Martin, J. The defendants are appellants from a judgment on „ a note of the wife payable to the husband, and endorsed by him to the plaintiff. The appellees’ counsel has contended : 1. That a note is always presumed to he given for a valid consideration, and that it devolves on the adverse party to show the contrary. 2. That the incapacity of the wife to make a contract, is removed by the authority of the husband. 3. That the wife should have pleaded her incapacity, and the want of consideration, if either existed, or that the note was not given for her benefit. I.

With regard to the note, it was absolutely null and yoid iq the hands of the husband ; for we are ignorant of any law which recognizes an obligation of the wife to her husband, resulting from any contract between them. Civ. Code, art. 1784. The counsel for the plaintiff has, however, in the argument, placed the case before us as a contract of suretyship entered into by the husband for the wife, under the form of an accommodation note with his endorsement thereon ; and he insists that she is hound to restore the money thus obtained from the plaintiff for her benefit.

If this he available, it ought tp have been' alleged and proved. Iq the absence of such allegation and proof, it would be idle in us to notice it. Strong as this case is in favor of the wife against the plaintiff, it is equally so in favor of the latter against the husband, who, by his endorsement made a new contract, available to the endorsee as against himself, but not against the wife. Where the attention of the court has not been drawn to a hill of exceptions in the record, either hy the points filed, or on the first hearing of the ease, it will not he noticed on a re-hearing.

It is therefore decreed that the judgmeút of the court below be reversed as far it relates to the wife, and that ours be for her with costs in both courts; and that so'far as relates to the husband, the judgment be affirmed with costs in both courts, and ten per cent damages as for a frivolous appeal.