P. Potter, J.
The learned judge at the circuit ruled as a matter of law that the plaintiff was entitled to recover, and directed the jury to find a verdict for the amount of the note in question. In this ruling, and direction, with great deference, I think the learned judge erred. The note itself bears no evidence that the defendant charged, or intended to charge, her separate estate. And I think there was an entire absence of evidence, on the trial, that, her separate estate was benefited by the consideration of this note; or, if there was evidence upon this point, then it became a question of fact for the jury, and the judge was in error in taking it from them. It did not help the plaintiff’s case to" prove, alone, that the defendant had a separate estate. Besides this fact, all that the plaintiff proved, having a tendency to show any benefit to the defendant, was his (the plaintiff’s) own' testimony, as fol*55lows: “I brought two notes against her, from Moses Wolf, who got them from the vendor of the horses; one for $300, the other for $200. I believe she told me it was for a team of horses; it was for a team of horses bought by her and Rhodes. She came to me and said she wanted me to pay the notes, and she and her son Caleb would give me new notes.” This was not accepted. “She then let me have a note of $90, against R. C. Clark. We had some other deal, and I took a note of her for the balance. The last note ran along about four years, and was renewed.” (Which is the note in suit, diminished only by what she had paid on it before renewal.) After the plaintiff got the notes, he testifies: “ She came to me to go and get the horses from Rhodes, as, she said, she supposed she should have to pay for them.” In all this there is not a word showing a charge made by the defendant upon her separate estate, or that such estate was benefited; nor any circumstance, except an opinion expressed by this defendant—a married woman—that she supposed she would have to pay for the horses. Bo other witness was sworn for the plaintiff, and no case was made against the defendant; but there was'no motion for a nonsuit.
The only witness sworn on the part of the defendant was herself; who testified that she signed the first notes as security for Jonathan Rhodes, and did not buy the horses for herself; that the note in question was a second renewal of the first note she gave the plaintiff, (which first note was for renewal, in part, of the note she so signed as security for Rhodes.) She also testified, “that she renewed the notes because the plaintiff said they were in the bank, and had to be paid, and it would make trouble if I did not.” TJpon her cross-examination, she also said that about a year after giving the first note to the plaintiff “ she took the horses from Rhodes, and that she took them because she considered she was liable to pay for them.”
This presents all the material testimony in the case, and *56in it no evidence appears, unless it be by implication, that the note was given upon the credit of her separate estate; none creating a charge upon it; none that her separate estate was benefited. Her opinion that she was legally liable to pay, and any action that was induced by the influence of that opinion,- creates no liability. Hot even the taking of the horses from Rhodes, afterwards, changed the nature of the contract with the plaintiff, or its consideration. The consideration of the note sued upon was the preceding note; and that, and those which preceded, until they came back to the nóte signed by her as the surety of Rhodes. There was no new or other consideration; and she being a married woman, her obligation (except in the cases where her separate property is involved) is void. This question has received so much consideration, recently, in the courts, that a discussion of the main point in the case is uncalled for. The legal incapacity of married women (except as to their separate estates, to charge them, or to create debts, or make contracts to benefit them,) is not now a question calling for the citation of authorities. The case before us is not'brought within the. exception. The burthen of showing this was on the plaintiff; he has failed to show it. The contract of a surety is strieti juris. But without invoking any technical rule, I think it is clear, upon well settled rules, that there was error at the trial, and the verdict should be set aside, and a new trial ordered; costs to abide the event.
[Third Department, General Term, at Elmira,
April 4, 1871.
Parker, J., concurred. .
Miller, P. J., expressed no opinion.
New trial granted.
Miller, P. Potter and Parker, Justices.]