stance and request, on or about the 24th day of February, 1863, and which it is alleged she undertook and promised to repay, with interest at 7 per cent. The defendant by her answer denied the loan, and pleaded as a separate defense that, at the time it was alleged to have been made, she was a married woman. Plaintiff claims to have delivered to one John McKesson his check for the sum of $2,000, which was paid in regular course, in accordance with the written request of the defendant contained in the following letter: “New York, 24th February, 1863. Dear Sir: Please make the check for the $2,000, for which I herewith hand you receipt, to the order of John McKesson, Esq., and oblige yours, truly, A. M. Whitlock.” This letter was accompanied by the following receipt, written upon the same sheet of paper: “New York, February 24, 1863. Deceived from James A. Patteson, Esq., the sum of $2,000 in check, to the order of John McKesson, Esq., and for which am’t I am to give him my note bearing interest at seven per cent., payable-. A. M. Whitlock.” The check of plaintiff for the sum of $2,000, payable to the order of John McKesson, dated the same day as the letter and receipt, was put in evidence. The signature of the plaintiff was proved, the indorsement of the check by McKesson was shown to be in the handwriting of John McKesson, and the indorsement, “For deposit in the Bank of New York, McKesson & Bobbins, ” was proved to be in the handwriting of a member of that firm. The defendant testifies that she has no recollection of the letter and receipt, Exhibits 1 and 2. She admits that the signature looks like hers. She says she cannot say surely that it is, but that it looks like her handwriting, as she remembers it at that time. The witness Graham, her present husband, says that it is, in his opinion, her signature. From the evidence upon this branch of the case, the referee found that the defendant signed the letter and receipt above referred to, and that the sum of money therein mentioned was delivered by the plaintiff, in accordance with her direction, to John McKesson. This finding is supported by the evidence, and we cannot say the referee erred in making it. The referee has also found that, at the time of the making of the said loan, the defendant had a separate estate. The defendant has testified that, during the year 1863, she did not have any separate estate, and did not own any property in her own right. She is, however, directly contradicted by the documentary evidence in the case, which shows that at the time of contract she was the owner of certain property in the county of Westchester, which was conveyed to her by John J. Crane in the year 1861, and which remained her property until some time in the year 1864, when it was sold by her. As to this matter, the finding of the referee was clearly correct.
Prior to the passage of chapter 381 of the Laws of 1884, a married woman could not bind herself by contract unless the obligation was created by her in or about carrying on her trade or business, or the contract related to or was made for the benefit of her separate estate, or intention to charge the separate estate was expressed in the instrument or contract by which the liability was created. The referee has found as a fact that the defendant was not engaged in the carrying on of any trade or business at the time the loan was made to her. No intention to charge her separate estate is expressed in the letter and receipt put in evidence. The ground of defendant’s liability, therefore, must be that the contract related to or was made for the benefit of her separate estate. The referee has found that the money paid by the plaintiff, at her request, to McKesson, was paid to a creditor who had a lien by mortgage on her separate estate, and was for its benefit. It appears by the evidence that the land above referred to as owned by the defendant was, with other property, subject to a mortgage made by her husband and herself, in 1861, to John McKesson and Edward Haight, to secure 100 notes for $1,000 each. This mortgage contained provisions for the release from the lien of it of the several pieces of property mortgaged, upon the production and deposit