Lincoln v. Dunbar

89 Mass. 264

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1863
• Status: Published

Opinion

Metcalf, J.

The Gen. Sts. c. 118, after providing for the discharge of insolvent debtors from all debts proved or provable against their estates, contain this exception in § 79: “A claim for necessaries furnished to the debtor or his family shall not be so discharged, unless the claim is proved against his estate.” This is a reenactment of § 10 of c. 304 of St. 1848, which Shaw, C. J., said, in Prentice v. Richards, 8 Gray, 226, was to be construed strictly, because the exception was directly repugnant to the general policy of the insolvent system. And in that case it was decided that rent of a house hired by a debtor for the business of keeping a boarding-house was not within the class of necessaries ; that such claim could not be distinguished from bills for provisions, groceries and all other supplies for such a house, which are not necessaries for the keeper of the house, nor for his family; and that, by “ necessaries furnished to the debtor or his family,” the statute meant things necessary to their personal relief.

We are of opinion that a debtor’s boarders are not of his family, within the meaning of the statute, and hence that necessaries for them are not necessaries for him or for his family. And we are also of /opinion, upon the bill of items in the account annexed to the plaintiffs’ writ, that it was impossible for the jury to determine, except by arbitrary conjecture, what portion of the articles in the plaintiffs’ account, on which this action is brought, was used by the defendant, and therefore that they can recover for no portion of them.

Exceptions overruled.