
    No. 1141.
    Wm. M. Surls v. John Hienn and Wife.
    The husband, being the head and master of the community, can alone be bound forthe debts of tna partnerbiiip.
    tTo recover against a raarrried woman it must be alleged and proved that the debt was contracted for, and enured to, her separate and individual benefit.
    Appeal from the Fifth District Court of New Orleans, Beaumont, J.
    
      B. Egan, for plaintiff and appellee.
    
      M. Grivot, for defendants and appellants.
   Howedd, J.

The defendants are sued as owners of the steamboat Frolic, for $1,300, the balance of an amount advanced by plaiutiff, for ihe purpose of paying certain charges on the cargo of said boat, and evidenced by a check on a bank in favor of John Hienn, one of the defendants. ' '

An answer was filed by counsel in the name of both defendants, admitting that the money was advanced, but averring that to reimburse the same certain freight-bills, amounting to $4,000 were placed in his hands by defendants, and that he collected $1,250 thereof, for which, or any part of said bills, he refuses to account to them; ''

Judgment was rendered against the defendants in solido for the amoiint claimed, and they have appealed.

The plaintiff was put on the stand to make out the defence, but his testimony disproves it, and sustains the correctness of his own claim. '

It is successfully urged, however, that the pleadings and evidence do not make the wife responsible. There is no allegation nor proof that she was separate in property, or that the money advanced enured to her separate benefit, or that of her separate property or business.

The law presumes the debt to be a community debt, for which the husband alone, as the head of the community, can be held responsible. For a community debt, the plaintiff cannot obtain j adgment against both the community, and the wife. To recover against a married woman, it must be alleged and proved that the debt is her separate debt.

It is therefore ordered that the judgment of the lower court, against Mrs. Mary Hienn, be reversed, and that there be judgment in her favor, with costs in both courts.

On Application por a Rehearing.

Howeee, J.

An application for a rehearing has been made in order to dispose of the judgment as to John Hienn, who was omitted in our decree. We think it unnecessary to grant a rehearing for such a purpose, as the appeal as to him is still before us, and we can legally dispose of it, by a supplemental decree.

We consider the judgment of the lower court against him correct, for the reason assigned in our former opinion herein.

It is therefore ordered that the judgment of the District Court against John Hienn, defendant, be affirmed, with costs.

Rehearing refused!  