have been signed by her with the intention to bind her individual property for the payment, where it does not relate to her separate estate or business. 38 But where the evidence showed that the woman signed as surety a note given for professional services rendered to her; that while her husband enjoyed a good practice, all the property was in her name; that she had previously signed notes as surety; that she knew the object of giving this note, and that it was necessary for her husband to give security for it; that her owning the property was the reason urged on the payee for accepting her as surety, although this conversation was not in her presence, and she testified that she presumed she was asked to sign the note because she owned the property, and that she believed that that was the reason why her signature was desired, it was decided that this was sufficient evidence to sustain a verdict against her and that the jury was not bound by her direct denial of the fact that she did intend to bind her separate property, and it had a right to believe from the evidence that when she signed the note, owning all the property of the family, and knowing that her signature was desired because of that fact, her intention was to charge that property.39

40

§ 125. Liability as acceptor.-At common law a married woman could not become liable as an acceptor. And it has been decided that under a statute in New Jersey she is disabled from accepting a bill of exchange.41 So under a code provision in Georgia, which provided that a married woman can not bind her separate estate by any contract of suretyship, nor by any assumption of the debts of her husband, it is decided that she can not become an accommodation acceptor, though she may be a free trader. 42

§ 126. Indorsement by married woman-Common-law rule. -At common law a married woman could not, acting for herself,

38 Smith v. Bond, 56 Nebr. 529, 76 N. W. 1062; Eckman v. Scott, 34 Nebr. 817, 52 N. W. 822.

39 Spatz v. Martin, 46 Nebr. 917, 65 N. W. 1063.

40 Mudge v. Bullock, 83 Ill. 22; Lee Bank v. Satterlee, 24 N. Y. Super. Ct. 1, 17 Abb. Prac. 6.

41 Cooley v. Barcroft, 43 N. J. L. 363, decided under N. J. Rev. Stat., p. 637, § 5 (Comp. Stat. 1910, p. 3226, § 5).

42 Madden v. Blain, 86 Ga. 780, 13 S. E. 128, decided under §§ 1760, 1783, of the Georgia Code (Park's Ann. Code 1914, §§ 3007, 3011).

indorse a note or bill, payable to her, and the indorsee in such a case acquired no title through her indorsement in her own name.43 It is a general rule of law that a bill or note made payable to a married woman, whose husband is under no civil incapacity or disability, is by operation of law payable to the husband, who may indorse, negotiate or sue upon it in his own name; for the legal existence of the wife being suspended during the coverture, or rather incorporated into that of her husband, a promise to her during coverture is a promise directly to the husband. A married woman has in contemplation of law no separate existence, her husband and herself being in contemplation of common law one person.45 So it has been declared that "there is no doubt of the general rule that the husband is entitled to all the personal property which belonged to his wife at the time of the marriage, or which she may acquire during coverture; and it necessarily follows that where that property consists of negotiable paper, payable to her or her order, it is, in legal effect, payable to her husband, and an effectual transfer by judgment can, as a general rule, be made only in his name."46 So where a note was given to a wife, knowing her to be such, with the intention that she should indorse it to the plaintiff in payment of a debt which she owed him, in the course of carrying on a trade in her own name by the consent of her husband, the property in the note was held to vest in the husband and an indorsement in her own name was held to pass no interest to the plaintiff. 47 And a feme covert can not indorse a bill of exchange, the right thereto being in point of law vested in the husband, and the wife having no power to dispose of it.48 And where a promissory note was made and given by a husband to his wife before their marriage, and subsequently thereto was delivered to the maker, who kept it for the benefit of his wife till a few weeks before his death, the note became a mere

43 Mudge v. Bullock, 83 Ill. 22; Lee Bank v. Satterlee, 24 N. Y. Super. Ct. 1, 17 Abb. Prac. 6.

44 Roland v. Logan, 18 Ala. 307; Brewer v. Hobbs, 17 Ky. L. 134, 30 S. W. 605; Savage v. King, 17 Maine 301; Hancock Bank v. Joy, 41 Maine 568; Barlow v. Bishop, 1 East 432, 3 Esp.

266. Compare Cotes v. Davis, 1 Camp. 485.

45 Howe v. Wildes, 34 Maine 566. 46 Miller v. Delamater, 12 Wend. (N. Y.) 433.

47 Barlow v. Bishop, 1 East. 432, 3 Esp. 266.

48 Connor v. Martin, 1 Strange 516.

nullity and could not be revived by the death of the husband. 49 Again, where a note was payable to a feme sole, or order, and she married, the note became her husband's property, and she could not indorse it over while she was covert.50

§ 127. Indorsement by married woman-Assent of husband. -No power exists in a married woman to assign a note executed to her either before or after marriage, in the absence of authority by or assent of the husband, or of a statute empowering her so to act.51 But if a bill or note be made payable to a married woman, although the title to it vests in the husband, if he sees fit to assert it, yet he may allow her to indorse it in her own name, and if he assents to her indorsement of it (which may be presumed from circumstances as well as expressly proved), her indorsee acquires a good title not only as against the husband, but also against the parties to the bill.52 And a husband may subsequently satisfy an assignment of a bill or note by his wife. 53 And it is declared that: "It is well settled that if the husband give the wife express authority to indorse a note payable to her or order, her indorsement is good to transfer the note, and may be made in her own name, though she acts by authority of the husband and as his agent."54 So, where neither the assent of the husband, nor circumstances which authorized the wife to make the transfer of a note payable to her order are alleged in the petition by her indorsee in an action against the maker, it is decided that a plea in abatement of the coverture of

49 Abbott v. Winchester, 105 Mass. 115.

50 Rawlinson v. Stone, 3 Wils. 5, citing 1 Strange 516.

51 Hall v. Campbell, 5 Ky. L. 246; Theurer v. Schmidt, 10 La. Ann. 293; Stevens v. Beals, 64 Mass. (10 Cush.) 291, 57 Am. Dec. 108; Vann v. Edwards, 128 N. Car. 425, 39 S. E. 66.

52 Roland v. Logan, 18 Ala. 307; Stevens v. Beals, 64 Mass. (10 Cush.) 291, 57 Am. Dec. 108; Menkins v. Heringhi, 17 Mo. 297; Russ v. George, 45 N. H. 467; Prestwick v. Marshall, 4 C. & P. 594. The indorsement by a married woman, with her husband's

assent, of a bill of exchange drawn by her is binding upon him, and will pass the interest in the bill to the indorsee so as to enable him to sue the acceptor. Prestwick v. Marshall, 4 C. & P. 594.

53 Hall v. Campbell, 5 Ky. L. 246.

54 George v. Cutting, 46 N. H. 130, 88 Am. Dec. 195. Citing Brown v. Donnell, 49 Maine 421, 77 Am. Dec. 266; Stevens v. Beals, 64 Mass. (10 Cush.) 291, 57 Am. Dec. 108; Leicester v. Biggs, 1 Taunt. 367; Prestwick v. Marshall, 7 Bing. 565, 4 C. & P. 594.

the indorser is good.55 In this connection it has been decided that if a husband gives his wife authority to sell her personal property and take for it a promissory note payable to herself or order, he gives her authority to indorse the note according to its tenor, and to hold the proceeds to her own use, and until this authority is revoked, her indorsement of the note will be good to pass title in it, though not to bind either her or her husband as indorser.56 And a married woman may make a valid indorsement of a note by a name different from that of her husband, and an authority so to indorse may.be presumed from all the circumstances of the case.57 Where, however, the husband went to California, and his wife continued to carry on his business, and sold a part of the furniture and fixtures, taking notes payable to herself, which she afterwards transferred, the fact that the husband may have consented that she might carry on the business does not raise a legal presumption that she was authorized to transfer the notes, but the jury must decide whether the evidence would fairly bring their minds to this conclusion.58 If the statute prescribes a form of assent by the husband there should be a compliance therewith. So where a written assent of the husband. is by law expressly required to a conveyance of a wife's real or personal estate, or to an attempt to charge her separate estate, an indorsement of a note belonging to her is void for the purpose of transferring title or to charge her separate estate where made without his written assent, a verbal assent not being sufficient.59 In Alabama it is decided that under the code a transfer by a married woman of a check payable to her is illegal and inoperative to pass her title to it, unless the transfer was made with the consent of both the husband and wife.60

§ 128. Indorsement by married woman-Under particular statutes. Under a statutory provision giving to married

55 Hemmingway v. Mathews, 10 Tex. 207.

56 George v. Cutting, 46 N. H. 130, 88 Am. Dec. 195.

57 Miller v. Delamater, 12 Wend. (N. Y.) 433.

58 Krebs v. O'Grady, 23 Ala. 726, 58 Am. Dec. 312.

59 Walton v. Bristol, 125 N. Car.

419, 34 S. E. 544, decided under N. Car. Const., Art. 10, § 6, and §§ 1826, 1835, of the Code (Consol. Stat. 1919, $ 2507). See Hurt v. Cook, 151 Mo. 416, 52 S. W. 396, decided under Rev. Stat. 1889, § 6869 (Rev. Stat. 1919, Ch. 64, § 7314 et seq.).

60 First Nat. Bank v. Nelson, 105 Ala. 180, 199, 16 So. 707, decided under

women the right to hold all personal property acquired by them before coverture to their sole and separate use, a note given to a married woman does not become null and void by her marriage with the maker, and she may sell the note to a third party or transfer it for collection.61 And under a statute authorizing a married woman to make contracts and to sue and be sued in the same manner as if she were sole, with the restriction only that she can not make contracts with her husband, she will be liable on her indorsement of a promissory note made by a partnership, of which her husband is a member, for the accommodation of the firm.62 And under the same statute it has been decided that where a married woman, at her husband's request, indorsed a blank promissory note and gave it to him, with the knowledge that he intended to fill up the blanks and use the same, which he did, and indorsed it by writing his name above hers, it was decided in a petition in equity to vacate insolvency proceedings brought against her, wherein she claimed that the note was not a valid claim against her, that she was in a position of an indorser, and that the note having been transferred to the holders with her consent for value, she could not deny its validity as against them, and was liable as an indorser.63 Under an Indiana statute, where a married woman indorsed a promissory note, she and her separate estate, real and personal, would also be liable on her contract.64 And also, under an early statute in New York state, a recovery could be had where a married woman had indorsed a bill or note.65

Ala. Code, § 2348 (Ala. Code 1907, §§ 4492, 4494, 4497).

61 Spencer v. Stockwell, 76 Vt. 176, 56 Atl. 661, decided under Vt. Laws 1884, p. 79, No. 84 (Pub. Stats. 1906, § 3037).

62 Middleborough Nat. Bank v. Cole, 191 Mass. 168, 77 N. E. 781, decided under Mass. Rev. Laws, Ch. 73, §§ 82, 83 (Gen. Laws 1921, Ch. 209, p. 2249, 82); Kenworthy v. Sawyer, 125 Mass. 28, decided under Mass. Stat. 1874, Ch. 184.

63 Binney v. Globe Nat. Bank, 150 Mass. 574, 23 N. E. 380, 6 L. R. A. 379, decided under Stat. 1874, Ch. 184 (Gen. Laws 1921, Ch. 209, p. 2249, § 2). Compare Hurt v. Cook, 151 Mo. 416, 52 S. W. 396.

64 Mathes v. Shank, 94 Ind. 501, decided under Act 1879, p. 160. See Burns' Ann. Stat. 1914, § 7855.

65 Lee Bank v. Satterlee, 24 N. Y. Super. Ct. 1, 17 Abb. Prac. 6; N. Y. Laws 1848, p. 307, Ch. 200 (see Bliss'