The question which these exceptions present is, whether an action can be maintained against a married woman upon a promissory note made by her, which recites that it is for value received, without any further proof to support it. And we can have no doubt that it cannot.
The principle is simply this: By the common law, a married woman is generally incapable of making a valid contract. The recent statutes of the Commonwealth have given her a special, limited power of binding herself by her contracts, under certain circumstances. Unless these circumstances are shown to exist she has no contracting power. The plea of coverture, generally, is therefore a sufficient defence to an action of contract against her, and it is not necessary for her to negative in pleading or proof all possible exceptions.
As a rule of pleading, this appears to be supported by the precedents, and conforms to the rule in analogous cases. To an action on the contract the defendant pleads coverture, and the replication states the facts which bring the defendant within the exception. Or if the coverture is pleaded in abatement to a suit by a married woman, the replication should state the facts which enable her to sue alone. Chit. PI. (6th Amer. ed.) 484-488, 551. So in a suit against an infant, if infancy is pleaded, the replication may aver that the promise was for necessaries suitable to his estate and degree.
The point seems to have been directly decided in this commonwealth. In Gregory v. Pierce, 4 Met. 478, the question was whether a husband who had left the Commonwealth had so utterly deserted his wife and renounced his marital rights as to enable her to contract as a feme sole; and the court say, “ The general rule being that a married woman cannot make a contract or be sued, the burden of proof is upon the plaintiff to show that she is within the exception.” And in Commonwealth v. Williams, 7 Gray, 337, it was held that the presumption of fact that personal property in the possession of a married woman *216is the property of her husband, is not changed by the statute enabling married women to hold such property in their own right, and to trade on their own account; and that the party, whose case requires him to prove property in the wife, must rebut such presumption, and show the facts which bring it within the statute, as a case in which the statute declares it to be the separate property of the wife.
Exceptions overruled.