delivered the opinion of the court, May 3d 1880.
These two cases involve the same question, and were argued together. The suits were commenced by attachment under the Act of 17th March 1869, Purd. Dig. 53, pl. 57. The contention is in regard to the claim of the defendant to retain $300 worth of property. In the view we take of the cases it is only necessary to consider whether the claim was made in time.
The Act of 9th April 1849 is the basis of all laws exempting property to the value of $300 from levy and sale on execution. It does not create an absolute unconditional exemption of which the creditor must take notice at his peril, but leaves to the option of the debtor whether or not he will claim it. If he does not elect to claim the exemption, the property may legally be sold. It is a right which the debtor may waive, either by agreement when the *491debt is contracted, or by omitting to claim it in time when legal proceedings are being had against the property. As a general rule, the claim must be made with such promptness as to occasion no delay to the plaintiff, and not cause him to incur costs that might otherwise be avoided. In case of attachment-executions it has been held that the defendant was not required to make the claim of exemption to the officer when he served the attachment; but that it might'be made at the term to which the attachment was returnable, and before the plaintiff had taken any step to his detriment: Strouse’s Executors v. Becker, 8 Wright 206; Yost v. Heffner, 19 P. F. Smith 68; Landis v. Lyon, 21 Id. 473; Bittinger’s Appeal, 26 Id. 105. The true intent and spirit of all the statutes providing for the $300 exemption require that they be construed pari materia.
This attachment was issued 1st of August 1877, and returnable on the second Monday of September. It was served on the garnishees on the 2d of August. On the 18th August the defendant Shafer obtained a rule to show cause why the attachment should not be dissolved. On the 6th of May following, the rule wuis discharged. During its pendency the plaintiffs incurred costs and expense in taking depositions in a distant state. After it was discharged they proceeded to have the cases against the garnishees submitted to arbitrators, and, on the 27th June 1878, obtained an award in their favor. On the 10th of July thereafter, by paper filed, the defendant claimed the benefit of the exemption laws, and asked that $300 be set aside for him. The court allowed the exemption. In this we think it erred. The delay of the defendant in making the claim was inexcusable. With full notice of the issuing of the attachment several weeks before the return thereof, he makes no claim to the exemption; but, both by his active efforts and by his gross delay, he induces and encourages the plaintiff’s to incur large costs and expenses. After this, and- nearly eleven months after he first began to move in the case, he first makes the claim. The learned judge erred in discharging the rule taken by the plaintiff’s to show cause why they should not draw the money paid into court by the garnishees.
Judgments reversed, and now, May 3d 1880, it is ordered that the rule taken by plaintiffs in each case be reinstated, and made absolute.