Cole agt. Stevens.

three or four years old; the straw beds were under the feather beds.

On his cross-examination he testified he had no other beds besides these three in the house. The sisters-in-law had no other home; were grown up; the beds were in his possession.

A judgment was rendered by the justice in favor of the plaintiff for the value of the articles taken. An appeal was taken from the justice's judgment to the County Court of Wayne county, in which court the justice's judgment was affirmed, and the judgment of the County Court was brought by appeal to this court.

T. R. STRONG, on the part of the appellant, presented and argued the following points:

1st. The justice erred in allowing the question to the witness Mesick, as to the beds being necessary to the plaintiff (4 Barb. S. C. Rep. 256, 261, and cases cited; 4 Denio, 370; 1 id. 281).

2d. The justice erred in giving judgment for any amount in favor of the plaintiff it appearing in the proof that the property in question was taken by the defendant as constable, by virtue of an execution in due form, on a valid judgment against the plaintiff, rendered for the purchase money of property exempt from execution. The exemption laws do not extend to such a case (2 R. S. 367, § 22; Laws of 1842, ch. 157, § 1, p. 193; Matthewson vs. Weller, 3 Denio, 52; Danks vs. Quackenbush, 1 Comstock, 129, 136, 137).

S. K. WILLIAMS, on the part of the respondent, presented and argued the following points:

1st. The property levied on, and for which judgment was rendered, was not liable to seizure and sale under execution (Sess. Laws of 1842, p. 193, ch. 157; Matthewson vs. Weller, 3 Denio, 53; Quackenbush vs. Danks, 1 id. 129; Danks vs. Quackenbush, 1 Comst. 129, 133). The authority of a decision is coextensive only with the facts upon which it is made (12 Wheat. 333). The legislature did not intend to abridge and destroy, but to ex tend the privilege of debtors. The statute should consequently be so construed (Senate Doc. of 1842, vol. 3, No. 76; Assembly Doc. of 1842, vol. 7, No. 145; Senate Doc. of 1842, vol. 3, No. 81).

Cole agt. Stevens.

2d. The question to the witness Mesick, as to the beds being necessary, was properly allowed by the justice; but if not, the other testimony to the same point, of the same witness, is amply sufficient to sustain the judgment (McAllister vs. Reab, 4 Wend. 487, 489; Reab vs. McAllister, 8 Wend. 117, per Senator Allen; Crary vs. Sprague, 12 id. 41, 46, 47; The People vs. Wiley, 3 Hill, 195, 214; Hayden vs. Palmer, 2 Hill 205; Vallence vs. King, 3 Barb. S. C. Rep. 548). An error in the court below, which could do no injury, is not ground for reversal, nor where the defect is afterwards supplied.

The question of the necessity of those articles in regard to which the question was asked, is not disputed in the evidence in the court below.

By the Court, SELDEN, Justice.-This case depends entirely upon the construction to be given to the act of 1842, exempting from levy and sale upon execution, property to the value of $150, in addition to that previously exempt by the provisions of the Revised Statutes. The other questions in the case are of no moment. Although the question put to the witness Mesick, was objectionable, as calling for the opinion of the witness instead of the facts in regard to the situation of the defendant's family, yet the answer gave fully the very facts concerning which the inquiry should have been made.

It is true the witness prefaced his statement of facts by giving his own opinion; but the facts stated would seem to justify it, and to be amply sufficient to warrant the justice in coming to the conclusion he did, without relying at all upon the opinion of this witness.

It does not appear to have been a point controverted upon the trial, and I do not think "substantial justice" would be promoted by reversing the judgment upon that ground.

What then is the true construction of the act referred to? The case of Matthewson vs. Weller (3 Denio, 52), in which this question was first presented, and in which the late Supreme Court expressed its opinion upon it, has given rise to considerable discussion of the point. Three different interpretations have been contended for:

Cole agt. Stevens.

1st. That the effect of the proviso is, that property otherwise exempt, shall not be protected from an execution on a judgment rendered for the purchase money of that identical property.

2d. That neither property exempt by the Revised Statutes, or by the law of 1842, shall be exempt from an execution issued to collect the purchase money of any property exempt by any law.

3d. That the additional exemption allowed by the act of 1842, shall not extend to executions issued to collect the purchase money of any exempt property whatsoever.

The first of these constructions is founded rather upon what it would seem reasonable that the legislature should have enacted, than upon any sound interpretations of the language of the section.

To sustain either this or the second construction above given, it is indispensable to assume that the words "such exemption,' used in the proviso, refer as well to the exemption under the Revised Statutes, as to that allowed by the section itself.

But if that be assumed, for aught I see, we must adopt the second of the above constructions; and that is the conclusion to which the court seem to have arrived in Matthewson vs. Weller, above cited.

But this construction not only leads to some consequences which conflict entirely with the general scope and object of the act, but seem to me not to conform either to the natural or grammatical interpretation of its language. The ordinary rules on the subject would require that the words "such exemption should be referred to the nearest antecedent, even if there were more in the same sentence to which it might by possibility refer. Here, however, there is but one exemption allowed by the entire section, to wit; that of property amounting to $150, in addition to the exemption by prior acts. There is a reference, it is true, to articles previously exempt, but no exemption of such articles by this act. To sustain the construction contended for, therefore, it is necessary to travel out of the act itself, and refer the words. in question in part to the provisions of the Revised Statutes.

I can not think that any rule of interpretation would warrant this. The natural reading of the clause seems to me clearly to be that the exemption allowed by the section itself shall not be

Griffin and wife agt. Griffith and wife.

available against any execution issued to collect the purchase money of any exempt property whatever.

As the property taken in this case was exempt by the Revised Statutes and not by virtue of the law of 1842, the conclusion to which I have arrived, shows the judgment of the justice and of the County Court to be correct.

The judgment must, therefore, be affirmed.

SUPREME COURT.

GRIFFIN AND WIFE agt. GRIFFITH AND WIFE.

The act conferring upon the Recorder of the city of Troy, the powers of a justice of the Supreme Court at chambers (Session Laws 1849, p. 164, § 4) held to be unconstitutional and void.

Albany Special Term, December 1851. Motion to set aside judgment, &c., for irregularity. The action having been referred, and the referee having made his report, a copy of the report was served on the defendants' attorney on the 19th of November 1851. On the 28th of the same month the defendants' attorney obtained from the recorder of Troy an order enlarging the time to make and serve a case for twenty days, and staying the plaintiff's proceedings in the mean time. This order was served on the same day. On the 6th of December the plaintiffs' attorney, disregarding the order, perfected a judgment and issued execution. The order was disregarded upon the ground that the recorder had no authority to make an order staying proceedings upon a report of a referee. It was also insisted that the affidavit upon which the order was obtained was not served with the order. Affidavits were also produced on the part of the plaintiffs tending to show that if the judgment and execution are set aside, the plaintiffs would be in danger of losing their demand.

J. K. PORTER, for Plaintiffs.

J. A. MILLARD, for Defendants.

Griffin and wife agt. Griffith and wife.

HARRIS, Justice.-I am satisfied from the papers before me, that a copy of the affidavit upon which the order staying proceedings was allowed, was served upon the plaintiffs' attorney with the order itself. He had no right, therefore, to disregard the order if the recorder was authorized to make it.

The act of 1849, in relation to the recorder of the city of Troy (Sess. Laws of 1849, p. 164, § 4), after declaring that that officer shall have and exercise the same powers which were conferred upon county judges by the 27th section of the act amending the judiciary act, (Sess. Laws of 1847, p. 642), and that he should further have and exercise, within the city of Troy, the powers conferred upon a county judge by that part of the Code which relates to proceedings supplementary to execution, proceeds also to invest him with "the powers of a judge of the Supreme Court at chambers." It then provides that in case of his absence or inability to act, the mayor of the city may exercise the same powers. The provisions of this statute, it is obvious, are broad enough to authorize the recorder to make the order in question, or any other order which might be made by a judge of the Supreme Court at chambers. The only question, therefore is, whether the legislature itself was authorized to confer this power.

The framers of the present constitution undertook, for the first time in the history of this state, to construct a complete judiciary system. In executing this design they created one court of general jurisdiction in law and equity. This court they called the Supreme Court. They also created a County Court and authorized the legislature to specify the cases in which it should have jurisdiction. They provided for the election of a county judge, who should have power to perform such duties as might be required by law. Provision was also made for the election, in certain cases, of other local officers who might also exercise such powers in special cases as should be prescribed by law. Under these provisions, the legislature is, it may be conceded, authorrized to confer upon the officers to whom they apply, the powers of a judge of the Supreme Court at chambers.

But the constitution has not granted to the legislature authority to confer similar powers upon the judges of local city courts.