homestead from sale on execution issued upon a judgment for a cause of action sounding in tort, nor on an execution issued in such action on a judgment for the defendant for costs (39 Barb. 396). An action for a breach of promise of marriage is not a debt recoverable out of defendant's premises under the homestead exemption act (8 How. 523). The act applies only to debts contracted after the passage of that law (8 How. 527).

a. Property otherwise exempt is not liable to execution because new (15 Abb. 6). Property exempt in the lifetime of the judgment debtor, continues exempt after his death for the benefit of his widow (47 Barb. 497).

b. Prima facie, all the property of a judgment debtor is liable to levy and sale upon execution; if he would claim any exemption, he must bring himself within some statute by proper proof (32 Barb. 290). The exemption laws are entitled to a liberal construction (25 Wend. 370; 34 Barb. 365; 14 Barb. 457; 4 Trans. App. 502; 37 N. Y. 350; 19 Wend. 475; contra, 5 Denio, 119). The party claiming exemption must show affirmatively the facts which entitle him to exemption (14 Johns. 434; 14 Barb. 456; Lalor's Supp. to Hill and Denio, 384; and see 6 B. & A. 123; 2 D. & R. 241; 1 B. & Cr. 179; 2 D. & R. 258). And whether a particular article is necessary is a question of fact (1 Denio, 462). What is necessary furniture, is to be determined relatively, by reference to the circumstances of the case. The debtor may retain articles which he has had in common use in his family, and which were reasonable and proper for him and them, in their station of life (1 Sand. 724; and see 34 Barb. 364). c. Nonresidence.-The exemption laws extend to nonresidents (2 Code Rep. 71).

d. Wages of domestics.-The act to extend the exemption of household furniture, &c., passed April 11, 1842, does not apply to a judgment "for a demand accruing for work and labor performed in a family as a domestic" (Laws 1858, ch. 107).

e. Tool.-What is a tool within the exemption laws (see 34 Barb. 366). A threshing-machine is not (id.), nor is a printing-press (13 Mass. 82), nor are printing type and forms (10 Pick. 423), nor a machine for spinning cloth, called a "Billy and Jenny" (2 Verm. 404), nor a mill saw (1 Fairf. 135). Uniting in one judgment a claim for the purchase-money of tools, &c., with a claim for another cause of action, is a waiver of the right to levy on such tools (36 Barb. 9; but see 25 How. 163).

f. Team.-What is an exempt team (31 N. Y. 648; 23 Barb. 240; 32 Barb. 290; 27 Barb. 505; 25 Barb. 52; 29 Barb. 389; 5 How. 288; 4 Trans. App. 502; 37 N. Y. 350).

g. Demand for purchase-money.-Property exempt prior to the law of 1842, is not liable on an execution on a demand for the purchase-money of articles exempted by the law of 1842 (9 Barb. 676; 6 How. 425; and see 14 How. 520). An execution issued on a judgment recovered in an action to recover damages for taking and converting personal property, is not an execution issued on a demand for the purchase-money of such property, so as to make such property liable to be seized, and within the proviso of the first section in the exemption law (15 Barb. 568). A surety on a note given for the purchase-price of a horse, is entitled to the usual exemption under an execution issued upon a judgment recovered on the note (10 Barb. 91).

h. Waiving exemptions.-The exemption of property from execution is a personal privilege, of which the owner alone can take advantage (1 Cow. 114; 16 Wend. 562; 5 Abb. N. S. 253; 52 Barb. 188); and he may waive the exemption (9 How. 547; see 22 Barb. 656; 10 How. 276; 23 Penn. (2 Harris) R. 93; 14 Barb. 9; 31 Barb. 169; 22 N. Y. 249; 36 Barb. 571); probably he waives it by mortgaging such exempt property (5 Duer, 501).

¿. Recovering exempt property.--A claim to recover the proceeds of exempt property, wrongfully seized and sold upon execution, is converted into a debt, by a recovery of judgment for the value (21 Barb. 425). A defendant whose exempt property is seized upon execution, may proceed under

the provisions for claim and delivery (id.) Pleadings in such an action, see 54 Barb. 411.

a. Who is a householder.—(14 Barb. 456; 11 N. Y. Leg. Obs. 248; 14 How. 436; 18 Johns. 400).

b. The fact of a person being a householder cannot be proved by reputation (8 How. 75).

c. A defendant and his daughter, who live together, the wife and mother being dead, are a family (14 How. 521).

d. Satisfaction of judgment.—Acknowledgment of satisfaction may be made by the attorney on record of the party in whose favor the judgment was obtained, within two years after filing the judgment record (2 Ř. S. 286). The attorney has authority only to satisfy on payment in full (Lewis v. Woodruff, 15 How. 539; Beers v. Hendrickson, 6 Rob. 53). One of several judgment creditors may satisfy a judgment (The People v. Keyser, 17 Abb. 215). To extinguish the judgment, satisfaction must be actually entered on the record (7 Wend. 35).

e. If, after judgment has been satisfied, the plaintiff refuse to acknowledge satisfaction, the court will compel him to do so at his own expense and pay the costs of the motion (20 Johns. 294; 6 id. 132; 2 Caines' R. 256; 3 id. 165), or they will grant a stay of execution (16 Johns. 4; 15 id. 395).

f. One fraudulently keeping a satisfied judgment on foot, and who threatens to use it to the prejudice of other judgment creditors, may be compelled to satisfy the judgment of record (Shaw v. Dwight, 16 Barb. 536).

g. The court will also direct satisfaction to be entered in the case of set-off of judgment, on payment of the balance to the party in whose favor, after setoff, it is found (1 Cow. 208; 1 M. & S. 696; 1 D. & R. 201).

h. Where there are two suits for the same cause, both of which proceed to judgment and execution, a satisfaction of either judgment is a discharge of the other (9 Johns. 221; 4 id. 469). But where an action is brought upon a judgment, and judgment is recovered thereon, it is no satisfaction of the original judgment, both being debts of equal degree (1 Cow. 178).

i. If satisfaction has been fraudulently entered, the court will order it to be vacated (2 Johns. Cas. 121, 258; 1 Johns. 529; 15 id. 405; 6 Abb. N. S. 443; 4 Rob. 630).

j. If the amount of the judgment be collected under the execution, and the writ is returned "satisfied," it is not necessary to procure an acknowledgment of satisfaction (2 R. S. 286).

k. Satisfaction of judgment on its being vacated or reversed (Laws 1844, p. 91), by acceptance of bond and mortgage (see 4 Barb. 364), satisfaction otherwise (see 13 How. 16; and see Laws 1860, ch. 6).

7. As to discharging of record under the statute "for the relief of partners and joint debtors" (Laws 1845, ch. 348); a judgment against one of several joint debtors, see Faulkner v. Suydam, 7 Rob. 614.

m. Setting off judgments.-A set-off of one judgment against another may be obtained either, (1) by an action instituted for the purpose, or (2) by a motion to the court in which the judgments or either of them were or was rendered. A set-off may be obtained by an action in many cases in which it cannot be obtained on a motion, and much of the apparent confusion in the decisions on motions to set-off judgments arises from not keeping in mind the fact that the refusal to allow the set-off is frequently based on the ground that relief cannot be had on motion (Purchase v. Bellows, 16 Abb. 108).

n. An action may be maintained to enforce a set-off of judgments although a remedy exists by motion, but the courts will discourage such actions (Gridley v. Garrison, 4 Paige, 647; Ainslie v. Boynton, 2 Barb. 258). The fact of a motion to set-off having been denied is not a bar to such an action (Pignolet v. Geer, 19 Abb. 264; 1 Rob. 626).

o. In an action to set off judgments, the statute of set-offs controls, and the right of set-off is paramount to the attorney's lien (Roberts v. Carter, 38 N. Y. 107; De Figaniere v. Young, 2 Rob. 671).

p. To warrant a set-off in any case, each party must have a judgment (€

Cow. 598; 10 Wend. 615; 5 Barb. 105; and see 3 E. D. Smith, 66; 11 Barb. 481; 4 Sand. 696; 1 Johns. Cas. 102; 14 Johns. 63; 8 id. 357; 1 id. 144; 4 Hill, 559; 5 id. 568; 7 id. 186; 3 Wend. 331; 8 Cow. 126; 3 id. 353; 7 id. 469, 480; 10 Paige, 370).

a. A judgment in an action at law may be set off against a judgment in a foreclosure action (Holden v. Gilbert, 7 How. 208).

b. Set off not usually allowed to prejudice of attorney's lien (Ainslie v. Boynton, 2 Barb. 268; Gridley v. Garrison, 4 Paige, 647; Ely v. Cook, 9 Abb. 366), but an attorney's lien is no bar to an action to obtain a set off (Brooks v. Hanford, 15 Abb. 342; and see Noxon v. Gregory, 5 How. 339); attorney's lien for costs in note to § 303, post.

c. Where the judgments to be set off are in different courts, the motion should be made in the court in which the judgment against the moving party was rendered (Cooke v. Smith, 7 Hill, 168; Ross v. Hicks, 11 Barb. 480).

d. A motion to set off judgments obtained in a justice's court, transcripts of one or both of which have been filed with the county clerk, should be made in the county court (Ross v. Hicks, 11 Barb. 481).

e. On a motion to set-off judgments, the papers should be entitled in both actions (Alcott v. Davison, 2 How. 44).

f. Motions to set-off are addressed to the discretion of the court, and will be allowed, to prevent injustice (Baker v. Hoag, 6 How. 201; Purchase v. Bellows, 16 Abb. 105).

g. As to setting off costs against recovery, where one party recovers and the other is entitled to costs, see § 370, post.

h. To deprive a party of his right to set off, the assignment must be bona fide (Butler v. Niles, 26 How. 61).

i. Where plaintiff purchased a judgment against his creditors, and actually paid for it, before the transfer of their demand against him to a third person, but the written assignment of the judgment to him was not executed till after that time,-held he was entitled to offset such judgment (Barber v. Spencer, 11 Paige, 517; and see Terry v. Roberts, 15 How. 65; rev'd 17 How. 341); set-off against assignee with notice allowed (Noxon v. Gregory, 5 Barb. 339; Baker v. Hoag, 6 How. 201).

j. On this subject, see Crocker v. Claughly, 2 Duer, 684; Betts v. Garr, 1 Hilton, 411; Mackey v. Mackey, 43 Barb 58.

k. Set-off not allowed (Harris v. Palmer, 5 Barb. 105; Smith v. Briggs, 9 Barb. 252; Ross v. Hicks, 11 Barb. 481; Nash v. Hamilton, 3 Abb. 351; Ely v. Cook, 9 Abb. 366; Roberts v. Carter, 38 N. Y. 107).

CHAPTER II.

Proceedings supplementary to execution.

SECTION 292. Order for discovery of property, examination of judgment debtor, &c.

293. Any debtor to execution debtor may pay his debt to the sheriff.

294. Examination of debtors of judgment debtor; or of those having property belonging to him.

295. Witness required to testify.

296. Compelling party or witnesses to attend.

297. What property may be ordered to be applied to the execu

tion.

298. Judge may appoint receiver and prohibit transfer of prop

erty.

299. Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor.

300. Reference by judge.

301. Costs of proceeding.

302. Disobedience of order, how punished.

§ 292. (Am'd 1849, 1857, 1858, 1859, 1863, 1867.)

Order for discovery of property, examination of judgment debtor, &c.

(1.) When an execution against property of the judgment debtor, or of any one of the several debtors in the same judgment, issued to the sheriff of the county where he resides or has a place of business, or, if he do not reside in the State, to the sheriff of the county where a judgment-roll, or a transcript of a justice's judgment for twenty-five dollars or upward, exclusive of costs, is filed, is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from a judge of the court, or a county judge of the county to which the execution was issued, or a judge of the court of common pleas for the city and county of New York, when the execution was issued to such city and county, requiring such judgment debtor to appear and answer concerning his property, before such judge at a time and place specified in the order, within the county to which the execution was issued. But in case of an order made by a justice of the supreme court all subsequent proceedings shall be had before some justice in the judicial district where the judgment debtor resides, to be specified in the order. (2.) After the issuing of an execution against property, and upon proof by affidavit, of a party or otherwise, to the satisfaction of the court or a

judge thereof, or county judge, or any judge of the court of common pleas for the city and county of New York, that any judgment debtor residing in the county where such judge or officer resides, has property which he unjustly refuses to apply, towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment as are provided upon the return of an execution.

Whenever it shall satisfactorily appear, by affidavit, to a justice of the supreme court, that such county judge, or judge of said court of common pleas, is incapacitated from acting in any of the proceedings whatever, herein authorized, from any cause or causes whatsoever, such justice of the supreme court shall have the same powers and authority, in all cases whatever, as are herein conferred upon him as to cases of judgments in the supreme court. (3.) On an examination under this section, either party may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. (4.) Instead of the order requiring the attendance of the judgment debtor, the judge may, upon proof by affidavit or otherwise, to his satisfaction, that there is danger of the debtor's leaving the State, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and, if it then appears that there is danger of the debtor's leaving the State, and that he has property which he has unjustly refused to apply to such judgment, ordered to enter into an undertaking with one or more sureties, that he will from time to time attend before the judge as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to prison by warrant of the judge, as for a contempt. (5.) No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution.

Nor