Chief Justice Agnew
delivered the opinion of the court, January 6th 18-76.
It has been the endeavor of this court so to construe the Married Woman’s Act of 11th April 1848, as to advance its true purpose, and not to make her condition less favorable, by an interpretation that endangers her real interests. A review of the judicial decisions upon the act, by Justice Woodward, may be found in the case of Pettit v. Fetz, Ex’r, 9 Casey 120. The case of Mahon v. Gormley, 12 Harris 80, states the object of the act very clearly. Lewis, J., remarks that it was intended for their protection, not for their injury, and must receive such a construction as shall promote that object. The proviso to the principal section — “ That nothing in this act shall be construed to protect the property of any such married woman from liability for debts contracted by herself, or in her name, by any person authorized so to do,” or “for her torts,” is not to be construed as enlarging her power to contract debts. “ Its object (he continues) is merely to make her estate liable for her torts and for debts lawfully contracted by her.” “ In general, therefore, a married woman is incapable of contracting debts. Her capacity and liability are exceptional cases.” Hence in interpreting the special clauses of the act relating to the debts for which she may be held liable, the cases show that they have been so construed as to limit them "strictly to the purpose of protection, and not loosely, so as to expand her contract capacity or liability. This will be seen in the following cases: Mahon v. Gormley, supra; Pettit v. Fetz, Ex’r, supra; Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251; Glidden v. Strupler, 2 P. F. Smith 400 ; Cleaver v. Scheetz, 20 Id. 496. It has been held, therefore, in interpreting the 8th section of the Act of 1848, as to her liability for necessaries, that both the pleadings and the evidence must [344] make out a case, of liability under it. The pleadings must set out a debt contracted by the wife, and that it was incurred for articles necessary for the support of the family of the husband and wife, and the evidence must establish these facts : Murray v. Keyes, supra; Parke v. Kleeber, supra; Bear’s Estate, 10 P. F. Smith 430; Davidson v. McCandlish, 19 P. F. Smith 169. As a corrollary from these propositions, it has been held that a joint contract of the husband and wife is insufficient to charge her separate estate. The husband, it is true, must be sued jointly with her, because no action will lie against her, even for necessaries for their family, without joining him, as his estate is primarily liable to execution under the 8th section. Her estate is not liable until an execution against Mm shall have been returned no property. See the cases cited supra. In Murray v. Keyes, the declaration charged them jointly upon the common counts, followed by a special count setting forth that goods, wares and merchandise were “ furnished to the said defendants at their special instance and request, such goods, wares and merchandise being articles necessary for the support of the family of said defendants.” The wife was held to be not liable, this court saying “ that the pleadings as well as the evidence failed to make out a case charging the wife.” The same point was decided in Parke v. Kleeber. In that case one count was for a further sum of $150 for a debt contracted by the said Catharine Parke herself, wife of the said R. W. Parke, with and to the-plaintiffs. The other count was for the “ further sum of $150 for necessaries furnished by the plaintiffs to the defendants at their special instance and request, for the maintenance and support of the family of said defendants.”
The first count was held to be bad, because it did not set forth that the debt was for necessaries for the family, and the second was bad because it set forth a joint contract. In the present case, the declaration contained the common counts for goods sold, work done, and money advanced to the defendants jointly, followed by a count in these words : “And in the further sum of five hundred dollars for services rendered by said plaintiff, as a physician and surgeon, to a minor son of the said defendants, at the special instance and request of the'said Maria Berger above named.” The predicate of all the counts was “ for that whereas the defendants ” “ were indebted,” &c., and the conclusion was that the “ defendants ” made the several promises preceding. Thus it is clear the action was founded on the joint contract of the husband and wife, and not on the separate and special contract of the wife for necessaries.
The judgment must be reversed on the third and fourth assignments of error upon the refusal of the court to arrest the judgment because of the insufficiency of the declaration. The reason given under the fourth error — that the evidence was not sufficient, does [345] not belong to a motion in arrest of judgment, but to one for a new trial. But we may add that there was no sufficient evidence of a separate contract of Mrs. Berger in her own right. The evidence shows no more than a mere request 'in the ordinary way to attend her son, in which she was acting for her husband, rather than with an intention to bind herself to pay the debt out of her own estate.
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Chief Justice Agnew
delivered the opinion of the court, January 6th 18-76.
It has been the endeavor of this court so to construe the Married Woman’s Act of 11th April 1848, as to advance its true purpose, and not to make her condition less favorable, by an interpretation that endangers her real interests. A review of the judicial decisions upon the act, by Justice Woodward, may be found in the case of Pettit v. Fetz, Ex’r, 9 Casey 120. The case of Mahon v. Gormley, 12 Harris 80, states the object of the act very clearly. Lewis, J., remarks that it was intended for their protection, not for their injury, and must receive such a construction as shall promote that object. The proviso to the principal section — “ That nothing in this act shall be construed to protect the property of any such married woman from liability for debts contracted by herself, or in her name, by any person authorized so to do,” or “for her torts,” is not to be construed as enlarging her power to contract debts. “ Its object (he continues) is merely to make her estate liable for her torts and for debts lawfully contracted by her.” “ In general, therefore, a married woman is incapable of contracting debts. Her capacity and liability are exceptional cases.” Hence in interpreting the special clauses of the act relating to the debts for which she may be held liable, the cases show that they have been so construed as to limit them "strictly to the purpose of protection, and not loosely, so as to expand her contract capacity or liability. This will be seen in the following cases: Mahon v. Gormley, supra; Pettit v. Fetz, Ex’r, supra; Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251; Glidden v. Strupler, 2 P. F. Smith 400 ; Cleaver v. Scheetz, 20 Id. 496. It has been held, therefore, in interpreting the 8th section of the Act of 1848, as to her liability for necessaries, that both the pleadings and the evidence must [344] make out a case, of liability under it. The pleadings must set out a debt contracted by the wife, and that it was incurred for articles necessary for the support of the family of the husband and wife, and the evidence must establish these facts : Murray v. Keyes, supra; Parke v. Kleeber, supra; Bear’s Estate, 10 P. F. Smith 430; Davidson v. McCandlish, 19 P. F. Smith 169. As a corrollary from these propositions, it has been held that a joint contract of the husband and wife is insufficient to charge her separate estate. The husband, it is true, must be sued jointly with her, because no action will lie against her, even for necessaries for their family, without joining him, as his estate is primarily liable to execution under the 8th section. Her estate is not liable until an execution against Mm shall have been returned no property. See the cases cited supra. In Murray v. Keyes, the declaration charged them jointly upon the common counts, followed by a special count setting forth that goods, wares and merchandise were “ furnished to the said defendants at their special instance and request, such goods, wares and merchandise being articles necessary for the support of the family of said defendants.” The wife was held to be not liable, this court saying “ that the pleadings as well as the evidence failed to make out a case charging the wife.” The same point was decided in Parke v. Kleeber. In that case one count was for a further sum of $150 for a debt contracted by the said Catharine Parke herself, wife of the said R. W. Parke, with and to the-plaintiffs. The other count was for the “ further sum of $150 for necessaries furnished by the plaintiffs to the defendants at their special instance and request, for the maintenance and support of the family of said defendants.”
The first count was held to be bad, because it did not set forth that the debt was for necessaries for the family, and the second was bad because it set forth a joint contract. In the present case, the declaration contained the common counts for goods sold, work done, and money advanced to the defendants jointly, followed by a count in these words : “And in the further sum of five hundred dollars for services rendered by said plaintiff, as a physician and surgeon, to a minor son of the said defendants, at the special instance and request of the'said Maria Berger above named.” The predicate of all the counts was “ for that whereas the defendants ” “ were indebted,” &c., and the conclusion was that the “ defendants ” made the several promises preceding. Thus it is clear the action was founded on the joint contract of the husband and wife, and not on the separate and special contract of the wife for necessaries.
The judgment must be reversed on the third and fourth assignments of error upon the refusal of the court to arrest the judgment because of the insufficiency of the declaration. The reason given under the fourth error — that the evidence was not sufficient, does [345] not belong to a motion in arrest of judgment, but to one for a new trial. But we may add that there was no sufficient evidence of a separate contract of Mrs. Berger in her own right. The evidence shows no more than a mere request 'in the ordinary way to attend her son, in which she was acting for her husband, rather than with an intention to bind herself to pay the debt out of her own estate.
It is a necessary consequence of the decided cases that she must contract in her own behalf. The evidence must as clearly prove this as the pleading must aver it. The primary presumption, when a wife takes up necessaries for the family of her husband and herself, is, that she is acting as his messenger or agent, for on him lies the primary duty of furnishing and paying for them. The evidence must overcome this presumption and satisfy the jury that she is acting in her own right, in order to bind her separate estate. There was no such evidence here, and hence the plaintiff endeavored to make out his case by her subsequent declarations, to which exceptions were taken. But a wife cannot be made liable for necessaries by subsequent declarations alone, without primary evidence of facts tending to raise a contract to bind her separate estate. Her subsequent declarations may be corroborative, but cannot alone stand for full proof, without subjecting her to the v.ery dangers it is the purpose of the law to avoid. Even her subsequent promise to pay for necessaries procured by her husband, and for which he alone is liable, would not come within the intention of the law. It would be simply a promise to pay the debt of another, and as to her rvould be nudum, factum. The law enables her to bind herself to pay for necessaries obtained for the family of her husband and herself, but the very essence of the transaction is that the creditor furnishes them on her credit. If not furnished on her credit there can be no contract on her part to pay for them. Even a joint contract it is said is insufficient. The proviso to the 8th section reads thus : “ That judgment shall not be entered against the wife in such joint action, unless it shall be proved that the debt sued for in such action was contracted by the wife, or (and) incurred for articles necessary for the support of the family of the said husband and wife.” If subsequent declarations alone were sufficient to raise a promise to pay, the dangerous influence or coercion of the husband, which the law seeks to avoid, or the machinations of creditors, might easily be brought into play at once. Ordinarily persons sui juris may make binding acknowledgments of past transactions, but to apply that to a wife would take away the protection intended not only by the entire spirit of the act, but of the proviso when it requires proof that the debt was actually contracted by the wife in her own behalf. This proof is the criterion of her liability, not a mere acknowledgment. As remarked in Glidden v. Strupler, 2 P. F. Smith 403 (on another [346] branch of the wife’s estate), ratification or expressions of ratification cannot infuse life into that which has no vitality.
To "argue that because admissions are a common law means of proof, and therefore not to be rejected, is simply to contend that such evidence is not subordinate to the true spirit and intent of the Act of 1848. It is that we seek to advance, but if we hold that mere naked admissions of a prior contract are sufficient to bind her, without any evidence of a contract in fact, concurrent with the time of its execution, we expose the wife to the effect of intimidation, coercion, fraud, and the various means of extracting from her admissions, to stand in lieu of the proof manifestly required by the law. Judgment reversed.
Williams and Mercur, JJ., concur in. the reversal of the judgment, but dissent from so much of the opinion as rules that the admissions of a married woman of her agreement to pay for the necessaries at the time she procured them are not sufficient evidence, under the act, to establish such a contract.