Waters v. Bean

• Decision Date: 30 April 1854
• Docket Number: No. 49.,49.
• Citation: 15 Ga. 358
• Parties: Nancy Waters, plaintiff in error. vs. Jesse A. Bean, defendant in error.
• Court: Georgia Supreme Court

15 Ga. 358

Nancy Waters, plaintiff in error. vs. Jesse A. Bean, defendant in error.

No. 49.

Supreme Court of the State of Georgia

APRIL TERM, 1854.

Assumpsit, &c. in Gordon Superior Court. Decision by Judge John H. Lumpkin, September Term, 1854.

This was an action by Jesse A. Bean, against Nancy Waters, upon a note. It appeared that the note was given while the maker was a feme covert. She was subsequently declared a free dealer, by Act of the Legislature; and after that time, promised to pay the note. The question was submitted to the Court below, upon these facts, whether Bean was entitled to recover. The Court held that he was; and this decision is assigned as error, by Mrs. Nancy Waters.

Johnson & Church, for plaintiff in error.

Wofford, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

The only question which arises upon this record, and which has been argued with such commendable zeal and ingenuity, pro and con, by our young brethren, Wofford and Johnson, is whether, where a feme is sued on a promissory note, made by her while feme covert, and she pleads her coverture in bar, it is a good replication, that she promised to pay the note, after she had been made a free dealer, by Act of the Legislature, no new consideration or previous moral obligation being shown, to support the contract?

It is laid down as a general rule, in all the elementary works on husband and wife, that a married woman cannot bind herself, by any contract made during the coverture. Not as in the case of an infant, from any presumption of incapacity, but because she has no separate existence, her husband and she being, in contemplation of law, but one person. The reason of the disabilities imposed on the wife, by reason of the coverture, are fully discussed by Mr. Bright and other writers. It is unnecessary to repeat them.

In the great case of Marshall vs. Rutton, (8 T. R. 545,) the doctrine, on this subject, was fully considered by all the Judges in England, except Mr. Butter, (it being the custom, in the early ages, when an important point arose in any one of the Superior Courts, to request the assistance of the other two, to hear and assist in deciding it,) and the result was, that a person who contracted with a married woman, as far as any right in a Court of Law is concerned, relies upon her bare word; for she is not recognized, there, as capable of binding herself, by any contract, whatever, except her husband be civilly dead or a foreigner, belonging to a country at war with her own, or a sole trader, made such by Statute. As a mere matter of le-gal lore, I would remark that this was the last case, perhaps, where the practice was pursued, to which I have just referred.

It is stated by Mr. Chitty, in his Treatise on Bills, (page 24,) that if a married woman give a promissory note, and after the death of her husband, promise to pay it, in consideration of forbearance, such promise is void; and the author cites Floyd vs. Lee, (1 Strange, 94); and Lee vs. Muggeridge, (5 Tau...