Harriman v. Gray

Colt, J.

The statutes authorize a married woman to employ her separate property in business on her own account. But in order to hold the property so employed against the creditors of her husband, she must first file in the town clerk’s office a certificate setting forth, among other things, the place where the business is to be done, giving the street and number if practicable; and a new certificate in case of any change in the place or nature of the business; St. 1862, o. 198.

The statute is intended to prevent the husband from obtaining false credit by the possession of the wife’s property and its use in business as his own. The plaintiff fails to show a substantial compliance with its requirements. In the certificate filed, the place where the plaintiff proposed to carry on business is described as numbered 53 in a certain street, to which is added “ and such other rooms as may be necessarily connected therewith.” This certificate will not protect property employed in business carried on in a separate and distinct building, of another number, in the same street, in no way “ physically connected ” therewith, and not shown to be “ necessarily connected therewith ” at least by the nature of the business carried on. The case, so far from showing any connection, finds that the business had been transferred, in whole or in part, since the filing of the certificate, from the place named, No. 53, to another place in the same street, where the goods were attached, No. 59; and no new certificate of the change was made. Cahill v. Campbell, 105 Mass. 40.

The evidence offered would not warrant the jury in finding an abandonment by the keeper of the property attached. It is evident that no abandonment was intended. The possession of the witness was colorably obtained, and the keeper was wrongfully excluded by him. It certainly is not necessary, in order to maintain a lien by attachment, that a keeper should be at all times able to resist fraud and violence in retaining his actual possession. Boynton v. Warren, 99 Mass. 172.

Exceptions overruled.