
    Hanlon vers. Thayer.
    Articles of Apparell and Ornament of a Wife, owned by her before her Marriage, (except necessary wearing Apparell,) are liable to Attachment for the Debts of the Husband.
    THE Plaintiff (Hanlon’s Wife) () brings Trover against Thayer (a Sheriff) for attaching her Apparell. () There were two Questions in this Cafe; one, whether, as the Apparell attached was the Property of Hanlon’s Wife before the Intermarriage, it did not make a Difference in the Law from Cafes where Apparell after the Marriage came to the Wife; the other, whether the feveral Articles in the Schedule annexed were all neceffary wearing Apparell.
    1764.
    
      Mr. Auchmuty,
    taking no Notice of the first Question, endeavoured to prove the Apparell mentioned was necessary, by observing, what was necessary for one Station in Life was not so for another, and said the Law never meant the Word “Necessary” in its -ítriéteít Senfe.
    
      Mr. Chardon for Defendant.
    
    The Argument ab Inconvenienti is of very great Weight in the Law, and by admitting all thefe Things (in the Schedule) as neceffary wearing Apparell, would be putting it in the Power of almoft every Debtor to defraud his Creditor. () To explain and ihow the Senfe in which the Law uses the Word Necessary, I cite 4 G. 2, c. 1. ()
    
      Mr. Gridley.
    
    Nothing is necessary in the Law but what is necessary to defend from the Inclemency of the Weather, () or necessary to the Degree: But before they can talk highly of Degree they must pay their Debts. If any besides what is barely necessary is allowed for Comfort, it is not the Law, but Humanity. The Law here wifely uses the Word Necessary, for the Boundary of Necessity is determinate, but Conveniency not, — Conveniency What is convenient? &c. (a little Rhetorick and concludes.) Mr. Gridley also said: If a Judge of Probate grant to the Wife of an Intestate whose Estate is insolvent, two Beds, where one only was necessary, the other immediately became liable to be attached, and he cited Hardistey & Barney, (Comber. 356,) where Holt says if the Party have two Gowns, Sheriff may take one.
    
    
      Mr. Otis
    
    relied chiefly on the Evidence that proved Hanlon never bought or paid for a single Rag of his Wife’s Cloaths, but that the brought all with her at the Marriage, and said it had been the Custom universally, never to take Cloaths so brought, for the Debts of the Husband.
    
      Justices Oliver & Cushing
    
    both said the Case was very hard upon the Wife, who brought all these Cloaths at Marriage, yet “as they are personal Property, they become the Husband’s on Marriage, and therefore liable.”
    
      
      (1) Mark Hanlon was the plaintiff. The writ, however, was indorsed by Mary Hanlon, his attorney, who may have conducted the case, and thus occasioned the mistake.
    
    
      
      (2) The common law proceeding by attachment was merely to compel the defendant’s appearance where he failed to answer the summons. The Colony Law of 1644 gave plaintiffs the power to take out either summons or attachment in the first instance. Anc. Chart. 49. But the attachment being discharged by an appearance, as at common law, or at most by a judgment, twelve hours before execution, it was afterwards provided in 1650 that goods so attached should “stand engaged” until the judgment should be satisfied. Ib. 51. By the Prov. St. of 13 W. 3, the duration of the liability was limited to thirty days after judgment. Ib. 367. Gen. Sts. c. 123, § 42. The chattels liable to attachment have always been held to be such only as may legally be taken on execution, and where this latter right is left at the common law, “ so must the right to attach depend upon the common law.” 6 Mass. 244. By the Colony Law of 1647, officers were prohibited from levying execution on “ any man’s necessary bedding, apparell, tools or arms, neither implements of household which are for the necessary upholding of his life.” Anc. Chart. 155.
    
    
      
      (3) The schedule comprises earrings, necklaces, laces, ribbons, fans, &c. There appears also a list of necessary articles which the defendant tendered back to Mrs. Hanlon before the date of the writ.
    
    
      
      
        Lu. if 1 Inst. 351 b, top, would not have been a good Authority ?
    
    
      
      (4) Anc. Chart. 481.
    
    
      
      (5) “ 1 Pr Gloshoes ” (goloshes) and “ 1 Green Embrillo ” appear upon the schedule, but were not among the articles tendered back as necessary. About this time, “ Umbrillos ” were first advertised in the papers, and were doubtless then considered articles of luxury. See Drake’s History of Boston, p. 660.
    
   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. () 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. ()

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) 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) 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.
     