Twinam v. Swart
New York Supreme Court
This is an appeal from, a judgment entered upon the verdict of a jury on a trial at circuit in Montgomery county. The action was brought by the plaintiff to recover of the defendant the possession of personal property, to wit, one gray mare, under the provisions of the Code (§§ 206 to 217), entitled " claim and delivery of personal property.”
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This is an appeal from, a judgment entered upon the verdict of a jury on a trial at circuit in Montgomery county. The action was brought by the plaintiff to recover of the defendant the possession of personal property, to wit, one gray mare, under the provisions of the Code (§§ 206 to 217), entitled " claim and delivery of personal property.” The defendant was the purchaser of the property in question, at a constable’s sale, upon execution issued out of the justice’s court upon a judgment against the plaintiff and another. The proceedings upon the justice’s judgment and the execution and…
1Opinion of the CourtPotter, J.
The levy upon the property hy the constable, by virtue of an execution against the plaintiff, issued upon a judgment against her, was not a trespass db initia or a tortious acty>6>* se. Prima facie, all property is liable to execution, and it was the duty of the constable in the first instance to make the levy. He cannot know intuitively that property is exempt, nor indeed that exemption will be claimed if it is. Exemption is a personal privilege, and must be claimed by the party entitled or it will be deemed in law as waived, and the constable justified in his act of taking and selling. The…
2Cases cited9 opinions
- Thompson v. . BlanchardNew York Court of Appeals · 1850
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- Seaman v. LuceNew York Supreme Court · 1856
- Brewster v. BakerNew York Supreme Court · 1853
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3Cited by16 opinions
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- Wilcox v. HoweNew York Supreme Court · 1891
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