Schouton agt. Kilmer. by law, from sale under said execution. The motion was opposed by the attorney for the defendant. A. MEEKER, for the Motion, cited 6 Hill, 250, and 2 Denio, 73. WM. T. ODELL, Contra, cited 4 Mass. R. 471; 15 do. 205; 9 Pick. 496; 4 Hill, 76. WILLARD, Justice. The act of 1850, (L. 1850, p. 499,) does not exempt the homestead of a householder from sale on execution, except for debts contracted after the passage of that law. If the execution be issued upon a judgment in tort, the homestead is not exempt. A judgment for costs, in an action. of tort falls within the same rule. It is not a judgment for a debt contracted, &c. There is a material difference between the language of the former exemption acts and that of 1850. The act of 1830, (2 R. S. 367,) exempts certain articles of personal property therein mentioned, from levy and sale under any execution, &c. And the act of 1842, (p. 193,) is also equally general. It was not the policy of the former acts to exempt any thing but a few necessary articles of personal property, small in relative amount, compared with what is reserved by the homestead exemption act. The difference between the two species of exemption is, that in the former case the property is placed beyond the reach of execution upon any judgment, and in the latter, only when the judgment is for debts contracted after the passing of the law. Without considering other points the injunction can not be allowed. Motion denied. INDEX. ACTION, ION, cause of, on written instrument, how stated... 51 59 73 Form and character of action can not be changed after commenced. 83 113 Of tort committed by wife, neither husband nor wife can be arrested ... 134 Of tort or contract upon a joint and several bond, judgment may be 151 An action to redeem lands under a mortgage foreclosure, when 159 Several causes of action in same complaint must be separately stated 177 188 No authority under § 372 to submit actions-only questions of differ ence... 265 Of divorce for adultery, what proof required 297 In action upon a promissory note, defendant may set up as a counter 335 An action can not be maintained upon a bastardy bond embracing the 343 The provisions of the Code requiring actions to be prosecuted in the persons 343 In an action purely legal, any defence, whether legal or equitable 416 An action for a debt or demand can not be maintained against a com- VOL. VIII. 67 428 Index. ACTION, for slander, defendant may, under a general denial, give evidence of plaintiff's bad character An action may be maintained by one of several assignees for his share of an entire demand, assigned in parts .... 434 .... 514 An action for possession of real estate and the unlawful withholding, 523 AGENT, employed to collect moneys, acts in a fiduciary character ....... 298 In reference to the evidence of the delarations and admissions of an agent... AMENDMENT, when amended complaint may be served... 377 47 Of complaint, when contains two distinct causes of action 59 Of sheriff's certificate of sale.... 79 After argument of an appeal and final judgment thereon, too late to amend an answer 301 The subject of amendment discussed 301 Where general appearance, application to amend summons should be upon notice.. 346 The right to amend is absolute, subject only to the power of the court 451 An amended answer can not be treated as a nullity and the plaintiff allowed to take an inquest at the circuit..... 451 An amended complaint can not be treated as a nullity, and the com- 466 The remedy, where amendments are supposed to be in bad faith.... 466 Allegations held frivolous, in an action on promissory note 273 not overcome by a general denial of fraud 309 In an action upon a promissory note, defendant may set up, as a .... 335 356 Index. ANSWER, an amended answer can not be treated as a nullity, and the plaintiff allowed to take an inquest at the circuit. . . . . . . An answer which denies generally and specifically each and every allegation in the complaint-can not be stricken out as sham or false, though not verified...... 451 485 Where an answer, in an action upon contract, admits the cause of action and seeks to avoid it by new matter, which is insufficient, the plaintiff is entitled to judgment upon the merits........... 491 APPEAL, how stay of proceedings should be procured....... 49, 171 ... 140 From special to general term, title of cause not to be changed.. 185 254 An appeal from a decision on demurrer to the entire complaint must be taken from the judgment-not an order.... 246, 275 On question of law, stays trial on questions of fact. 285 305 On final decree to Court of Appeals. 327 An order denying motion for exoneretur on undertaking is appealable 353 On appeal to County Court from Justice's Court, the evidence on questions of fact can not be reviewed ..... 377 An appeal can not be taken from an order of the special term over- APPEARANCE, notice of may be served after default, where assessment 414 488 necessary 463 ARREST, when authorized under sub. 3, § 179 of the Code ... 111 In action against husband and wife, for tort of wife, neither can be 134 .... A defendant after arrest and bail, may move to vacate arrest any 213 Procuring bail on arrest, unless voluntary, does not waive objections ... 353 Sheriff's return on arrest, conclusive, where he deputed a person to 353 ASSIGNMENT, not set aside for technical error 281 Insufficient averments in answer as to the actual possession of assigned property, &c. 309 To attorney to secure costs, when sustained 319 Index. ASSIGNMENT, bad, as authorizing a sale on credit ...... 469 Made by one partner, rights of creditors preferred to the claims of the 498 An assignment may be made in parts to several persons of an entire 514 ATTACHMENT, not a lien until levy made 77 When considered issued-as also a summons. 500 ATTORNEY, liability of, where resident of another State When defendant's assignment of claim for costs to his attorney for ... 279 319 An order staying proceedings and for security for costs, of a non-resi- 495 BAIL, in a fiduciary character 14 A defendant, by procuring bail on his arrest, unless he does so vol- ... 353 BILL OF EXCEPTIONS, how settled, notwithstanding an appeal to the 433 COMPLAINT, allegations in reference to real party in interest. In foreclosure suit..... Dismissal of, is a judgment.... On striking out irrelevant matter, may be amended, &c.. action. 59 An incurable defect, in complaint, not waived by any pleading. 159 177 M plaintiff fails to try.... 253 If the Court appears in the complaint, no advantage can be taken of 428 How a complaint must be framed in an action for offences against penal statutes, excise laws, gaming, &c... 431 |