#### CHEMICAL CO. v. SLOAN.

(Filed October 4, 1904).

EXEMPTIONS — Attachment.

In an attachment the defendant is entitled to claim his exemptions out of the atcached property at any time before it is appropriated to the payment of the debt.

ActioN by tbe Virginia-Carolina Chemical Company against Frank Sloan; beard by Judge 0. 8. Ferguson, at March Term, 1904, of the Superior Court of Duplin County. From a judgment for the defendant, the plaintiff appealed.

Grady, Herring & Ward and Carleton & Williams, for the plaintiff.

Stevens, Beasley & Weeks, for the defendant.

Walker, J.

This action was brought to recover money, the proceeds of the sale of certain fertilizers, alleged to have been unlawfully converted by the defendant, a resident of this State, as agent of the plaintiff. The latter sued out an attachment upon the allegation in its affidavit that the defendant had not only converted the money, but that he had attempted to dispose of his property and was about to dispose of and secrete the same with the intent to defraud the plaintiff and his other creditors. The attachment was levied on personal property of the defendant, the value of which was less than $500. The property so attached being perishable was sold by the sheriff under an order of the Court, and the sheriff now holds in his hands the proceeds of the sale subject to the further order and direction of the Court. The defendant claims his exemption out of the *123money so held by tbe sheriff. Tbe plaintiff resists tbe claim upon tbe ground that tbe demand for tbe allotment of the exemption was not made until after tbe sale. Tbe Court found that tbe demand was made in apt time (which was not a finding of fact but a conclusion of law), but it is also found as a fact that tbe defendant again demanded that bis exemption should be set apart to him out of the fund in tbe sheriff’s bands. Tbe Court ordered tbe allotment to be made by tbe sheriff and tbe plaintiff excepted and appealed. Tbe defendant moved to vacate tbe attachment but tbe Court denied tbe motion. There has been no judgment in tbe case and consequently uo order directing tbe application of the money to tbe payment of tbe plaintiff’s claim.

We do not see why tbe defendant is not entitled to bis exemption upon tbe foregoing facts. Tbe Constitution exempts tbe personal property of any resident of this State to tbe value of $500 from sale under execution or other final process. This language is too plain and explicit for any possible misunderstanding of its meaning. It is only when the property is about to be subjected to tbe payment of a debt by final process that tbe last opportunity is left to tbe defendant to claim bis exemption. At any time before this stage of tbe proceeding is reached, be may make bis demand and become entitled to an allotment of tbe exemption. This is perfectly clear without light upon tbe subject from any of tbe authorities. A warrant of attachment is mesne process and is nothing more than a provisional remedy. It is ancillary to tbe relief sought in tbe principal action and is intended to preserve tbe property, or its proceeds if it has been sold as perishable, in tbe bands of tbe sheriff or in tbe custody of tbe law to abide tbe event of tbe suit. Tbe defendant may demand his exemption when tbe warrant is levied on bis property and it is taken out of bis possession, or be may wait until tbe final process is issued and the prop*124erty is about to be appropriated by sale to tbe satisfaction of the same. Shepherd v. Murrill, 90 N. C., 208. Tbe law is thus stated in Gamble v. Rhyne, 80 N. C., 183: “When tbe execution came to tbe bands of tbe sheriff, tbe debtor, being a resident of tbe State, bad tbe same right of exemption, although there bad been a warrant of attachment, as be would have bad in case there bad been no attachment.” That the defendant is entitled to have an allotment of bis exemption, if be so elects, from tbe personal property in tbe possession of a sheriff who bolds it by virtue of a levy under a warrant of attachment, has been settled by tbe decisions of this Court for many years. Comrs. v. Riley, 75 N. C., 144. In that case tbe attachment was vacated because tbe property seized under it did not exceed in value $500, and Justice Settle, who wrote tbe opinion, states forcibly and conclusively tbe reason of tbe law by putting this question: “Can a party, who proceeds by attachment, place himself in a better position than one who sues regularly in tbe courts and obtains a judgment and takes out execution thereon? Tbe answer obviously is, be cannot.”

Tbe ruling of the Court below was correct.

No Error.