Mathewson v. Weller

3 Denio 52

Opinion

By the Court, Jewett, J.

It is not denied that the plea is bad in substance; and it is well settled that the judgment must be against the party who has committed the first substantial fault in pleading. (Mercein v. Smith, 2 Hill, 210.) If this were otherwise the defendant would prevail, because the surrejoin der shews that the debt for which the judgment was rendered was contracted prior to the passage of the act of 1842, and therefore, according to the case, of Quackenbush v. Danks, (1 Denio, 128,) that act has no application to the case.

The more material question which was attempted to be raised need not, therefore, necessarily be examined, in, order to dispose of the case: but it having been argued, I have no hesitation to state the opinion at which we have arrived. The act, the construction of which is in question, (Stat. 1842, 193, § 1,) exempts household, furniture, working tools, and a team owned by a householder, not exceeding $150 in value, from sale on execution, “ provided that such exemption shall not extend to any execution issued on a demand for the purchase money of such furniture,- or tools, or team, or articles now enumerated by law.” It seems to me plain that no exemption can be claimed against an execution on a judgment rendered for the purchase price of any property exempt from execution by the revised statutes, or by this act of 1842, though the particular property in respect to which the exemption is claimed may have been paid for, or purchased of another person.

Judgment for the plaintiff.