#### MARY BRYAN vs. WILLIAM A. PHILPOT, ADMINISTRATOR OF SOLOMON PHILPOT.

June 1843

Where a negro, belonging to A., was sold by B., at the request of A’s. wife, in the life-time of her husband, and the price received by B., and after A’s. death B. gave his promissory note to the wife for the amount he had so received, held that there was no consideration for the note, as the mo,ney belonged to A’s. representatives.

Appeal from the .Superior Court of Law of Granville County, at Spring Term, 1.84.3, bis Honor Judge Battle presiding.

This was an action of-assumpsit brought upon an instru.ment, of which the following is a copy :

“Received of'Mary Bryan, three hundred and fifty dollars, which I will pay as soon as collected, with interest from the time I have had it in my hands. This 11th day of September, 1837.

(Signed) SOL. PHILPOT.”

On which instrument was indorsed as follows :

“ Received of Solomon Philpot, fifteen dollars in part of the within receipt.

(Signed) MARY BRYAN.”

Upon the trial, the witness, who subscribed the instrument in question, testified, that it was signed or acknowledged by the defendant’s intestate in his presence; that he did not know what passed between the plaintiff and the defendant’s intestate, before he was called upon to subscribe it-as a witness, but that it was given for the proceeds of the • *468sale of a negro slave, made under the following circunistan-ces: The slave had belonged to the father of the plaintiff, who gave him to the plaintiff while she was the wife of one gamue> Bryar, — that, Bryan becoming insolvent and the slave in danger of being taken to pay his debts, the plaintiff, his wife, took the slave to the defendant’s intestate, and, stating that he was her’s, requested him to sell the slave for her; that he did so, and received the proceeds and retained them during the life of Bryan — that, some two or three years after his death, the plaintiff called upon the defendant’s intestate and claimed the proceeds of the said slave, when he gaveher the instrument sued upon. It appeared by the testimony of another witness, that, after the death of the defendant’s intestate, the plaintiff by her agent demanded the money of the defendant, when he declined paying it to her, alleging that he had paid it to the administrator of her husband, or was advised that he was bound to do so. Upon this statement of facts, the defendant’s counsel insisted, that the plaintiff had made out no case, which entitled her to recover; of which opinion was the court. Whereupon the plaintiff submitted to a judgment of nonsuit, and'appealed to the Supreme Court.

Badger for the plaintiff.

Iredell for the defendant.

Daniel, J.

This was an action of assumpsit on a promissory note, set out in the case. Plea, non assumpsit.— The defence against the recovery was, that it was anudiim pactum, and'without any consideration. It appears, that the slave was the property of the plaintiff’s husband, for a gift and delivery of him to' the wife, transferred the title in law to the husband. The plaintiff, while she was a feme covert, took the slave to Philpot, and directed him to convert the said slave into money by a sale, which he did. If the wife was the agent of her husband in this transaction, the purchase money was in law received by Philpot to the use *469of the husband. When the husband died, the agency of the wife was revoked (if she had been an agent,) and Phil-pot could not then on any pretence have paid the money to the widow. If we take the case on the other hand, that Philpot sold the slave without any authority from the husband, he would be a tovtfeasoi’, and the damages would still belong to the husband; or he, and so might his representative, elect to confirm the sale and take the purchase money. — ■ Therefore it seems to us, that, at the time the note was given, the plaintiff had sustained no loss, nor had the defendant’s intestate derived any benefit, as a consideration forgiving the note. .The case states that the plaiutifftold Philpot, when the slave was delivered to him to be sold, that he belonged to her, and she requested him to sell the slave for her benefit. It does not appear that the husband was present at the time, or that he ever assented to that declaration’. Gifts or presents from a hnsband to his wife, though made after marriage, will be supported in equity against himself and his representatives, and such gifts will be considered as the wife’s separate. property. Atherley 331.—Lucas v Lucas, 4 Atk. 270, and the cases there cited. — . If we could see that the slave was the separate property of the wife, even as against her husband only and not against his creditors, as if it were a voluntary gift from him, then the note would be founded on a consideration sufficient for the plaintiff to recover in this action — and to hold the money a-gaiust all persons except the creditorsof the husband. But we do not see that she had any interest in the slave, at the time of the sale or at any other time ; therefore the note was executed by Philpot without any consideration, and the plaintiff was not, in law, entitled to recover. It has, indeed, been argued here, that from the facts shewn there was some ground to infer, that the hnsband had consented that the wife should hold this negro and its proceeds to her separate use; and that it should have been left to the jury, as a matter of fact, whether he had or had not so consented. But to this we answer in the first place, that it does nor appear that any such allegation was made upon the trial, and s.econcUy, that *470 'merely upon the facts disclosed in the ease an inference of such a fact would have been unwarranted by the evidence, it would have been n guess or conjecture, which will never .authorize a verdict. The judgment must be affirmed.

Per Curiam. Judgment affirmed.