
    PARKER’S EXECUTOR vs. LAMBERT’S ADM’RS.
    [ACTION AT LAW A&AKfST EXECUTOR OS' FEME COVERT.]
    1. Contract of feme covert, living separate from her husband, and owning separate estate. — A married woman, owning a separate estate by deed, and living apart from her husband by agreement with him, could not, at common law, make any contract upon which either she or her personal representative could be sued at law; and this principle of the common law is not affected by any statutory provisions of this State.
    Appeal from the Circuit Court of Coosa.
    Tried before the Hon. JohN Gill SHORTER.
    This action was brought by the administrators of Mrs. Elizabeth Lambert, deceased, against the executor of Mrs. Bethany Parker, deceased; and was commenced in March, 1854. It was founded on several promissory notes, fourteen or fifteen in number, for less than $50 each, amounting in the aggregate to about $600, all dated 11th May, 1852, executed by Mrs. Parker, and payable to Mrs. Lambert. The only plea was the general issue, with leave to give any [special matter in evidence. The evidence adduced on the trial, as appears from the bill of exceptions, showed that these notes were given in consideration of board and lodging furnished to Mrs. Parker, who was a married woman, living separate and apart from her husband by agreement between them ; and it appeared that, at the time the notes were given, Mrs. Parker owned a separate estate, by deed from her husband, of which Joseph D. Hopper was trustee. The court charged the jury, “that if they believed from the evidence that Mrs. Parker, at the time of the making of said notes, was a married woman, and so continued until her death, and that her husband was living at that time, this would not defeat the plaintiff’s right of recovery, if they also found from the evidence that, at the time she made the notes, she was living separate from her husband under an agreement so to do, and that she then had a separate estate which, at her death, came into the hands of the defendant.” The defendant excepted to this charge, and he now assigns it (inter alia) as error.
    L. E. PaesoNS, for the appellant.
    Vm. P: Chilton, and Morgan & Martin, contra.
    
   HICE, C. J.

— One of the general rules of the common law is, that a married woman has no power or capacity to contract, so as to authorize a judgment to be rendered against her personally, either by a court of law or a court of equity, on a contract made by her during coverture. To this general rule there are exceptions; but the facts which constitute the hypothesis of the first charge given by the court below, do not bring the present case within the exceptions. Upon such a state of facts as supposed in that charge, the capacity of the wife to bind herself by a contract made during the coverture, so as to authorize either her or her executor to be sued thereon at law, is untouched and unaffected by any of our statutory provisions. By such contract, she may charge her separate estate, and authorize a court of equity to enforce it as such a charge ; but a court of law cannot enforce such a contract, either against her or her personal representa-live, although she has a separate estate, unless such facts are proved as to bring the case within some exception to the general rule of the common law hereinabove stated. Chitty on Contracts, (edition of 1861,) 168, 171 Gibson v. Marquis, 29 Ala. 668 ; Rowland v. Logan, 18 Ala. 307; 2 Bright on Husband and Wife, 249, 265.

It is fully settled, that a husband and wife cannot, by a deed securing a separate and sufficient maintenance to her, dissolve the relation of marriage,- so as to enable her, even whilst living apart from him, and enjoying such separate fund, to contract as a feme sole. — Marshall v. Rutton, 8 T. R. 545 ; and authorities cited supra.

Nor the error in the first charge given by the court below, we are compelled to reverse the judgment, and remand the cause;- and we deem it proper not to pass directly upon the other questions presented on the record, but to leave them untouched for the present.

Judgment reversed, and cause remanded.  