claim. It would be doing a wrong to the defendant and to the officer to turn the defendant round to his action against the sheriff. Where the sheriff mistakenly or wrongfully allows an appraisement, the plaintiff has an easy remedy by moving the court to set aside the *362appraisement. But here the defendant has entitled himself to an appraisement, and the sheriff had actually had it made, and there is no reason to withhold the money from the defendant. The decree of the court is, therefore, reversed, the defendant is allowed his exemption, to be paid out of the fund in court, and final distribution is ordered to be made, in accordance with this opinion, and the costs of the appeal are ordered to be paid by the executors of the plaintiff in the execution, out of his estate.