
    
      John Parkerson v. John T. Wightman.
    
    The Act of 1823, which exempt» from levy and sale, a mechanic’s “tools of his trade” — held to exempt the tools of all mechanics, whether master workmen or journeymen, who personally work with their own tools, and with their own hands — in contradistinction to contractors, superintendants, capitalists, or mere owners of machinery.
    A landlord held liable for the trespass committed by his bailiff in distraining for rent in arrear, the tools of his tenant, which, by the Act of 1823, are exempted from levy and sale.
    A principal is liable for the conduct of his agent, when he acts improperly and unlawfully, but within the scope of his agency.
    
      Before Evans, J. at Charleston, October Term, 1848.
    The plaintiff was the tenant of the defendant. Rent being in arrear, the defendant issued his warrant of distress to one Dennis, as his bailiff, who was one of the constables of the city. Dennis made a levy on sundry tools belonging to the plaintiff. The tools were valued at two hundred and ninety-nine dollars, by the witnesses. They were inventoried and sold by Dennis. The rent due was about thirty dollars, and all tlie goods distrained were sold for about enough to pay the rent. By an Act of the Legislature, passed in 1823, the necessary tools of a mechanic to carry on his business, are exempt from levy and sale. It was contended the tools levied on came within the protection of the Act, and that the landlord, Wightman, was liable for the trespass committed by his bailiff, Dennis. The evidence was as follows.
    
      J. M. Hap-poldt.
    
    The plaintiff is a general machinist. The articles levied on are necessary tools for his work. He could not do without them in his trade, They were worth two hundred and ninety-nine dollars and thirty-five cents He could not execute most of his jobs without them. He could not carry on his business after the distress. Many of those left were useless by breaking the set. His sign was that of a bell hanger, but that was not his principal occupation. He made more by cutting taps to make screws, than by bell-hanging. After the distress, plaintiff sold him some of his taps. Made some for sale when ordered. They were kept in boxes, to prevent different sizes from mixing. There are none of the tools on the list which he could make himself, except the taps. The tools in his shop were worth five hundred dollars.
    It was admitted the constable, Dennis, was dead.
    DEFENCE.
    
      Mr. Pressley was the magistrate who issued the distress. When plaintiff first came to him, defendant owed two hundred dollars for rent. This was discharged by receiving one hundred and fifty dollars. A new lease was executed, and when a further sum was due, and some time had elapsed, the warrant was prepared and given to Dennis, with directions not to levy -on any of the plaintiff’s tools. Dennis made a return and the sale was ordered. Some arrangements were attempted, to prevent a sacrifice by a distress sale. Plaintiff was at his office. Dont remember that he claimed the articles levied on as his tools. The goods sold for a little more than the rent, thirty dollars. The excess was either paid to the plaintiff, or he had credit for it on his next quarter’s rent. He continued as tenant for six months. Frequently saw him, and he did not complain. He had a large supply of tools. He was sued for the rent accruing, after six months, in the City Court, and then turned out of the possession. Then he began to talk about suing. He issued a writ in his own name for ten thousand dollars damages. Afterwards, a suit was commenced by Mr. May, and then this action was brought. The constable said he took only such tools as defendant had made for sale. Par-kerson refused to point out any tiring for him to levy on, and told him to levy at his peril.
    A witness in reply said, he (the witness) was a millwright and engineer. Parkerson’s occupation was that of a general machinist. All the tools on the list of those sold, were such as were proper for his trade. Taking poitions of tools would impair :the value of the rest. Paikerson had tools two years ago, worth nine hundred or one thousand dollars. The tools, such as were necessary for a perfect mechanic. A large portion of them, such as a journeyman should have.
    On the law of the case, the Circuit judge charged the jury, that the bailiff, Dennis, was the private agent of the landlord, Wightman, who was liable for any trespass he committed in the execution of the power committed to him for the benefit of his principal.
    His Honor submitted to them, as a question of faet, whether the goods levied on were such as were protected from levy and sale by the Act of Assembly.
    The tools protected, were such as were necessary to carry on his trade, whatever it might be. That there were kindred employments which might be pursued by the same person, and, in such case, he thought all his tools necessary to carry on these trades would be protected ; but if a man should unite a great many different employments, such as tailor, shoemaker and blacksmith, he did not suppose his tools, in all these, would be exempt from levy, but only those of his principal employment. The jury found for the plaintiff the whole value of his tools as proved, viz: — two hundred and ninety-nine dollars and thirty:five conts. His Honor thought they should have deducted the amount of the rent which the tools were sold to pay.
    The defendant moved for a new trial, on the grounds,
    1. That his Honor erred .in charging, that the defendant was responsible for the illegal actsof'his-bailiff, though done without his assent or presence.
    2. That it being testified in this case, that plaintiff had a perfect set of tools for a master mechanic, his Honor should have charged that the law protects only the necessary tools of a journeyman.
    3. Because the amount of tools protected by the verdict in this case, is far greater than intended by the law. -
    
      Prossly. for the motion.
   Guria, per RichaudsoN, J.

This, was a special action on the case, for unlawfully distraining the tools of the plain- • tiff, and making an excessive and oppressive distress for rent in arrear. The important inquiry of general interest is, then, what is the proper exposition of the Act. of 1823, in exempting from a levy or seizure, “the tools of a mechanic.” The words of the Act are, “If .a mechanic, the tools of his trade.” Who is a mechanic? .According to our accredited lexicographer, a mechanic is “a manufacturer, an artificer.” Dr. Johnson adds, “ a low workman,” and he defines “a manufacturer” to be “a workman,” “an artificer” — an artificer, he says, “is one by whom any thing is made;” a machinist, he calls “a constructer of engines and machines.” According to the evidence of Happoldt, the plaintiff, Parker-son, comes under the last class of mechanics. He was a machinist. His tools, the witness said, were worth five hundred dollars. Therefore, we may in reason conclude, Parker-son was a master workman, and not a mere journeyman, hired by the day, or a jobber to do chance work, &c. which class of'inferior workmen only, according to the opposite argument, comes under the exemption of the Act. Do the tools, then, of such master workmen, fall within the exemption of the Act, or is it to be confined to journeymen, jobbers, and the like ? The question may, possibly, admit of some difference df opinion; but I cannot but apprehend that the Act ought to receive a liberal construction. That it means to exempt the tools of all mechanics, who personally work with their own tools, and with their own hands, in contradistinction to contractors, superintendants, capitalists, or mere owners of machinery — as, for instance, of a cotton manufactory or steam mill. Such capitalists cannot come within the meaning of mechanics. They are more of the class of proprietors, inventors or projectors. That is, none of them work personally with tools, which is the essential characteristic of a mechanic, or what Johnson calls “alow (workman.” I would rather call him a labouring artificer— one that can prove his practical operation by the hardened £ngers 0f personai industry. As the case is new aud important, let me illustrate my idea, by the next preceding provision of the Act. “If a farmer, his farming utensils.” It cannot be supposed that this exemption would extend to all the utensils of a plantea-or proprietor — but means the utensils actually aud personally used by the labouring farmer — in contradistinction to those kept for his labourers, by a planter; or what the English call a gentleman farmer. Not so. The exemption is for him who, like the virtuous Roman dictator, with hand to handle governed his own plough. In like 'manner, are the labouring mechanic’s tools exempt, and so exempt, although, if, for instance, a button-maker, he uses as fine tools as the late royal button maker of our fatherland ; or, if a practical lock-smith, he held the tools of the late French Monarch, who is said to have been enamoured of this useful art. We would not distinguish such tools,-if practically used by the mechanic, from the saw and the axe of the venerated. Joseph, the- carpenter. The practical artist is the test, not the fineness of the tools he uses. If such be the true intendment of the Act, the master machinist, Par-kerson, comes within its exemption ; and his tools were, consequently, protected against the defendant’s distress warrant. This settles' the question of general interest, — who is a mechanic under the Act? The next question is — whether Wightman, the defendant, is liable, in this instance, for the unlawful distress made by his bailiff, Dennis, inasmuch as Dennis was directed not to levy upon the tools of Parkerson, meaning, of course, the exempted tools. On this head, the law is well settled. Delegated power must be strictly pursued, or the principal is not liable. (See Welsh v. Parish et al.) But the principal is bound by the acts of the agent, done in the course of his employment. (See Topham v. Roche, Corbet v. the same. And it is conceded that the principal is not bound for the wilful trespass of his agent. But on the other hand, it is equally clear, that he is bound to provide a fit agent, and that he is liable- for his negligence, fraud, or want of skill in executing his agency. Now, it is evident that, either through .negligence, ignorance or misunderstanding his instructions, while Dennis would seem to have avoided distraining, as he was instructed, upon what he considered protected tools, he still levied upon other tools, which were equally protected; and, unfortunately, he levied upbn select portions of such tools as caused great loss to Parkerson, by disjoining them from others ; when the value of both depended greatly upon keeping them united. For instance — it was said Re avoided distraining upon a turning lathe, as a protected tool; but he levied upon the appendages and tools of the lathe, &c. In this way he made the distress so excessive and oppressive, that tools of the value of about three hundred dollars, sold for about thirty dollars. And so far from such selection of tools, by Dennis, being against the instructions of Wightman, it would seem, by the course followed, the sale and the disposition of the proceeds, and the argument before the Court, that he, himself, if he had distrained in person, would have followed the same course of mistaken discrimination between the tools of Parkerson, as if a portion only was exempt.

So that, according to my understanding of the law of principal and agent, the case presents a striking illustration of the liability of a principal for the conduct of his agent, when he acts improperly and unlawfully, but within the scope of his agency. If Dennis had committed a wilful outrage or trespass, 'Wightman could not have been made liable. (See the case of O'Neal v. Reigne.) But he is clearly liable for acts done within the delegated authority; and that is the case before the Court. Without, therefore, resorting to the argument, which I consider conclusive, that Wight-man ratified the acts of Dennis after he knew that the distress had been made, by permitting the sale and receiving the money, this Court concurs with the presiding Judge in ■both principles of law which are objected to in the appeal, to wit: — that Parkerson was a mechanic, within the meaning of the Act, and Wightman liable for the illegal .distress made by his agent, Dennis, through ignorance, negligence or design, under colour of the distress warrant.

Lastly, as to the suggestion that the amount of the rent, thirty dollars, ought to be deducted from the verdict, it is entirely untenable. Because the verdict aíHrms that the distress was excessive and oppressive, and, of course, unlawful, the defendant, therefore, can have no benefit or advantage from his conduct. A wrong done, can give no legal and pecuniary claim to the wrong doer. In fact, and upon the merits of the case, the excessiveness and manner of the distress, in choosing and separating the tools, might be well considered the true gravamen of the plaintiff’s action. The motion is, therefore, dismissed, on all the grounds of the appeal.

Evans, Wardlaw, and Frost, JJ. concurred.

Motion rejused.

Withers, J.

dissenting. — Two questions are presented by this, case : 1. Was the charge on c.ircuit right as to the description and quantity of tools of trade which are exempt from levy and sale by the Act df 1823 7 . 2. If so, still was the defendant liable for the conduct of his bailiff in seizing such tools as are exempt by law 7

1. There is much difficulty in prescribing a fixed rule in regar¿ to what are tools of trade, what kind of tools are exempt, and perhaps who shall be deemed a mechanic. When j say w¡iat ]cjnd 0f tools, I contemplate a case where one may have a vast quantity and variety of tools, or implements that tradesmen use, and yet he may use them very rarely. The leading object of the Act certainly is, to save the mechanic from the sudden -suspension of that daily business whereby he is accustomed to support his family. But That very idea seems to me to exclude such tools as are used occasionally only; and certainly such as a mechanic may have for the purpose of testing theoretical views, for example, in the application of certain laws of nature, which men of genius-endeavor to'subject to practical utility. Hew.ever useful -may be the result, occasionally, to the civilized world, of such mechanical labors, it is scarcely' probable that the Legislature contemplated, in the Act of 1823, that such exercises were useful in the immediate support of a family ; and, therefore, I cannot read the Act of that year in such manner as ■to sweep under its shelter whatever may be a tool, and may be also in the possession of , a mechanic, irrespective of the enquiry whether it be one in constant use in pursuit of a daily avocation in nature of a trade, and that, too, connected with the purpose of earning the maintenance of himself and his dependants. I have no idea that the Act. of 1823, in relation to this enquiry, ever designed the grand purpose of building up, of encouraging and enlarging, the important interest of mechanical pursuits — for the provision in question is found in a connection that forbids such conjecture; and certainly all will agree that, if such was the -design, the feeblest scheme was devised that could well be conceived. We might as properly say, that the simple exemption of a plough-share, a rake, a hoe, &c. from levy and sale, was designed to build, encourage, and' magnify the still greater interest of agriculture. While I might agree that the Legislative power could not concern itself about objects of weightier moment to the general interest, I would carefully abstain, even if I looked only to the advancement of those interests, from attempting such magnificent enterprizes by means so inadequate as we find in the Act in question. Even if there were in it inherent vigor enough for such ends, still it would presuppose an elasticity to be called forth from time to time by judicial agency not supposed to pertain to the exact capacity and rigid qualities of á statute, however, that convenient attribute may be a boasted characteristic of the common law, which would-seek to rival the atmosphere almost in its universality and beneficent ministrations. The truth seems to be, that we shall err, perhaps unhappily, if we attribute too much virtue to the Act of 1823, or aim at more in the appli•cation of it than to make it subserve the restricted, but very humane and useful end, stamped upon its front — that is, tot save to “ every family,” in an unhappy contingency, some means of temporary support, and the accustomed implements by which those means have been and (it was supposed) are to be earned. I shall not. insist that the Act, in every exemption, looks to the case of a “family,” and not to that of an individual without a family; for though I think a question might be made upon that view, I am quité content to acquiesce in a more enlarged signification, and such I believe has been adopted.

The language of the Act is this: “ And if a mechanic, the tools of his trade” — not his trades. The charge on the cirbuit was, “ that there were kindred employments which might be pursued by the same person ; and in such case, all his tools necessary to carry on these trades might be protected but, (it is. added,) if one should unite a great many different employments, as tailoiy shoemaker, and- blacksmith, then only -the tools of his principal employment should be protected. '

I presume there is more difficulty in administering this law here than there would be in England. Here, one is obliged to serve no apprenticeship to gain the’ position of a mechanic •or tradesman. Indeed, I have known more than one repairer of watches very suddenly to convert himself into a dentist. Here, likewise, owing to our comparative mechanical minority, it is quite usual to blend kindred’ employments,” (as they were called on circuit,) and in very many cases it would be extremely difficult to determine which was the individual’s “ trade” — what “ trades” should be considered kindred and what alien to each other; and most difficult of all,. •to pronounce which should be considered- the principal or leading trade. In the instance before us, “his sign was that of a bell-hanger, but he made more by cutting taps to make-screws, than by bell-hanging.” Now, if the jury heeded the charge, as they probably did, these two modes of mechanical employment were regarded as cognate. Where is the link of' affinity between them ? Confessing, as I have done, the difficulty of prescribing a rule that shall be. at once as precise as a legal rule should be, and yet as genial and liberal as I, would have it, still I am not content with the broad terms in. which the subject was submitted tp the jury. I am impressed by considerations such as these, viz: That the scope of' the Act is quite limited; that the exemption is created for .an-emergency ; that it looks to the temporary support of a family by means of daily labor, and in the case of a mechanic, by means of such tools or implements as he did in fact daily use for that purpose, with his bodily powers, in some one definite-trade ; and not to machinery, such as, since 1823, has wholly supplanted very much that was then known as to tools and mechanical powers, which has pushed forward the mechanical arts and trades at a rate never dreamed of then, which is constantly, even during the current hour, so transforming and exalting our ideas on such subjects, that we seem to be surrounded by the creations of magic. Wherefore, such being the limited purpose of the Legislature, conferring a favor which the common law withheld, and inasmuch as the multifarious avocations of the mechanic himself creates the difficulty, it is deemed more conformable to the policy and language of the Act and its safe administration, that the party distrained upon shall be held, on the instant, or within reasonable time, to elect what shall be regarded as his trade; and, therefore, what set of tools he shall retain; or if he will not, that the jury shall be instructed to fix these matters themselves, allowing the tools of one trade only.

2. Upon the question, whether this defendant was liable, even if the bailiff did lake goods that were exempt, I also entertain grave doubt. I do not propose to enter at all into the question as to what form of action should be employed against the principal, where, he being absent, his servant has committed an act of trespass. It may be conceded, (whether the reason assigned for .it be good or bad,) that though the servant may be sued in trespass vi et armis, yet the action against the master should be- case. It will never do to say that a landlord’s liability shall depend on the form of action which a tenant may adopt. We must look for some principle to govern the case. The question here is, can this defendant be held liable at all. without proof of ratification, for the distress that was made in this caáe. i Now, it is to be taken for granted, of course, in discussing this question, (for •that is the very cause of complaint,) that the bailiff seized tools of trade by law exempt. Not only did the law expressly instruct him not to do so, but he was also thus expressly instructed by the defendant. Now, on what principle is the master ever held liable for the servant’s act? Qui facit per alium, facit per se; that is, the presumption of law construes the master to be acting by the hand of his servant. ’ If it be not a presumption ywris et de jure, then it surely may be rebutted. Undoubtedly if such a presumption exists here, it is fully and perfectly rebutted. How can you say that the master was acting through the servant in seizing upon tools, when the master directed the contrary, and both were forbidden to do so by law? The confusion often arises from the difficulty of forgetting, for the moment, the relation of principal and agent; of carving out, as it were, entirely from the course of the agency, such transaction as is wilful and unlawful. Yet, this ought to be done, for quoad hoc the relation of principal and agent does not exist. To charge the master, it must be shewn or presumed that the relation existed between them in the, particular affair ; for if the mas- ( ter be liable under other circumstances, he is not so as master, but as any one would be who instigates an injury. Suppose the bailiff in this case had seized the plaintiff’s hatuprnt his head, would the landlord be held liable-? If you then suppose, in a scuffle to retain it, the bailiff had beat the plaintiff, must the master bé liable for that also 7 If so, and during the scuffle, they had knocked put the glass of a neighbor’s window, the.master must still be held liable. Whoever affirms these propositions must be misled by the idea, that from the commencement of a lawful service to its termination, the relation of landlord and bailiff must necessarily continue, in each and every incident that may chance to grow out of the transaction. Every one is presumed to know ■the law, and if the articles taken on the present occasion were exempt, it must be held that the bailiff knew it. Now suppose Wightman had expressly instructed the bailiff not to •take the identical articles in question, and he nevertheless ■straightway took them, I cannot see the ground on which the landlord should- be held liable. When, however, he gave him the warrant .-and the express instruction to take no tool of trade, and when the law reinforced that instruction, the case is the same, and it is the one before us. It should be observed, that this bailiff was not the defendant’s general agent, but was one both special and limited; special, as confined to one transaction, and limited by instruction in the performance of his duty in that. So the case does not admit that freedom of presumption against the principal which arises from another form of agency.

One shall, indeed, be presumed to intend the ordinary consequences of his own acts; and, therefore, if he employs a servant that is negligent, thoughtless, heedless, it is reasonable to conclude that he knew, or should have known it, and meant to face the hazards and responsibility. But for consequences that are remote or barely possible — for consequences having no natural connection with the act authorized, much more for collateral acts that are unlawful or criminal, it would be violating the plainest principle of presumptive evidence to impute such to the master. If the servant be driving the master’s wagon, and he wilfully drive over another, he is in pursuit of his master’s business, in the general sense; butiro hac vice if he had gone into his own independent business. He would be driving his master’s wagon also, though he were engaged in the purpose of running away with it. lean see no line for attenuated distinctions. The general rule is the intelligible and safe one, that wherever an agent, particularly a special and limited agent, does,a wilful act that is .unlawful, though he may connect it with the current eventsof his agency, or cause it to spring from them, the or principal shall not be presumed to have authorized it, or to be responsible for it; a fortiori shall he not be where the act is forbidden both by himself and the plain letter of the statute law.

What I have said would, of course, leave open every point touching a subsequent ratification, and all liability to refund ex equo et bono money improperly received and retained. I conclude, therefore, there should be a new trial, with a view, at any rate, to a more restricted doctrine as to the range of exemption that shall be imputed to the Act of 18-23. I have written thus much, as well with the hope of inducing caution hereafter on this important subject, as for the purpose of assigning a reason for venturing to differ from a majority of the Court.

O’Neall, J. concurred.  