By the Court, Bockes, J.
The point is first taken, by the plaintiff’s counsel, that no judgment or execution was proved. The answer sets up a justification of the seizure and sale of the property by the defendant as constable, under an execution issued on a judgment against the plaintiff. If it be conceded that the defendant proceeded as constable under an execution against the plaintiff, issued by a justice of the peace of the county, and in all respects formal, it was sufficient for his justification, without proving the judgment on which it issued. A min[397]*397isterial officer is protected in the execution of process fair on its face,- issued by a court or magistrate having jurisdiction of the subject matter to which it relates. To justify a seizure of property under execution, a constable is not required to prove the validity of the judgment on which it issued, or indeed that any judgment in fact was rendered. (5 Wend. 170. 6 id. 367. 12 id. 496. 24 id. 485. 5 Hill, 440. 23 How. 456. 31 Barb. 312. 2 Comst. 473. 20 Barb. 165.) The process, formal in all respects, issued by a competent tribunal, or officer authorized to act in that regard, is sufficient to protect a ministerial officer who acts under it according to law.
The question then is, here, whether there was proof of an execution against the plaintiff in due form. As the case appears before us on this appeal, this must be assumed. The defendant testified that he was constable, and seized and sold the property under execution “A,” referring to a process then produced in court. The process is not returned, but it was assumed on the trial that this process was a justification, unless the property taken was exempt from seizure and sale thereunder. Eo objection was made to it, either for the reason that it was not against the property of the plaintiff* or not fair on its face. But on its introduction in evidence, the plaintiff immediately proceeded with evidence to sustain his case, on the ground that the property was exempt from seizure under it. Execution “A,” in court and mentioned by the witness, was evidently the execution spoken of in the answer, as an execution issued by Justice Smith on a judgment rendered by him against the plaintiff. The course of trial shows this very manifestly. The plaintiff first made his case by showing, simply, that the defendant took from him his property. The defendant then proved that he as constable took it under execution “ A.” The plaintiff then proceeded to meet this defense, by showing the property exempt. This was assuming that the execution was a [398]*398formal process against the plaintiff, and valid, for the defendant’s protection, in case the property taken under it was not exempt. Especially must this be so regarded on appeal, no suggestion having been made on the trial that the process was informal or invalid. The case seems quite conclusive on this point. The plaintiff was watchful on the trial, and diligent in his objections to evidence whenever there was any possible question as to its propriety. So he objected when the defendant proposed to show how he came to take the property. The objection was, that the evidence was improper and immaterial, evidently because the defendant had not set up his justification in his answer. This objection compelled the defendant to ask for an amendment of his pleading. He was allowed to amend, and then averred that he took the property under execution against the plaintiff, duly issued by James Y. Smith, a justice of the peace, in an action wherein Anthony Bracket was plaintiff". The defendant then proceeded with his testimony, and stated that he was constable; that “such execution ‘A’ was issued by the officer signing it,- and that he took the property under it.” How what execution was he here speaking of as “ such execution ‘A’ ?” Plainly, of an execution then present, being the one just that instant described in his amended answer; and that it was such, and admissible as evidence under the answer, is evident from the fact that the objection before urged, of impropriety and immateriality, was not persisted in, nor indeed was any objection whatever raised, and the parties then put forth their strength on the question of exemption, and the case was made to depend on that alone. In this state of the case, it seems to me that it would be unfair in the court now to hold the parties to a position other and different from that adopted by both, - and fully acquiesced in on the trial. This, I think, would not be ingenuous or equitable. It has often been held that where a cause has been tried on the assumption, by [399]*399the parties, that a fact existed, neither will be heard to assert its non-existence, on appeal. Therefore, as this case stands before us, it must be assumed, as the fact undoubtedly was, that the execution “A” was the one described in the defendant’s answer; and of course it afforded protection to "the defendant in his action under if, unless the plaintiff established his right to the property by virtue of the statute of exemption. This question remains to be considered.
It was proved that the plaintiff was a householder, and had a family for which he provided. It was also proved that he had about thirty bushels of potatoes, about four or five bushels of apples, and some sixty or seventy heads of cabbage. These comprised his stock of vegetables. The levy ivas about the middle of February. Evidence was given as to the number of his family, and generally as to the fact whether these vegetables were actually provided for family use. As regards these vegetables, a case was made, in my opinion, for the jury. They had a right to find, I think, as they did, that the vegetables mentioned were all necessary and actually provided for family use. (2 R. S. 367, § 22, sub. 4.) This law of exemption is based on just views of human generosity, and should have a liberal application in cases of unquestioned indigence.
It is urged, however, that the plaintiff testified, in regard to the potatoes, that those levied on were not actually provided for family use. I do not so understand his testimony. He had stated the amount of his vegetables on hand, and the circumstances of his family; said he was taking the vegetables seized to the Springs to exchange for family groceries, and to obtain the means with which to pay his taxes. He added, the vegetables were brought down to sell; he had others at home for family use; and further, “ those that I took down to sell were not for family use, but to get groceries ; those I left at [400]*400home were to use in my family.” He does not say that these vegetables were not originally provided for family use. He was evidently speaking of the property when seized on the way to market. He meant that then they were not for family use; but he was taking them to sell or exchange for groceries, &c. The jury had a right so to regard and construe his statement. Hor did the fact that he was taking the property to market,' to exchange it for articles of prime necessity in his family, or even to obtain the means to pay his taxes, deprive him of his right to insist that those vegetables were in fact actually provided for family use, and exempt from seizure and sale und’er execution against him.
A man may, if he chooses, sell his exempt property, and can often in this way make it more available for family use. As regards the vegetables, I think a case was made for the jury, and it cannot be said that their verdict was in that regard unsupported by, or against, the evidence.
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By the Court, Bockes, J.
The point is first taken, by the plaintiff’s counsel, that no judgment or execution was proved. The answer sets up a justification of the seizure and sale of the property by the defendant as constable, under an execution issued on a judgment against the plaintiff. If it be conceded that the defendant proceeded as constable under an execution against the plaintiff, issued by a justice of the peace of the county, and in all respects formal, it was sufficient for his justification, without proving the judgment on which it issued. A min[397]*397isterial officer is protected in the execution of process fair on its face,- issued by a court or magistrate having jurisdiction of the subject matter to which it relates. To justify a seizure of property under execution, a constable is not required to prove the validity of the judgment on which it issued, or indeed that any judgment in fact was rendered. (5 Wend. 170. 6 id. 367. 12 id. 496. 24 id. 485. 5 Hill, 440. 23 How. 456. 31 Barb. 312. 2 Comst. 473. 20 Barb. 165.) The process, formal in all respects, issued by a competent tribunal, or officer authorized to act in that regard, is sufficient to protect a ministerial officer who acts under it according to law.
The question then is, here, whether there was proof of an execution against the plaintiff in due form. As the case appears before us on this appeal, this must be assumed. The defendant testified that he was constable, and seized and sold the property under execution “A,” referring to a process then produced in court. The process is not returned, but it was assumed on the trial that this process was a justification, unless the property taken was exempt from seizure and sale thereunder. Eo objection was made to it, either for the reason that it was not against the property of the plaintiff* or not fair on its face. But on its introduction in evidence, the plaintiff immediately proceeded with evidence to sustain his case, on the ground that the property was exempt from seizure under it. Execution “A,” in court and mentioned by the witness, was evidently the execution spoken of in the answer, as an execution issued by Justice Smith on a judgment rendered by him against the plaintiff. The course of trial shows this very manifestly. The plaintiff first made his case by showing, simply, that the defendant took from him his property. The defendant then proved that he as constable took it under execution “ A.” The plaintiff then proceeded to meet this defense, by showing the property exempt. This was assuming that the execution was a [398]*398formal process against the plaintiff, and valid, for the defendant’s protection, in case the property taken under it was not exempt. Especially must this be so regarded on appeal, no suggestion having been made on the trial that the process was informal or invalid. The case seems quite conclusive on this point. The plaintiff was watchful on the trial, and diligent in his objections to evidence whenever there was any possible question as to its propriety. So he objected when the defendant proposed to show how he came to take the property. The objection was, that the evidence was improper and immaterial, evidently because the defendant had not set up his justification in his answer. This objection compelled the defendant to ask for an amendment of his pleading. He was allowed to amend, and then averred that he took the property under execution against the plaintiff, duly issued by James Y. Smith, a justice of the peace, in an action wherein Anthony Bracket was plaintiff". The defendant then proceeded with his testimony, and stated that he was constable; that “such execution ‘A’ was issued by the officer signing it,- and that he took the property under it.” How what execution was he here speaking of as “ such execution ‘A’ ?” Plainly, of an execution then present, being the one just that instant described in his amended answer; and that it was such, and admissible as evidence under the answer, is evident from the fact that the objection before urged, of impropriety and immateriality, was not persisted in, nor indeed was any objection whatever raised, and the parties then put forth their strength on the question of exemption, and the case was made to depend on that alone. In this state of the case, it seems to me that it would be unfair in the court now to hold the parties to a position other and different from that adopted by both, - and fully acquiesced in on the trial. This, I think, would not be ingenuous or equitable. It has often been held that where a cause has been tried on the assumption, by [399]*399the parties, that a fact existed, neither will be heard to assert its non-existence, on appeal. Therefore, as this case stands before us, it must be assumed, as the fact undoubtedly was, that the execution “A” was the one described in the defendant’s answer; and of course it afforded protection to "the defendant in his action under if, unless the plaintiff established his right to the property by virtue of the statute of exemption. This question remains to be considered.
It was proved that the plaintiff was a householder, and had a family for which he provided. It was also proved that he had about thirty bushels of potatoes, about four or five bushels of apples, and some sixty or seventy heads of cabbage. These comprised his stock of vegetables. The levy ivas about the middle of February. Evidence was given as to the number of his family, and generally as to the fact whether these vegetables were actually provided for family use. As regards these vegetables, a case was made, in my opinion, for the jury. They had a right to find, I think, as they did, that the vegetables mentioned were all necessary and actually provided for family use. (2 R. S. 367, § 22, sub. 4.) This law of exemption is based on just views of human generosity, and should have a liberal application in cases of unquestioned indigence.
It is urged, however, that the plaintiff testified, in regard to the potatoes, that those levied on were not actually provided for family use. I do not so understand his testimony. He had stated the amount of his vegetables on hand, and the circumstances of his family; said he was taking the vegetables seized to the Springs to exchange for family groceries, and to obtain the means with which to pay his taxes. He added, the vegetables were brought down to sell; he had others at home for family use; and further, “ those that I took down to sell were not for family use, but to get groceries ; those I left at [400]*400home were to use in my family.” He does not say that these vegetables were not originally provided for family use. He was evidently speaking of the property when seized on the way to market. He meant that then they were not for family use; but he was taking them to sell or exchange for groceries, &c. The jury had a right so to regard and construe his statement. Hor did the fact that he was taking the property to market,' to exchange it for articles of prime necessity in his family, or even to obtain the means to pay his taxes, deprive him of his right to insist that those vegetables were in fact actually provided for family use, and exempt from seizure and sale und’er execution against him.
A man may, if he chooses, sell his exempt property, and can often in this way make it more available for family use. As regards the vegetables, I think a case was made for the jury, and it cannot be said that their verdict was in that regard unsupported by, or against, the evidence.
But the recovery included 04.50 for bags. The bags ■were not articles of wearing apparel, nor bedding, nor do they fall within the statutory designation of articles- exempt from levy and sale under execution. Hor does it appear that they were necessary for actual use in the preservation of articles declared by statute to be exempt. The recovery for the bags was erroneous. The county court was therefore right in reversing the judgment of the justice, unless it be that the judgment might have been reversed in part, and affirmed as to the residue.
There can be no doubt as to the articles, and the amount allowed for them, for which the judgment was rendered. The proof is complete in this regard. .There were eight bushels of potatoes, worth one dollar per bushel; also two and three-fourths -bushels of apples, worth one dollar and twenty-five cents per bushel; also thirty heads of cabbage, worth ten cents per head; and nine bags, worth fifty cents [401]*401each. There was but one enumeration of articles, and one expression as to the value:
The verdict and judgment was for this sum. It is therefore entirely certain that there was included in the judgment the sum of $4.50 for the bags; and as to this amount, the judgment was erroneous.
The question is, then, could the county court reverse in part, and affirm as to the residue ? The provision of the Code on this subject is, that the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits; and further, that “in giving judgment, the court may affirm or reverse the judgment of the court below, in whole or in part, and as to any or all the parties, and for errors of law or fact.” (Code, § 366.) It was held in Kasson v. Mills, (8 How. 377,) decided in 1852, that the county court could not reverse in part when the damages were entire. In that case the damages were allowed for a single claim or cause of action, not in its nature divisible. This peculiarity of that case was noticed and commented on in Staats v. Hudson R. R. Co., (39 Barb. 298.) In the last case cited, it was held that when two or three independent causes of action are prosecuted in a justice’s court, and the judgment was right as to one and erroneous as to the others, which fact distinctly and plainly appeared on appeal, it was^the right and duty of the county court to reverse as to the erroneous and affirm as to the legal part of the judgment. In this case there were two . distinct causes of action counted on—one for killing a cow, [402]*402in January; the other for killing a bull, in October following. As to the claim for the cow, there was a perfect defense established. In Decker v. Hassel (26 How. 528) it was held that the whole of a justice’s judgment would not be reversed for an error of the justice in allowing a small item of claim, the remaining part of the judgment being correct. In this case the court says: “We do not assume to weigh evidence, or in any manner to decide a question of fact; but whenever a separate, distinct item is erroneously ¿llowed by a justice of the peace, there being a total failure of evidence to sustain it, and a correct judgment is given for other matters, it is the duty of the county court, on appeal, to affirm the judgment in part, and reverse it in part.” It is added : “If the court fail in this duty, this court, on appeal, must give the judgment the county court ought to have given.” And it is further added: “The power to give such judgment is as plainly given to the county court as language can express.” In Fields v. Moul (15 Abb. 6) the action was, like the one in hand, against a constable for levying on and selling exempt property. The plaintiff recovered; but through the mistake of the justice, the judgment was entered for a sum exceeding the value of the property by ten dollars. In this case Judge Hogeboom gave the question here under examination very careful and elaborate examination, and settled on this principle : that when a judgment appealed from consists of distinct matters, and those matters are so presented that a final judgment may be rendered by the appellate court upon each, the judgment may be affirmed as to part, and reversed as to the residue. This subject again came under examination in the recent case of Weed v. Lee, (50 Barb. 354,) in which Judge Mason, speaking for the court, gave sanction to the principles laid down in the cases cited. So, too, the doctrine of these cases has received approval in the Court of Appeals, in Brownell v. Winnie, (29 N. Y. Rep. 400.) In this case judgment was [403]*403rendered for $17.45, whereas it should have been for $14.31; which error appeared by mathematical computation. The court, per Mullin', J., said, “ the county court had authority, under section 366 of the Code, to modify the judgment according to the justice of the case, without regard to technical errors.” It was added that the general term and Court of Appeals had the same power.
These decisions, therefore, relieve the case now under consideration from all possible doubt. They settle the rule—which rule is clearly applicable to this case—that when the judgment rendered by the justice is for different claims, or is for distinct items or articles of property, separable in then* nature, and capable of being separated on the record, both as to identity and value, the county court may reverse in part, and affirm as to the residue. This rule, too,. commends itself to our sense of justice and right. There is no propriety in wholly reversing a judgment in the main correct, because of the erroneous allowance of some small amount. In such case justice demands only a modification, and, as above seen, the law admits of that mode of correcting the error.
In this case the jury found, on sufficient evidence, that the potatoes, apples and cabbages were exempt from seizure and sale under execution against the plaintiff. We are satisfied, too, with that finding. It was well justified oy the proof. The bags were not exempt, however, and it is a matter of certainty—as much so as evidence and mathematical calculation can make it—that there was an allowance for them of $4.50. To this extent the verdict and judgment of the justice was erroneous. The county court should have reversed the judgment for this amount, only, and affirmed it as to the residue. It remains now for this court to direct the judgment which the county court should have declared.
The judgment of the county court must therefore be reversed, and the judgment of the justice also reversed as
[404]*404[Schenectady General Term,
January 4, 1870.
to $4.50, and affirmed as to the residue; but without costs to either party on the appeals. This, we think, would he j ust in this case, as to costs. (Code, § 368.)
So ordered.
Rosekrans, Potter, Bockes and James, Justices.]