The plaintiff brought his action of trover to recover damages of the defendant for taking and converting a horse, which the plaintiff claimed under the statute which exempts certain property from sale under execution. The defendant, as a constable, levied an execution against the plaintiff on the horse, and sold him. It appears that the plaintiff at the time had two horses, and that a pair of oxen was in his possession. which was claimed by his son, who was a minor and a member of his family; and the defendant’s counsel now contends that the oxen were really the property of the plaintiff. Without deciding this question, as it is unnecessary to do so, we will consider this case as if the oxen were the unquestionable property of the plaintiff. There was no proof that the plaintiff elected to claim the horse levied on until the day of sale, when the coustable refused to receive the other horse and return the one levied on to the plaintiff, but proceeded to sell him. The horse sold was of the value of about seventy, and the other about ten dollars. The statute, for the benefit of poor families, exempts .from execution, among other things, one work horse, mule, or pair of work oxen. The plaintiff had no mule. W^e think he had the right to elect whether to retain the oxen or one of the horses; and, in the event of his choosing one of the horses, he had the right to elect which he would keep. This is according to the expressed opinion of our predecessors, in Noland v. Wickham, 9 Ala. 169, with which we are entirely satisfied, although it was, perhaps, not necessary to decide the question in that case. Any oilier construction of the act, in this case, would leave the plaintiff and his family with a horse of the value of ten dollars, and might, in many cases, almost entirely deprive families of the benefit intended by the legislature.
2. The plaintiff by express declarations or unequivocal acts might have waived his right of election, but there wére none such. Or if he had refused to make his election when the coustable levied, that,' we think, would have been a waiver of his right. Then the question is, since this is a valuable legal right, whether the constable can, by a mere levy, deprive the plaintiff of it? We are satisfied he cannot. (See Jordan v. Autry, 10 *128Ala. 276, which is not precisely in point, however..)’ Jt follows that the plaintiff might make the election and claim the horse at any time before the sale; and as he did so, but the constable sold him notwithstanding, it was a conversion for which this action would lie.
It seems that there is a similar statute in Kentucky, and the’ defendant’s counsel refers us to a decision of the Court of Appeals of that State, upon their statute, — (McGee v. Anderson, 1 B. Mon. 187.) The plaintiff there had two mares and a yoke of oxen, and the officer levied on one of the: mares, which the ■ plaintiff claimed on the sale day. The court did not deny the plaintiff’s right of election under the statute, or hold that it was lost by means of the levy, — but they held in that action,, which was trespass, that the officer could not become a trespasser ah initio, by refusing to deliver up the mare to the plaintiff, on the day of sale, when he elected to claim her, unless the debtor had tendered to him for sale, in lieu of the mare, such other property as he might, in the first instance, have seized under the execution, and which would be sufficient to satisfy it —or which should be equal in value to the mare that was levied on. In this opinion, so far as it puts the right of election upon, the condition of a tender of other property, we cannot concur. This right of election is given impliedly, but freely, by the legislature, without any condition whatsoever, and nothing short of legislative power can now impose one. To speak of the ease at bar — if the plaintiff had put his other horse or the oxen out of the officer’s way, we should consider that an election to retain them, and consequently he could not afterwards elect to keep the horse that was levied on; but we cannot think that his. right of election can be made to depend upon the condition of his carrying the other property and tendering it to the officer. It is obviously unnecessary to decide any other question in this case, ft sufficiently appears by the bill of exceptions, we think, that the plaintiff was the head of a family. The judgment is reversed and the cause remanded.
Note by Reporter. — The defendant, by his counsel, having petitioned for a re-hearing, the Chief Justice delivered the following opinion:
*129DARG AN, C. J.The' defendant had the right, at the time of the levy of the execution, to require the plaintiff to make his election which of the two horses he would keep, or whether he would retain the yoke of oxen. As he did not do this, and the plaintiff at the time of the levy did not in fact make his election, he had the right to do it on the day of sale, and this right he could exercise without any condition. True, if in the mean time, between the levy and the day of sale, the plaintiff had disposed of the other horse, or the oxen, or put them out of the^ way, this would be considered as exercising his right to elect; but having done neither, we do not think he was compelled to deliver the other horse and oxen to the constable, as a conditio» upon which he might elect to keep the horse levied on. We therefore'think the petition for a re-hearing should be overruled.