5. All wearing apparel, beds, bedsteads, and bedding, necessary for the judgment debtor and the family; all necessary cooking utensils; one table; six chairs; six knives; six forks; six spoons; six plates; six tea cups; six saucers; one sugar dish; one milk pot; one tea pot; one crane and its appendages; one pair of andirons; one coal-scuttle; one shovel; one pair of tongs; one lamp; and one candle-stick. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value twenty-five dollars.(*) [2 R. S., 367, Part 3, ch. 6, tit. 5, § 22 (3 R. S., 5th ed., 645; 2 Edm., 380), as amended by L. 1860, ch. 152; with a few additions to the exempted articles. In subd. 4, the word, "meat", has been substituted in place of "pork, beef", as there seems to be no reason why mutton should not be exempted, as well as pork. In the last clause of the same subd., the words, "oil, and candles", have been added. In subd. 5, the words, "arms and accoutrements required by law to be kept by such person ", have been omitted; they related to the old militia law, and are now meaningless. The provisions of the existing law, relating to exemption of the uniforms, arms, etc., of members of the national guard, belong in the "military code"; until that statute is revised, they are preserved by the last section. In the same subd., a coal scuttle, a lamp, and a candlestick have been added to the exempted articles. Except as stated in this note, the original section, as amended by the act of 1860, has been retained without alterations, although, in some respects, it is very faulty.] PART IL personal property certain § 1391.* In addition to the exemptions, allowed by the last section, Additional necessary household furniture, working tools and team, professional exempt in instruments, furniture, and library, not exceeding in value two hun- cases. dred and fifty dollars, together with the necessary food for the team, for ninety days, are exempt from levy and sale by virtue of an execution, when owned by a person, being a householder, or having a family for which he provides, except where the execution is issued upon a judgment, recovered wholly upon one or more demands, either for work performed in the family as a domestic, or for the purchase-money of one or more articles,except () as prescribed in this or the last section.(*) [L. 1842, ch. 157, § 1, as amended by L. 1866, ch. 782 (3 R. S., 5th ed., 646; 4 Edm., 626; 6 Edm., 830); also L. 1858, ch. 107, § 1 (3 R. S., 5th ed., 646; 4 Edm., 635); consolidated and re-arranged, but without material change, except as follows. The word, "wholly", (a) See the preliminary note to this article. (b) Error in engrossing for "exempt." JUSTICE'S MANUAL. has been added, after "judgment recovered", in order to render final the ruling, in Hickox v. Fay, 36 Barb., 9, to the effect that, if the demand is partly for the purchase-money of exempted articles, and partly for an ordinary debt, the exemption attaches, as against the entire demand. The words, "one or more articles, exempt as prescribed in this or the last section" have been substituted for the enumeration of the articles; in order to settle, in the affirmative, the disputed question, whether one article of exempt property can be levied upon, where the demand is for the purchase-money of another article of exempt property. See Hickox v. Fay, 36 Barb., 9; Smith v. Slade, 57 id., 637; Snyder v. Davis, 3 N. Y. Sup. Ct., 596; and Craft v. Curtiss, 25 How. Pr., 163; which cases conflict upon this point. The word, "sewing-machine", has been dropped from the list of articles, exempted under this section. Its insertion, in this statute, furnishes a singular instance of careless legislation. By L. 1860, ch. 152, the first subd. of § 22 of the Revised Statutes is amended, so as absolutely to exempt a sewing-machine, from sale under an execution, when owned by a householder. By L. 1866, ch. 782, the legislature amended the act of 1842, by adding a sewing-machine to the list of articles exempted thereby; but the exemptions, allowed by that act, do not extend to a debt, contracted for the purchase of articles which are exempt from execution. As the act of 1842 commences with the phrase, in addition to the articles now exempted by law from levy and sale under execution, there shall be exempted", etc., it would seem that two sewing-machines, owned by a householder, are exempt; one absolutely, and the other as against all debts, except those specially mentioned in the acts of 1842 and 1858. It is presumed that the legislature intended to exempt only one sewing-machine; and, adopting the construction most favorable to the debtor, the exempted machine has been placed in the list of articles absolutely exempt. See subd. 1 of the last section. It will be noticed that the expression, "demand for the purchase-money", has been left unchanged. It has been held that this expression does not bring, within the exceptions of the statute, a judgment recovered against a surety, upon a note given for the purchase-money of an exempted article. Smith v. Slade, 57 Barb., 637, approving Davis v. Peabody, 10 id., 91. Obviously, the latter case is erroneously reported. The word, "not", should be omitted from the head note; and "new trial granted", at the end, should be "judgment affirmed". See 11 Barb., p. vii, "Errata ".] Woman entitled to same § 1392.* [Amended, 1877.] Where the judgment debtor is a exemption woman, she is entitled to the same exemptions, from levy and sale by virtue of an execution, subject to the same exceptions, as prescribed in the last two sections, in the case of a householder.(*) as a householder. [New. The provision is applicable to all women; as regards a married woman it results logically from the doctrine, that a married woman may hold property, and is liable to be sued, and to have an execution issued, against her property, as if she was a single woman. Hitherto, it is presumed, her property has been unprotected, if she lives with her husband; because, although she may in fact be the householder, and the person who provides for the family, the law would regard her merely as a member of her husband's family. Single women 262 and widows have been included in this humane provision, as they are, in this respect, peculiarly the objects of favorable legislation. It would seem that there can be no objection to this section, except that, where the execution is against both husband and wife, there might be a double exemption in the same family; but the contingency is remote, and its consequences are not so prejudicial to justice, that a measure so humane, and so clearly in accordance with the policy of the exemption laws, should be defeated by an apprehension of its occasionally happening.ĺ PART II. pay, re etc., exempt execution and other legal pro ceedings. § 1393.* The pay and bounty of a non-commissioned officer, Military musician, or private, in the military or naval service of the United wards, States; a land warrant, pension, or other reward, heretofore or here- from after granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem, or device of any kind, presented, as a testimonial, for services rendered in the military or naval service of the United States; and the uniform, arms, and equipments, which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for non-payment of taxes, or in any other legal proceeding.(*) [L. 1864, ch. 578, §§ 4 and 5 (6 Edm., 367), consolidated, and amended by including a land warrant, pension, uniform, arms, etc., among the articles exempt, for reasons which need, it is believed, no explanation.] action for etc exempt property. § 1394. A right of action to recover damages, or damages Right of awarded by a judgment, for taking or injuring personal property, taking, exempt by law from levy and sale, by virtue of an execution, are exempt, for one year after the collection thereof, from levy and sale, by virtue of an execution, and from seizure in any other legal proceeding.(*) [New; but following the decision, in Tillotson v. Wolcott, 48 N. Y., 188, except in the ruling that the proceeds of the judgment are exempt for a reasonable time. The exemption has been made to continue for one year, from analogy to L. 1850, ch. 260, § 5.] ARTICLE SECOND, LIEN OF AN EXECUTION UPON PERSONAL PROPERTY; LEVY UPON AND SALE OF property 1405.* The goods and chattels of a judgment debtor, not Personal exempt, by express provision of law, from levy and sale by virtue of bound by 263 execution JUSTICE'S MANUAL an execution, and his other personal property, which is expressly declared by law, to be subject to levy by virtue of an execution, are, when situated within the jurisdiction of the officer, to whom an execution against property is delivered, bound by the execution, from the time of the delivery thereof to the proper officer, to be executed; but not before.(*) Order of preference among execu tions. Id., when attach are issued. 2 [2 R. S., 365, Part 3, ch. 6, tit. 5, § 13 (3 R. S., 5th ed., 644; Edm., 379), amended so as to correspond to § 1411, post. See Hathaway v. Howell, 54 N. Y., 97; Hill v. Haynes, id., 153.1 § 1406.* Where two or more executions against property are issued, out of the same or different courts of record, against the same judgment debtor, the one first delivered, to an officer, to be executed, has preference, notwithstanding that a levy is first made, by virtue of an execution subsequently delivered; but if a levy upon and sale of personal property has been made, by virtue of the junior execution, before an actual levy, by virtue of the senior execution, the same property shall not be levied upon or sold, by virtue of the letter.(b) (c) [Id., § 14, amended by substituting "judgment debtor" in place of "defendant", as executions against plaintiffs are doubtless included.] § 1407.* Where there are one or more executions, and one ɔr ments also more warrants of attachment, against the property of the same person, the rule prescribed in the last section prevails, in determining the preferences of the executions or warrants of attachment; the defendant in the warrants of attachment being, for that purpose, regarded as a judgment debtor.() Id.; when issued [Id., part of § 15, amended by adding the final clause.] § 1408. But an execution, issued out of a court not of record, from court or a warrant of attachment, granted in an action pending in a court not of record. not of record, if actually levied, has preference over another excution, issued out of any court, of record or not of record, which as not been previously levied. [Id., § 16.] 264 (a) Applied to justices' courts by § 3030, page 75. (b) Engrosser's error for "latte." PART II. bona fide before §1409. The title to personal property, acquired before the Title of actual levy of an execution, by a purchaser in good faith, and with- purchasers out notice that the execution has been issued, is not affected by an levy, not execution delivered, before the purchase was made, to an officer, to be executed. (*) [Id., § 17.] affected. may be upon current 1410.* [Amended, 1877.] The officer, to whom an execution Execution against property is delivered, must levy upon current money of the levied United States, belonging to the judgment debtor; and must pay it money. over, as so much money collected, without exposing it for sale; except that where it consists of gold coin, he must sell it, like other personal property; unless he is otherwise directed, by an order of a judge, or by the judgment in the particular cause.(a) [Substituted for § 18 of the R. S., which requires "current gold or silver coin" to be paid over without sale; whereas § 19 requires "bills or other evidences of debt issued.... by the government of the United States" to be sold. When this act was passed in 1876, circumstances required that the rule, established in those two sections, should be reversed with respect to gold; but that state of things has now passed away; and the section was so framed as to allow an order to provide for the case of the disappearance of the premium on gold, which has now occurred. The final clause, excepting a case where the judgment otherwise provides, has been inserted, to cover a case where the judgment is, in terms, payable in coin.] certain of debt. § 1411.* [Amended, 1877.] The officer, to whom an execution Levy upon against property is delivered, must levy upon and sell, a bill, or other evidences evidence of debt, belonging to the judgment debtor, which was issued by a moneyed corporation to circulate as money; or a bond, or other instrument for the payment of money, belonging to the judgment debtor, which was executed and issued, by a government, state, county, public officer, or municipal or other corporation, and is in terms negotiable, or payable to the bearer or holder.(^) [Section 19 of the R. S.; amended by dropping, after "moneyed corporation", the words, "or by the government of the United States", as explained in the note to the last section, and by adding the concluding provision, authorizing a levy upon government and railroad bonds, etc., which are now regarded, rather as chattels than as evidences of debt.] * § 1412. The interest of the judgment debtor in personal property, subject to levy, lawfully pledged, for the payment of money, [34] 265 |