*590 By the Court,
Smith, J.This was an action commenced by the respondent against the appellant, in the county court of Milwaukee county, for the wrongful taking and carrying away of certain goods and chattels, described in the complaint, and which were alleged to be -the tools, implements, stock in trade, &c., of the complainant, as a tin-smith, in the city of Milwaukee, used by him as such, with the usual averment of demand of possession, and selection of the same as his property, exempt from levy and sale on execution.
The defendant justified the taking of the property mentioned in the complaint, on the ground that Maxwell, the complainant, being indebted to Sidney Shepard, gave him his promissory note, bearing date October 4, 1857, for $600, payable thirty days from date, with ten per cent, interest; and also executed a power of attorney, &c., to confess judgment on said note, and that in said power of attorney was the following agreement, to wit: "And in consideration of the indebtedness above recited, and of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, I, said Maxwell, do hereby, in respect to the indebtedness above mentioned, and any proceeding at law or equity for the recovery thereof, release, waive and forego all manner of benefit or advantage of exemption of property, real or personal, from levy and sale upon execution, which might exist by reason of any law now in force, or by any future law.”
That on the 11th day of May, 1858, judgment was rendered in the district court of the United States, for the district of Wisconsin, and execution thereon issued to the defendant below as deputy Marshal, by virtue of which he seized the goods mentioned in the complaint.
■The cause was tried at the September term of the Milwaukee county court, 1858, and a verdict and judgment were rendered in favor of the plaintiff, for $199 65.
*591From the hill of exceptions, it appears on the trial below the plaintiff proved the taking of the property mentioned in the complaint, the value about $200 ; that the plaintiff was a tin-smith, and that the goods, tools, &c., were used by him as such in and about his business in the regular prosecution of his trade, and were all that he had and used in and about the same. It further appears that immediately after the levy by the deputy Marshal, the plaintiff made a demand of the defendant for so much, or so many of the goods as amounted to $200 in value, on the ground that they were exempt from levy and sale on execution, but the defendant refused to deliver them.
The evidence being closed, the judge charged the jury, that the agreement contained in the said power of attorney, to release, waive and forego in respect to said indebtedness, all manner of benefit or advantage of exemption of property from levy and sale upon execution, was null and void, being against the policy of the law; to which the defendant excepted. These are the material facts in this case, and the question presented arises upon the instruction of the judge to the jury upon the validity of the agreement in the warrant of attorney to waive the benefit of exemption prescribed by the statute.
Did the court err in charging the jury that the agreement to waive all benefit of exemption was null and void ? This is an important question, and we are not aware that it has been heretofore directly presented to us in respect to personal property. In [regard to mortgages upon real estate, (homestead) without the consent or signature of the wife, the statute is explicit.
It will be observed that the question is not here presented, whether a man may sell, or give away the articles of personal property which the law exempts from sale on execution; nor whether, should he voluntarily turn them out to the offi*592cer on execution, he could afterwards reclaim them. But it is whether a previous agreement to do so, made with his contracting creditor, is binding upon him, and will justify the officer in seizing them and holding and selling them upon the strength of such agreement, not directly adjudicated upon, in the judgment on which his execution was issued, and without any special authority given in such judgment.
The judgment in this case differs in no essential respect from those ordinarily entered upon warrants of attorney.There is no special authority given in the execution to take property, which in ordinary cases is not liable to levy and sale. Such an execution would be, indeed a novelty, and the officer might well hesitate to serve it, if indeed, a clerk should be found bold enough to issue it. What warrant then had the deputy marshal to levy upon these goods, exempt by law from seizure and sale ? Was it the agreement in the warrant of attorney? That, as well as the note on which it was based, was merged in the judgment Was it by virtue of any special authority contained in the process ? We have been unable to find any in the record before us. Wherefore, thén, may the officer look behind the statute? behind his process ? and behind the judgment which gives vitality to his process ? If there be any new forms of judgment record, or if writs of execution based upon contracts oí this kind, they are not made apparent by the record in this case. Nothing is claimed on account of any peculiarity in this case, in respect of either. The case then, would seem to stand as between these parties, upon the process and the mode of its execution, the form of the judgment, its extent and character. The omission in the execution of the usual words, “ except such (property) as is by law exempt from execution,” however it may have been intended, confers no authority upon the officer. He is bound to know what property is exempt, and to regard the law in that behalf. ■
*593It is true that in the answer, the defendant sets up the agreement contained in the warrant of attorney. But there appears nothing in the judgment to show that this agreement was adjudicated upon, or that property, by statute exempt from execution, should he subject to sale upon the judgment rendered in this case; nor is there any averment in the answer indicating such adjudication. Nor do we wish to be understood, that such a judgment rendered upon an instrument like the one in question, in the form of procedure here disclosed, would be conclusive upon the rights of the parties. We allude to the fact because it is quite obvious that the judicial mind was never brought to the consideration of the legal effect of such a stipulation on the original agreement, and hence we are unembarassed by any effect which such a consideration might have produced.
We think, therefore, that the agreement in the warrant of attorney gave no enlarged authority to the marshal, and did not in any degree extend the scope of his execution. It gave him no special authority to seize property exempt by law from levy and sale. But we do not feel inclined to leave the case here. We are of the opinion that the judgment of the court below was correct, and for the precise reason given, viz: that agreements qf the kind set forth in the answer in this case, to waive all right of exemption, are null and void as against the policy of the law.
During the period of the ripening of the Territory into a State, the question of homestead, as well as personal exemption, underwent a very thorough discussion before the people, while passing through the transition, which was somewhat protracted. The idea underlying the ultimately developed sentiment of the people upon that subject, seems to have found an expression, perhaps an inadequate one, in the 17th section of Article 1st of the constitution, which is as follows:
“ The privilege of the debtor to enjoy the necessary comforts *594of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.”
It is, that the citizen is an essential elementary constituent of the State; that to preserve the State the citizen must be protected; that to live, he must have the means of living; to act and to be a citizen, he must be free to act and to have somewhat wherewith to act, and thus to be competent to the performance of his high functions as such. Hence it would seem, as no doubt it was, a matter of the gravest state policy to invest the citizen with, and secure to him those essential prerequisites, without which the State could not demand of him at all times his instant service and devoted allegiance.
If this be so, (and who can doubt it, in view of our history?) can it be supposed that not only unconstitutional guaranties, but statutory enactments, made in pursuance therewith, for the accomplishment of these high state purposes, can be made dependent upon the contracting will, or grasping genius of the individual debtor or creditor ? Can the contracting parties not only repeal a statute, but upset the constitution itself?
However a man may sell or mortgage, or give away the great privilege with which the constitution and law of the State may have invested him, the State will not allow its process to be used to undermine and destroy one of the great bulwarks of individual freedom and manly citizenship, so carefully guarded by her fundamental law.
In regard to the matter of exemplary damages, it is unnecessary to make any remark, as no such damages appear to have been given.
Judgment affirmed with costs.