Long v. Drew, 114 Mass. 77

Long v. Drew

114 Mass. 77 | Mass. | 1873

Colt, J.

The plaintiff contends that her property employed in business is protected, as against an attaching creditor of her husband, by a certificate duly filed under the requirements of St. 1862, c. 198. The form of the certificate is in substantial compliance with the statute. Harriman v. Gray, 108 Mass. 229. Cahill v. Campbell, 105 Mass. 40.

The court was asked to instruct the jury that the plaintiff was not entitled to this protection, if the certificate contained a false statement within her knowledge, or if there had been an intermingling of her property with the property of her husband. These instructions the court properly declined to give. The first proposition has reference to the fact that it is expressly declared in the certificate, that the fixtures, with other property employed in the business, are the sole and separate property of the plaintiff, while it is conceded that the fixtures were at the time the prop*80erty of the husband. But this fact is wholly immaterial to the issue in the case. The question was as to the sufficiency of the certificate, and the actual ownership of the property attached by the defendant. The fixtures in question were not attached, and title to them is not in question. There is nothing in the statute which requires an enumeration, in the certificate, of the property to be protected by it. And if otherwise sufficient, a false statement in this respect cannot invalidate it. Nor does the fact that there was an intermingling of the property of the husband and wife defeat the protection afforded. The statute contains no such qualification of its effect, and contains no provisions like those to be found in the lien law or the statutes authorizing the formation of limited partnerships. Upon the question of the real ownership of the property, under the instructions given, full effect was allowed to the facts relied on. They ought not to be permitted to defeat an honest claim of ownership, and the jury have found that the property taken was the property of the plaintiff.

The receipted bills were properly admitted in evidence by the rule that papers produced on notice, and submitted to the inspection of the other side, become evidence for both parties at the trial. Clark v. Fletcher, 1 Allen, 53. 1 Green. Ev. § 563.

Exceptions overruled.