Miller v. Bannister , 109 Mass. 289 ( 1872 )

Gbay, J.

By the present law of this Commonwealth, the property of a married woman and that which she acquires by trade or business carried on by her on her separate account is her sole and separate property. Gen. Sts. o. 108, § 1. In case she carries on such business without filing a certificate of the fact in the town clerk’s office, she cannot indeed claim the personal property employed in such business as against the creditors of her husband, but the same may be attached on mesne process by any such creditor, or taken upon execution against the husband. St. 1862, o. 198, § 1. But by the express terms of the statute the absolute right of the married woman in her separate property is so restricted, and the power to take it on a writ against her husband is conferred, only for the benefit of creditors of the husband. The burden is upon any one justifying the taking of the wife’s separate property upon such a writ, to prove that the plaintiff therein was a creditor of the defendant, as it is in the ordinary case of an attachment, on a writ against one person, of property conveyed by him to another in fraud of creditors. Damon v. Bryant, 2 Pick. 411. Ames v. Sturtevant, 2 Allen, 583. In this case, no such evidence was offered, not even the promissory note upon which the attachment was made. A writ sued out against one person is no evidence against him, nor a fortiori against a third person, that the plaintiff is a creditor of the defendant.

Exceptions overruled.