
    Bachman vs. Crawford.
    1. A widowed daughter, the mother of several children, resided with her father, lived in the same house and eat at the same table with him, and cultivated portions of his land with her children: Held, that she was “head of a family engaged in agriculture” within the meaning of the act of 1833, ch. 80, and entitled by virtue thereof to have and hold one farm horse exempt from execution.
    2. This act ought to be so construed as to advance the remedy the legislature intended to afford.
    3. Articles were sold in 1833, and others in 1834, to Crawford by Bachman. Bach-man obtained onejudgment on the entire account, and levied the execution on Crawford’s only farm horse: Held, that Crawford having no power to compel Bachman to take separate judgments, and Bachman having chosen to consolidate the accounts in onejudgment, Crawford’s farm horse was not subject to the satisfaction of such judgment, though part of said judgment was founded upon a contract entered into previous to the first day of February, 1834.
    About the year 1828 Sarah Crawford became a widow by the death of her husband. Shortly thereafter she removed from the residence of her deceased husband to the residence of her father, carrying with her five children, three sons and two daughters. She resided with her father with her children some ten or fifteen years; they dwelt in the same house and eat at the same table. She, however, by the consent of her father, cultivated, for her separate use, a portion of his land, and owned one horse which was occasionally used on the farm in the cultivation thereof; her son had also another horse on the place.
    In the year 1833, she contracted a debt with J. Gammon & Co., merchants, to the amount of $3 54, and in 1835 to the amount of $43 33§. On the 11th day of November, 1837, Gammon & Co. procured the issuance of a warrant by a justice of the peace of Sullivan county, against Mrs. Crawford, and judgment was rendered for the entire amount of the accounts due in 1833 and 1835. Onthe21stdayofDecember, 1838, a fi. fa. was issued which came to the hands of David Bach-man, a constable of Sullivan county, and was by him levied on the bay horse above alluded to, worth the sum of $140. The horse was sold by said constable, Bachman, and brought the sum of $55, with which the judgment of Gammon & Co. was satisfied.
    On the 1st March, 1839, Mrs. Crawford having made oath that in consequence of her poverty she was unable to bear the expenses of the law suit she was about to commence,^procured the issuance of a writ in trespass against Bachman, under the provisions of the act passed in 1823 for the benefit of poor persons, returnable to the circuit court of Sullivan county.
    The defendant pleaded not guilty, and the issue thereupon was submitted to a jury upon the above stated facts at the March term of 1842, judge R. M. Anderson presiding.
    ,- The judge charged the jury that to exempt the horse from execution, it must be the only horse of the plaintiff; 2d, that she must be the head of a family; 3d, that she must be engaged in agriculture. Though to fulfill the terms of the statute it was not necessary that Mrs. Cratvford should be actually employed herself in the manual labor of the farm; it was sufficient if she caused, the land to be cultivated by her children. That to constitute her the head of a family it was not necessary that she should have the entire command and control of the place where she resided, nor that she should have a separate house and table; but that if she resided with her father, and by and through the instrumentality of her children cultivated for her use a portion of her father’s land, she would still be the head of a family within the meaning of the statute of 1833, ch. 80, though she may have eat at his table and been sheltered by his roof.
    The court further charged, that the fact that a portion of the debt upon which the defendant’s judgment was based, was contracted before the 1st February 1834, could not do away the exemption of the statute, as the defendant had chosen to consolidate his accounts and take the judgment for the whole.
    The jury rendered a verdict in favor of the plaintiff for the sum of $112 75. A motion for a new trial was made and overruled, and the defendant appealed in error.
    
      R. J. McKinnerj, for the plaintiff in error.
    T. A. R. Nelson, for defendant in error.
   GReen, J.

delivered the opinion of the court.

This is an action of trespass against a constable for selling the only farm horse belonging to the plaintiff.

The principal question is whether the plaintiff below was the “head of a family” at the time the horse was seized and sold.

The evidence is that about sixteen years ago, the husband of the plaintiff dying, she went to live with her father and mother who were very old. Her father was between eighty and ninety years of age — owned the house and land, and by his permission the plaintiff and her children lived in the house with him, and she caused such portion of the land to be cultivated by her sons, as she chose. The court charged the jury that “if the plaintiff had children who were living with her at the time the levy was made, although she resided in the same house with her father, and although he might claim and exercise absolute dominion and control over the house and farm, still the plaintiff being the mother of children residing with her, would, within the meaning of the statute, be considered as the head of her own family, and within the . exemption of the statute; and that there might be two families residing together in the same house and occupying the same apartments.”

To this charge the defendant in error excepts, and insists that a family consists of all those who live in the same house, and have one head or manager.

We do not question but that the definition given is correct when applied to the word “family” in its more general and comprehensive sense. When one man controls, supervises, and manages the affairs about a house, he is in the largest sense, the head of the family, and all who reside in the house are members of the family. But it may be a large boarding establishment, in which half a dozen distinct families reside. We do not suppose that these families lose their character as such, because they reside under another man’s roof,- and feed at a common table. So two families with equal rights and claims may reside together, and although thus associated, they all constitute in a large sense, one family — still the father, or mother, as the case may be, exercising a distinct control over the children and servants belonging to them — constitutes each a distinct family, and the manager of each a “head of a family.”

The act of 1833, ch. 80, that provides for the exemption of a farm horse and other articles from execution, in favor of the head of a family engaged in agriculture, ought to be so construed as to advance the remedy the legislature intended to afford. There is no reason that a family engaged in agriculture, merely because it may reside under the same roof with other families, and feed at a common table, should be denied the benefits of the act.

The case of Bowne vs. Wilt, 19 Wend. 475, is not analogous to the case before us. In that case it was decided that a man thirty-five or forty years old, residing with his step mother, and having no wife or children, was not a “householder” within the meaning of the statute of New York, that exempts the wearing apparel of a householder from execution. He had no family, had no control of the house, and consequently could not be a “householder.” But here, the plaintiff below was the mother of children living with her, dependent on her for protection and support, and subject to her control. They constituted, therefore, her “family” peculiarly, as contradistinguished from that of her father, and she was the head thereof.

2. The act of assembly, before referred to, provides that the exemption shall extend only to executions issued upon judgments founded upon contracts entered into from and after the first day of February, 1834. In this case the judgment was founded upon an account, a few of the articles mentioned in which, were delivered in 1833, and the larger portion in 1835. We think the court properly charged the jury that this was such a case as would exempt the property mentioned in the statute.

The plaintiff in the execution had his right of action for the articles delivered in 1833, and if he had chosen might have brought his suit at the end of that year, for the recovery of their value. But he chose to let the account run on unliqui-dated and to sue for the whole in this action. He cannot, by his voluntary act, thus deprive the party against whom the execution issued of a right secured by law. The defendant could not, by any form of pleading known to the law, have caused the proceeding to be reversed, so that one judgment should be rendered for the sum due in 1833, and the other for the articles obtained after the 1st of February, 1834. We are therefore of opinion that there is no error in the record before us, and order that the judgment be affirmed.  