This action is brought by the indorser and holder, upon three bills of exchange, drawn in Massachusetts by Pierre C. Kane, upon the defendant, payable to the order of Edith Kane, the wife of the drawer, three, four, and six months after date, respectively, and indorsed by her, and duly accepted by the drawee before maturity.

The counsel for the defendant insists, that the drawing of a bill of exchange, and its delivery to the payee, constitute a contract between the drawer and drawee-, whereby the former becomes bound tb pay to tlie latter, or to his indorsees, the amount of such bill in case the same shall not be accepted, or paid upon due presentment; that a husband is incapable of thus contracting with his wife; that the wife, in this case, took no title by such delivery; and that' the bills in question were and are, for these reasons, void, and inoperative as against the acceptor.

In the absence of all evidence of mala fides possessio in the *10■ holder,'proof of possession of the bills by the plaintiffs is, gprima facie, sufficient to establish their ownership of them. (Conroy a. Warren, 3 Johns. Cas., 259; Peacock a. Rhodes, Doug., 363; Mottram a. Mills, 1 Sandf., 37.) The plaintiff is therefore en-' titled to recover, if the bills are valid obligations as against the acceptor.

It is true that by the common law, which, in that regard, must control in this case, a husband and his wife are, in general, incapable of contracting with each other so as to create a right of action in favor of the one as against the other. But a bill of exchange is not merely a contract between the drawer and the payee. It is, when accepted, a new contract between the acceptor and the then holder, who in this case was the indorsee of the wife ; nor is such a bill always a contract as between the drawer and the person to whom or to whose order it is payable. It may be made payable to the order of the drawer himself, or to some one receiving the same for collection for the benefit and the use of the drawer; or, what is a very common occurrence in commercial communities, it may be payable to the order of some person who indorses it simply for the accommodation of the maker. In none of those cases is there any contract which can be enforced by the payee named in the bill against the maker. In each instance, it is a mere direction to pay, and has no validity whatever as an obligation, until indorsed to a bona-fide purchaser'or acceptor.

In this case the defendant held in his hands moneys belonging to the drawer to the amount mentioned in the bills. (Griffith a. Reed, 21 Wend., 502.) 'He was directed by the drawer to pay those moneys over to his wife, or to such person as she should, by her order, appoint to receive the same; and by the same instruments, such drawer, in effect, constituted the wife his agent to receive the moneys, or by her order to appoint their payment to such other person as should become the holder of the bills, as he might well do. (Co. Litt., 52, a.) Under authority thus conferred upon her, the wife indorsed the bills; the defendant duly accepted them; and the plaintiff is their bona-fide holder.

The obligation of the defendant to pay, rests not upon any suppusable interest or want of interest in the wife as the payee ■ named in the lulls of exchange, but on his promise, implied in *11the acceptance, to pay the amount out of the funds of the drawer, and which are now in his possession.

There must be a j udgment for the plaintiff's for the amount claimed in the complaint, with costs.

The defendant’s counsel excepted to the findings of law, and appealed to the general term of the court, from the judgment . entered in favor of the plaintiffs.

The only question to be ex amined in this case is, whether the plaintiffs, through the indorsement of the payee of the bills, a married woman, acquired a title to them, which they can assert against the acceptor.

It nowhere appears who was the husband of Mrs. Edith Kane. The justice has not found the fact; nor is there any evidence which shows that she was the wife of Pierre C. Kane, the drawer of the bills. The plaintiffs are entitled to the benefit of any presumption which will uphold their judgment; and in the absence of all proof, we must presume she was not the wife of the drawer. The mortgage from Kane and wife to the plaintiffs, which is printed in the case, was not admitted or read in evidence, and we cannot therefore look into it for evidence on the subject.

' Whether the payee of the bills was the wife of the drawer, or otherwise, is perhaps not material.

By the common law, a married woman was incapable of making any legal contract binding.upon herself.. Husband and wife were one person, and the legal existence of the wife was merged in that of her husband. Hence a married woman could not make, indorse, or accept notes or bills, as acting for herself; nor would the indorsee of a note/ or bill acquire any title through the indorsement of a married woman indorsing in her own name. (Barlow a. Bishop, 1 East, 432; Cotes a. Davis, 1 Camp., 485; Savage a. King, 17 Maine, 301; 1 Pars. on Notes & Bills, 78.)

In Barlow a. Bishop, the defendant gave his note to a married woman, who was conducting business on her own account, and who transferred it by indorsement in her own name in payment of a debt contracted by herself; and it was held that the property in the note vested in her husband by the delivery to the wife, and that no interest passed by her indorsement in her own name to the holder.

If, therefore, Edith Kane was the wife of a person other than *14the drawer of the bills, the property in the notes, by the com‘mon law, upon delivery to her became vested in her husband, which title could not be devested by her indorsement and transfer to the plaintiffs.

But the acts of 1848-9, for the protection of the property of married women, declare that she may take by grant or gift from any person other than her husband, and hold to her own sole and separate use, and convey any real or personal property, and any interest or estate therein, in the same manner and with like effect as if she were unmarried. (Laws of 1848, 307, ch. 200; Laws of 1849, 528, ch. 375.)

This statute removes the common-law disability from a married woman, and she can now receive real and personal property from any person other than her husband, and may convey and transfer the same with like effect as if she were single. (Dillaye a. Parks, 31 Barb., 132.)

The delivery of the bills to Mrs. Kane vested the title in her, if they proceeded from a person other than hér husband, and her indorsement and transfer gave to the plaintiffs the legal title as effectually, under the statutes referred to, as if she had been unmarried.

But suppose she was the wife of the drawer of the bills, how would the case then stand ?

The question of contract or of obligation as between husband and wife is not involved; nor as between indorser and holder. The husband would not be liable to the wife, nor the wife to the holder.

By directing the bills to be paid to the order of his wife, the drawer appointed her his agent to receive the money, and conferred upon her the necessary authority to indorse and transfer. The authority is express, and sufficient to bind the husband by her act. (2 Pars, on Bills & Notes, 3; 2 Kent Com., 179.)

In so far as third parties are concerned, the authority to the wife to transfer the bills is as conclusive and binding upon the husband as if he had made them payable to an infant, or to a fictitious person; in either of which cases the indorsements would, be valid.

Did the indorsement of Mrs. Kane protect the acceptor, and could the payment by him be questioned ? Clearly the husband was estopped, and no other party to the bill could object. *15To test it, suppose the defendant had paid the hills at maturity to the holders, upon the indorsement of Mrs. Kane, could the husband deny the authority he had given his wife, recall his written consent, and recover the amount of the hills from the acceptor? There is neither principle nor authority to sustain such a position. In short, without pursuing the argument further, the husband is as thoroughly bound by the indorsement and transfer of the bills as if he had negotiated them himself directly to the Lee Bank. All the cases which hold a wife’s indorsement to he void are such as contained no consent or recognition on the part of her husband. Here the consent is complete.

The judgment should be affirmed.

Judgment accordingly.