¶1delivered the opinion of the court.
¶2In this case, the declaration complains of George P. Sheppard and Mary B. Sheppard his wife, &c., and sets out as the cause of action, that on the 9th of August, 1838, the defendants, G. P. Sheppard and Mary B. Sheppard, (together withWm. A. Brown,) executed their promissory note to the plaintiff, whereby they promised to pay him ninety days after date three hundred dollars. In the court below the plea was withdrawn, and *82judgment taken nil elicit, and a motion in arrest of judgment made and overruled. In this case there is no error.
¶3It does not appear from the declaration, that Mary B. Sheppard was a feme ccmert when the note was executed. If that were the fact, it should have been shown by plea. Let the judgment be affirmed.