It will be seen that this was a liberal exemption, when it is considered how primitive and of what small value implements of trade then were, the cheaper quality of the clothing generally worn, and that the purchasing value of money was then much larger than at the present time. Expensive and complicated machinery had not then been invented, and the most of the labor performed was done by the hand of the artificer. Personal property was comparatively limited in quantity and small in value, and the limit being fixed at that amount was large enough to include all that was deemed necessary for the comfort of the

debtor.

Before this time there seems to have been no limit except that fixed by the necessities of the debtor, and as many of the States adopted the common law as it stood at an earlier day, they have necessarily adopted with it the common law right of exemption as it then existed, subject to or qualified by such legislation as has since been enacted upon the subject. It becomes important, therefore, before going further, to determine as nearly as possible the scope and meaning of the word "necessary when applied to the question of exemption, for in itself it is but a relative term merely varying in meaning with its use.

It is not to be expected that any exact limit can be found for the word, and none can be found, but something can be shown of the construction which the legislatures have intended to place upon it, as understood and declared by the courts.

and in a still later case a piano was excluded, it being "not an article of mere comfort, and does not minister to a want universally felt."

6

In Connecticut, in an early case, the court in discussing the difference between necessities and luxuries declares that it depends in every case upon the peculiar circumstances of the case. And the same court, in a later case,7 say that in determining this question, "we may pass beyond what is strictly indispensable, and include articles which, to the common understanding, suggest ideas of comfort and convenience. But having done this the obligation is upon us to exclude all superfluities and articles of luxury and ornament."

In Massachusetts, it has been helds that "articles may be of that plain and cheap character which, while not indispensable, are to be regarded amongst the necessaries of life as contra-distinguished from luxuries."

There are numerous other cases? to the same effect, all bearing toward the one general purpose of giving a liberal construction to the word as applied to exemptions.

With the assistance of these decisions as to the meaning and scope of the word, it becomes easy to determine the policy of the law and so makes less difficult the application to particular cases.

Having now an understanding as to the limits of the right, and generally as to the extent of the benefit intended, the next natural subject of inquiry is as to the definition and extent of meaning belonging, in this connection, to the three specified classes of exempt articles, viz.: apparel, bedding, and tools and implements or utensils of trade.

The meaning of the first of these words"apparel," was carefully considered by Hammond, J., in a case recently decided by him in the U. S. District Court for the Western District of Tennessee. 10 The question arising in the case was whether "a plain, old style, single-case gold watch which he has owned for twenty-five years or more, and which

(5) Dunlap v. Edgerton, 30 Vt. 224.

(6) Montague v. Richardson, 24 Conn. 338.
(7) Hitchcock v. Holmes, 43 Conn. 528.
(8) Davlin v. Stone, 4 Cush 359.

(9) Peverly v. Sales, 10 N. H. 356; In re Thiel, 4 Biss. 241; Harrisson v. Mitchell, 13 La. Ann. 260; Wilson v. Ellis, 1 Den. 462; In re Steele 8 Cent. L. J. 86; Freeman on Ex. § 231; Haswell v. Parsons, 15 Cal. 266; Howard v. Williams, 2 Pick. 80; Casewell v. Keith, 12 Gray 351. (10) In re Steele, 8 Cent. L. J. 86.

would scarcely sell for twenty-five dollars," could be held exempt by a bankrupt under the law exempting "other articles and necessaries" and "wearing apparel." In discussing the question, the learned judge says: "It would not be doing any great violence to the meaning of the term 'wearing apparel,' as used in the bankrupt act, to include in it a gold watch of moderate value. The definition of the word 'apparel,' as given by lexicographers, is not confined to clothing; the idea of ornamentation seems to be a rather prominent element in the word, and it is not improper to say that a man 'wears' a watch or 'wears' a

cane.

The exemption law of Arkansas says that 'wearing apparel, except watches, shall be exempt.' Ark. Dig. 503-4; James' B'k'cy 58; Avery & Hobbs, Bank'y. 68." The question whether a watch is a necessary article of apparel and exempt as such, seems to depend upon the value of the watch itself, and also upon the business and condition of the debtor, and under different circumstances has been differently decided, the question being apparently as to the necessity rather than as to the character of the article. 12 This much at at least appears certain, that the word apparel, to quote the words of Hammond, J., supra, "is not confined to clothing." This conclusion also accords more nearly with that suggested by the derivation of the word, 18 which indicates such a complete equipment as one's station requires, rather than the mere necessary covering for the body. And the courts favoring this broader construction of the word have held that cloth sent to the tailor to be made into clothing, was in that form exempt as "apparel," as they have also held15 that cloth in process of manufacture was exempt as "manufactured cloth." The word "apparel" qualified by the word "necessary" was considered in an early New Hampshire case,16 under a statute which exempted "wearing apparel necessary for immediate use," and it was held that an overcoat and a suit "to go

11) Pro. In re Thiel, 4 Biss. 241; Mack v. Parks, 8 Gray 517; Wilson y. Ellis, 1 Den. 462; Leavitt v. Metcalf, 2 Vt. 342; Bumpus v. Maynard, 38 Barb. 626; Con. Smith v. Rogers, 16 Ga. 479; In re Graham, 2 Biss. 449; In re Cobb, 1 N. B. R. 448.

(12) Con. Herm. Ex. § 99.

(13) Lat. appario, noun apparatus; Fr. appareil. (14) Ordway v. Wilber, 16 Me. 263; Richardson v. Buswell, 10 Met. 506.

(15) Sims v. Reed, 12 B. Mon. 51.
(16) Peverly v. Sayler, 10 N. H. 356.

to meeting in," were included, the court saying: "The wearing apparel 'necessary for immediate use' must be such an amount of clothing as is necessary to meet the varying climate and the customary habits and ordinary necessities of the mass of the people. The clothing worn by the individual while about his daily toil, might be all that was necessary for the time, but be wholly insufficient when the labor ceased, and the clothing suitable and proper for days of labor might not be such as the common sentiment of the community would deem necessary for use on days set apart for religious assembling and worship."

The decisions relating to the second class of exempt articles are less numerous than those relating to the other two, but there are enough to show the construction to be given it. In the case of Haswell v. Parsons,17 under a statute exempting "necessary household furniture," the debtor, whose family consisted of a wife and three children, claimed as exempt six or seven beds of small value, and the claim was allowed, the court saying, "It may be possible that a less number of beds would have accommodated the plaintiff, his wife and children, but it would be a very narrow construction of the statute to limit the exemption to the number required for immediate and constant use. And in a case decided in Connecticut in 1874,18 the court say: "One may keep one bed for herself, one for her daughter, a spare bed for visitors, and one for a servant or nurse in case of sickness," and this under a statute exempting "necessary furniture."

The third and last class of articles has been frequently before the courts for judicial construction, and though the decisions are not altogether in harmony, owing mainly to verbal differences in the statutes of the several States, they generally accord as to the purpose and extent of the terms used in defining it.

The definition given by the Supreme Court of New Hampshire of the phrase "tools of a mechanic" is that it "is presumed to embrace such implements of husbandry or of manual labor as are usually employed in, and are appropriate to, the business of the several trades or classes of the laboring community, and ac

(17) 15 Cal. 266. See also Dickerman v. Van Tyne, 4 Sandf. 724.

(18) Weed v. Dayton, 13 Am. L. Reg. 603.

cording to the wants of their respective employments or professions. "19 As qualified by the phrase "of a mechanic," this definition is quite in harmony with the current of authorities, 20 while the word "tools," if unqualified, would easily bear a correspondingly broader meaning.

922

In Vermont 21 the word "tools" is applied to all farm implements for mere manual use, but not to such as are used with horses and oxen, as reapers, etc, but as this would exclude the plow, than which no implement is more necessary, the distinction seems to be inaccurate. The words of the Iowa statute are "tools or instruments," and the Supreme Court lay down the rule in these words: "Is the instrument a proper tool for a farmer to cultivate his land with? If so it is exempt. In Kansas a reaper and mower is exempt as a farming utensil." Among articles which have been held exempt under statutes exempting "tools and implements of trade" are a merchant's iron safe,24 a weaver's loom, 25 printing types and presses, 26 a barber's chair and foot rest, 27 a surgeon's instruments, 28 a dentist's intruments, 29 a jeweler's lamp and a musician's instruments, 31 while as not coming within the definition, the courts have excluded a threshing machine,32 a farmer's horse, 33 a building used as a photograph gallery, types and forms of an extensive printing establishment, 35 and, as not being the "tools of a mechanic," a dentist's instruments, 36 and a lawyer's library. 37 The question as to (19) Wilkinson v. Alley, 45 N. H. 551.

(20) Seeley v. Gwillien, 19 Conn. 518; Knox v. Chadburne, 28 Me. 160; Grymes v. Bryne, 2 Minn. 89; Herm. on Ex. § 104; Freem. on Ex. § 226.

(21) Garrett v. Patchin, 29 Vt. 248.

(22) Meyer v. Meyer, 23 Iowa, 359.

(23) Voorhees v. Paterson, 7 Cent. L. J. 275.

(24) Harrison v. Mitchell, 13 La. Ann. 260.

(25) McDowell v. Shotwell, 2 Whart. 26. (26) Patten v. Smith, 4 Conn. 450; 9 Cent. L. J. 122; Sallee v. Waters, 17 N. C. 482.

(27) Allen v. Thompson, 45 Vt. 472.
(28) Robinson's Case, 3 Abb. Pr. 466.

(29) Maxon v. Perrott, 17 Mich. 332; Duperrow v. Commeny, 6 La. Ann. 789.

(30) Bequillard v. Bartlett (Kan.) 6 Cent. L. J. 119. (31) Goddard v. Chaffre, 2 Allen 394; Baker v. Willes, 5 Cent. L. J. 330.

(32) Meyer v. Meyer, 23 Iowa, 359; Ford v Johnson, 34 Barb. 364.

(33) Wallace v. Collins, 5 Ark. 41.

(34) Holden v. Stranahan, 6 Cent. L. J. 415. (35) Danforth v. Woodward, 10 Pick. 423; Buckingham v. Billings, 13 Mass. 82; Richie v. McCawley, 4 Pa. St. 472.

(36) Whitcomb v. Reid, 31 Miss. 567. (37) Lenoir v. Weeks, 20 Ga, 596.

whether a professional man's instruments and library are "tools and implements of trade," has arisen frequently, and where the spirit of the law has been allowed to govern, or where the statute has not excluded them therefrom, they have been so held. In reason they cannot be excluded. Blackstone 38 expressely includes "the books of a scholar" with "the axe of a carpenter" to illustrate the meaning of the phrase "tools and utensils of trade." They certainly are not less necessary, and the opinion that excludes them as not falling within the letter of the law, sticks in the bark.

It will be seen from the authorities cited that the difference between necessary or ordinary implements and expensive and unusual ones is clearly recognized in the exemption laws whether statutory or at common law. Machinery is generally excluded, but not merely because it is costly or complicated, but because it is either not the implement of a trade, but rather the appurtenance of a factory,39 or because the same labor could be readily performed with simpler and equally effective implements already exempt. This distinction would clearly not apply in cases where less costly substitutes could not be obtained, as to the lawyer's library, whose profession cannot be reasonably well exercised without the possession of at least the statutes, digests and reports of his own State.

Another qualification of the right of exemption is that the tools and implements to be exempt, must be of that trade or profession of the debtor by means of which he obtains his livelihood, 40 and reasonable in amount for that purpose.41 Bearing in mind the purpose of the law, and aided by these decisions illustrating it, it becomes a matter of but little difficulty to apply the rule to every individual case, whether arising under the statute or common law, giving the creditor his due yet always leaving to the debtor enough so as not (38) 3 Bl. Com. 9.

(39) Danforth v. Woodward, 10 Pick. 423; Knox v. Chadbourne, 28 Me. 160; Atwood v. DeForest, 19 Conn. 513-515.

(40) Abercrombie v. Alderson, 9 Ala. 981; Grymes v. Beyers, supra; Washburn v. Goodheart, 7 Cent. L. J. 248.

(41) Richie v. McCawley, 4 Pa. St. 472; Seeley v. Gurilen, 40 Conn. 106; Atwood v. DeForrest, 19 Id. 513; Prather v. Bobo, 15 La. Ann. 524; Harris v. Haynes, 30 Mich. 140; Norris v. Hoyt, 18 N. H. 196; Davis v. Wood, 7 Mo. 162; Wallace v. Collins, 5. Ark. 41.

In a suit on the bond of a lodge treasurer for moneys collected and not paid over, it is no defense on the part of the bondsmen that, at the time of their signing the bond, the treasurer was a defaulter to the lodge for moneys previously received; that they were not members of the lodge, and did not know of the fact of the default; that the officers of the lodge did know of the fact and faile 1, as was their duty, to notify the bondsmen, and that they were misled by the lodge having selected him and thereby induced them to believe he had acted faithfully.

WALKER, J., delivered the opinion of the court. It appears that John A. Hughes was elected Treasurer of appellee's lodge. He so acted from the first day of January, 1875, until the 30th of June following. It is agreed by the parties that at the commencement of this term of office he reported to the lodge that he had the sum of $436 money of the lodge; that on the 30th of June, the end of his term, he should have had in his hands $561, which he had received and failed to pay over to his successor. The suit was on the bond and service was had on the sureties but not on Hughes.

The sureties pleaded non est factum and a special plea; that for two terms preceding the term commencing on the first of January, 1875, Hughes, the principal, was treasurer, and at that time was a defaulter to the lodge for moneys previously received and misapplied; that it was then known to the officers and members of the lodge that he was a defaulter and the sureties were ignorant of the fact that the lodge is a secret organization of which defendants were not members and were ignorant of its business; that it was the duty of the officers and members of the lodge when the bond was executed to inform defendants that Hughes was a defaulter, and they were mislead by the lodge having re-elected him and thereby induced them to believe he had acted faithfully; but the officers or members gave to defendants no such notice. And the plea concluded by insisting the bond is void. The court sustained a demurrer to this plea and that decision is assigned for error. And it is also urged that the court erred in refusing to permit appellants to prove that the default occured and the misappropriation of the money was during the term previous to his elec

tion on the first day of January, 1875, when other persons were his sureties, for the purpose of fixing the liability for the default on the sureties in the bond covering the previous term.

It is urged that the special plea presented a complete defense to the action; that the officers and members of the lodge knowing of the defalcation and re-electing Hughes treasurer, operated as a recommendation of his honesty to all persons not members of the lodge; that such conduct on the part of the lodge was calculated to and did mislead appellants and operated as a fraud upon them; and the concealment by the officers and members of the fact that Hughes was a defaulter, when they signed his bond, was a positive fraud. There is a class of cases in which it is held, that it is fraud to fail to disclose defects on the sale of property; and to silently stand by and permit another to act upon the supposition that he is purchasing a good title when the person claiming an adverse title or interest, knowing the fact and having the opportunity, fails to assert his claim. So, of many other transactions, it is held to be a fraud to fail to disclose facts that would prevent the other party from acting. But the rule does not apply when the defect or important information is as accessible to one person as the other. One person is not required to act as the agent of another when the other by reasonable diligence may acquire the information.

If a person knowing another to be utterly insolvent proposed to credit him if he would procure sureties, he can not be held to have acted in bad faith by failing to apprise the surety that his principal is utterly insolvent. We presume no one would regard such a failure to apprise the surety of the fact of the insolvency of the principal as a fraud, and yet had the surety known the fact, he would probably not have indorsed for the principal. And this is held not to be a fraud because it was the folly of the surety not to have learned the financial standing of the principal. The avenues of information were opened to him and it was his duty to have used the means to inform himself; and failing to do so, he must suffer the consequences of his inaction. In such a case however, if the person extending the credit were to use any artifice to throw the surety off of his guard and to lull him into a false security and he was thereby deceived, that would amount to a fraud. But mere failure to communicate the fact in such a case does not amount to bad faith.

In this case it is urged that as this was a secret organization, information as to Hughes' integrity was not accessible to appellants, as they were not members of the order. We apprehend that Hughes' account books were not under the seal of secrecy. If appellants had requested, he could, if disposed, have shown his books to them. Or had they inquired of the officers of the lodge or even of its members, they would, if within their knowledge, have been required to communicate correct information. It is thus apparent that the sources of information were open to appellants, had they been disposed to pursue them. But the officers and members were asked nothing, nor did

they say anything, and we cannot hold they were guilty of a fraud.

It is likewise urged that the court should have admitted evidence to prove that the defalcation occured the term before appellants became sureties on the bond, and thus show that the sureties on his bond for the preceding term were liable. In the case of Morley v. The Town of Metamora, 78 Ill. 395, the same defense was interposed. In that case, as in this, the supervisor was his own successor and his sureties interposed the same defense, but it was held not to be good. In that case it was said: "It is not made to appear very clearly that whatever default occurred took place in the first year the supervisor was in office; but conceding that fact we do not think it relieves the sureties on the bond upon which this action is brought, from liability. The supervisor was his own successor in office. He had made his annual report in which he charged himself with having a certain amount of money in his hands. The report was approved and we must presume it was In contemplation of law the money mentioned in his report was in the hands of the supervisor and the undertaking of the sureties on his bond was that he should account for it. It was as much his duty to account for whatever funds were in his hands at the end of the first year as it was to account for whatever should be received during the second year. The law made the sureties responsible for any default in that regard. There could be no action maintained against the sureties on the first bond, at the expiration of that year, for there was no one who could make demand for the money the supervisor reported as having in his hands so as to establish a default." And the case of Pinkstaff v. People, 59 Ill. 148, is referred to as sustaining the decision in that case.

true.

*

he has paid the loss, but may at once bring suit, to which the re-insurer may make the same defense which the re-insured can make against the original assured, or the former may await a suit by the latter and give notice of it to the re-insurer, and on being subject to damages, recover them, together with the costs and expenses of the litigation from the re-insurer.

2. NOTICE OF SUIT TO RE-INSURER-JUDGMENT AGAINST RE-INSURED.-Where, after notice of suit threatened or begun against the re-insured, the re-insurers do not disapprove of its contestation by the reinsured, the latter shall be deemed to have been required by the re-insurers to defend the same; and such defense when made in good faith, will render any judgment obtained by the original insured binding on the reinsurers as to all matters which could have been litigated, and make them liable for the costs and expenses of the litigation. This can not be affected by a con-tract entered into between the re-insured and the reinsurers, in which neither were bound to do any thing more than the law already required of them.

3. SATISFACTION OF JUDGMENT IN A PARTICULAR WAY-VALID DEFENSE BY RE-INSURED ESTOPPEL.-A contract was made between the original insured and the re-insured, wherein for a consideration paid it the former released the latter from all liability. on any judgment, if any should be recovered against it. And in case of such recovery, the re-assured was to assign its claims of re-insurance on the re-insurer to the original insured, which assignments were to be received in full satisfaction of said judgment against the re-insured. The contract further provided that nothing contained in it should hinder or prevent the re-insured from defending the suit against it by the original insured. Held, that such contract simply provided for the satisfaction in a particular way of the judgment that might be recovered, and did not disable the reinsured from making a genuine and honest defense in the suit against it; therefore, the re-insured having offered to show that such a defense was made, which testimony was excluded at the instance of the reinsurers, and it further appearing that the latter had notice of the contract before the trial and interposed no defense for themselves, they are estopped to deny the good faith of the defense, and are bound by the result of the former suit.

4. MEASURE OF DAMAGES BETWEEN RE-INSURED AND RE-INSURER.-Where a loss occurrs on a policy of re-insurance, the liability of the re-insurer is not contingent on the amount paid by the re insured, nor upon any payment whatever by him, but he is liable for all that the re-insured becomes liable to pay by reason of such loss.

Appeal from the St. Louis Court of Appeals.

In December, 1863, the defendant, then called the Atlantic Insurance Company, by its policy of insurance issued to the United States Insurance Company, re-insured, "lost or not lost," any insurance the latter company might have, including re-insurance on any seaworthy boat to or from all points below St. Louis in all rivers, against the usual maritime risks, including fire, the said re-insurance not to exceed the sum of $20,000 and to cover the sixth-twentieth thousand dollars on any one boat, the amount of loss to be paid within sixty days after proof of loss.

In June, 1864, the United States Insurance Co. insured Hening & Woodruff to the amount of $120,000 on a shipment of 700 bales of cotton, valued at $280,000, on a steamer making a voyage