Hanlon v. Thayer

Ch. Just.

I should have been extremely glad if this Case had been argued a little more largely by the Gentlemen, of the Bar, and more Authorities cited, in Matter of so great Consequence. I always took it to have been the Custom in such Cases as this, for the Wife to have her Cloaths; in Cases that have come before me as Judge of Probate I never knew it denied to the Wife where the Estate was insolvent. (⁶) In the Case cited (by Mr. G.) I suppose the Woman was a Party, and the Debt contracted by her; this alters the Case much, but yet I apprehend (here Ch. Just, makes an Apology for what follows) that this may be one of those Cases where the Justice says a Thing obiter, or suddenly; for one Gown can never be supposed sussicient — must she go naked when that is washing? Upon the Whole I think it would be very hard upon the Wife, should such a Precedent as this take Place, that her Cloaths which the brought in Marriage must go to discharge the Husband’s Debts. I should think it safer to verge towards Conveniency than to strain the Word Necessary. (⁷)

The Ch. Just, in the Course of this Case asked if it would not have been better to have brought Detinue.

N. B. The Jury found for the Defendant Costs.

6 (6) The Prov. St. of 9 Anne referved only “ the neceffary bedding, utenfils and implements of houfehold,” where the eftate was infolvent. Anc. Chart. 390. At common law, however, there feems to have been a queftion to what extent the widow’s “paraphernalia,” beyond neceffary wearing apparel, was liable to creditors of the huiband’s eftate. Bac. Ab. Baron & Feme, C. 3. 1 Dane Ab. 364. And the praftice of allowing the widow her apparel in all cafes was afterwards confirmed by Sts. 1783, c. 36; 1802, c. 93 ; 1816, c. 95. The Revifed Statutes, c. ⅜51 % Sj excepted from the inventory of the eftate “ all the articles of apparel or ornament of the widow, according to the degree and eftate of her huiband,” “ although his eftate ihould be infolvent.” The St. of 1838,0. 145, omits the limitation as to the huiband’s degree, and provides that the articles aforefaid íhall be conftdered as exclusively belonging to the widow. Gen. Sts. c. 96, ¾ 4.

7 (7) Somewhat similar opinions have been subsequently expressed. See 4 Cush. 361, Shaw, C. J. — “ This word is not used in its most rigid sense, as something absolutely indispensable, and without which a debtor cannot live.” And the exemption of “ necessary wearing apparel ” has been held to extend to cloth in the hands of a tailor. Richardson v. Buswell, 10 Met. 506.