Van Sickler v. Jacobs — 14 Johns. 434

Majority

p. 438

Van Sickler against Jacobs.

NEW-YORK,

October, 1817.

Headnote

Where improperevidence has been admitted, in a justice^ court, without being excepted to at the time, it cannot afterwards be made a ground of objection, oo the return to a certiorari. By the act in addition to the Met concerning judgments and executions, sess. 38. c. 227. necessary cooking utensils, owned by. anv person being a householdeypre ex- gpeli0^i from ^execution and distress for rent. The party claiming an exception under this act, for lus cooking utensils, must show, affirmatively and certainly, that the cooking u-tensile taken in execution or distrained upon, were in fact necessary, and not merely that they might be useful in cooking.

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

The plaintiff in error brought an action of trespass da bonis asportatis, in the court below, against the defendant, in error. The defendant justified under a warrant of distress for rent, and judgment was rendered in his favour.

The objections presented, on the return to the certiorari, were, 1. That the warrant of distress was proved by parol evidence only, whereas it ought to have been produced on the trial. 2. That the distress was illegal, because it appeared that among the articles distrained, there were one copper tea-kettle, one tin oven, three iron-pots, one grid-iron, and one sauce-pan.

The first objection cannot avail, because no exception to the parol evidence of the warrant was made at the trial. The witness who swore to the warrant, may, for any thing that appears, have had it in his pocket, ready to be produced if it had been required.^[1] As to the second objection, the act of the 18th of April, 1815, (sess. 38. c. 227. p. 231.) declares, that “ necessary cooking utensils, owned by any person being a householder, shall be exempted from execution and distress for rent.” In this case, it appears that the plaintiff was a householder; but it does not appear that any of the articles dis-trained were, in fact, to him, necessary cooking utensils. It does not appear that these were all the cooking utensils found in the plaintiff’s possession ; he may have had an abundant supply, besides these articles. In order to claim the benefit of that statute, tthe party must show affirmatively, and certainly, that the cooking utensils were, in fact, necessary. It is not sufficient, as in this case, to show merely, that the articles distrained might he useful in cooking. The judgment, therefore, ought to be affirmed.

Judgment affirmed.

(a) (a) Vide Cobb v. Curtiss, 8 Johns. Rep. 470 . Van Slyck v. Taylor, 9 Johns. Rep. 146 , Reed v. Ginet, 12 Johns. Rep. 296 .