of the property by him in the mean time. Thompson vs. Van Vechten, supra; Paton vs. Westervelt, 2 Duer, 362; 12 L. O., 7.

And the doctrine of dormancy is only applicable to a levy on personalty, and not to a sale of real estate. See Muir vs. Leitch, 7 Barb., 341.

As to the measure of diligence which will be required of the sheriff, whilst in custody of property levied upon, see Moore vs. Westervelt, 21 N. Y., 103; reversing same case, 1 Bosw., 357. He must safely keep it, and will not be warranted in making or allowing any examination into books or papers, seized without the special authority of the court, nor can he properly take letters or correspondence at all. Hergman vs. Dittlebach, 11 How., 46. And he will be liable, for any neglect or misfeasance of his deputies. See Waterbury vs. Westervelt, 5 Seld., 598. A levy, when previously made, is not avoided by the subsequent giving of security on appeal. The only effect is to suspend further proceedings under it, the priority of the creditor remaining. In re Berry, 26 Barb., 55; Smith vs. Allen, 2 E. D. Smith, 259; Cook vs. Dickerson, 1 Duer, 679. The court may, however, supersede it, on good faith and ample security being shown. See Strecker vs. Wakeman, 13 Abb., 85.

An appeal to the general term of the Marine Court, duly taken, and security duly given, acts as a sufficient suspension of proceedings. Ritterband vs. Marryatt, 12 L. O., 158.

If an undertaking on appeal, or the service of it upon the sheriff' be insufficient, it will not stay the proceedings, or justify him in a refusal to levy, when directed. Clark vs. Carnley, 3 C. R., 136.

As to the rights of contesting creditors under different executions, see Booth vs. Bunce, 35 Barb., 496.

§ 281. Exemption from Execution.

The following articles are, by statute, exempt from levy and sale under execution:

The following property, when owned by any person being a householder such articles as are movable to continue exempt, while the family of such person, or any of them, may be removing from one place to another.

1. All spinning-wheels, weaving-looms and stoves, put up or kept for use in any dwelling-house. 2 R. S., 367, section 22, subdivision 1. Also, one sewing-machine, with the appurtenances thereto belonging. Chapter 152 of 1860, p. 245.

2. The family Bible, family pictures, and school-books used by or in the family of such person; and books, not exceeding fifty dollars, which

are kept and used as part of the family library. 2 R. S., 367, section 22, subdivision 2.

3. A seat or pew, occupied by such person or his family, in any house or place of public worship. Ibid., subdivision 3.

4. All sheep, to the number of ten, with their fleeces, and the yarn or cloth manufactured from the same; one cow, two swine, the necessary food for them; all necessary pork, beef, fish, flour, and vegetables actually provided for family use; and necessary fuel for the use of the family for sixty days. Ibid., subdivision 4.

5. All necessary wearing apparel, beds, bedsteads, and bedding for such person and his family; arms and accoutrements required by law to be kept by such person; necessary cooking utensils; one table; six chairs; six knives and forks; six plates; six teacups and saucers; one sugar dish; one milkpot; one teapot and six spoons; one crane and its appendages; one pair of andirons; and a shovel and tongs. Ibid., subdivision 5.

6. The tools and implements of any mechanic, necessary to the carrying on of his trade, not exceeding twenty-five dollars in value. Ibid., subdivision 6.

In addition to the above, there are also exempt, under section 1 of chapter 157 of 1842, amended by chapter 134 of 1859, p. 343, the fol lowing:

Necessary household furniture and working tools, and team, owned by a person being a householder, or having a family for which he provides, to the value of not exceeding two hundred and fifty dollars; and, in addition thereto, there shall be also exempted from such levy and sale the necessary food for said team, for a period not exceeding ninety days: provided that such exemption shall not extend to any execution issued on a demand for the purchase-money of such furniture, or tools, or team, or the food for said team, or the articles now enumerated by law.

Before the amendment of 1859, the above exemption only extended to one hundred and fifty dollars, and the provision as to necessary food was not included.

Under chapter 107 of 1858, p. 206, the provisions of this last act are not to apply to any judgment, rendered for a claim accruing for work and labor performed in a family as a domestic. This act repeals a similar statute, chapter 303 of 1857, volume 1, p. 616, providing to the same effect, but limiting it to cases of a claim not exceeding fifty dollars.

Materials procured, or partially procured, under a contract with the canal commissioners, are exempt from execution. 1 R. S., 223, section 38.

Under chapter 85 of 1847, lands set apart and actually used as a family or private burying ground, to the extent of one quarter of an acre, designated by the owner, by description recorded in the manner there prescribed, are also exempt. But, to claim the benefit of the exemption, such record must be duly made by the owner. See Cox vs. Stafford, 14 How., 519.

And, lastly, under chapter 260 of 1850, p. 499, the homestead of a householder, having a family, owned by him and occupied as a residence, is also exempt from execution, on debts thereafter contracted, to the value of one thousand dollars, on the forms prescribed by that act being complied with, and such benefit inures to his widow and family after his decease. See, however, exceptions from such exemptions, declared in section 2 of that measure, as regards sales for taxes and assessments, or for a debt contracted for the purchase-money thereof or prior to the record of the deed or notice declaring the property a homestead, as prescribed by that section.

The following are recent decisions upon the subject, cited under the principle stated in the last section, without professing to go into the whole of the law upon the matter:

The act of 1842 was decided, in Morse vs. Gould, 1 Kern., 281, to extend to judgments and executions on debts contracted before as well as after its passage, and the principle laid down applies equally to the other statutes above enumerated.

The exemptions thus created are positive, and, with the exception of that under the homestead act, cannot be waived, even by express stipulation in the original contract. Crawford vs. Lockwood, 9 How., 547; Harper vs. Leal, 10 How., 276; Kneettle vs. Newcomb, 31 Barb., 169; affirmed, 22 N. Y., 249.

But the privilege of exemption under the homestead act is capable of waiver, by writing, subscribed by the householder and acknowledged as a deed. Chapter 260 of 1850, section 1. It will not, however, be waived by mere representations, where the action sounds in contract. See Robinson vs. Wiley, 15 N. Y., 489. See also same case in court below, Robinson vs. Wiley, 19 Barb., 157, in which the same principle is concurred in, though a new trial was granted, on a question of pleading, under which the case might possibly be looked upon as sounding in tort, and, therefore, not within the exemption.

The claim under any of these provisions is, however, a personal claim, and cannot be set up by an assignee of the debtor, or a grantee of the homestead. See Smith vs. Hill, 22 Barb., 656 (660); Allen vs. Cook, 26 Barb., 374.

As regards the persons entitled to claim such exemptions, the following distinctions must be observed:-The original exemption under the

Revised Statutes is in favor of any person being a householder—that under the statute of 1842, in favor of a person, being a householder, or having a family for which he provides-that under the homestead exemption act, in favor of a person being a householder, and having a family, occupying the homestead as a residence, or of such family, so occupying it after his death. The qualifications are, therefore, somewhat different under each statute.

Under all, the person must be a householder. A person who rents a house and keeps boarders, is within the exemption act of 1842, though he may have no wife or children for which he provides. Hutchinson vs. Chamberlin, 11 L. O., 248; Van Vechten vs. Hall, 14 How., 436. Nor, when he has a family for which he provides, does his having temporarily ceased to keep house, and stored his furniture, with the intention of renewing housekeeping, deprive him of the benefit of the statute. Griffin vs. Sutherland, 14 Barb., 456. Nor need his family be actually living with him, when he provides for them in fact. Robinson's case, 3

Abb., 466.

A party claiming exemption must, however, show affirmatively, the racts which entitle him to the privilege. Same case. And that, directly, and not by hearsay. Eastman vs. Caswell, 8 How., 75.

To a reasonable extent, the debtor has the privilege of selection of the articles claimed by him as exempt. See Dickerson vs. Van Tine, 1 Sandf., 724; Lockwood vs. Younglove, 27 Barb., 505; Brigham vs. Bush, 34 Barb., 596. But he must make such election at the time of levy, or, in replevin, he cannot recover more than damages, for the detention of property, after demand made. Seaman vs. Luce, 23 Barb., 240. See likewise Morse vs. Keyes, 6 How., 18 (20).

Property exempt under the Revised Statutes cannot be taken even on execution for its purchase-money. That power is confined to cases coming within the statute of 1842. Nor does the power to seize exempt property, on execution for purchase-money, extend to the goods of a surety on such purchase. See Davis vs. Peabody, 10 Barb., 91; Cole vs. Stevens, 9 Barb., 676; 6 How., 424; Cox vs. Stafford, 14 How., 519. But the power to seize, under an execution for purchase-money, is not confined to a proceeding for purchase-money of the specific article, but also for purchase-money of any exempt property, either under that statute or the Revised Statutes. See Cox vs. Stafford, and Cole vs. Stevens, supra. A judgment, arising out of a cause of action in tort, is not a debt contracted within the meaning of the homestead exemption act, though such judgment be recovered after its passage. The exemption under that statute will not extend to a case of this description. See Newman vs. Cook, 11 L. O., 62; Cook vs. Newman, 8 How., 523; Schouton vs. Kilmer, 8 How., 527.

Although, when recovered back by process of replevin, an exempt article retains its privilege, yet if the owner elects to sue in trover, and recovers the value, the value so recovered is no longer affected by the exemption, but may be levied upon. Mallory vs. Norton, 21 Barb., 424.

The exemption of a team, in favor of a householder or head of a family, granted by the statute of 1842, extends both to a wagon or cart used by such a person, and also to the horse or the horses by which it is drawn, and likewise to a horse ridden by such a person in the exercise of his trade or profession. See Van Buren vs. Loper, 29 Barb., 388; Eastman vs. Caswell, 8 How., 75, as to the wagon and horse; and Wheeler vs. Cropsey, 5 How., 288, as to the horse of a practising physician. See also, as to the horse, harness, and cart of a public carman, Harthouse vs. Rikers, 1 Duer, 606; 11 L. O., 223; or of a pedler, Hutchinson vs. Chamberlin, 11 L. O., 248. See likewise generally, Hoyt vs. Van Alstyne, 15 Barb., 568. These cases seem to overrule the stricter view, as to a wagon not being comprised within the word team, as taken in Morse vs. Keyes, 6 How., 18.

If the debtor have only the part ownership of a team, that ownership is equally exempt. Radcliff vs. Wood, 25 Barb., 52. Or, if only having one horse, he hires another to work with it. Lockwood vs. Younglove, 27 Barb., 505.

A watch, actually necessary for the purposes of an employment by which the debtor earns his livelihood, was considered to be within the spirit of the exemption, in Bitting vs. Vandenburgh, 17 How., 80. So also, as to the professional books and instruments of a surgeon, the former as part of the family library, and the latter as tools. Robinson's case, 3 Abb., 466.

As to the exemption of a cow, the property of her deceased husband, used by his widow in support of his family, see Brigham vs. Bush, 33 Barb., 596.

A threshing-machine was held not to be exempt, in Ford vs. Johnson, 34 Barb., 364.

§ 282. Proceedings before Sale in Certain Cases.

If property of the defendant be wrongfully taken by the sheriff, an action will lie against him and the execution-plaintiff, as trespassers, and, on a proper application, and a clear case shown, the court might possibly interfere to stay a sale. If exempt articles have been seized, they may be retaken by process of replevin (see section 207, subdivision 4), but, in other cases, the plaintiff will be left to his remedy for the conversion, and cannot repossess himself of the property itself. Process, regular on its face, is a sufficient protection. If manifestly irregular,