Field, J. concurring.

The plaintiff recovered a judgment against the defendant for the seizure, under execution, of certain exempt property. The defendant afterwards procured an assignment of the judgment upon which the execution issued, and thereupon moved the Court to set off the latter judgment against the former. The Court denied the motion; and the defendant appeals.

We think the relief asked was properly refused. The defendant was sued as a -wrong doer, and, as between him and the plaintiff, the judgment for the value of the property must be regarded as standing in the place of the property itself. He cannot be allowed to take advantage of his own wrong, and by an illegal act defeat the purpose of the statute. A different doctrine would operate a practical repeal of the exemption laws.

We are referred to the case of Mallory v. Norton, (21 Barb. 424) as an opposing authority. The decision in that case proceeded upon the ground that the party might have protected himself by bringing his action in the nature of replevin, for the delivery of the *390property. It is sufficient for this case to say, that the plaintiff could not have compelled a return of the property even if he had brought his suit in that form. By tendering an undertaking in accordance with section one hundred and four of the Practice Act, the defendant could have retained ,it. Upon the recovery of judgment, he could have forced the plaintiff to a suit upon the undertaking, and thus brought the controversy to precisely the same point. The process would have been a little more circuitous, but the result would have been the same.

Order denying the motion affirmed.