| Mass. | Jan 15, 1867
1. The defendant contends that the presiding judge submitted to the jury, as a question of fact, a matter which he ought himself to have decided as a question of law. But we do not think this objection is valid. He decided that the articles enumerated in the bill of exceptions were of such a character as to be exempt from attachment if they were necessary to the plaintiff’s business as a milliner, and in actual use by her; and he left it to the jury to decide whether they were thus necessary and in use. The statute (Gen. Sts. c. 133, § 32, cl. 5) exempts the tools, implements and fixtures necessary for carrying on the trade or business of the debtor, not exceeding one hundred dollars in value. The plaintiff’s business of a milliner is within the statute, and the enumerated articles come within the description of “ tools, implements or fixtures.” Smith v. Gibbs, 6 Gray, 298. Whether they were necessary for carrying on her business must depend upon the particular methods by which it was carried on; and this must necessarily be determined upon evidence to be addressed to the jury. The court, cannot
2. The defendant requested the court to rule that the plaintiff bad waived her privilege of claiming the articles as exempt from attachment, by her neglect to claim any of the articles when attached by the officer, as being so exempt by statute. The court declined so to rule, and instructed the jury that it was not necessary for the plaintiff to prove any demand or pointing out of the tools and implements, in order to sustain the action. If they were necessary, as had been stated, and were actually in use as tools and implements in her trade, so as to be plainly distinguishable as such, he held that to be sufficient.
If these articles had been so intermingled with the plaintiff’s other property that the officer could not distinguish them, a neglect to claim them when the officer was about to attach the whole, might be a waiver. Clapp v. Thomas, 5 Allen, 158. This point was carefully noticed by the judge, and under his instructions the jury must have found that the articles were plainly distinguishable as tools and implements of the plaintiff’s trade. He also ruled correctly that a demand was not necessary in such case. In attaching articles of this character an officer is a trespasser. Beam v. Hubbard, 4 Cush. 85. Davlin v. Stone, Ib. 359.
3. The testimony of Mr. Bonney was properly rejected. He was unable to state the language of the deceased witness, oi even the substance of it. The rule is settled that when proof is offered of what a deceased witness has testified at a former hearing, it must be not merely of a part of it, or the substance of it, but the whole of the testimony touching the matter in controversy. Commonwealth v. Richards, 18 Pick. 434. Warren v. Nichols, 6 Met. 261. Exceptions overruled.