
    Burke against Winkle.
    A feme sole trader within the meaning of the act of assembly of 22d February, 1718, may be sued, without naming her .husband, for all debts contracted either in the course of her trade* or for the maintenance of herself and her «liildren-, whether the same be by simple contract, or by specialty.
    
    In Error.
    ERROR to the Common Pleas of Philadelphia county.
    The defendant in error, who was plaintiff below, was an emigrant from Holland, and in order to raise money to pay her passage to Philadelphia, bound herself as a servant to the plaintiff in error, who was defendant below, for the term of five years from the 22d December, 1807. In consideration of this binding, the defendant paid eighty dollars for the plaintiff’s passage, and covenanted to provide her with board, clothing,- &c. dinring the time of servitude, and to give her certain specified freedom dues after the expiration of that period. For a breach of the last mentioned covenants an action was brought by the plaintiff before an alderman, which was removed, by appeal, to the Common Pleas; where the defendant pleaded, that at'the time of making the covenant, she was and continued to be a married -woman. The plaintiff replied, that the defendant was a feme sole tracer within the meaning of the “ act concerning feme sole traders and to this replication the defendant demurred. The Court below, after argument, gave judgment for the plaintiff, and the record was removed to this Court by writ of error.
    
      Delany, in support of .the demurrer,
    contended, that a feme covert could not enter into a covenant, and make herself liable to damages. The act of assembly gave certain privileges to, and imposed certain responsibilities upon, feme sole traders for the benefit, of trade, and to enable them to maintain themselves- and families during the absence of their husbands. These privileges and responsibilities, however, were confined to matters connected with the trade or craft they pursued, and had never been extended so far as to authorise a married woman to bind herself by a specialty. When the act of 22d February, 1718, was passed, the legislature, doubtless, had in view the custom of London, with respect to feme sole traders, and intended to make them liable precisely in the same degree as they are by the custom. A case of this kind has never been decided here, but in England it has repeatedly been determined, that by the custom of London a feme sole trader is responsible only for simple contract debts incurred in the course of her trade, and that she cannot execute a bond. Roper on Baron and Feme, 195. 3 Burr. 1776. 4. T. R. 362.
    
      Kehmle, contra.
    The general rule undoubtedly is, that the deed of a married woman is void, but there are some cases in which contracts under seal, entered into for her own benefit, are considered binding. A married woman may take by-purchase, unless her husband dissents; and according to the decision of this Court in Baxter v. Smith,
      
       a lease to a feme covert is good, if it be not expressly against the consent of the husband. An indenture of apprenticeship too-, entered into by a married woman, in consideration of her manumission, binds her. The Commonwealth v. Clements.
      
       The covenant entered into by the plaintiff in error, was greatly for her benefit, and she cannot consistently with-either equity or law allege her coverture as a reason why she should not perform it. At all events, the contract is valid under the act of assembly, within the meaning of which she is confessed by the demuri'er to have been a feme sole trader. That act speaks of debts generally, and makes no distinction between simple contract debts, and debts by specialty. Nor is there any reason why such a distinction should be made in Pennsylvania, where every species of property, realty as well as personalty, is liable to the payment of every description of debts. But in England the law is otherwise, and the reason why a feme sole trader cannot there enter into a specialty is, that if she could, she might, if she has real assets, bind her heirs, which Lord Mansfield, in Read v. Jewson, says, no custom can warrant. For this reason, and because there are several features in which the custom of. London differs from the act of assembly, particularly with respect to executions, the decisions founded upon the -custom do not apply..
    
      
       6 Binn. 427.
    
    
      
      
         6 Binn. 206.
    
    
      
       Cited by Buller J. in Candell v. Shaw, 4 D & E. 363.
    
   Tilghman C. J.

The defence set up against this action is, that a feme sole trader may make herself liable for simple contract debts, but not for debts of the nature of specialty. The cases which have been cited for the defendant, shew the law with respect to feme sole traders by the custom of London. But those cases are by no means conclusive in the construction of our act of assembly, which gives a feme sole trader a capacity of contracting debts, and being sued for for them, not only touching matters of her trade, but for the .maintenance of herself and children. She is placed on a different footing from a feme sole trader in London, and a much better one. For in London, the body of the feme may be taken in execution. But by our law the execution can issue only against her property, unless it appears to the Court to which the execution is returnable, that she has, out of her separate stock, paid debts which were contracted by her husband, or laid out money for the necessary support and maintenance of herself and children, in which cases execution shall be levied upon the estate, real and personal, of her absent husband, to the value so paid or laid out. Thus it appears, that married women stand in a different situation among us from any known to the law of England., and of course the law of England is not applicable. I perceive no difference within the meaning of our law, whether the debt be of the nature of specialty or simple contract, although in England there is a difference. There lands in the hands of the heir are not bound by simple contract debts, but here they are liable to the payment of all debts contracted by the ancestor, without regard to their nature. The covenants by which the defendant bound herself, in the present instance, were reasonable and necessary. She could not well support her family and carry on the business of her shop without a servant, and there was no more economical way of prqcuring a servant than the one which was taken. So that in fact, it was a contract for a necessary article. And now having enjoyed the benefit of the plaintiff’s services, the defendant attempts to deprive her of part of the stipulated reward by a quibble. She would avoid the contract, because she affixed her seal to it. In my opinion, the defence is equally void of law and of justice, and therefore the judgment should be affirmed.

Yeates J.

A demurrer confesses all the facts which are well pleaded. The facts, therefore, set forth in the replication below, are admitted to be true, that Burke, at the time of making the indenture, on which the action of covenant is founded, was a feme sole trader, and as such earned a livelihood by shop-keeping, within the meaning of the act of assembly respecting feme sole traders.. The single question iii the case is, whether the plaintiff in error is legally bound by the covenants contained in the indenture of servitude made with a passenger from Amsterdam.

As to the honesty, justice, or equity of the demand of the defendant in ei'ror, there’ cannot be one particle df doubt.She served her mistress faithfully, as the pleadings shew, but has not in return received her three-quarters schooling or freedom dues. The objection urged against a compensation-in damages, is, that Burke being a married woman, could not bind herself by an instrument under seal. This is true, by the custom of London, and the-reason given is, that she might thereby bind her heirs., But our judicial polity is grounded on more just and liberal principles. Heirs here are bound by the contracts of their ancestors, and all lands descend subject to the payment of debts. By our early law, 22d February, 1718, feme sole traders may sue and be sued, plead and be impleaded at law, during their husbands’ natural lives, without naming their husbands: and where judgments are given against such wives for any debts contracted, or sums of money due, from them since their husbands left them, execution shall be awarded against the goods and chattels in the possession of such wives, &c. Thei-e is no restriction or limitation as to the nature of the debts contracted for, nor could there be one consistently with the spirit of our general system. The words are sufficiently general and extensive, to cover the present case, and therefore I concur in opinion^ that the judgment below be affirmed.

"Brackenridge J. concurred.

Judgment affirmed.  