it makes no difference what she afterwards did with the money.137 And she may estop herself from afterwards claiming that she was merely a surety.188 But if the lender of money to her knows, or is chargeable with knowledge that she is borrowing the money and executing the contract not for her own benefit, but as surety, he cannot recover against her on such contract, and no device which is a mere cloak or indirect means of violating the statute will avail to save the transaction and make her liable as a principal.139 Under J some statutes a married woman may make contracts of suretyship the same as if unmarried, and it has been held that intention to charge her separate property will be presumed;140 but where she may be held as a surety only when the contract is made on the faith and credit of her separate estate, it has been held that the mere fact that she possesses a separate estate does not show that the contract was made with reference to it ;141 and that the burden is upon the plaintiff to show that the contract was made on the faith and credit thereof.142

137 Bouvey v. McNeal, 126 Ind. 541, 544, 26 N. E. 396; Cummings v. Martin, 128 Ind. 20, 27 N. E. 173; Crisman v. Leonard, 126 Ind. 202, 203, 204, 25 N. E. 1101; Johnson v. Pessou, (La.) 21 So. 177, 178; Langsford v. Harrison, (Ala.) 31 So. 24; Iona Sav. Bank v. Boynton, 69 N. H. 77, 39 Atl. 522; Hamil v. American &c. Co., (Ala.) 28 So. 558; American &c. Co. v. Thornton, 108 Ala. 258, 54 Am. St. 148.

138 Taylor v. Hearn, 131 Ind. 257, 30 N. E. 201; Galvin v. Button, 151 Ind. 1, 49 N. E. 1064; Tombler v. Reitz, 134 Ind. 9, 33 N. E. 789; Bouvey v. McNeal, 126 Ind. 541, 26 N. E. 396; Cummings v. Martin, 128 Ind. 20, 27 N. E. 173; Rogers v. Union &c. Co., 111 Ind. 343, 12 N. E. 495; Magel v. Milligan, 150 Ind. 582, 50 N. E. 564; Till v. Collier, 27 Ind. App. 333, 340, 61 N. E. 203; Johnson v. Pessou, (La.) 21 So. 177; Temple v. Equitable &c. Co., (Ga.) 28 S. E. 232; City &c. Asso. v. Jones, (Ga.) 10 S. E. 1079; Law v. Lips

comb, (Ga.) 10 S. E. 226; see also, Vliet v. Eastburn, 64 N. J. L. 627, 46 Atl. 735.

139 Field v. Campbell, (Ind.) 72 N. E. 260, 262; Webb v. John Hancock &c. Co., 162 Ind. 616, 69 N. E. 1006; Long v. Cresson, 119 Ind. 3, 21 N. E. 450, 4 L. R. A. 783; Cupp v. Campbell, 103 Ind. 213, 2 N. E. 565; Andrysiak v. Satkoski, 159 Ind. 428, 63 N. E. 854, 65 N. E. 286.

140 Coats v. Robinson, 10 Mo. 757; Kinm v. Weippert, 46 Mo. 532, 545, 2 Am. 541; see also, Deering v. Boyle, 8 Kans. 525, 12 Am. R. 480; Williams v. Urmston, 35 Ohio St. 296, 35 Am. R. 611; Bell v. Kellar, 13 B. Mon. (Ky.) 381; Hulme v. Tenant, 1 Bro. C. C. 16, 1 White & T. Lead. Cas. 536; but see, Post v. Koch, 30 Fed. 208; Farrand v. Beshoar, 9 Colo. 291; Yale v. Dederer, 18 N. Y. 265, 72 Am. Dec. 503.

141 Union Stk. Yds. Nat. Bank v. Coffman, 101 Iowa 594, 70 N. W. 693.

142 Grand Island Banking Co. v.

§ 2260. Evidence as to necessaries.-No action will lie against a married woman for family necessaries, unless it be averred and proved that she has a separate estate. 143 On the trial of a suit against a husband to recover for necessaries furnished to his wife living apart from him without his consent, but because, as she claims, of his cruel and abusive treatment, evidence of the manner in which he treated her before the separation was held admissible.1 Evidence that a wife living with her husband employed a servant for ordinary domestic service in their family has also been held competent against the husband in an action for such services without showing any express authority from him.145 In order to charge a husband for necessaries sold to his wife it has been held that it must affirmatively appear that the goods were sold on the husband's credit.146 And in an action for necessaries furnished to a wife, the question to whom the credit was given is said to be one of intent, and the controlling issue.147 In an action against a husband for goods sold to his wife, evidence of a separation between them is usually competent.147* And, in a proper case, evidence to the effect that he abandoned his wife and family, or by his bad treatment forced his wife to leave him, that he left her without sufficient support, and that the article furnished was reasonably necessary and suitable is competent.148 The husband is bound, under such circumstances at least, for the contracts of his wife for necessaries suitable to his degree and station in life, furnished on his credit without proof of assent on his part that she should make such purchase. 149 Where a wife is guilty of adultery and elopes from her husband, he is not, ordinarily, liable thereafter for necessaries, but it has been held that the proceedings in a divorce court establishing adultery are not admissible in the absence of a decree.150 The subject of the burden of proof and presumptions in such cases has already been sufficiently considered in prior sections in this chapter.

Wright, 53 Neb. 574, 583, 74 N. W. 82.

143 Childress v. Mann, 33 Ala. 206. 14 Wilson v. Bishop, 10 Ill. App. 588.

147 Arnold v. Allen, 9 Daly (N. Y.) 198.

147 Le Boutillier v. Fiske, 47 Hun (N. Y.) 323.

148 See, Eiler v. Crull, 99 Ind. 375;

145 Wagner v. Nagel, 33 Minn. 348, Watkins v. De Armond, 89 Ind. 553.

23 N. W. 308.

146 Ehrich v. Bucki, 7 Misc. (N. Y.) 118, 27 N. Y. S. 247.

149 Hughes v. Chadwick, 6 Ala. 651. 100 Needham v. Bremner, L. R. 1 C. P. 583, 12 Jur. N. S. 434, 14 L. T. N. S. 437.

§ 2261. Evidence as to gifts.-A gift by a wife to her husband may be shown by circumstances. 151 Indeed, it is sometimes presumed under rules already stated. But testimony by a husband that his wife gave to him a note, "to use just as any other property," does not necessarily show a gift of the note by her to him.152 And, in some instances, the courts require very clear and satisfactory proof to establish a gift made by a husband to his wife after marriage.153 So, because of the danger of improper influence, it has been held that a gift by a wife to her husband will be closely inspected.154

§ 2262. Evidence as to miscellaneous matters.-It has been held that the presumption arising at common law from the fact that a judgment has been obtained in the name of the husband for an injury to the separate property of the wife, and that he has reduced it to possession, may be overcome by proof that the action was prosecuted at the instance of the wife and for her sole benefit, without any intent on the part of the husband to appropriate the chose in action to his own use. 155 Conversion of the wife's property by the husband is not reduction into possession, but only evidence thereof, liable to be negatived by proof of his declarations and acts when receiving the same.156 A deed to two persons who are in fact husband and wife creates in them a joint tenancy, though the deed does not describe them as husband and wife, and one claiming by deed from the survivor of the two grantees may properly show by parol that such grantees were husband and wife.157 But, it has been held that the consent of a married woman to the delivery of a deed executed by her is evinced by her acknowledgment, and that this is the only way known to our law by which the consent of a feme covert can be exhibited. 158

151 Black v. Black, 30 N. J. Eq. 215; McLure v. Lancaster, 24 S. Car. 273, 58 Am. R. 259.

152 Conger v. Nesbitt, 30 Minn. 436, 15 N. W. 875.

153 George v. Spencer, 2 Md. Ch. 353; Jennings v. Davis, 31 Conn. 134; Shuttleworth v. Winter, 55 N. Y. 624; Skillman v. Skillman, 13 N. J. Eq. 403; Keniston v. Keniston, 56 Vt. 680; Marshal v. Crutwell, L. R. 20 Eq. 328; Mews v. Mews, 15 Beav.

154 Boyd v. De La Montaguie, 73 N. Y. 498, 29 Am. R. 197; see also. Golding v. Golding, 82 Ky. 51; Rich v. Cockwell, 9 Ves. Jr. 369; see also, Patten v. Patten, 75 Ill. 446.

155 Pierson v. Smith, 9 Ohio St. 554, 75 Am. Dec. 486.

156 Moyer, Appeal of, 77 Pa. St. 482. 157 Dowling v. Salliotte, 83 Mich. 131, 47 N. W. 225.

158 Devorse v. Snider, 60 Mo. 235.

§ 2263. Declarations and admissions.-A husband's admissions alone are not admissible to prove him agent for his wife.159 The agency of the one spouse for the other cannot be thus proved by the declarations of the supposed agent.160 But it may be proved by the direct testimony of either the principal or the agent.161 If a husband has either expressly or impliedly made his wife his agent, her declarations in regard to matters within her authority are admissible evidence against him.162 And, under many of the statutes a married woman as well as her husband may be estopped, in many instances, by her admissions and conduct upon which she has knowingly induced others to act in good faith on their part.163 But the right of one spouse to make admissions binding upon the other is not implied from the mere existence of the marriage relation, and there must be authority either express or implied.164

159 Whitescarver v. Bonney, 9 Iowa also, Gault v. Sickles, 85 Iowa 266, 480. 52 N. W. 206; Vol. I, § 257, n. 108.

160 Rowell v. Klien, 44 Ind. 290; Vol. I, § 257, and numerous authorities cited in note 106.

16 Griffin v. Ransdel, 71 Ind. 440, but the agency cannot always be constituted by parol; Percifield v. Black, 132 Ind. 384, 31 N. E. 955.

162 Casteel v. Casteel, 8 Blackf. (Ind.) 240, 44 Am. Dec. 763; see

163 See, Tombler v. Reitz, 134 Ind. 9, 33 N. E. 789; Duckwall v. Kistner, 136 Ind. 99, 35 N. E. 697; Lecoil v. Armstrong &c. Co., 140 Ind. 256, 39 N. E. 922; Pierce v. Hower, 142 Ind. 626, 42 N. E. 223; Abbott Tr. Ev. (2d ed.) 210.

104 Vol. I, § 257, and numerous authorities cited.

2267. Presumptions-As to compe- 2272. Question of law or fact-Cred

§ 2264. Burden of proof-In general.—Infancy is a personal privilege, and the burden of proof rests on the person who sets it up.1 Thus, the burden is on the defendant to establish affirmatively the defense of infancy. So, in an action for the price of goods, where defendant pleads infancy, the burden of proof is on him to show that fact. And one who alleges the continuance of infancy to defeat a new promise proved against him at a given time must generally prove that his nonage was still continuing at that time. It has also been held that the burden of proof rests upon the purchaser of an infant's realty, at a sale under order of court, to show that the claims on which the decree was made were claims for which the infant was liable. When an infant promised, after reaching matur

1 Campbell v. Wilson, 23 Tex. 252, 76 Am. Dec. 67; Shirley v. Hagar, 3 Blackf. (Ind.) 225; Fankboner v. Corder, 127 Ind. 164, 26 N. E. 766; Borthwick v. Carruthers, 1 Term R. 648; Jeune v. Ward, 2 Stark. 289; Adam-Roth Grocery Co. v. Hopkins, (Ky.) 29 S. W. 293; Rogers v. De Bardeleben Coal &c. Co., 97 Ala. 154, 12 So. 81; Craig v. Van Bebber, 100