Evans v. Secrest , 3 Ind. 545 ( 1852 )

Blackford, J.

This was an action of debt brought by George Secrest and Clinton Walls against Martha Evans. The declaration contains two counts.

The first count alleges that,'on, &c., at, &c., the defendant, by her sealed note, bound herself to pay to one Lorena E. Evans, then sole and unmarried, on, &c., the sum of, &c.; that the payee afterwards married one George Smith; that after the note fell due, and after the marriage, and before the payment of any part of the note, the said Lorena and her said husband assigned the note to the plaintiffs; of all which the defendant had notice; whereby an action accrued, áse.

The second count is similar to the first, except that it alleges the assignment of the note to have been made by the husband alone.

The declaration concludes as follows: “Yet the said defendant hath not paid the said several sums of money or any part thereof; to plain tiffs’ damage of 50 dollars; and hence they sue, áte.”

The assignment of the note, as appeared on oyer, was signed both by the husband and his wife.

General demurrer to the declaration, and judgment for the plaintiffs.

The property in the note, after the marriage, was in the husband, and he alone, and not his wife, could negotiate and pass it by indorsement. Macqueen on Husband and Wife, 20, 51. The wife’s signature to the indorsement mentioned in the first count, is mere surplusage.

It is contended that the breach assigned does not show but that the note had been paid to the payee or her husband. We think, however, that the general allegation of the non-payment of the note, or any part thereof, is sufficient.

J. M. Hanna., for the plaintiff. /. Cowgill, for the defendants.

Per Curiam.

The judgment is affirmed with costs.