
    Sheppard et ux. vs. Kendle.
    The declaration sets forth, that defendant and wife Mary made a note to plaintiff: Held, that this was not an allegation, that they were man and wife at the time of the execution of such note, and consequently no error. If the fact were so, the declaration not showing it, it should have been pleaded.
    
      Searcy, for the plaintiffs in error.
    
      Wheatly and Williams, for the defendant in error.
   Green, J.

delivered the opinion of the court.

In this case, the declaration complains of George P. Sheppard and Mary B. Sheppard his wife, &c., and sets out as the cause of action, that on the 9th of August, 1838, the defendants, G. P. Sheppard and Mary B. Sheppard, (together withWm. A. Brown,) executed their promissory note to the plaintiff, whereby they promised to pay him ninety days after date three hundred dollars. In the court below the plea was withdrawn, and judgment taken nil elicit, and a motion in arrest of judgment made and overruled. In this case there is no error.

It does not appear from the declaration, that Mary B. Sheppard was a feme ccmert when the note was executed. If that were the fact, it should have been shown by plea. Let the judgment be affirmed.  