Baldwin,J. concurring.

This is an action to recover the value of certain household furniture and other property, alleged to have been exempt from forced sale, which was seized and sold under execution, at the direction of the defendant, upon a judgment recovered by him against the plaintiff. The furniture was the remnant of what had previously been used in keeping a hotel, and, according to the finding of the Court, was no more than was sufficient for the family of the plaintiff. As its value amounted to only one hundred and twenty-eight dollars, it cannot be said that the house was very extravagantly furnished. It may be possible that a less number of beds would have accommodated the plaintiff and his wife and children, but it would be a very narrow construction of the statute to limit the exemption to the number required for immediate and constant use.

The absence of the plaintiff in San Francisco, when the sale took place, was a sufficient excuse for not claiming the exemption at the time. The absence was occasioned by sickness of members of his family, and the defendant was aware of the claim, as in consequence of its assertion the property had been previously released from seizure under an execution issued by himself, upon the same judgment.

The inquiry proposed as to the alleged agreement of the plaintiff to a sale by a third person, was properly excluded. If the plaintiff had agreed to place the property in the hands of a third person, to be sold for the benefit of his creditor, it does not follow that the exemption from forced sale was thereby waived.

Judgment affirmed, with ten per cent, damages.