Degear v. Nellis — 14 Johns. 382

Majority

p. 384

Degear against Nellis.

NEW-YORK,

October, 1817.

Headnote

Where a defendant in a justice’> court claims exempprisomnent, ‘oñ heebl™a family! freeMderf ae provision! of the act, sess. 36. oh. 53. sec. 7. It, L. 393.) he must offer proof of the fact at the hearing Of the cause, and if he waits until after judgment has been rendered against him, he is too late. It seems, that the justice is bound to receive proof, on the part of the plaintiff, to disprove the defendant’s exemption.

IN ERROR, on certiorari to a justice’s court. 7 v

After the court below was opened, for the trial of this cause. 1 1 J R>e parties had a conversation relative' to the balance due the plaifltiffbelow, who is the defendant in error, and it was agreed that one Schram should settle the amount, who calculated the balance at 19 dollars and 2 cents, for which the justice, by

p. 385

the express order and consent of the parties, entered judgment~ The defendant below then offered proof of his having a family~ and not being a freeholder, to entitle himself to exemption from imprisonment, b~t it was rejected by the justice as offered loo late.

There are no grounds whatever for reversing this judgment. The parties agreed, that the balance due the plaintiff should he calculated by a third person, and the justice, by their order, and with their consent, entered judgment for the amount. This was, therefore, a confession of judgment in open court: and after it had been entered, the defendant below proof of his having a family, and not being a freeholder, to obtain an exemption from imprisonment, according to the of the lltli section of the act, (1M. R. L. 393.) and this proof was rejected by the justice as coming ido late. In this the justice was'correct. The act declares, that if the defendant shall, on the hearing of the cause, prove to the satisfaction of the justice, &c. he shall be entitled to the exemption. The hearing of a cause must he considered as at an end when is rendered. It ought to he upon the hearing, for the might, and probably ought, to hear evidence offered on the other side, showing the allegation to he untrue.

Judgment affirmed#