
    BAKER against BRINTRALL.
    
      Supreme Court, Fourth District ; General Term,
    
    
      Oct., 1868.
    Justice’s Judgment.—False Return.—Evidence of Exemption erom Execution.—Defenses.
    The omission by a justice to keep his docket in a manner which the law prescribes does not render a judgment given by him void; as the proceedings before him can still be proved by himself.
    In an action against a constable for neglecting his duty as an officer, in returning unsatisfied an execution, which he might have collected, upon a judgment in favor of the plaintiff, it was proved that after the execution was issued the defendant was directed to seize certain property and sell it, without regard to whether it was exempt from execution or not. A bond of indemnity being demanded by him, it was executed and delivered to him, and he accepted it and proceeded to take an inventory of a part of the property. A motion for a nonsuit being made on the ground that the defendant in execution was a householder, and was not shown to have had any property not exempt from execution,—Held, that conceding the defendant in execution to be a householder, the affirmative of the proposition that she had no property except what was exempt from execution, was upon the person claiming the exemption as a defense,—and there was no error in denying a nonsuit.
    The question of exemption is a statutory privilege, and is strictly personal • it therefore would not avail the defendant, if proved.
    Inasmuch as the question of exemption was one the defendant could not raise in his case, the acceptance of the execution and the bond of indemnity, with his consent to act on the execution, and his acting so far as to take an inventory of the property of the defendant in execution, bound ■him to go on and act as instructed, and estopped him from returning the execution unsatisfied.
    Appeal from a judgment.
    This action was commenced in a justice’s court of Saratoga county, by Harriet Baker against the defendant Joseph H. Brintrall as constable,—for neglecting his duty as an officer in returning an execution issued upon a judgment in favor of the plaintiff against one Mary A. Estee, unsatisfied, when the same might have been collected. The defendant denied the complaint. The cause was tried by a jury who found in favor of the plaintiff. The judgment rendered before the justice was appealed to the county court of Saratoga county, where the judgment was reversed. From the judgment of reversal an appeal was brought to this court. The other material facts will appear in the opinion.
    
      J. W. Eighmy, for the plaintiff, appellant.
    
      J. A. Shoudy, for the defendant, respondent.
   By the Court.—Potter, J.

—We are not informed upon what ground the judgment before the justice was reversed in the county court. We are therefore left to examine the objections taken by. the defendant before the justice, to see if there is any good reason for the reversal, and will proceed to examine these objections.

The justice who rendered the judgment was sworn, and produced the original proceedings of the trial and judgment; this was objected to by defendant, and the objection overruled, and, as I think, correctly. It was necessary that the plaintiff show, not only that the judgment was for a cause of action of which the justice had jurisdiction, but also, perhaps, that the action was for services as a domestic ; as a judgment for such a demand, in favor of a plaintiff, is favored by statute (Laws of 1858, ch. 107). There is no better method of proving these facts. This statute modified the exemption laws, ■ favoring judgments rendered on a claim for work and labor performed as a domestic. The minutes produced, and objected to, showed this fact, and also, jurisdiction in the justice to try the action.

The judgment was also fully entered upon this paper, containing the proceedings, and the issuing of an execution to defendant. The justice also produced a "book, which he called his docket, in which was copied from these minutes, the judgment; the time of entering the same; and the issuing of an execution to defendant as constable ; and that it was renewed and returned unsatisfied. This docket was also objected to by defend mt, that it was not kept as required by statute, and failed to give dates of issuing, renewing and returning the execution, which objections were also overruled, and, as I think, correctly. It is true, the statute directs that every justice shall keep a book called a docket; and also directs what entries he shall make therein; and it is also true, that the justice entirely failed of keeping his docket as this statute prescribes ; but the omission so to keep his book, does not render his judgment void. Proceedings before him can still be proved by himself (3 Rev. Stat., 5 ed., 458, § 179). For certain purposes the docket fails to be evidence, if not kept as the statute directs; but the omission so to keep it, is not jurisdictional.

The justice further proved the loss of the execution, and states the fact that he first delivered it to another constable (one Barton), who had made no return upon it. This evidence was objected to, and a motion made to strike it out, as it might be that such other constable might have satisfied it, which motion was denied. Whether or not this might have been error, it appears that Barton, the other constable, was sworn afterwards, and says, he had the execution about a week, and then carried it back, and left it at the justice’s office without collecting anything on-it; and the defendant himself proves, that he got the execution in a few days after its date; that he returned it unsatisfied, after getting it renewed. If there had been error before, it was cured by this evidence, that Barton had done nothing with the execution. While the defendant had the execution, the question was raised, whether the property of the defendant in the execution was not exempt, but defendant said, if they would give him a bond (of indemnity), he would go on, and sell. A bond was executed and deliverecl to defendant, and lie accepted it. An objection was also raised against producing tlie bond in evidence, ánd the objection was overruled. It does not appear whether the bond was read to the jury. If it had been, there would have been no error. The proof of its being given on defendant’s request was proper: its demand and reception by him may have estopped him from refusing afterwards to act. The plaintiff then offered proof as to what proqcerty the defendant in the execution had, while the defendant had the execution ; this was objected to. Also the value of some of the property, which was also objected to. Both objections were properly overruled—they were questions directly in issue, and material. ■ The plaintiff then proved positive directions given to defendant, at the time he accepted the bond of indemnity, to sell the property of the defendant in the execution, and information was given to defendant, what property there was, and in what it consisted (the plaintiff had before proved the return of the execution unsatisfied); and then rested.

The defendant then moved for a nonsuit, on the following grounds:

1st. The renewal of the execution must be in writing, signed by the justice, or the execution will be void, and the constable a trespasser.

2nd. The execution was issued by the justice, to Constable Barton, and returned by him. It ivas therefore dormant until legally renewed, and the defendant would have been a trespasser if he should have attempted it; and the justice had no jurisdiction of the matter, after return of the constable, until he legally renewed the execution.

3rd. The justice had no jurisdiction or right to renew the execution, after it was handed to Barton, until he had Barton’s return as a constable on the execution. The presumption is, in the absence of such return, that Barton collected the execution, or passed the same execution over to another constable to collect.

4th. The entries "by the justice are not a. compliance with the statute.

5th. The evidence shows that Mrs. Estee is a householder, and has been for ten years, and plaintiff .has failed to show that she had property liable on execution.

6th. Plaintiff has failed to introduce evidence, sufficient to entitle her to a judgment.

The motion was denied.

The defendant was then sworn in his own behalf, and testified to having received the execution from the plaintiff’s attorney ; of searching for property ; of receiving a bond of indemnity ; of being directed to sell property which the defendant in the execution claimed .was exempt-; the plaintiff’s attorney informing him, that the defendant in the execution had no exempt property, and directing him to sell, whether it was exempt or not; and that the defendant returned the execution unsatisfied. On cross-examination, the defendant stated that he made an inventory of considerable property, which he named ; and that the plaintiff’s attorney informed him that unless he sold, he-would be sued ; that he obtained a renewal of the execution, and then returned it unsatisfied. All the remaining: evidence in the case relates to the extent of personal property of the defendant in the execution, without giving its valuation : and upon the question whether the defendant in the execution was a householder, defendant in the execution was sworn, and testified that she was without father, mother, husband or children, for whom she provided ; though she had kept house eleven years after the death of her husband, and took in washing, had no-other means of support, and hired help, and sometimes boarded her help, and purchased her own provisions since she kept house ; she supported no persons but such as received wages. This presents all the questions that arose upon the trial. Only two or three questions remain to be considered.

First. Was the defendant in the execution a-householder 1

Second. If she was a householder, had she property not exempt from execution, which the defendant was bound to sell, in order to satisfy the execution?— and, perhaps,

Third. Was the defendant, after receiving the bond of indemnity, bound to sell the property, whether exempt or not, upon being so directed at the time of executing the bond?

1. At the time the defendant moved for a nonsuit on the ground that the defendant in the execution was a householder, which was the only time this question was raised on the trial, it had been shown that she was in possession of a very considerable amount of personal property. Conceding her to have been a householder, it had not then been shown, and was not thereafter shown, that the property in question was exempt, or was necessary for her to keep house with. The affirmative of these questions would have been with the person claiming the exemption, even had the action been by the party whose property had been taken (Griffin v. Southerland, 14 Barb., 450 ; Davis v. Prosser, 33 Barb., 290 ; Van Sicklar v. Jacobs, 14 Johns., 434). Prima facie, all property is. liable to execution. The justice, therefore, did not err in deny- ' ing the nonsuit.. In this view, I do not think it necessary to decide whether or not she was a householder. The question of exemption, is a statutory privilege, and is strictly personal; it did not therefore avail the defendant, even if it was proved (Smith v. Hill, 22 Barb., 656 ; Mickles v. Tousley, 1 Cow., 114 ; Earl v. Camp,. 16 Wend., 563). This point, therefore, is of no avail to the defendant.

2. Whether the defendant in the execution had sufficient property to pay the execution, exempt or not exempt, was a question of fact for the jury, and them verdict upon this point cannot-be reviewed here. ’

2. I think, inasmuch as the question of exemption is one that the defendant cannot raise in his defense, his acceptance of the execution, and the bond of indemnity, with his consent to act upon the execution, and his action .so far as to take an inventory of the property of the defendant in the execution, estops him in law from returning the execution unsatisfied. If he was not satisfied with the bond (of which there is no pretense), he should have refused it; if he accepted it, he was bound to go on and act as instructed.

I. have been entirely unable to find a good reason for the reversal of this judgment by the county court, and think the judgment of the county court should be reversed, and that of the j ustice affirmed, with costs.

Bocees, J. dissented. 
      
       Present, James, P. J., Rosekrans, Potter and Bockes, JJ„
     