
    Edward Freer v. Elizabeth A. S. Walker.
    Charleston,
    Feb. 1829.
    The bond of a feme-covert is void, although she live separate from her husband at the time of the execution; and in an action on the bond the cover-ture may be given in evidence, under a general plea of non. est factum, vide Lambert v. Atkins, 2 Camp. 272.
    Tried before the Recorder, in the City Court of Charleston, at November Term, 1828.
    This was an action of debt on bond, to which the defendant pleaded non est factum; and under that plea offered to prove that she was a feme-covert when the bond was executed. It was objected by plaintiff, that the coverture ought to have been pleaded in abatement; but that at all events the defence was inadmissible under the general issue. The Recorder held, that it was unnecessary in this case to plead the coverture in abatement ; for it went, not merely to exempt the defendant from liability to be sued, but to defeat the very ground of the action : nor was it necessary to plead it specially in bar; for the bond of a feme-covert was void ab initio, and whatever showed the bond to be void in its creation might be given in evidence under the general plea of non est factum.
    
    The coverture was then fully established. In reply, the plaintiff proved that the defendant had for several years lived separate from her husband; and that the bond had been executed to secure payment of the credit portion of the purchase money of a slave, which she had bought at auction, and which had been delivered to her.
    The Recorder charged, that however unrighteous the defence, it was valid in law, and the plaintiff could not recover. A married woman could not make a bond, nor was it desirable that she should possess such a power; more especially was it objectionable that she should be able to acquire new rights and capacities by living separate from her husband. The jury however found for the plaintiff; and the defendant moved the Court of Appeals to set aside their verdict, as contrary to law.
    H. A. Desaussore, for motion.
    Dunkin, contra.
    
   Curia, per

Nott, J.

The Court concur in opinion with the Recorder, in the view which he has taken of this case. The ver-diet is therefore contrary to law, and a new trial must be granted.

Motion granted.  