This is an action commenced in the circuit •court by Gray, in the name of the state, against Guise, a constable, on his official bond. It is founded on the act of March 28, 1871, concerning exemptions, being section 2641 ■of Gantt’s Digest, This act provides that the officer levying upon goods allowed1 as’exempt, after a schedule should have been filed, and supersedeas issued, could take no indemnifying bond, and proceed with the sale of any property in the schedule. It made if a high misdemeanor in him to do so, punishable by a fine of from one hundred to five hundred dollars, and by imprisonment for a term not less than
• one nor more than two months. “And furthermore,” provided that he should “be liable on his official bond to the defendant in twice the amount of damages, by such defendant incurred.” (Gantt's Dig., sec. 2641.) The provisions regarding exemptions from execution were changed by the constitution of 1874. The benefit was still limited to residents of the state, but was diminished in amount, and a distinction as to amount was made in favor of those who wei’e married or heads of families. By act of March 9, 1877, some of the provisions of the former act of 1871 to •carry into effect the constitutional right of exemption were changed. Instead as formerly, of making a schedule only of the property claimed as exempt, the claimant was .required to file one on oath of all his property, specifying the particular property he might desire to retain as exempt. Upon this the cleik or justice was required to issue a super- • sedeas, staying any further proceedings against the property ;in such schedule described and claimed as exempted. The .provisions of section 2(541 were not repealed.
The complaint sets forth the official character of the •defendant and the execution of his official bond, in the pen•alty of five hundred dollars. It proceeds to state that in 1881 he held an execution against plaintiff issued by a justice of the peace, in favor of J, L. West, under which he ■levied upon the following personal property of plaintiff, to-wit: One hundred and fifty pounds of bacon, eight bushels of corn, and forty bushels of cotton seed, the whole value of all of which was thirty-four dollars and seventy-live cents. That on the first of July plaintiff filed before ¡the justice a schedule of all his personal property, which he claimed as exempt, including that levied on, and that he* obtained a supersedeas and the property was released. That afterwards, in 1882, defendant levied another execution upon the same property, upon the same ' judgment ;* took from West an indemnifying bond, and sold it against the objections of plaintiff, the justice having refused to* allow him to file a schedule on the second levy. He alleges that he has been damaged in the sum of thirty-four dollars- and seventy-five cents, and prays judgment for double such* damage, and also for the sum of five hundred dollars, the* penalty of the constable’s bond, A general demurrer to this complaint was overruled, and the defendant answered admitting his official character, the execution of his official bond, the sale of the bacon, corn and cotton seed, and the taking of the indemnifying bond from the plaintiff in the-execution. He says, however, in regard to this property, that no supersedeas bond had ever been issued ; claiming the fact to be, that a former levy had been made upon a spring* wagon and a cow and calf, which had been claimed as-exempt, and had been given up upon supersedeas.
The evidence as' shown by bill of exceptions discloses substantially the following case. The judgment in favor of Wert was for eight or nine dollars, rendered earty in 1881. The execution was levied on a spring wagon, and a cow andi calf.
exempXION. sleo°nPari property. Gray filed before the justice a schedule of all his proper-J J x 1 amounting to his own estimate of values, to $445.25., It is simply a sworn schedule. The property is not claimed ag either altogether or any particular part. It included the spring wagon, cow and calf, which had been-levied on, and also other things, amongst which was Some* hogs, “nine acres of corn,” and “four acres of cotton.”' Thereupon the justice issued a supersedeas, which was* obeyed, commanding him to desist from any sale, or further proceedings, regarding the wagon, cow and calf. They were returned to plaintiff Gray. Early in 1882, another •execution was issued, which was levied on the bacon, corn and cotton seed, which were shown to be the products of *the hogs and crops scheduled. The plaintiff applied for no ••supersedeas, but still claimed the property as exempt. . The property was never taken from the possession of plaintiff Gray. At the sale it was purqhased by his father, who left it with him. The whole brought $22.50.
The court upon its own motion, and without objection, in•-structed the jury that a schedule for exemption, once filed, was good ¿gainst subsequent executions on the same judgment; that the schedule protected the property in its. ■changed condition ; and that the measure of damage was the value of the property sold. The jury found for the plaintiff, and fixed damages at $31.50. The judgment was for double this sum and costs.
The grounds of the motion for a new trial are, 1st, error in instructions. 2nd, excess of damages in the verdict, and in the rendition of the verdict. 3d, that of jurisdiction. 4th, because the verdict is without evidence, and contrary to law. These were overruled and Guise appeals.
Waiving all other questions, it suffices to say that the ver•dict was without sufficient evidence to support it. No prop•er schedule, no claim of the property exempt, had ever ■been made. Nor does it in any manner appear that ■ the ¡plaintiff was entitled to any. The transcript does not show whether he was a resident of the State, nor does it show whether he was married or the head of a family. It does ■not show that he designated any of the property as claimed ¡under the exemption law. The schedule is fatally defective.
Reversed and remanded.