12 Or. 431 | Or. | 1885
This is an appeal from an order of the Circuit Court requiring the appellant, an insolvent debtor, to surrender and deliver up to his assignee, for the benefit of his creditors, a
The question whether a watch is a necessary article of wearing' apparel, and as such, exempt, seems, from the decisions, to? depend upon the particular facts, or attendant circumstances of' each case, such as the value of the watch, the condition and. business of the debtor, etc., and has been differently decided under different circumstances. In In re Steele, the meaning of the; term “wearing apparel,” used in the bankrupt act, was carefully considered by Hammond, J., of the United States District Court for the western district of Tennessee. John Steele had been-allowed and claimed no exemption except a watch which was-described as “ a plain old style single case gold watch, which he had owned for twenty-five years or more, and which would scarcely sell for twenty-five dollars.” The question was, whether’ it could be held by him as exempt under the law exempting “ other articles and necessaries,” and “ wearing apparel.” The-learned judge said: “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 rather a 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
In Rothschild v. Boelter, 18 Minn. 362, it was held that a silver watch and chain, worth forty or fifty dollars, worn by the (debtor, is not exempt under the statute as “ wearing apparel of ithe debtor and his family.” The court say: “That an article may be worn does not make it wearing apparel within this ■statute. The words are to be construed in this case according ■to the common and approved usage of the language, namely, as .referring to garments, or clothing generally designed for wear ■of the debtor and his family.” In Gooch v. Gooch, 33 Me. 535, it was held that a watch which the testator had been in the habit of carrying with his person does not pass by a bequest of his wearing apparel. Wells, J., says: “ The ordinary meaning of wearing apparel*is vesture, garments, dress; that which is worn by or appropriated to the person. Ornaments may be so connected and used with the wearing apparel as to belong to it; there are implements, such as pencils and penknives, carried about -the person, but not connected with the wearing apparel. These are ntit to be considered as clothing. To which class does a watch belong? It may not properly be called an implement, for it is used merely to look at; neither is it used as clothing or vesture. In its use it more nearly resembles the pencil or penknife. The court are of the opinion that the watch did not pass under 'the phrase * wearing apparel” In Sawyer v. Heirs of Sawyer, 28 Vt. 251, it was held that a watch was not to be deemed wearing apparel. The court say: “ Though a watch may have a further -use than mere ornament, yet there is not enough to make it and its incidents wearing apparel.” But on this point Bedfield, C. J., thought otherwise, saying that “it seems to me that a watch which one wears and the chain and seals are dress and apparel.” In Smith v. Rogers, 16 Ga. 480, an insolvent moved to exempt from sale a watch that he claimed to be part of his “wearing apparel.” His wife had claimed and been allowed a gold watch. The court say : “ Yarious articles of property have from time to time been exempted by the legis
The exemption, however, under our statute is limited to the “necessary wearing apparel owned by any person, to the value of one hundred dollars.” In construing the word “necessary” in such connection, the courts have been inclined to a liberal rather than a rigid construction. In Towns v. Pratt, 33 N. H. 349, under a statute exempting the “wearing apparel necessary for the debtor and his family,” the court say: “ The Avord 1 necessary,’ as here used, is not to be understood in its most rigid sense, implying something indispensable, but as equivalent to convenient and comfortable.” (Peverly v. Sayles, 10 N. H. 356.) “It Avould, therefore, include such articles of dress or clothing as might properly be considered among the necessaries in contradistinction to theluxuries of life.” (Davlin v. Stone, 4 Cush. 359.) If a watch is in no sense “wearing apparel,” as some of the authorities indicate, the judicial construction of the word “necessary” is of no importance. On the other hand, it would seem that if a Avatch worn by a person may be considered as a part of his dress or apparel, the word “necessary,” as judicially construed, would not so materially affect the meaning of the phrase “ Avearing apparel” as to exclude it. It is probably true that a watch is ordinarily worn more for convenience than as a mere luxurious ornament. But to determine whether it is one or the other, necessary or luxurious, as an article of dress or apparel, the value of the watch is alloAved to have a controlling influence in determining that result. If the value of the watch be unreasonable, or too much money be invested in it, the law regards it,
“ Prima facie, all the personal property of a judgment debtor' is liable to levy and sale upon execution. If he would claim exemption for any of such property, he must bring himself and property within the exception of some statute by proper proof. No property in his possession is exempt per se.” (Dains v. Prosser, 32 Barb. 291.)
It lies with the party claiming property to be exempt to prove the facts affirmatively which go to establish it. Until it is made to appear, at least, what are the articles, and their yalue, of wearing apparel, selected and reserved by the judgment debtor, the court cannot determine whether the privilege of the exemption laws has been properly exercised or abused to the injury of creditors. There is nothing in the deed of assignment, or in this record, to show what articles of wearing apparel, or the value of the same, which the appellant has reserved, except that he testifies that he has kept as exempt a gold watch and chain worth from fifty to seventy-five dollars. What other wearing apparel, and from the necessity of the case he must have retained some, the quantity and its value, he is silent about. The creditors have a right to know, and the facts lie within his knowledge, and unless he shows affirmatively the facts which sustain his right to the exemption claimed, the court will hardly aid him by pre
The judgment must be affirmed.