
    Lawson and Wife v. Barre.
    where the proof was that the husband and wife occupied a plantation under a lease to them jointly, and employed twenty or thirty slaves in cotton planting: Held, That the proof was not sufficient to authorize a judgment against the separate property of tho wife for services performed in the erection of a cotton gin and press upon tho leased premises.
    Appeal from Wharton. The appellee sued the appellants on the 25th of September, 1849, for work and labor performed by him in the construction of a cotton gin and press under a special contract. The plaintiff alleged that the defendants occupied a plantation uuder a lease to them jointly; that on said plantation were some thirty or forty slaves, the separate property of the wife, employed by the defendants in cotton planting; that tho defendants employed the plaintiff to do certain work about the erection of a cotton gin and press at a certain price, to he paid out of that year’s crop ; that the cost and expense of erecting the gin and press were for the benefit of the separate property of the wife, and therefore the plaintiff prayed judgment to he made at his election out of her separate property. The contract "was made and the work performed in the fall of 1848. The defendants answered separately, -demurring generally and denying all and singular, &c. The court below overruled the demurrers. A jury was waived. The plaintiff proved the contract made and work performed; that there were some twenty or thirty slaves employed as alleged; hut there was no proof to whom the slaves belonged. It appeared by a hill of exceptions which, had been taken by the plaintiff “that no evidence appearing on the records of the county, and it not appearing from the testimony that any written evidence existed, the plaintiff offered to prove that all the negroes on the plantation of the said John H. Lawson and wife were the sole and separate property of the wife by general reputation and understanding in the neighborhood where they lived, which evidence ivas not admitted,” &c. A witness proved that on one occasion, in 1848, Mrs. Lawson purchased some articles from him, and told him they were to he charged to her, as they were for her negroes. The plaintiff also proved the lease as alleged, and that when the lease terminated the gin and press were sold, and that a note for the purchase-money was taken, payable to Lawson and wife. There was no other testimony in the ease. The court gave, judgment for the plaintiff and ordered execution to he issued and levied at the election of the plaintiff upon the separate property of the wife. The defendants appealed.
    
      Quinan §• Wilson, for appellants.
    /. C. McGonigal, for appellee.
   HeMPHIDL, Ch. J.

The judgment in this case against the wife is clearly erroneous. The land upon which appellants lived was held by a lease for their joint benefit, and was consequently community property, and they may have had other community property, the corpus or profits of which might he subjected to the payment of this debt There is no allegation in the petition to the contrary. The negroes employed in cultivating the land are averred to bo the property of the wife, and the suit against the husband and wife jointly may have been brought on I lie supposition that the erection of the gin was as beneficial to the wife’s separate estate in the negroes as to the community property in the land, and that her separate property should satisfy at least a proportional share of the debt. Without entering into the question of the liabilities of the respective property of the husband or wife in proper cases, or what is separate and what community property as arising out of the proceeds of- the property of the husband or wife, it is sufficient for this case to state that there was not sufficient admissible evidence to show that the wife possessed any property in the negroes in her separate right.

The attempt to establish this fact by common rumor was properly overruled, and the fact that on one occasion she directed a merchant to charge some articles to her, having purchased them for the use of her negroes, was not sufficient proof. If it would have fixed her liability for the particular debt incurred, it would not reach this case. If it conduced to prove that site was the owner of negroes, yet it was no evidence of their number or that they were employed on the plantation of appellants, or that the husband did not hold the slaves or a portion of them in his own right.

The judgment as against"the wife, with directions that it be levied at the election of the plaintiff out of her separate property, is erroneous, and it is therefore ordered, adjudged, and decreed that the judgment be reversed. And this court proceeding to enter such judgment as should have been rendered below, it is ordered", adjudged, and decreed that the petition be dismissed as to the defendant Ann H. Lawson, and that the plaintiff recover of the defendant John II. Lawson, the sum of two hundred dollars and costs of suit, for which execution may issue.

Ordered accordingly.  