delivered the opinion of the court.
The plaintiff claims from the defendant, who ,was her tutor, the sum of $929, as the balance due her in that capacity.
She had a judgment for the sum of $573 69, the amount of a note given by the defendant to her husband for the balance due to her. With the assistance of her husband she instituted a suit in the District Court on this note, in which she failed, that court being of opinion that her remedy was in the Court of Probates, With the same assistance she has brought the present suit in the Court of Probates; the payee of the note being her husband, and the suit not being instituted by him, but by his wife with his assistance.
It does not appear to us that the court erred. The note was given to the husband as the agent of the wife. This is expressly stated in the petition'; and the assistance of the husband, enabling her to sue, presupposes his knowledge of the nature of her claim, and his consent to its being enforced ; for he is the judge of the propriety of the suit, and it cannot be supposed that he assisted her in an improper one; much less one that is detrimental to his own .rights.
The husband might indeed have considered the note as his own. property ; transferred it or instituted suit on it in his own name. This he has not chosen to do ; but on the contrary, has consented to assist his wife in two suits in her own name brought on this same note as owner of it. His recognition of the right of his wife would certainly repel him, if he were now seeking to treat the note as his own property.
We have not considered the other part of the plaintiff’s demand, as she has not appealed.
The judgment of the Court of .Probates is therefore affirmed with costs.