
    
      DUMARTRAIT vs. DEBLANC & WIFE.
    
    West’n. Dis’ct.
    
      August, 1826.
    Appeal from the court of the fifth district.
    A wife cannot offer to prove without having pleaded, that the note was given for a debt of her husband and not for her benefit
    No issue is to betried, which in not presented by the pleadings.
   Martin, J.

delivered the opinion of the court. Mrs. Deblanc, sued on a note, executed by her son, in her name (and with the authority of her husband) jointly and severally with a third party, pleaded her coverture at the time of the execution and the plea, and the consequent invalidity of the note: and being required to answer whether the note was not executed as stated in the petition, replied that she did not authorise her son to subscribe the note for her, but it was subscribed contrary to her wish and by the concernment of her husband; judgment was given against, her and she appealed.

The statement of facts admits the execution of the note, and its endorsement by the payee to the plaintiff.

The subscribing witness deposed the note was executed willingly by Mrs Deblanc.

The deed of separation of property between her and her husband, with the appraisement of the property surrendered to her by her husband, was made a part of the record.

A bill of exceptions was taken by her counsel to the opinion of the district court who refused her leave to inquire from the subscribing witness, whether the note was not given for the debt of the co-obligor, and not for her advantage and benefit.

We think the district judge did not err, if she wished to avail herself of this circumstance (admitting its existence) it ought to have been stated in the answer, that the plaintiff might come prepared to gainsay it.

On the merits, this is a note executed by a married woman, separated of property from her husband, and with his authorisation. The answer neither denies its execution, nor alleges any violence, compulsory or improper interference of any one.

Her answer to the interrogatory makes no part of the pleadings nor of her answer to the petition, and no issue was to be tried except that which was presented by the petition and answer; the latter denies no fact alleged, it only denies the consequent liability of the wife. She pleads no new fact, for the coverture was alleged in the petition.

The capacity of a married woman to bind herself as a surety, forms no part of the inquiry which ought to precede the judgment in this case.

Simon for the plaintiff, I. L. Baker & J. Baker for the defendants.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  