Woodward v. Murray

18 Johns. 400 | N.Y. Sup. Ct. | 1820

Platt, J.

delivered the opinion of the Court. There was an attempt by the defendant, at the trial, to show that the wife of M. consented to the taking of the cow, provided the officer would not seize the beds and other furniture; but I think that fact was not established ; and, besides, I do not think the wife had aright to waive the husband’s privilege, by turning out an only cow, in order to preserve other property which was not exempted from execution. Without special authority from her husband, a wife has no right to direct the officer to sell a cow, or a bed, articles exempted by law, in order to preserve such as are not exempted.

The evidence rather shows, that the consent of the wife (if she gave any) was extorted by the officer, who told her, that her husband was nqt then a householder; and that he had a right to levy on any of the property.

The real question is, whether Murray was a householder,’’ so as to entitle him to the exemption under the act of the 18-th of April, 1815, (sess. 38. ch. 227.) which exempts from execution, one cow, &c. owned by any person “ being a householder.”

According to the lexicographers, household means “ a family living together,” and a “ householder’’ “a master of a family.’’ Sacred scripture, in the same sense, declares, “ he that provideth not for his own household, is worse than an infidel.” I think it clear, that the legislature meant to confer this privilege on each of those little primary communities called families. Murray had gone to Ohio, leaving his wife and children living together as a family. They were his household, and he was the “ householder.” To say, that a family, while in the act of removal, and on the highway, may be deprived of their bed, and their cow, on execution, because they did not, for the time, inhabit a dwelling-house, would be a perversion of the statute. So long as they remain together as a family, without being broken up, and incorporated into other families, the privilege remains. It was designed as a protection for poor and destitute families ; and the forlorn and houseless condition of this family, in the absence of the husband and father, gave them a peculiar claim to the benefit of the statute.

I am, therefore, of opinion, that in sustaining the action, the Court below decided correctly; and that the judgment ought to be affirmed.

Judgment affirmed.