Davlin v. Stone , 58 Mass. 359 ( 1849 )

Shaw, C. J.

The only question in the present case is, whether the articles taken by attachment by the defendant on a writ against the plaintiff, were by law exempted from attachment. By the Rev. Sts. c. 97, § 22, various classes of articles are exempted, and amongst others, after specifying particular articles, “ other household furniture necessary for the debtor and his family, not exceeding fifty dollars in value.”

The articles attached by the defendant, and claimed by the plaintiff as exempt, were two carpets and a sofa, which together sold for 023-90, and the agreed value of the other necessary furniture was 025. There is no evidence of the value of the articles sued for, but the sale at auction; that is one species of competent evidence, and as there is nothing to control it, we take it as the value : then it is clear that the household furniture, including these articles, did not exceed 050 in value. As they clearly come within the description of household furniture, the only remaining question is, whether they are necessary. This word is not used in its most rigid sense, as something absolutely indispensable, and without which the debtor cannot live, but something so essential, as to be regarded amongst the necessaries of life, as contradistinguished from luxuries. Perhaps chairs would not be strictly necessary, because benches and blocks might do to sit on ; but we cannot doubt that cheap and common chairs, and even others originally more costly, acquired by the debtor in more prosperous times, but so reduced by wear and change of fashion, as not to exceed in value, with all his other furniture, $50, would fall under the same designation. We are of opinion, that a plain and cheap sofa and carpet are not necessarily to be regarded as luxuries. These, judging by the sale, must have been eminently of that character, cheap and ordinary. If it were a question, whether a particular article of furniture attached were necessary under particular circumstances, or an article merely of luxury, it might properly go to a jury to ascertain its character and cost, with a view to enable the court to decide whether “ necessary ” or not. But upon this agreement, it is left to the court upon the facts stated, and we are of opinion that the articles were by law exempted from attachment, and that the action well lies.

We are also of opinion, that trespass is the proper form of action, at common law, for such taking; but now, by force of St. 1839, c. 151, § 4, trover will equally well lie.