
    John Soudder, plaintiff and appellant, vs. Catherine Gori, impleaded with Henry M. Pierce, defendant and respondent.
    1. In an action upon a promissory note, by an indorsee, an answer alleging that at and before the making of the note, the defendant was, and still is, a married woman, prima, facie sets up a defense.
    2. Whatever .disabilities have been removed by statute from married women, none has yet enabled her to give accomodation notes in exchange for others, so as to bind herself or her estate.
    3. The law permits a married woman to engage in trade; and renders her liable upon notes and obligations given by her in the course of her business. And does the same with her obligations, given with the intent to charge her separate ’ estate, if intended to benefit such estate.
    4. Where, in an action upon a promissory note, the defendant sets up as a defense that she was, and is, a married woman, and introduces proof on the trial, tending to establish the truth of the defense; evidence on the part of the plaintiff, showing that the defendant has sued and been sued separately, in her own name, as a feme sole, and that there are numerous judgments against her individually, is admissible to prove that she was a feme sole.
    
    (Before Moncrief, Garvin, and McCunn, JJ.)
    Heard December 14, 1864;
    decided December 31, 1864.
    Appeal from a judgment dismissing the complaint, and from an order denying a motion for a new trial.
    The complaint alleges that the defendant Gori, on the 24th of September, 1861, made her promissory note of that date, whereby she promised to pay, sixty days after the date thereof, to the order of the defendant Pierce, $600, for value received, and delivered the said note to Pierce. That Pierce, before the maturity of the note, indorsed and delivered the same to the plaintiff. The defendant Pierce made no defense, and judgment was entered against him severally on the 11th day of ■January, 1862, for $621.25. The defendant Gori put in an answer containing only one allegation, to wit, that at and before the times stated in the complaint, she was, and still is, a married woman, the wife of Ottaviano Gori.
    The action came on to be tried before the Hon. J. W. White, one of the justices of this court, and a jury, on the fifth day of May, 1862. The defendant’s counsel claimed to hold the affirmative of the issue, and called a witness to prove that the said Catherine Gori was a married woman. The plaintiff’s counsel objected to the testimony, and to any evidence being given under the said defendant’s answer, on the ground that the note was negotiable, purported on its face to be made by a single woman, for value received, which was prima facie evidence that the defendant had received value therefor in the course of her business, even if she were a married woman, and the note was indorsed by the payee and delivered to the plaintiff before maturity, which facts were set forth in the complaint, and were not controverted by the answer ; and the answer, by merely alleging that the defendant was a married woman, without anything further, was insufficient, and contained no defense. The court overruled the objection; to which the plaintiff excepted.
    The counsel for the defeudant then introduced some testimony for ■ the purpose of showing that she was a married woman. The plaintiff thereupon offered to prove that the defendant was carrying on trade and business as a single woman on her own account, without any connection with any husband. To which proof the counsel for the defendant objected; claimed that he' was taken by surprise ; and moved that the plaintiff put in a reply to the defendant’s answer ; to which motion the plaintiff objected. The court overruled the objection, and granted the motion. To which the plaintiff excepted. The trial was thereupon suspended; and the plaintiff’s attorney, pursuant to the direction of the court, served upon the defendant’s attorney a reply in which he alleged that he had no knowledge or information sufficient to form a belief, whether or not the said defendant, at or before the time stated in the complaint, was, or still is, a married woman, or the- wife of • Ottaviano Gori; but alleged upon his information and belief, that the said defendant, at the time of the making and delivery of the promissory note set forth in the complaint, was, and for a long time, to wit, two years previous thereto, had been, carrying on trade.and business in the city of Hew York, as a single and unmarried woman, in buying, selling, dealing, and trading in marble and stone, and keeping a marble and stone yard for her own benefit, profit, and advantage, and having relation to her own separate property and estate, making, giving out, and circulating her own promissory negotiable notes, and other negotiable paper in her own individual name, and in like manner taking and receiving the notes of other persons, making contracts, suing and being sued in her own name and right in relation to her business and property, and in all respects holding herself out to the world as a sole trader, without the interference, control, or connection with ■ any husband ; that on or about the 24th day of September, 1861, the said Henry M. Pierce, the other defendant in this action, delivered to the said Catherine Gori, at her stone yard in the city of Hew York, a large quantity of stone, and proposed to sell the same to the said Catherine, in her own right, at the price and for the sum of nine hundred dollars, and the said Catherine proposed to purchase from the said Pierce the said stone, in her own right, and for her own use and benefit, and offered to pay him therefor the price or sum of six hundred dollars; and in the meantime, and while the negotiation was pending for the sale and purchase of the said stone, the said Pierce wished to make use of some of the avails of said stone, and the said Catherine Gori thereupon, on or about the said 24th day of September, 1861, made and delivered to the said Pierce the note upon which this action was brought, and Pierce at the same time, and as a part of the same transaction, made and delivered his promissory note for the same amount, and of the like tenor and effect, to the said Catherine, payable to herself or order, and also at the same time left the said stone in possession of the said Catherine; and the said 1 Catherine took the said note, so made and delivered to her by said Pierce, and negotiated, used, and passed away the same before maturity, as her property, in her business, and received the avails thereof for her own benefit, profit, and advantage, and as her separate and individual property and estate ; and the said "Pierce negotiated and passed the said note, on which this action is brought, before its maturity, as a good and valid note to' the plaintiff, in business transactions, for value.
    At the close of the testimonv, the defendant’s counsel moved for a dismissal of the complaint. The court granted the motion, and dismissed the complaint; to which decision the counsel for the plaintiff excepted.
    The said counsel also requested the court to submit the issues to. the jury, which the court refused to do. To which refusal the plaintiff excepted.
    
      S. W. Judson, for the plaintiff, appellant.
    
      S. W. & R. B. Boosevelt, for the defendant, respondent.'
   By the Court, McCunn, J.

If the defendant was a married woman, and by reason thereof was not legally bound to pay the note ip suit, the answer, assuming its statement to be true, was not insufficient. . The exception to the ruling upon the objection that the answer was insufficient and as containing no defense, was therefore not well taken.

The amendment of pleadings during the trial is a matter of. discretion with the court. The plaintiff did not allege surprise, and indeed could not truthfully have done so, as he must be presumed to' have taken the amended matter into consideration in preparing for the trial.

The error of the counsel for the plaintiff was in assuming at the trial that a promissory note made' by a married woman imports a consideration, and is negotiable' like such evidences of debt when, made by single females.

' At common law a married woman had no legal existence. The legislature has thought proper to create some specific status for her, but she may not move one step further, or save as the law specifically directs or permits. The législature has removed certain disabilities pertaining to a married woman, but it has not as yet, in terms, permitted her to exchange notes, _as -a-matter of friendly accommodation. The law, it is true, permits her to engage in trade, and no doubt in pursuit of such, business notes and other obligations which were and are alleged to have been given in the course of business can be recovered against her, in the like manner as if she were a feme sole; so, again, if, tending to benefit her separate estate, her obligation be given with the intent to charge that estate, she could be held liable. The law makers seem to have wished to protect and benefit her, and to leave the unfortunate dealer with her, at his peril, to look to it that in all her transactions, presuming upon her legal entity, she was within the scope and prescribed limits which the law has given.

If these views are correct, the complaint might have been dismissed upon the plaintiff’s resting his case. The complaint did not state facts sufficient to constitute a cause of action against the defendant, assuming it to be true that she was at the time of making and delivering the note a married woman.

There was some proof tending to establish that the defendant was a married woman; whether or not it was sufficient in law, or would have been satisfactory to the jury, is an important inquiry, in view of testimony that was offered which might have established that she was a single woman. The plaintiff offered to prove that the defendant had sued and been sued in her own name, and that there were numerous judgments against her. This evidence was excluded, and the plaintiff excepted. We think that this was erroneous. The important issue to be determined was whether the defendant, in law or in fact, was a feme sole as to her liability upon the note sued upon; the evidence of marriage in fact was not proven in such a manner as would be required in an action for a divorce a vinculo, and the offer of the plaintiff might have produced testimony clear and positive contradictory of the case as made by the defendant.

The learned judge was therefore in error when he withdrew the question of fact from the jury, and directed the complaint to be dismissed.

The judgment must be reversed and a new trial ordered,. . with costs to abide the event. < •  