
    Pilcher and Rayburn v. James D. Kerr et al.
    
    íu an action by tbe endorser, against tbe maker of a promissory note, who, at tbe time of its execution, was a married woman, tbe declarations of tbe payee, whilst be was tbe owner thereof are admissible to prove that it bad been given to him for a debt due by the husband of the maker. Held: ft is the setfcledjurisprudence of this court, that the onus of proving that the consideration of a note, made by a married woman, enured to her benefit, is upon the plaintiff.
    Where the maker of a note signed as a married woman, and her husband only joined for the purpose of authorizing her, it is sufficient to give the trausferree of the note notice of her condition; and before he takes the note, it is incumbent upon him to ascertain that her proper estate could be charged with it.
    APPEAL from the District Court of Carroll, Copley, J.
    Selby, for plaintiffs.
    
      H. Snyder, Short and Parham, for defendant.
   By the court:

Rost, J.

The defendant is sued upon a promissory note made by her, whilst she was the wife of Felix Bothworth, to the order of James D. Kerr, by whom it was transferred to the plaintiffs before maturity.

The defence is, that the note was given for a debt of Felix Bothworth, for which she could not bind herself, and that no part of the consideration of it enured to her benefit. There was judgment in her favor, and the plaintiffs appealed.

We are of opinion, that the district judge properly admitted the testimony of John L. Wilson, to prove the declarations of James D. Kerr, while he was the owner of the note; that it had been given to him for a debt of Bothworth. It is unnecessary to determine whether this evidence makes full proof of the fact, as under the settled jurisprudence of this court, the onus of proving that the consideration of the note enured to the benefit of the defendant, was upon the plaintiffs.

The defendant had signed as a married woman, and her husband had only joined for the purpose of authorizing her. This gave the plaintiffs notice of her condition; and before they took the note, it was incumbent upoh them to ascertain that her proper estate could be charged with it. Brandagee v. Kerr and wife, 7 N. S. 64. Sprigg v. Bossier and wife, 5 N. S. 56. Firemens' Insurance Company v. Julian Cross, 4 R. R. 508. Draugeut v. Prudhome, 3 L. R. 74. Pascal v. Souvinet, 1st Ann. 428. Taylor v. Carlisle, 2d Ann. 579. Perry v. Thompson, 3d Ann. 188. Erwin v. McCalop, 5th Ann. 173. Gaalon v. Matherne, 5th Ann. 495. Patterson & Co. v. Fraser and wife, 5th Ann. 586.

Judgment affirmed, with costs.

Application for re-hearing.refused.  