Urquhart v. Thomas

Wyly J.

The plaintiff appeals from the judgment rejecting his demand against the defendant, Mrs. Thomas, a married woman, on two drafts for $1000 each. There are several defenses urged, but we deem it necessary only to consider two of them, to wit:

First — The debt did not inure to tbe benefit of the defendant, Mrs. Thomas, who is a married woman and separate in property from her husband.

Second — There was no notice of the dishonor of the bills, nor anything equivalent thereto.

It is well settled that in a suit against a married woman, whether separate in property or not, the plaintiff, in order to recover, must *96 ■show affirmatively that the debt inured to lief separate benefit or advantage. This material fact has not been shown in this case. 5 An. 173; 7 An. 144; 3 L. 74 ; 5 An. 495; 1 An. 428; 7 N. S. 64.

The obligation of the drawer may become unconditional by showing that due notice of dishonor was given, or by showing that the drawer, having no funds or business transactions with the drawee, had no right to expect the bill to be paid. 11R. 215; 19 L. 370 , and authorities cited.

In this case, although the defendant, Mrs. Thomas, had no funds in the hands of the drawee, it is shown that she had a running account with him as her commission merchant. We think she had a right to expect her drafts to be paid, and therefore ought to have had notice of dishonor, which was not given.

Let the judgment heroin be affirmed, with costs.