M'DOWELL against SHOTWELL and others, 2 Whart. 26

The opinion of the Court was delivered by Huston, J. This was an action of trespass against Shotwell the landlord, and the others, constables, for taking what was alleged to be an illegal distress. M'Dowell is by trade a weaver, and had three looms, one wheel and swift, and four shuttles; and on the same premises was Young, an undertenant, who had two looms, one of which was taken ; two of M'Dowell’s looms, four shuttles, and the wheel and swift were taken.

M'Dowell received yarn to weave from others ; and there were on the premises five pieces of domestic cloth, woven, and not taken away by the owners; these were also distrained. ' Before the goods were removed, M'Dowell gave to Shotwell a notice as follows : Sir,—Take notice that the property you have distrained on for rent, belonging to Andrew M'Dowell, is exempted by law from seizure, and if you remove the same you will be held responsible, as well as the officers for the trespass. Oct. 26, 1832.

It was proved that the three looms of M'Dowell, and wheel, swifts, and shuttles were worth $15, and his household furniture worth $15 25; Young’s two looms were worth, one of them $5, which one was left; the other worth $2 was taken. Young’s personal property was worth $10. The defendants justified the taking for $19, part of a quarter’s rent in arrear. The property taken,-without the cloth belonging to the persons who had furnished the yarn, did not pay the rent due. The owners of these pieces of cloth claimed them before the sale; but the landlord ordered them to be sold, and they were sold.

M'Dowell had at the time two journeymen employed working at the two looms which were taken, and one of them had an unfinished piece of cloth in it. The plaintiff requested. the Court to charge on three several propositions. The first is not material. 2. That if the three looms belonging to the plaintiff did not exceed in value $20, they were exempted by law from distress, and the defendants were trespassers. 3.

If the tenant had at the time a qualified property in part, and an absolute property in the 'remainder of the goods distrained on, the notice given to the landlord does not preclude him from showing his qualified interest in the same. The Court charged on these points as follows: (Here the judge stated the substance of the charge of the Court upon the second of the above points, which has been already given.) The question on this point does not seem to have been decided in this state, but the term tools has received a construction, when used in acts similar in some particulars to our law.

By the law of Massachusetts, the tools of any debtor necessary for his trade or occupation, are exempted from attachment or execution; and household property to the value of $50. In Connecticut, necessary apparel, bedding, tools, arms and implements of his household necessary for upholding life, are exempted. By

an act of assembly of this state, the following goods owned by, or in the possession of any debtor, are exempted from levy and sale on any execution or distress for rent, viz. “ household utensils not exceeding in value $20 ; the necessary tools of a tradesman, not exceeding in value $20; all wearing apparel; two beds, and the necessary bedding; one cow, two hogs, six sheep and the wool thereof, and the yarn and cloth manufactured therefrom; food for said cow, hogs and sheep, from the 1st of November till the 1st of May; a stove, pipe, and necessary fuel; a spinning wheel and reel; any quantity of meat not exceeding one hundred pounds; six bushels of potatoes; six bushels of grain, and the meal made therefrom; ten pounds of flax and the thread or linen made therefrom; and all bibles and school books for the use of the family.” In one case in Massachusetts, the court seemed inclined to confine the word tools to such as were used in the hand, and not to include a printing press ; but the cause went oif on another point; the officer left one printing press, types, &c. of value of sixteen hundred dollars, and this was considered as satisfying the expression “ the tools of any debtor necessary for his trade.” In 2d Pickering, 80, it is said, that the exemption is not limited to the tools used by the tradesman with his own Lands, ■ but comprises such, in character and amount, as- are necessary to enable him to prosecute his appropriate business in a convenient and usual manner.

It would be too narrow a construction of a humane and beneficial statute,to deny a tradesman, whose occupation can hardly be prosecuted at all, much less to any profitable account, without assistants, as journeymen and apprentices, the necessary means of their employment. In 4th Connecticut Reports, 450, a printing press and types, in value about $500, were considered necessary.

Without undertaking to lay down and specify what, in every instance, may be comprised in the terms, “ necessary tools of a tradesman,” we may say, that, generally, those articles, without which, a man cannot work at his trade, must be within the meaning of the act. This will embrace the anvil of a smith, the wheel of a turner, and the loom of a weaver, &c. The several trades cannot be carried on without them, though neither of them is taken into the hand of the tradesman. In 4th Term Reports, a stocking loom was considered as within the common law protection of the implements of a tradesman.

It is the opinion of this court, that the judge ought to have told the jyry, a loom was exempted from distress by the act of assembly of this state. In those states, where the tools necessary for a trade are exempted, without any limitation as to their value, it has been and must be left to a jury to say whether they are necessary for his trade.

For myself, I incline to think, if the articles are such, as that the trade cannot be exercised without them, and if they have been and are intended by the debtor to be used by. himself and journeymen, or apprentices, and do not exceed in value $20; they are exempted in this state..

A tradesman may have tools or implements of his trade for sale, and not intended for use by himself, or those in his employment ; these, I would say, are not exempted; but by the very words of the act, the tools of trade in actual use daily at the time of distress, if not exceeding $20, are exempted; and in such a case to leave it to a jury to say whether they were necessary, would seem useless—a jury must decide whether within the value—but if daily used; and of such kind that the trade cannot be exercised without them, and they do not amount in value above $25, they are exempted, though some, or even most of them, are used by journeymen.

The third error assigned is, that the judge left it to the jury to decide, whether the plaintiff, in the notice above recited, did not mislead the defendant, by inducing a.belief that the plaintiff only objected to the landlord taking “the property distrained on for rent, belonging to Andrew M'Dowell.” Although not copied into our paper books, yet the record shows that other notice than the written one was given, and that express notice by parol was given, that the cloth belonged to others, for whom M'Dowell had woven it, from yarn furnished by those others; and where a matter of evidence is partly written and partly parol, all must go to the jury.

Perhaps it. was not necessary that M'Dowell should have given any notice. > In Comyn’s Treatise on Landlord and Tenant, it is laid down in page 491, that the tenant, before they are impounded, may rescue goods distrained on, which are not distrainable by common or by statute law, and specified among the things protected for the sake of trade; and Co. Litt. 160, b. says so. I would not willingly deprive a poor tenant of a right, because he wrote a notice where none was necessary, or because it was couched in ambiguous language.

To be sure, if the notice is such, that it must, necessarily, or may, naturally, mislead a landlord, it may affect the extent of the tenant’s right of recovering, beyond the matters notified; but if it requires a lawyer to give a technical meaning to make the difficulty, it would not be much wrong to give the words the meaning a common person would affix to them. The tenant has a special property in goods left in his possession in the way of trade; he may rescue them when illegally taken; but as the testimony discloses other notice besides the written, it was not error to submit it all to the jury.

There was some discussion of the question whether-trespass was the proper action; the suit is brought for illegally taking the goods; not for taking them legally and detaining them unlawfully; but this question does not arise on the record before us. The intimation of opinion by the court on this matter is not assigned for error—perhaps it is not error.. Judgment reversed, and a venire de novo awarded.