Dawes v. Rodier

Morton, J.

Under the General Statutes, a married woman might carry on any trade or business in the same manner as if she were sole, and her separate property, employed in or acquired by such trade or business, was not subject to the control of her husband or liable for his debts. Gen. Sts. c. 108, §§ 1-3. The St. of 1862, c. 198, made important changes as to the rights and liabilities of a married woman who carries on any business on her own account. It provides that “any married woman, now doing or hereafter proposing to do business on her separate account, shall file a certificate in the clerk’s office of the city or town where she does or proposes to do said business, setting forth the name of her husband, the nature of the business proposed to be done, and the place where it is to be done, giving the street and number of the place of business, if practicable; and whenever the place of business or the nature of the business is changed, a new certificate shall be filed accordingly. In case no such certificate shall be filed, such married woman shall not be allowed to claim any property employed in said business as against any creditors of her husband, but the same may be attached on mesne process by any such creditor, or taken upon execution, against the husband of said woman.” St. 1862, c. 198, § 1. It was decided in Chapman v. Briggs, 11 Allen, 546 , that this statute extends to the business of keeping a boarding-house, and that if a married woman carrying on such business neglects to file the certificate therein required, her furniture employed in the business is liable to attachment by the creditors of her husband.

In the case of a married woman carrying on the business of keeping a boarding-house, we are of opinion that the debts of the boarders for board must be deemed to be property employed in the business, within the meaning of the statute. In the case of a business of dealing in merchandise in which it is usual to sell on credit, the outstanding debts would be universally recognized as a part of the capital or property employed in the business. So in the case of the business of keeping a boardinghouse, the money or property put into the business may be changed in part into the form of debts due for board, but such outstanding debts remain a part of the capital or property employed in the business.

*424 Applying these considerations to the case at bar, the necessary conclusion is, that the plaintiff cannot recover the amount of $22.83 paid by the defendant upon the first execution against the husband of the plaintiff. She carried on the business of keeping a boarding-house in West Springfield, but did not file the certificate required by the statute until November 22, 1877. On November 1, 1877, the debt then owing by the defendant for board was attached by a trustee process brought by a creditor of the husband. At that time, no certificate having been filed, this debt, and all the other property employed in the business, was liable to attachment by the creditors of the husband, and the defendant having been charged as trustee, and having, as he was bound to do, paid the amount of the debt upon the execution against the husband, is not now liable to the plaintiff therefor.

In regard to the sum of $10.17, paid by the defendant after being charged as trustee in the second suit against the plaintiff’s husband, the facts are different, but the result is the same. On January 1, 1878, the plaintiff changed her place of business from West Springfield to Springfield, but she neglected to file a certificate in the clerk’s office of Springfield until February 1, 1878. On January 19, 1878, the defendant was summoned as the trustee of the husband, he then owing the said sum of $10.17 for board furnished in West Springfield after the certificate was filed in West Springfield. Undoubtedly this debt was exempt from attachment by the creditors of the husband as long as the plaintiff remained in West Springfield. But, upon her removal to Springfield, the statute required her to file a new certificate in that place, and, until such certificate was filed, all her property employed in the business was liable to be attached on mesne process by any creditor of the husband. The mere change in the place of business would not change the character of this debt. It still remained a part of her property employed in the business, and, like the furniture, was liable to be attached by a creditor of the husband until she filed the new certificate in Springfield. It follows that, as the defendant paid this amount upon an execution against the husband, after being lawfully charged as his trustee, the plaintiff cannot now recover it.

Judgment for the defendant.