Davis v. Carroll

McSherry, J., delivered the opinion of the Court. Hannah A. Carroll, by her next friend, John Carroll, instituted an action of assumpsit in the Circuit Court for Harford County, against George W. Davis, executor of the last will of Ann Chatterton, deceased. The case was removed to the Circuit Court for Baltimore County, and tried there. The declaration contains the common money counts, and also a special count, which will be set forth presently.

A demurrer was filed to each and every count, and was overruled. Issues were finally joined, and a verdict being rendered for the plaintiff, a motion in arrest of judgment was filed and overruled, and judgment was entered on the verdict. Prom that judgment this appeal has been taken. There are four bills of exception in the record.

The first was taken to the ruling on the demurrer, and the fourth to the ruling on the motion in arrest of judgment. Such rulings cannot be brought up for review on bills of* exception. But these questions are properly before us on other parts of the record, and will therefore be considered. Precisely the same question is raised by the motion in arrest that is presented by the demurrer.

That which may be availed of on general demurrer cannot be relied on in arrest of judgment. Code, Art. 75, sec. 9. Consequently the motion in arrest was properly overruled. ⁵⁷⁰ There was no error committed in not sustaining the demurrer to the money counts. The special count is in these words, viz., “And for that the said Hannah A. Carroll, at the' special instance and request of the said Ann Chatterton, and relying upon the promises made to her by the. said Ann Chatterton in that behalf, and relying further upon the separate estate of the said Ann Chatterton, and upon the credit and faith thereof in connection with the promises of the said Ann Chatterton, did perform a large amount of menial service for the said Ann Chatterton, and waited upon and nursed her in her old age, and in her sickness, and underwent great bodily fatigue and exposure, and suffered great loss of rest, for all of which the said Ann Chatterton, being possessed of a separate estate, and her husband being possessed of no estate at all, promised to. pay and compensate the said Hannah A. Carroll in full. ” It clearly appears upon the face of this count that Ann Chatterton was a married woman at the time the promises declared on were made by her; and it also appears, in like manner, that her husband was then living and that the agreement relied on was made by the wife alone, who is alleged to have been possessed of a separate estate, whilst the husband is alleged to have been possessed of no estate at all.

Under these circumstances it is contended that the estate of the deceased wife is liable, in the hands of her executor, for the claim upon which this count is founded. Had the action been brought against Ann Chatterton in her life-time, she then being a married woman, it could not have been sustained. It has been repeatedly held in this State, in accordance with the doctrine of the -common law, that a married woman cannot be sued at law in an action ex contractu, (Griffith vs. Clarke, 18 Md., 457 ); and, except as modified by express legislative enactment, this same ⁵⁷¹ disability exists to-day. Bradstreet vs. Baer, 41 Md., 19 .

Under tlie Act of 1872, ch. 270, Code, Art. 45, sec. 2, a married woman and lier husband may be sued at law, upon a contract in writing made jointly by him and her. Sturmfelsz vs. Frickey, 43 Md., 569 . The count now before us distinctly disclaims any such contract, but, on the contrary, sets up one made only by the wife. Manifestly, therefore, the case does not fall within that exception.

By the Act of 1862, ch. 49, Code, Art. 56, sec. 36, a feme covert trader may be sued as a feme sole; and by the Act of 1882, ch. 265, Code, Art. 45, sec. 7, married women are authorized when trading as femes sole to contract debts and to acquire property, and are made liable for any