
    Mary E. Kavanaugh and Nelson Kavanaugh v. Nancy Brown and William A. Brown
    Error from Washington District Court.
    A writ which, varies from the petition may he amended by the petition. Such amendments are within the exercise of a sound discretion by the court. [2 Tex. 223; 3 id. 261; 5 id. 130; 7 id. 468; 16 id. 45; 24 id. 302, 660.]
    If the defendants have not answered when the defect in the writ is discovered, a new writ would doubtless be awarded; and after an appearance, if the amendment of a defective writ is calculated to surprise, sufficient time will be allowed to answer.
    A married woman cannot make a contract by which she herself, or her separate property, will be rendered liable.
    The act of 20lh January, 1840, “regulating marital rights,” was intended to secure the separate property of the wife, and its object would be defeated if she could bind it by her separate contracts during the coverture.
    The common law rule respecting the capacity of the wife to contract was not changed by our statute regulating marital rights. [28 Tex. 368; 29 id. 257.]
    This suit was brought by the appellees against the appellants in the court below, upon a promissory note for $500, which was signed by both of the appellants. Process was served on the defendants, but at the first term of the court George "W. Horton, an attorney of the court, as amicus curia}, suggested a variance between the writ and petition, and moved that the writ be quashed. The court decided the writ was bad, but permitted it to be amended by the petition, to which a bill of exceptions was filed.
    The defendants then pleaded several matters of defense jointly, and Mary E. Xavanaugh pleaded separately that she was a married woman at the time the note was executed, and was not capable in law of binding herself by the contract. The fact of her being a married woman, and the wife of the other defendant, was admitted; but the court instructed the jury that her being married, when she executed the note sued on, did not preclude the plaintiffs from recovering against her in this action; to which instruction the defendants excepted. The jury found a verdict against both defendants, and upon which judgment was rendered for the plaintiffs.
    
      G. W. Horton, for plaintiffs in error,
    assigned two gronnds of error, which are stated in the opinion of the court. In support of the first, he referred to the 8th section of the act establishing the powers and jurisdiction of the district courts. Acts 1st Congress, p. 201. To sustain the record, he cited 18 Johns. 167; Act of the 4th Congress, p. 1, adopting the common law, and to regulate marital rights; and the Act of the 5th Congress, p. 184, prescribing the mode of disposing of the property of married persons.
    
      
      Gillespie and Taylor, for defendants in error.
    No briefs filed.
   Lipscomb, J.

The plaintiffs in error assign the following grounds as error, on which they aslc the reversal of the judgment of the court below.

First. The court erred in permitting the plaintiffs to amend the writ by the petition.

Second. The court erred in its charge to the jury as set forth in the bill of exceptions.

From the record it appears that a motion was made before any answer was filed to quash the writ, on the ground that there was a variance between it and the petition, which motion was sustained and leave given to amend the writ by the petition. The defendants excepted to the decision of the judge in allowing the amendment, and then answered to the suit.

The objection was no doubt well taken in the district court, but under our statute of amendments it is believed that it was competent to allow the amendment of the writ by the petition, which was certainly the initiative step in the suit, and nothing has been more usual than to allow a subsequent mistake to be amended by something that preceded it. This has been allowed when- the laws of jeofails did not allow as much latitude as ours. Such amendments are not calculated to effect its merits of the case, and have been found to advance the substantial ends of justice. The court in the exercise of a sound discretion will protect, in the terms on which an amendment is allowed, the rights of the opposite party. If these defendants had not placed themselves in court by the answers, doubtless a new writ would have been awarded, or sufficient time would have been allowed them to answer after appearing, if the amendment of a defective writ had been calculated to surprise them. Such matters from necessity must be left to the sound discretion of the judge, and it would require a strong case of abuse in the exercise of such discretion to justify a revision by this court.

The second assignment is believed to be better founded. It appears from the record, among other matters set up in defense, that Mary E. ILavanaugh pleaded that she was a married woman at the time the joint note of herself and husband, on which the suit was brought, was executed. The truth of this plea was admitted, and the judge, as appears from th/s bill of exceptions, charged the jury that a woman could bind herself in a promissory note, and the fact that the said defendant was a married woman at the time of making and signing the note sued on in this action, against the said Mary E.”

There can be no question that at common law a wife cannot bind herself in any contract, so completely is her existence merged in law that she cannot by laches, during coverture, forfeit her legal rights. It is unnecessary to refer to authority on this subject, and the opinion of the judge in the court below must have been founded on a supposed ability to contract and liability to be sued, arising out of the fact that her separate property was secured to her by the act of 20th January, 1840, regulating marital rights. By reference to this act it will be seen that no authority is given to contract, and no liabilty imposed to be sued on any contract she may enter into during the coverture; and the whole object of the act is to guard her separate property. This favorite object would be defeated if she could be bound, or make her property liable for her contracts. It is not likely that she could resist the importunity of her husband to join with him in a contract and preserve that domestic harmony so vitally essential to the happiness of husband and wife. The law wisely removes the temptation by putting it out of the power of both.

We do not believe the common law was altered as to the capacity of the wife to contract, by the act securing to her such separate property as she owned at the time of her marriage or should acquire during her coverture; and as the judge erred in charging the jury that she could bind herself, and that she was liable to be sued on such contract, the judgment is reversed and the cause remanded with instructions to the court below to enter judgment in favor of the defendant, Mary E. Kavanaugh, with her costs; and to enter a judgment in favor of the plaintiffs below against the defendant, Kelson Kavanaugh, and the plaintiffs in error to recover their costs in this court.  