#### James Conley *v.*Samuel M. Chilcote.

*1.*In an action by the plaintiff in attachment against the garnishee, to recover money in his hands at the time process was served by copies left, at his usual place of residence, it is no defense for the garnishee to show that he was absent from home at the time of such service, and that hia agent, who had knowledge of the time and manner of the service, afterward, and before his return, paid over the money in his hands to the-defendant in attachment before the garnishee had actual notice.

2. It is not an available defense in such action for the garnishee to show that the defendant in attachment was entitled to and could have held the money in his hands at the time of the service of garnishee process under the exemption laws of the state.

Error to the District Court of Seneca county.

Samuel M. Chilcote was indebted to Elisha MeRill, on-contract not in writing, in the sum of $200. Being about to leave home for a few days, and thinking that MeRill would probably want the money, instructed his (Chilcote’s,. wife to pay the money to him if be called for it in his absence.

On the 13th of April, 1869, James Conley commenced an action and proceedings in attachment against MeRill before a justice of the peace, and caused garnishee process to issue against Chilcote, and on the evening of that day the constable served the same, by leaving a copy of the-order and notice p at his place of residence with his wife,, to whom he explained the nature of the proceedings. On the following morning MeRill called on Mrs. Chilcote and demanded the money, and in pursuance of her husband’s-instructions, she paid it to him. Chilcote returned on the evening of that day, and first had actual notice of the garnishee process and payment of the money to MeRill.

As required by the notice, he went before the justice,, and in his answer set up the facts above stated and claimed to be discharged. The justice found against his claim, and *321entered an order requiring him to pay the money into court.

The case proceeded to judgment against McRill, and Chileote failing to pay in the money as ordered, an action was commenced against him by Conley, under the 43d section of the justices act, to recover the amount. On the trial, judgment was entered against Chileote, from which he appealed to the Court of Common Pleas, where he set up and relied upon two defenses: *First.*That the money was not in his hands at the time, or after he had actual notice of the garnishee proceedings against him. *Second.*That McRill was entitled to the money under the exemption laws of the state, and that it was not therefore liable to be taken to satisfy Conley’s judgment. The Court of Common Pleas found and gave judgment in his favor. A motion for a new trial was made by Conley, which, being overruled, he took a bill of exceptions, and the case went on error to the District Court, which court affirmed the judgment of the Common Pleas. The petition in error in this court is prosecuted to reverse the j udgment of the District Court and Court of Common Pleas, because of alleged errors of fact and law occurring in those courts.

*Q-. F. Seney,*for plaintiff in error:

Mr. Chileote, from the time process was left at his residence, became liable to Conley for all money due from him to McRill. 1 S. & C. 778, 780.

The law of principal and agent applies. The testimony shows that Chileote made his wife his agent to pay McRill the money. 'When the authorized act of the agent results-in injury to third persons, the principal is liable. Story’s-Agency, sec. 452. Mrs. Chileote had notice that the money was attached. Notice of facts to an agent is notice to th& principal. Story’s Agency, 140.

The process in attachment may be served upon the garnishee personally, or it may be left at his usual place of residence. *322The statute makes no distinction between the modes of service; none can be made by the court. The one is as •good as the other, and either is valid for every purpose.

Mr. Chilcote does not stand in a position to have the benefit of the statutes exempting property from sale for the payment of debts. This is a *privilege*which is personal, ■and can not be used or claimed, save by the debtor or the head of a family.

*W. P. Noble,*for defendant in error:

1. The defendant in error can not be made liable as a garnishee, because no sufficient notice was brought home to him until after the money had been paid over, all without fault or neglect on his part. We deny that he was ■liable from the time notice was left at his house.

On the subject of garnishment, see *Childs*v. *Digby,*24 Penn. St. 23 ; 3 Binney, 394; Hoffman’s Pro. Rem. of the Code, 444, 506, and authorities there cited; 11 Howard, 520 ; 17 Conn. 259.

2. The money having been duly claimed as exempt in lieu of a homestead by McRill, it could not be subjected by the attachment or garnishment to the payment of Conley’s judgment. Section 4, act of April, 1869, 66 Ohio L. 50, exempts this fund if properly construed. It falls short of its purpose without this construction. 3 Ohio St. 270; 12 Ohio St. 431; 14 Ohio St. 298; 15 Ohio St. 279. And Chilcote can set up any defense the debtor could set up. 'This defense was set up by McRill himself.

The statute authorizes only such property to be attached as is not exempt. 1 S. & C. 776, sec. 30; *Comer*v. *Dodson,*22 Ohio St. 616.

The legislature never intended that the garnishee should be liable when it would be a loss or detriment to him.

Gilmore, J.

The questions necessary to a determination •of this case may be stated as follows:

1. Was the garnishee bound by the service of the order and notice, from the *time*such service was made, and there*323fore liable for the money that was paid over to the defendant in attachment *after*such service was made ?

2. Was it a good defense to show that the defendant in attachment 'was a resident of Ohio, the head of a family— not the owner of a homestead — and therefore entitled to hold the money in the garnishee’s hands, under the exemption laws of the state?

The first question will be best answered by reference to the following sections of the act regulating the civil jurisdiction of justices of the peace. Section 37 provides for service upon the garnishee of a copy of the order of attachment, and a written notice to appear before the justice and answer, etc. Section 38 directs the manner of service •as follows: “ If he be a person, they (the copies) shall be served upon him personally, or left at his usual place of •residence.”

Section 39 requires the garnishee to appear before the justice, and answer, etc.

Section 51 declares that “ the garnishee shall stand liable io the plaintiff in attachment for all property, moneys, and credits in his hands, or due from him to the defendant, from the time he is served with a written notice, mentioned in section 37.”

These provisions are clear and definite,, and the only point, in defense, made by the defendant below;, was that although the money was in his hands, at the time the service was made by copies left at his residence, and was paid over to McRill, *after*the service was so made, yet he was absent from home at the time, and had no *actual*notice of either the service or payment of the money, until after both had happened, and that he was not therefore bound and liable to repay the money.

By the express language of the section, last above cited, it seems that the- garnishee is liable from the time he is served with notice, and no distinction is drawn between personal service and service by leaving copies at the garnishee’s usual place of residence, and it is probable that this court would not be able to draw any line of distinction *324in ordinary cases between the modes of service thus pointed' out. In this case, however, without deciding the point indicated, we may safely put the decision on the ground that there was a statutory service of notice in the case, of which the wife, who was the agent of the defendant, had notice- and knowledge before the money was paid over, and with such notice and knowledge, did pay the money over to McRill, in violation of the right of the attaching creditor, and that the act of the agent, under such circumstances, binds the principal. The defense resting on this ground, was not, for this reason, tenable in law.

Before proceeding to decide the second question, it may be proper to notice the fact that McRill, the judgment debtor in the justice’s court, was not, and is not a party to the proceedings against the garnishee, either originally before the justice, or made so on motion before the Court of Common Pleas; and while his exemption rights maybe all that the garnishee claims for him, and which might be determined in his favor if he were properly before the-court, the question is, can the garnishee set up the exemption rights of McRill to defeat a recovery against him in this ease? We think not. While the exemptions in favor of debtors are, by the statute, tendered and extended to all alike who fall within its provisions, yet no rule is better settled than this: That these statutory rights, in cases where the exemption depends upon selection or demand, as in cases like this, may be waived expressly in terms, or impliedly, by failing to assert the right or make-file demand at the proper time, and the right can not be negotiated or transferred. The general right is statutory, the particular right is strictly personal, and in practice becomes simply a personal privilege, to be asserted or not at the will of the person in whose favor the right exists.

In this case, McRill is not here exercising his right of demanding the exemptions of the law.

As the case stood in the court below, the plaintiff Conley was, by operation of law, substituted to all the rights of McRill against Chilcote, before the latter was served as *325garnishee. And standing as he did, Chilcote could make no defense against Conley that he could not have made in an action brought against him by McRill before he had paid over the money; for we have found, that as against Conley, the money was paid to McRill in violation of his rights. It is manifest that if there had been no attachment, ■and McRill had brought an action against Chilcote to recover the money in his hands, the latter could not have .successfully defended against a recovery, on the ground that the statute exempted the money in McRill’s favor, and it is just as plain that the defense is no better as against Conley than it would have been against McRill.

*Judgments of the District Court and Court of Common Pleas reversed.*

McIlvaine, C. J., Welch, White, and Rex, JJ., concurred.