Opinion of the Court-Belknap, J.

with the amount; that the dealing was between him and Martin; and that he (witness) looked to the company to obtain his pay on these claims."

These were the only witnesses who testified upon this subject, and there is no conflict in their testimony. If we are to be governed by it-and we have no alternative-it. is manifest that the judgment cannot be sustained, because plaintiff has continued to transfer all his demands against defendant to Rhodes so long as Rhodes continued storekeeping. Rhodes closed his store about the commencement of the year 1880. The testimony shows that since that time plaintiff has paid large sums of money to defendant's use; but the complaint admits credits aggregating ten thousand three hundred and forty-two dollars, and there is nothing to fix the time when they were given. The total credits exceed the advances made since January, 1880, and, non constat, that defendant has not paid all of its indebtedness to plaintiff.

Upon the oral argument respondent claimed that an examination of the record would disclose the fact that the judgment given by the district court was for a balance due plaintiff after paying Rhodes, and that the transfer of demands to him was only to the extent of paying plaintiff's indebtedness. In his cross-examination Rhodes testified:

"That at various times while plaintiff was acting as foreman of the defendant, the witness, as superintendent of defendant, requested plaintiff to pay sums of money to men who were working for defendant, and that plaintiff did so; and that it was understood and agreed between witness and plaintiff that all such advances and board-bills of the men working for defendant were to be credited to plaintiff on the books of witness to the extent of what plaintiff might then owe witness."

If this piece of evidence established the fact that the demands against defendant were transferred only to the extent of plaintiff's indebtedness to Rhodes, still there is nothing in the record tending to show a balance in favor of plaintiff. The judgment must be reversed for the reasons stated.

Opinion of the Court-Belknap, J.

As some of the questions made upon this appeal may arise upon a retrial, it is proper that they should be settled

now.

1. The pay-rolls offered in evidence were admissible. The number of days' work and the amount due each man, and set opposite his name, was in frequent instances altered, but the alteration was immaterial to the issue to which the proof was directed. The instruments purported to be receipted monthly pay-rolls of defendant for a portion of the time embraced by the transactions between the parties, and were offered as tending, in connection with other evidence, to prove the fact that plaintiff, as well as others, were accustomed to receipt for the amounts due them each month, and, without receiving the money from defendant, take credit upon the books of Rhodes for the amount. No question of the number of days' labor performed each month, or of the amount due, was involved, but simply the course. of business in the respect stated.

2. The letters and receipts offered in evidence by plaintiff were admissible; the former as tending to establish an indebtedness; the latter, in connection with the oral testimony, as tending to prove payments made by plaintiff for defendant. The receipt of A. Mack & Co. must be excepted from this general statement, as there is no proof to connect this payment or matter with defendant.

3. The finding that two thousand dollars was loaned to defendant is unsustained by the evidence. No authority was shown in Thomas Mintie to borrow money for defendant, nor was it shown that defendant received the money. The statement in Coye's letter of July 13, 1881, does not identify this loan, but appears to refer to money paid to the men, and not to Mintie.

4. Plaintiff should not have been allowed his per diem for the time he was absent.

5. The finding touching the account stated is correct as the question is presented by the record. The objectionable matter is not itemized; if errors exist they do not affect all of the items of the transaction and invalidate the whole

Opinion of the Court-Belknap, J.

account. Whether under the pleadings the account is subject to attack, or whether the facts authorize its correction, are matters upon which we express no opinion, because the questions were not made.

The judgment and order of the district court are reversed, and a new trial ordered.

CARTAN, McCARTHY & CO., RESPONDENTS, v. EVAN DAVID, ET AL., DEFENDANTS, MRS. LOUISE C. ROBERTS, APPELLANT.

MARRIED WOMEN-CONTRACTS BY-SEPARATE ESTATE-SECURITY FOR HUSBAND.-The assignment by a married woman of a note and mortgage upon real estate, the same being her separate property, as collateral security for the payment of her husband's debts, without any fraud or improper inducements, and with the intention of binding her separate estate, is a valid contract, and is enforceable in equity against her separate estate. IDEM-INTENTION TO BIND SEPARATE ESTATE-HOW EXPRESSED.-The intention of Mrs. Roberts to make the debt a charge upon her separate estate does not rest entirely upon parol evidence. It is made manifest by the acts and conduct of the parties, by the exhibits, and by the written indorsement and delivery of her note and mortgage. The contract, as made, is an express charge upon her separate estate for the payment of her husband's debt.

RIGHTS AND LIABILITIES OF MARRIED WOMEN.-Married women having, by statute, been granted the right to control their separate property, must assume the risks which ordinarily follow. Having the right to make contracts respecting their separate estates, they must be held liable to the same extent as other citizens.

Argument for Appellant.

CONTRACT OF MARRIED WOMEN-STATUTE OF FRAUDS-WHEN NOT APPLICABLE -CONSIDERATION FOR ASSIGNMENT OF NOTE AND MORTGAGE.-The statute of frauds has no application to the facts of this case. It was not essential to the validity of the contract to have the consideration of the indorsement expressed upon the note, or mortgage in writing. The assignment being made by the wife for the purpose of securing the note of her husband at the same time her husband's note was given, and as part of the same transaction, the consideration for the husband's note will be regarded as the consideration for the collateral security of the wife, and no new or additional promise by her is necessary. The transaction must be treated as an original undertaking on the part of the wife, and cannot be considered as a mere parol promise to pay the debt of another.

ASSIGNMENT OF NOTE AND MORTGAGE BY MARRIED WOMEN-HOW MADEACKNOWLEDGMENT.-The assignment by a married woman of a note and mortgage upon real estate, being her separate property, may be made by merely indorsing her name upon the back of the note. Such note and mortgage are mere chattels and the assignment thereof is not such a contract respecting her real estate as the statute requires to be acknowledged separate and apart from her husband.

IDEM-EXECUTED CONTRACT.-When a contract is fully executed on both sides the rights of the parties become fixed and neither party can interfere with such rights by pleading the statute of frauds.

APPEAL from the District Court of the Second Judicial District, Ormsby County.

The facts are stated in the opinion.

Harris & Bartine for Appellant:

I. The evidence, in this case, shows that the entire engagement of Mrs. Roberts was one of surety for the debts of her husband. Under the laws of this state, the only contracts which a married woman can make are those respecting property. (1 Comp. Laws, 169.)

II. The English equity doctrine which considers a promissory note executed by a married woman a charge upon her separate estate has no application. Even if it had, the weight of American authority is against it. (Wright v. Brown, 8 Wright (Penn.) 224; Metcalf v. Cook, 2 R. I. 355; Leacraft v. Hedden, 3 Green's Ch. (N. J.) 512; Perkins v. Elliott, 23 N. J. Eq. 526; Litton v. Baldwin, 8 Hump. (Tenn.) 209; Montgomery v. Ag. Bank, 10 S. & M. (Miss.) 567; Patterson v. Lawrence, 90 Ill. 175; Kantrowitz v. Prather, 31 Ind. 92; Reed v. Buys, 44 Mich. 80;