
    After the resignation of Mr. Justice Jackson, in 1823, it was enacted by St. 1823, c. 98, that this Court shall consist of one chief justice and three other justices, and no more.
    Memorandum. In the last vacation Mr. Justice Thacher resigned 3 and thereupon His Honor, Levi Lincoln, of Worcester, in the county of Worcester, lieu tenant governor of the commonwealth, having been duly appointed a justice of this Court, resigned the office of lieutenant governor, and on the first day of this term took his seat upon the bench.
    William Howard versus John S. Williams.
    The tools of a debtor exempted from attachment by St. 1805, c. 100, are such as are necessary to enable him to carry on his trade in a convenient and usual manner. And where the debtor himself worked on watches, and his apprentice or journeyman on jewelry, and the jury found the debtor's principal business was that of a jeweller, it was held that the tools used by the apprentice or journeyman were exempted.
    If a debtor has two distinct trades, whether his tools used in both are exempted from attachment, and if not, whether he or the officer may elect which tools shall be attached, qucere.
    
    This was an action of trespass for taking certain articles, described in the plaintiff’s declaration as tools used by him n his trade of a watchmaker and jeweller.
    
      The defendant was a deputy sheriff, and had taken the articles by virtue of a writ of attachment. The plaintiff alleged that they were wrongfully taken, because by St. 1805, c. 100, it is provided, that “ the tools of any debtor necessary for his trade or occupation, shall be altogether exempt ed from attachment and execution.”
    On the trial, before Parker C. J., upon the general issue, it was proved, that at the time of the attachment, the plaintiff was carrying on the business of a watchmaker and jeweller in a shop in Boston, with an apartment in front, which was occupied by himself for vending articles of jewelry and repairing watches, and another apartment back, which was used for the manufacture or repairing of jewelry, he having an apprentice or journeyman usually at work there, whom he occasionally oversaw and instructed. When the attachment was made, there had been, by consent of parties, a separation of the tools used in the watchmaker’s trade from those used in the jeweller’s, and the plaintiff, after insisting that both parcels were exempted by the statute, told the defendant, if he was determined to take either, he must take the watchmaker’s tools ; but the defendant took the others and left the watchmaker’s. It became therefore necessary for the jury to determine, whether the plaintiff was a jeweller ; and to this point there was much evidence on both sides.
    The jury were instructed, that if from the evidence they were satisfied that the business of watchmaker and jeweller was in fact but one trade, and so understood in common language, the tools used in both branches were protected, so far as they were necessary to carry on the trade ; that if they should be satisfied they were distinct trades, the tools necessary for one only would be protected, and in that case they must determine which was the principal business of the plaintiff, and if it was that of a jeweller, he ought to recover, if of a watchmaker, he ought not; and that notwithstanding he worked with his own hands as a watchmaker, yet his principal business might be that of a jeweller ; that if they were not able to ascertain which was the principal, and which the auxiliary trade, both being equally used by the plaintiff, then he might make his election at the time of the attachment, and if they believed, that, before the service of the writ, hé had made his election, and given notice of it to the officer, the taking of the tools belonging to the trade he had elected was a trespass. The defendant’s counsel having contended that such tools as were used by the plaintiff himself, and not such as were used by his journeymen and apprentices, were protected, the chief justice instructed the jury against him in this particular.
    The jury returned a verdict for the plaintiff, on the ground, as they stated, that the principal business of the plaintiff was that of a jeweller, and they assessed damages in the sum of 556 dollars, 58 cents. A new trial was moved for. on account of misdirection in matters of law, and because the verdict was against the evidence.
    Sohier, in support of the motion, contended that it was not the object of the statute to encourage trades, but to secure a debtor from distress. The plaintiff might confine himself to either of the two trades in question, and protect its tools, and such an election would be the only means to determine his trade. The statute exempts tools used by the debtor himself only ; it does not give a man power to carry on a trade by the agency of other persons ; for then, why might he not have manufactories in different places, and have complicated machinery exempted from attachment, and while he himself too was ignorant of the trade ? If the business of a watchmaker and that of a jeweller are but one trade, leaving the plaintiff one set of tools was sufficient He might have continued to carry on one .branch and get a living ; and the defendant comes precisely within the principle of Buckingham v. Billings, 13 Mass. R. 82. The jury were directed, in case they should be satisfied that the business of a watchmaker and that of a jeweller were distinct trades, to determine which was the principal business of the plaintiff. That, in common parlance, would be the most lucrative trade ; but in another view, and with reference to this statute the proper view, it would be the trade in which he worked most. The jury were, however, misled by the instruction of the judge, and found the most profitable trade to be the plaintiff’s principal business.
    S. D. Parker and Smith for the plaintiff.
   Lincoln J.

delivered the opinion of the Court. The statute of 1805, c. 100, having exempted from attachment the tools of a debtor necessary for his trade or occupation, and the jury having found substantially that the articles mentioned in the plaintiff’s declaration were the tools of his trade as a jeweller, the verdict will be sustained, unless it was induced by a misdirection in point of law, or was against the evidence in the case ; on both of which grounds it is now attempted to be impeached.

The terms of exemption used in the act are too explicit, and the intention of the legislature too obvious, to admit of misconstruction. The design and the effect of the law are to secure to handicraftsmen the means by which they are accustomed to obtain subsistence in their respective occupations. The exemption is not limited merely to the tools used by the tradesman with his own hands, but comprises such, in character and amount, as are necessary to enable him to prosecute his appropriate business in a convenient and usual manner ; and the only rule by which it can be restricted, is that of good sense and discretion in reference to the circumstances of each particular case. It would be too narrow a construction of a humane and beneficial statute, to deny to tradesmen whose occupation can hardly be prosecuted at all, much less to any profitable end, without the aid of assistants, as journeymen and apprentices, the necessary means of their employment. Whenever an attempt is made to abuse the protection, which the law affords to the unfortunate debtor, in the prosecution of the ordinary and necessary business of his calling, to the purpose of a fraudulent security of property from attachment by the possession of unnecessary tools of trade, or those of unreasonable price and value, it will be in the power of the creditor to defeat the object by successfully submitting the question of their necessity to the decision of a court and jury. The case of Buckingham v. Billings, cited by the defendant’s counsel, was decided upon the explicit finding of the jury, that the articles mentioned in the writ were not necessary to the plaintiff in carrying on his trade of a printer, and from the description of the articles the Court also were of opinion that they were not tools within idle meaning of the statute. In the case at bar it is found by the jury, that the articles attached were the tools of a jeweller, and that the plaintiff had no more than were necessary in that occupation. The misdirection of the judge is supposed to consist in the instruction to the jury, that the plaintiff’s tools used by his journeyman or apprentice in the business of his trade were protected from attachment; bul upon the facts in this case we are satisfied that the direction was right.

The objection to the verdict, that it was against the evi dence, is wholly unsupported by the report of the testimony given at the trial. It was proved that the plaintiff had served a regular apprenticeship in the business of a jeweller ; that he afterwards hired himself out as a journeyman jeweller and worked exclusively at that trade for some years, and that he has since been constantly engaged in the business of a jeweller, having an apprentice in that employment at the very time of the attachment of his tools by the defendant. These facts were not controverted. The circumstance that he was also engaged in the business of repairing watches, cannot affect this view of the case, for from the testimony it results that this is rather a part of the employment of a jeweller, as exercised in this country, than a distinct and separate occupation by itself. But were it otherwise, it would not necessarily follow, that because the plaintiff was a watchmaker, working and repairing watches in the front part of his shop, his more appropriate trade was not that of a jeweller, while he continued the business in which he had been apprenticed, himself instructing apprentices, employing journeymen, and vending the wares manufactured on his account and under his personal superintendence. Whether, if the plaintiff had been alike occupied in two distinct trades, at the same time, his tools used in both would be protected, and if not, with whom would be the election, the officer or himself, are questions not necessary in this case to be considered. We cannot but think, however, without intending to decide the points, that there is no cause to complain of the direction of the judge in either of these particulars.

The opinion of the Court is, that judgment must be entered upon the verdict. 
      
       Printing types and forms are held not to be tools exempted from attachment and execution under St. 1805, c. 100, § 1. Danforth v. Woodward, 10 Pick. 423; Spooner v. Fletcher, 3 Vermont R. 133, S. P. A mill saw does not come under the head of tools, so as to be exempted from attachment. Batchelder v. Shapleigh, 1 Fairfield, 135. A portable machine called a billy and jenny, used for spinning and manufacturing cloth, is not exempt from attachment and execution in Vermont. Kilburn v. Demiming, 2 Vermont R. 404. It is held in Tennessee, that the tools of a mechanic may be levied on to satisfy a judgment against him, while he is using them. Bell v. Douglass 1 Yerger, 397.
     