
    Mason Morse vs. Caroline C. Toppan.
    A judgment recovered against a married woman alone, though founded on a contract made by her in carrying on business on her own account, and while living separate from her husband, was void, before St. 1855, c. 304, § 7.
    Action of contract on a judgment recovered against a married woman, living separate from her husband, and carrying on business on her own account, and in her own name, as keeper of a boarding-house. The judgment was recovered by default, in an action brought against her alone, on a note given by her for articles necessary to carry on said business, and indorsed to the plaintiff, without notice of her being a married woman. Said action was not founded on any contract made, or wrong done, by her, in respect to any property secured to her separate use, by virtue of any statutes of this commonwealth, or otherwise, other than what she might acquire by her said occupation. Her husband has always resided in this state, but was not served with process, either in this action, or in that in which the judgment was recovered. No decree of divorce of said husband and wife has ever been passed. The case was submitted to the decision of the court upon these facts.
    No counsel appeared for the plaintiff.
    
      I. Ames, for the defendant.
   Shaw, C. J.

The facts being agreed, they are to be taken as of the same legal effect, as if pleaded. The fact that the defendant was a married woman, when the judgment was rendered against her, would alone be a good bar to this action. It would be the same as if she had entered into an obligation by bond at the same time; to which she might have pleaded non est factum. A judgment is in the nature of a contract; it is a specialty, and creates a debt; and to have that effect, it must be taken against one capable of contracting a debt. Faithorne v. B'aquire, 6 M. & S. 73. Judgment for the defendant 
      
       By St. 1855, c. 304, § 7, “ any married woman may carry on any trade or business, and perform any labor or services, on her own sole and separate account; and the earnings of any married woman, from her trade, business, labor or services, shall be her sole and separate property, and may be used and invested by her in her own name; and she may sue and be sued, as if sole, in regard to her trade, business, labor, services and earnings; and her property acquired by her trade, business and service, and the proceeds, may be taken on any execution against her.”
     