The opinion of the court was delivered,
by Agnew, J.
This cause was tried under a misconception of its principles. The defendant is the mere surety of Barr & Greenawalt, and having no defence of his own, can set up none of which his principals cannot avail themselves. The note was given by' Barr & Greenawalt, Henry 0. Greenawalt being present when it was drawn and signed by his partner, John W. Barr, his father, David Greenawalt the defendant, becoming their surety. Henry (being released by his father) is the witness who proves these facts, and strangely enough, is neither asked nor denies in his testimony the right of his partner to give the note. Admitting, however, the right of Henry, and consequently of his surety, to set up the defence of want of consideration or fraud, clearly the burthen of the proof of this defence lay upon the defendant. The court, misled by the false analogy of a contest between a wife and creditors, or the representatives of the estate of a husband, held all the presumptions to be against the plaintiff, and- even tried the ease on this principle. But a promissor in a note reciting a consideration, or an obligor in a bond stands in no such relation. His promise or obligation is his own acknowledgment of his in-indebtedness to her. He thereby admits himself to be Tier debtor, not her husband’s. This idea that a debtor may borrow money from a married woman and give his note or bond for it, and then deny his liability because she has no witness to prove the direct payment of the money into his hands, is so revolting to our sense of justice, that it seems strange it should be confounded with a contest between the wife and creditors of her husband or the representatives of his estate. In the former the plaintiff asks the defendant to pay merely what he has himself agreed to pay her. In the latter shé sets up a claim against third parties whose right it is to have the estate of her husband applied to their just claims, and to know that the wife does not divert her husband’s means from them by fraud and collusion between her and him. Not so with one who voluntarily becomes her debtor — he cannot set up fraud or collusion between the wife and himself. By the note he concedes himself to he her debtor. If he has been imposed upon, or a fraud has been practised upon him, he can show it as in any other case, but he assumes the burthen of proving it.
The note was primá, facie evidence to sustain the plaintiff’s action, and the offer of evidence assigned for error was therefore unnecessary in the first instance. But it was renewed and again rejected by the court, after the defendant had given evidence that on the same day the note was dated, the husband of the plaintiff *176had deposited in bank to the credit of the firm a sum of nearly equal amount coming from his private means. The defendant alleging that this money was the consideration of the note, and was the husband’s and not the wife’s, clearly it was the right of the wife to rebut by showing that the husband was indebted to her in an equal or greater amount for her separate estate received by him. The plaintiff had given direct and positive evidence of her possession of a separate estate in 1855, which with interest would have been much greater than the defendant’s note in 1864. She then offered to prove her possession of her husband’s note in 1855, for a nearly equal amount, by a witness (her mother), who saw the note and signature; and that while she and her daughter were in conversation about it, the husband came in, joined in the conversation, and admitted that the note was for his wife’s money. No objection was founded on the non-production of the note, which might have been accounted for, but the objection was rested on the incompetency of this mode of proof. Clearly the offer was evidence. John W. Barr at the time was not a member of the subsequently-formed firm of Barr & Greenawalt, and the purpose was not to charge the firm by means of the acts and declarations of one not competent then to bind the partnership, but it was to prove the individual indebtedness of John W. Barr to his wife by his own note and acknowledgments, long ante litem motam, and long before he became a partner. Why was this not evidence that John W. Barr was in possession of his wife’s money ? The defendant had proved that John W. Barr had, on the same day the note in suit was given, deposited the money from his individual means to the credit of the firm, and used it in payment of firm debts. Surely, it was powerful rebutting evidence to show that John W. Barr held his wife’s estate in his hands. John W. Barr, it was conceded, had authority to sign the name of the firm, both partners were present when the note was given, and Greenawalt’s father became the surety; and it is conceded that the firm got the money for which the note was given. There was a full and sound consideration for the note. If the money was actually the individual property of Barr, and he was indebted to the firm, rendering it inequitable that he should recover it in his wife’s name, the proof of this lay on the defence; and it was error to reject evidence tending to show that the money of the wife had gone into possession of the husband. These principles are sustained by Townsend et al. v. Maynard, 9 Wright 198; Grabill v. Moyer, Id. 531; Bachman v. Killinger, 5 P. F. Smith 414. The length of time transpiring between 1855 and 1864 was a matter for the jury; and as a circumstance by itself would weigh but little against the acts of her husband himself in joining in the note, and paying over the money to the firm. In a contest between a wife and the partner of her husband, who knew nothing *177of the giving of the note, and payment of the money into the partnership, and alleged collusion between the husband and wife to charge the partnership with a fraudulent debt, slight evidence might suffice to overturn the primá, facie effect of the note, but this was no such case. The whole charge and answers to the plaintiff’s points are impregnated with the same misapprehension as to the presumptions on the note all being against the wife, and led to the same error as in rejecting the evidence.
The judgment is therefore reversed, and a venire facias de novo awarded.