
    James Wallace against Barnard Rippon and Wife.
    
      Charleston District,
    
    
      1797.
    
    A bond given by a married •woman is void although she be a feme sole trader, unless she is specially stated to he one in the proceedings against her; and if taken on a ca. sa. without pleading it, she is entitled to her discharge, as all the proceedings are loid ab initio.
    
    UPON a motion to discharge Mrs. Rippon from the custody of the sheriff, on a ca. sa.
    
    In this case, judgment was taken against Rippon and wife, on a bond signed by both of them, in consequence of which an execution, a ca. sa. issued, on which she was taken and imprisoned. This was a motion to have her discharged, on the ground that the whole proceedings as against her were null and void.
    The Attorney-General contended,
    that as she was under coverture at the time chis bond was given, it ,vas absolutely null and void ; and, of consequence, all proceedings upon it as to her were void also. It was almost needless, he said, for him to urge that all contracts of a married woman during coverture, were not only voidable, (as the contracts of infants,) but absolutely void; but he admitted that the bond and proceedings upon it were good and valid against the husband.
    Mr. Johnson admitted the law laid down by the Attorney - General, but contended, that Mrs. Rippon was a feme sole dealer, and had the fight under a special agreement of her husband, in pursuance of the directions of the act of assembly in such case made and provided, to make such contracts, and that having done so, she was bound in her person and estate to fulfil them. That the bond in this case was given for building a house on a lot purchased by her out of the profit of her dealings as a sole trader; and, therefore, under the act, she is clearly chargeable, as well as in justice and good conscience.
    The Attorney-General, in reply,
    said, if she had been sued singly in that case, coverture might have been pleaded, when plaintiff might have replied that she was a sole trader ; then, under the act, she might have been made liable. But in the present case, the proceedings themselves shew, from the beginning to the end pf them, that she was under coverture, and there is no allegation, even in the proceedings, that she was a sole trader; so that she cannot be chargeable upon this bond, or in this action, as she is only stated to be the -wife of Barnard Rippon.
    
   The Judges were all clearly of opinion, that the bond in its present form was originally void as to her, and consequently all the proceedings upon it were void also. That a feme covert may be made a sole trader under the act of assembly, and even in some cases by the common law, but then that must always be set forth in the original contract. and specially shewn in the legal proceedings, and alleged on record, as it is a deviation from the general law of the land. In the present case there is no such allegation ; consequently all the proceedings upon the face of them are absolutely void as against her, but are good and valid against the husband.

She was, therefore, discharged.

Present, Bukke, Gmmke, and Bay.  