p. 92This was an action in the nature of a replevin, to recover- hack a certain amount of tools and implements, valued at $600, used by the plaintiff in the prosecution of his business as a blacksmith in this ctiy, which he claimed as exempt from execution. It appeared by the testimony in this case that Conroy & O’Connor recovered judgment against plaintiff, and by virtue of an execution, the defendant seized the property now in controversy. The tools and implements remained in the possession of the plaintiff until the day previous to the one they were advertised for sale, when the plaintiff notified the Sheriff that he claimed the property to be exempt from execution under the laws of this State.
Two questions presented themselves in this ease;
1. It was contended by the defendant that the principle of estoppel debarred the plaintiff from maintaining this action, by neglecting or refusing to notify the Sheriff up to the day antecedent to the sale, of the fact that he claimed them as necessary implements of trade.
2. It appearing that the property sought to be recovered back included several bellows, several anvils and a punching machine, it was insisted by the defendant, that as the statutes provide only for necessary tools to be exempt from forced sale, and machinery was not freed thereby, the plaintiff was only entitled to a modicum of the property seized.
Jimee¡ Lake 3¡- Boyd, for plaintiff.
Brodie, for defendant.
I shall charge the jury as follows; In this case the doctrine of estoppel would not hold good. It was not akin to a case where the property óf a third party was seized on execution by the Sheriff, and he (the third party) stood by and saw the same sold without interfering, and afterwards claimed its return on the ground that it did not belong to the judgment debtor. Instances might occur where the debtor might be absent from home or out of the State, when the Sheriff would levy on execution, take possession of his goods, and by fact of Ms non-presence leave it out of Ms power to give such notice as should have been given, as claimed by defendant.
p. 93The point urged by defendant’s counsel, that the machinery of the kind claimed by the plaintiff could not be retained by Mm, should bs considerered by the jury in the light whether it was necessary for the successful carrying on of Ms business and to enable him to compete with others in his trade, and this same principle was to apply to the other implements wMeh were sieged to be more than he was entitled to for that purpose.
I do not approve of the Zew York and Massachusetts cases cited, where it was held that a sewing machine was not a necessary implement of trade, and therefore not exempt from execution. In this case 2 would lay down the law to be, if a sewing machine or other instruments of that spades in this age of progress is necessary to carry on a trade successfully, in order to compete without disadvantage, they would be, according to my view, not liable to seizure and forced sale.
la addition, if the jury consider that the number of belows, anvlk, etc., were respired to carry on Ms trade, the provision of the statute o® &K3 cnfeject would cwqf them.
The jury found a verdict for the plaintiff.