
    Calvin Davis and Elizabeth M. Davis vs. Amos S. Foy.
    It was settled at common law, that the contract of a married woman is void, and the act of 1839, familiarly known as the “ woman’s law,” does not extend her power of contracting, or of binding herself or her property.
    The effect of the act of 1839 is rather to take away from a married woman all power of subjecting her property to her contracts, except in the particular mode specified in the statute.
    A judgment cannot be rendered in a court of law against a married woman on a promissory note made by her husband and herself.
    ErroR, from the circuit court of Carroll county; Hon. Benjamin F. Caruthers, judge.
    This was an action of assumpsit brought by Amos S. Foy to the April term, 1845, of the circuit court of Carroll county, against Elizabeth M. Davis and Calvin Davis, founded on their joint and several promissory note for the sum of one thousand and twenty dollars, dated the 21st day of November, 1843, and payable on the first day of January, 1845. The defendants filed three pleas, non assumpsit, payment, and want of consideration. The plaintiffs took issue on the first, replied to the second, and demurred to the third. The demurrer to the third plea was sustained by the court, and leave given to the defendants to answer over. On the trial the plaintiff’s counsel read to the jury the note sued on, and rested his case. The defendants then proved that Elizabeth M. Davis was the lawful wife of Calvin Davis at the time she signed the note sued on, and at the time of the trial. Other evidence was also introduced, which it is deemed unnecessary to notice here, as it did not at all bear on the point upon which the opinion of the court turned. After all the evidence was concluded, the defendants asked the court to instruct the jury “ that if they believe, from the evidence in this cause, that defendant, Elizabeth M. Davis, was a married woman at the time the note sued on was executed, they cannot find a verdict against her.” The court refused to give the instruction, and the defendants excepted. Yerdict and judgment for plaintiff. The defendants removed the cause to this court by writ of error.
    
      William and William G. Thompson, for plaintiffs in error.
    It was manifestly error to . render judgment against E. M. Davis, a married woman when the note was executed.
    It was error to render judgment on verdict against E. M, Davis, there being no plea, and therefore no issue, as to her. If this court will presume there was a plea by her, inasmuch as the suit was contested as to her before the jury, then it was manifest error to refuse the instruction asked.
    In reversing the judgment, the cause will be remanded as to both defendants, or judgment rendered for them by this court, for it would be wrong to enter judgment by default against E. M. Davis, who was proven in this cause to be a feme covert when the note was executed; an action cannot be maintained against C. Davis jointly with a feme covert.
    Coverture of the defendant may be proven under the general issue. 1 Chit. PI. 476; 1 East R. 432.
    The affidavit of Calvin Davis, which was permitted to go as testimony before the jury, proves that the note sued on was signed by him, not as a party to the contract, but only as surety at the most, for Mrs. Davis. And that the contract was made entirely between the plaintiff and her. If she, as principal, is not liable on the contract, the surety cannot be held liable.
    The third plea states in substance, that the note was given for the purchase-money of land, for which the plaintiff was to give a title bond, which he has failed to do. It is insisted that the contract is void, upon the facts stated, under the statute of frauds; and that the defendants having nothing by which to hold the plaintiff liable, there is a want of mutuality, and he cannot hold them liable; and so the plea is good.
    
      Sheppard, for defendant in error.
    The leading and principal question in this case arises upon the refusal of the court to instruct the jury that if the “ defendant at the time of making the contract was a feme covert, that she was not liable.
    The proof shews that the note was given for a tract of land sold to E. Davis, in this state, in 1842, with the assent and concurrence of her husband.
    The disability of the wife to contract by the common law was not for want of proper discretion on her part, but because baron and feme are regarded as one person, and all the personal estate of the wife, which she has at the time of marriage, or which may be subsequently acquired, belongs to the husband. The law will not allow her to contract, while it deprives her of the means to discharge the obligation. 2 Kent’s Com. 149.
    This is further illustrated from the principles adopted in equity in relation to the contracts of the wife. It is true the court does not decree it as a personal obligation, but if she has a separate estate the court will hold the obligation valid, and charge it upon her separate estate in the nature of an appointment.
    The statute of 1839, known as the law regulating and declaring the rights of married women, has not only reversed and changed the common law rule in reference to the marital rights of the wife to the personal property held at time of marriage, and which may be acquired during the coverture, but it expressly gives her a power and legal capacity to contract.
    She can acquire property real or personal during the cover-ture, by gift, succession, or purchase. Purchase, as a general term, embraces every mode of acquisition, but in the specification made by the statute, it is intended as a bargain and sale.
    The wife having a legal capacity to contract, may sue and be sued as a feme sole, as if the husband be banished the realm, or an alien living abroad. 2 Kent’s Com. 154. Darby v. Duchess of Mazarine, 1 Lord Raym. So also in the case of a feme covert acting as a trader under the custom of London. Clancy on Husband and Wife, 50 — 70.
    Equity relieves solely on the ground that the contract of the wife does not create a personal obligation, and that in consequence the creditor would be remediless in the courts of law. 2 Story’s Eq. 628.
   Mr. Justice Clayton,

delivered the opinion of the court.

This was an action in the circuit court of Carroll county against the plaintiffs in error upon a note executed by them jointly. The action was assumpsit, and the fact that the defendants were husband and wife was fully established. Upon the trial, the court was requested to instruct the jury, that if they believed, from the evidence, that the defendant, Elizabeth Davis, was a married woman at the time the note sued on was executed, they could not find a verdict against her.” This charge was refused.

It was settled, at common law, that the contract of a married woman is void. Clancy on Hus. & Wife, 23. Lord Kenyon laid down the rule thus emphatically : If any one proposition in the law can be more clear than another, it is this, that an action cannot be brought against a feme covert, except by the custom of London. A court of law cannot get at the property of the wife, if she have any.” Clayton v. Adams, 6 T. R. 604.

In the exposition of our statute, called familiarly the married woman’s law, it has already been decided, that it has not the effect to extend her power of contracting, or of binding herself or her property. Its effect rather is to take away all power of subjecting her property to her contracts, except in the particular mode specified in the statute.

The judgment being against both, must be reversed and the cause remanded, for such further steps as the plaintiff may choose to take.

Judgment reversed.  