The plaintiff, Richard S. Hooper, is trustee in bankruptcy of the estate of the defendant John A. Kennedy, bankrupt.
The plaintiff, in this action, replevied from the defendant a roll-top desk and an Oliver typewriter which the defendant in his schedules in bankruptcy claimed were exempt. Answer was waived, and the case was tried in the municipal court of Caledonia County, on an agreed statement of facts. From the agreed facts it appears:
That Kennedy was the owner of a granite business in Hardwick up to the time he was adjudged a bankrupt and in his business solicited orders from retail monumental dealers in several different states of the United States; that orders so procured were "sub-let" to granite manufacturers, either on an agreed consideration or upon a percentage of commission, and this business he has continued for some time, covering several years, and was so engaged at the time this action was brought; that about two years ago he opened a stone shed for the purpose of manufacturing granite and filled most of the orders he received from his own factory or stone shed, though during that time some of his contracts were "sub-let"; that owing to business reverses and financial reverses at the time of filing the petition in bankruptcy he was unable to keep up his advertising and mailing circulars to procure orders and was further unable to provide himself with stationery and other supplies, and for a short time was employed in the office of a granite manufacturer, keeping books, attending correspondence, drafting and doing such other work as is common thereto; but he knew the employment was to be for only a short time, and it was so understood between *Page 316 him and his employer; that he was so employed at the time this action was brought; that shortly thereafter his employment ceased and he has been left with no means of earning a livelihood by his regular occupation, and as a result of this action he has had to resort to the work of a common laborer in a furnace factory; that since the time of his being bankrupt he has had an opportunity to sub-let a great amount of business, four different manufacturers have asked him for "jobs to cut," and have further asked him to supply them with work, which he is unable to do without the typewriter and roll-top desk that have been taken from his possession by virtue of this suit; that it is his honest intention to continue the business of granite dealer or broker, and as such the said typewriter and desk are necessary in correspondence and filling orders. No claim was made by defendant in the court below that the said two articles were exempt by law, unless they were "tools" within the meaning of section 2439 of the General Laws of Vermont.
On the agreed statement of facts, the court below adjudged that the typewriter and roll-top desk, replevied in this suit, were not "tools" within the meaning of that section of the statute, and that defendant was not entitled to hold the same as exempt against the trustee in bankruptcy, etc., to which defendant excepted, and brings the case to this Court for review.