
    Hubby and another v. Camplin and wife.
    Where testimony has been given, which does not tend to establish any fact in issue, the court does right to exclude it from the jury.
    In an action by the husband and wife, for money, the separate property of the wife, where offsets are pleaded greater than the amount sued for, which are found by the jury to be claims against the husband, the court will not render judgment against the husband separately, unless such judgment be prayed for in the pleadings.
    In an action by the husband and wife, on a note, the separate property of the wife, to entitle the defendant to sustain a plea of set-off against the note, the evidence must be sufficient to establish it as a legal charge against the separate property of the wife.
    Appeal from McLennan. Tried below before the Hon. H. W. Battle.
    The appellees, Camplin and wife, brought this suit upon a note drawn by Hubby & Co. to Mrs. Camplin, dated September 15th, 1855, for money lent by her to appellants, the defendants in the court below. The defendants pleaded payment, and offsets to an amount exceeding the amount of the note ; averting that the offsets consisted of a store account, for goods, wares and merchandise, which defendants furnished as necessaries for the wife and her family, and for the benefit of her separate property; and prayed for a judgment for amount of offsets, over and above the note.
    .. The evidence showed elearly that the note was the separate property of the wife. The jury, by special verdict, found the offsets in favor of the defendants, but not against the wife; that the store account consisted of purchases of the husband, and stood as an account against Mm, and not as charging the separate property of the wife.
    A witness (Burns) testified, on the trial, to a conversation had, in the spring of 1855, between himself and the plaintiffs, in.the course of which Mrs. Camplin asked her husband if he could not give an order to C. M, Hubby & Co. for a certain amount of money ; and in reply, her husband remarked that Hubby was owing Mrs. C. borrowed money; that witness went to Hubby, asked him if he could make an advance of money for Mr. Camplin, and he said he had- an account with him, and until that was settled, he could not advance. Plaintiffs’ counsel moved to exclude the evidence for irrelevancy, and as not tending to establish any fact pleaded by defendants. Motion sustained. Defendants excepted.
    
      Hancock and West, for appellants.
    
      M. D. Herring, for appellees.
   Wheeler, Ch. J.

The evidence establishes indisputably, that the note sued on was the separate property of the wife. To entitle the defendants to have their account allowed, as a set-off against the note, they must have produced evidence, sufficient to establish the account as a legal charge against the separate estate of the wife. This they have manifestly failed to do.

The objection to the testimony of the witness, Burns, was well taken, and it was rightly excluded. The defendants, by their answer, did not seek or ask a recovery against the husband; nor was the account sufficiently proved, to entitle them to a recovery.

There is no error in the judgment, and it is affirmed.

Judgment affirmed.*  