the plaintiffs, they sent to the latter, in payment of the note and account, a note for $100, dated February 25, 1874, signed by Gabriel Benn, payable to the defendants in five months, and by them indorsed in blank, together with a check for $7.76, signed by the defendants, which balanced the plaintiffs' demand against them. No question was made by the plaintiffs that the note and check were sent by the defendants with the intention of balancing the demand, and that it was so understood by the plaintiffs. The plaintiffs, upon receiving the note and check, indorsed the check, and sent the same, with the note, to the agency in Trcy, with instructions to send the note to its correspondent in Massachusetts, and have the same returned to the defendants, and the plaintiffs' original note and account collected. The agency followed these instructions, and the attorney in Massachusetts received the Benn note and check on March 27, 1874. He forthwith indorsed the check, deposited it in bank, and it was duly paid and returned to the defendants in the ordinary course of business. The attorney lost the Benn note soon after receiving it, but did not notify either the plaintiffs or the defendants of the loss until August 13, 1874, when he wrote the defendants that the note was lost, that the plaintiffs refused to receive it as payment, and demanding payment of the original note and account in his hands for collection.

There was also evidence tending to show that Benn was able and ready to pay the note at its maturity, had he been called upon to do so; that the plaintiffs did not authorize their attor neys to accept the Benn note in payment of the note and account in suit, and supposed the Benn note had been returned to the defendants; that the defendants were never given a receipt for the account; and that the note in suit was never returned to them.

The plaintiffs contended that the above evidence did not, in law, amount to payment; and requested the judge to rule as follows: "1. If the plaintiffs seasonably handed the note of Benn to their attorneys at Troy, with directions, which were never revoked nor waived, to return the same to the defendants, and they, in pursuance of that direction, sent it to an attorney in Massachusetts with explicit instructions to return it to the defendants, and the last-na-ned attorney accidentally lost the note

so that he could not return it, that would not preclude the plaintiffs from recovering. 2. The failure of the attorney in Massachusetts to return the note would not amount to payment, and would be no defence to this action." The judge declined so to rule; but ruled that the facts furnished sufficient evidence of payment; and found for the defendants. The plaintiffs alleged exceptions.

L. White, for the plaintiffs, to the point that the answer did not sufficiently aver payment, cited Suit v. Woodhall, 116 Mass. 547; Jackman v. Doland, 116 Mass. 550; Caverly v. Mc Owen, 123 Mass. 574.

C. L. Long, for the defendants.

ENDICOTT, J. The defence of payment is positively averred in the answer. After a general denial, "the defendants aver, that if the plaintiffs shall prove the making of the note declared on, or any of the items in the plaintiffs' bill of particulars, the same have been fully paid." The case is clearly to be distinguished from Caverly v. Mc Owen, 123 Mass. 574, and the other cases cited by the plaintiffs.

It appears from the bill of exceptions, that the defendants sent the note of a third party, indorsed by them, together with their own check for a small amount, to the plaintiffs, as and for payment of the plaintiffs' demand, and the same were received by the plaintiffs with full knowledge that such was the defendants' intention. If the plaintiffs were unwilling to accept the note and check in payment, it was their duty within a reasonable time to return them to the defendants, directly or through their agents, to whom they had entrusted the collection of their de mand. There was evidence from which it might fairly be inferred that the person to whom they were sent in Massachusetts, to be returned to the defendants, was the agent of the plaintiffs, for whose neglect they were responsible. This agent, instead of returning them as directed, indorsed the check, deposited the same in bank, and it was duly paid, and returned to the defendants through their own bank; the note he lost soon after receiving t. After the maturity of the note, and more than four mon is after its loss, he wrote to the defendants that the note was lost, that the plaintiffs refused to receive it, and demanding payment of the original debt in his hands for collection.

By the neglect of their agent the note was not returned within a reasonable time; and although the defendants had reason to suppose, from the collection of their check, that the check and note had been accepted in payment, they received no notice of the loss of the note until after its maturity. The laches and misconduct of the plaintiffs' agent made the note and check their own, and operated as satisfaction of their demand. The plaintiffe cannot now say that their demand was not paid by the note and check; and the presiding judge correctly ruled that there was sufficient evidence of payment. See Taylor v. Wilson, 11

Met. 44; Camidge v. Allenby, 6 B. & C. 373.

Exceptions overruled.

LOUISA S. DAWES vs. LOUIS RODIER.

Hampden. Sept. 25.-Oct. 21, 1878. AMES & SOULE, JJ., absent.

Where a married woman carries on the business of keeping a boarding-house, the debts due to her for board are a part of the property employed in the business, within the meaning of the St. of 1862, c. 198, § 1; and, if she fails to file the certificate required by that statute, such debts are liable to attachment by the creditors of her husband.

Where a married woman carries on the business of keeping a boarding-house in one town, and there files the certificate required by the St. of 1862, c. 198, § 1, and removes to another town, but neglects to seasonably file a new certificate in the latter town, the debts due to her for board furnished in the former town, although protected, while she resides there, by the first certificate, are liable to attachment by the creditors of her husband after her removal and before the filing of a new certificate.

CONTRACT upon an account annexed for board and lodging from August 17 to November 17, 1877. Writ dated November 21, 1877. The case was submitted to the judgment of the Superior Court upon an agreed statement of facts in substance us follows:

On April 1, 1877, the plaintiff was a married woman, living with her husband, and has continued so to do to the present time. From that date to January 1, 1878, she kept a boardinghouse, or her separate account, in the house occupied by her and her husband as their home in West Springfield. On January 1,

1878, she and her husband removed their home to Springfield, and on the same day she removed her business to the new home, and continued to carry it on there until February 1, 1878, and after. In the course of her business, and as a part thereof, she furnished the defendant board and lodging from August 17 to November 17, 1877, for which the defendant was to pay her the sum of $59, and did pay her at sundry times sums aggregating $26, the last payment being made on October 6, 1877. On November 22, 1877, she filed in the clerk's office of West Springfield a certificate substantially in compliance with the St. of 1862, c. 198, § 1, setting forth that she proposed to keep a boarding-house on her separate account, which certificate bore date April 1, 1877. On February 1, 1878, she filed in the clerk's office of Springfield a like certificate, but adapted to the changed location of her business, which last named certificate bore date January 31, 1878. No other certificate was ever filed by her. On November 1, 1877, the debt then owing by the defendant to the plaintiff, amounting to $22.83, on account of board and lodging furnished, was attached by trustee process in an action brought by a creditor of the plaintiff's husband against the husband in a court having jurisdiction of the cause and the parties, in which action this defendant was defaulted and adjudged the trustee of the husband. Execution issued, and on November 21, 1877, the defendant paid thereon the sum of $22.83.

In like manner, on January 19, 1878, the further debt, amounting to $10.17, then owing by the defendant to the plaintiff on account of board and lodging furnished the defendant while the plaintiff was living and carrying on her business in West Spring field, was attached in an action by the same creditor of the plaintiff's husband, in which action the defendant was also defaulted and adjudged the trustee of the husband. Execution issued, and on February 14, 1878, the defendant paid thereon said sum of $10.17.

On the above facts, Allen, J., ordered judgment for the plaintiff for $33; and reported the case for the determination of this

court.

J. M. Ross, for the plaintiff.
J. L. Rice, for the defendant.

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 em. ployed in the business.