ON RE-HEARING.
Green, Judge :During the term, at which the preceding opinion was announced and a decree entered in accordance therewith, on the petition of the counsel for the defendant in error a re-hearing was granted by an order of this Court. After a careful review of the case after re-arguments the conclusions we have reached are, that the law, which governs the rights of the parties on the actual facts as set out in the pleadings in a very imperfect manner, is that which has been announced in the preceding opinion. But that there are errors in that opinion in reference to the validity in law of the replication to the second plea, and in the opinion expressed that the the court below did not err in sustaining the demurrer to this replication. Upon a careful review of the case we are of opiniou that the court did err in sustaining the demurrer to this replication; and as a consecpience thereof the judgment rendered by the circuit court as well as the judgment rendered by this Court at a former term are erroneous.
Our conclusions now are, that in this State, as at the common law, there is as a general rule a total incapacity for a married woman to make a contract, which will be regarded ■by a court of law as binding upon her; but that by virtue of sections 12 and 15 of chapter 66 of the Code of West Virginia, page 449, this incapacity of a married woman to make a contract binding on her in a court of law is entirely removed, when she makes such contract, while living separate and apart from her husband; and that when living separate and apart from her husband, she has the same capacity to make a contract, which shall be binding on her in a court of law, as she would have, if she were a feme sole; and that if work *730and labor is done for her at her request by a third person, a court of law will imply a promise by her to pay such third person a reasonable compensation for such services, just as it would, if she were a feme sole; and that-on this implied promise she may be sued in .a court of law. But if the work and labor, which has been done at her request, was work and labor, which her husband or any other person was bound in law to pay for, no implied promise can be raised that she will pay for such services, as no implied promise under such circumstances could be raised against a feme sole or any one else. But if this service was not simply done at her request but upon an express promise made by her to pay for such- services, and such services were accordingly done on her sole credit, she would be liable to pay for such services on this express contract, as it would be sufficiently supported by the fact, that the services were rendered for her on this express promise made by her and on her sole credit. .This would prevent such express promise from being- a nudum pactum. But if her husband was in law liable to pay for the services, though rendered to her and at her request, unless rendered on her express promise to pay for them and on her sole credit, she could not be sued at law. For if he were liable, even an express promise made verbally to pay such debt on her part would be a vudum pactum; for though the services were rendered at her request, yet if not rendered on her sole credit, it would be but a verbal promise to pay her husband’s debt and not binding on her. She would be regarded under such circumstances as acting as her husband’s agent in the employment of such person. If the person so employed was a lawyer, and the service, which he was employed by her to perform, while she was living separate and apart from her husband, was to institute a suit for a divorce from her husband, and the -suit was instituted, and the divorce was obtained, she may be sued by the attorney' for his fees in such suit, whenever her husband would not be legally- responsible therefor; and he would be legally responsible only-, where the suit was for a divorce a mensa ei thoro based on actual cruelty or because of apprehension on her part of bodily hurt, but in no other case: and therefore in such case she would not be liable to such suit, but she would be, if the suit brought for her *731was for a divorce a vinculo matrimonii or a divorce a mensa et thoro because of bis abandonment or desertion. The reasons for these conclusions are full}'' set out in the opinion in this case delivered at a former term. In these respects we see no reason to change our opinion on the re-argument of this ease. The only authorities cited to show these views to he erroneous in the re-argument are the following New York cases : Third National Bank v. Elizabeth Blake et al., 73 N. Y. 260; Ackley v. Westervelt, 86 N. Y. 448; Wood v. Wood, 83 N. Y. 575, and Tiemeyer v. Turnquist, 85 N. Y. 518. These cases, appear to me to throw no light whatever on any points in this case, with the single exception of the last; and that case, so tar as it has any bearing at all, sustains the views I have' expressed. On page 518 Pinch, judge for the court says: •
“The section of the act of 1860 relied on, has no reference to and makes no provision for the liability of the wife in a persona] action. Its plain scope and purpose is to free her property from the control of her husband and the burden of his debts and make it her sole and separate estate. This is done with a single exception, and that is, as against debts contracted by her as agent of her husband for the support of herself and her children.” (There is in the statute-law of West Virginia no such exception.) “But she is not made personally liable for such debt, for it is not hers, but the debt of the husband. It is not her contract but his. She acts as his agent and binds him, not herself. The sole effect of the provision is, not to make her personally liable for her husband’s debt, for not a word of such given import is found in statute; but merely that the shield and protection thrown over her property against the debts of the husband shall be withdrawn, in a case where his debt has been contracted, his liability incurred, through her acting as his agent and for the purpose of providing for her own support and that of- the children.”
So in the caáe before us wé say, that in any case, where the attorney’s fees in such divorce suit are a debt of her husband, that is, where he is liable to pay them, she is not liable, though the attorney was employed by her. For in such case his employment by her would be regarded not as an employment by her .individually but only as an agent of her hus*732band, and she would be regarded as Ills agent, though he expressly forbid her to act as such. For when necessaries are purchased by a wife, her husband is responsible lorthem, and she is regarded in purchasing them to act as his agent, and that too, though the husband had notified the person furnishing the necessaries, that his wife was pot his agent, and not to furnish her with any necessaries on his account. The authorities, which we have cited in the opinion pronounced at a former term of this Court, we think, fully sustain the position, which we have herein laid down; and in that opinion the reasons for these conclusions are stated at considerable length. After reviewing them and examining all the authorities referred to in the re-argument of this case we find no occasion to change our views, so far as they have been above expressed.
It remains now to review our opinion, so far as we expressed our views, of the pleadings in this case and of the judgment of the Court rendered in this case. The counsel of the defendant in error on the re-argument insist, that this Court erred in its conclusion, that the plea of píeme adminis-travit tenders now an immaterial issue, and therefore such plea should not now be allowed to be filed in any case. They insist that the Act of the Legislature of Virginia, from which § 24 of ch. 85 of our Code was taken, was passed Januai’y 13, 1806 (Acts of 1806-7, oh. 21, and II. C. of Virginia of 1819, p. 384, § 37); and while it provides, that no personal representative shall be charged beyond the assets of the decedent by reason of any omission or mistake of pleading of such representative, and while before the passage of this act in an action against the personal representative for a devastavit a verdict and judgment based thereon against such personal representative on a plea of plane administravii was conclusive in a court of law against such personal representative, and the court therefore in such suit for a devastavit,it the debt had not been paid, would regard the devastavit as conclusively established by such verdict, and would not permit the representative to again contend or prove, that he had not assets in his hands to pay such debts, yet this act did not render this verdict. and judgment thereon immaterial; for while it did prevent it from being conclusive against the personal representa*733tive, as it bad been, yet it was not rendered immaterial, for after the passage of this act such verdict and judgment were still prima facie evidence, that thei’e were assets in the hands of the personal representative wherewith to pay such debt. To support this proposition counsel refer to 2 Lomax on Executors 704; Braxton v. Wood, 4 Gratt. 32; 1 Rob. (old) Pr. 215 and 216; Miller’s Ex’r v. Rice, 1 Rand. 443. It is also contended by counsel, that there is nothing in this statute to indicate, that a judgment in favor of the personal representative on the plea of plene administravit would not be conclusive, that he had, when such judgment was rendered, no assets wherewith to pay the debt. “It may,” say counsel, “be desirable for the personal representative at the earliest possible moment to show that he has no assets, instead of running the risk of losing his evidence by the death of witnesses or otherwise, when after a delay there may be a suit against him and a former judgment may be put in evidence showing that prima facie he had assets.”
The decisions referred to do sustain what the counsel contends they establish. And he is right in saying that after the passage of this act of 1807 the plea of plene administravit was not regarded as tendering an immaterial issue, and such plea was frequently filed. But as it was evident that a jury was a very unfit tribunal to settle the accounts of a personal representative, and the filing of such pleas as plene administravit compelled such “settlement by a jury, and because -of the strong probability of their finding a verdict on an issue on such plea, which verdict would be in point of fact found erroneous on a proper settlement of his accounts, and thus either he or the creditor of the estate be to some extent prejudiced, the Legislature very properly concluded, that the attempt to have such duty performed by a jury, while it' wasted the time of the court, was even worse than useless; and therefore in the Code of Virginia of 1849, ch. 177, § 20, p. 674; Edition of 1860 p. 733; Code of "West Virginia ch. 132, § 20, p. 628, it was provided that “ a judgment against a personal representative for a debt due from a decedent may without taking an account of the transactions of such representative be entered to be paid out of the personal estate of such decedent, in, or which shall come into, the hands of the *734representative.” Tlie eftect of this act was to abolish thereafter all such settlements of the accounts of a personal representative by a jury. And as such a judgment might be entered in every suit for a debt brought against a personal representative without any sort of regard to the pleas put in the case or the issues joined, the conclusion is that thereafter it would be improper for the court to permit a plea of plene administraxit tobefilecj, as the issue upon it thereafter became immaterial, the fiuding of the jury on it not affecting the judgment, which the court would enter, as it might enter the j udgment in the form prescribed by this statute, no matter what was the verdict of the jury. After this the cases referred to by the counsel, as well as the cases referred to by Ilobinson and Lomax in these text books, all of which were rendered before the passage of this act in the Code of 1849, became of no value for the purposes, for which they are now cited bj' counsel for the appellee.
The error of the counsel is in assuming, that these decisions were rendered, while this last act, section 20 of chapter 181 of Code of "West Virginia page 628, was in force. He says, “While it was in force, all judges and text-writers have supposed, that this plea of plene administraxit was still good and proper. 2 Lom. Ex. 704; Braxton v. Wood, 4 Gratt. 32.” But Lomax said what he did and the case of Braxton v. Wood, 4 Gratt. 32, was decided prior to the Code of Virginia of 1849 and therefore before the passage of this act, which abolished the settlement of accounts of personal representatives before a jury, and permitted the court in all cases to enter up a judgment guando accidereni and in eftect abolished the.plea of plene administraoit. The counsel, I presume, has been led into this error by the. fact, that the revisors opposite this section 20 of chapter 177 referred to several acts of the Assembly previous and to 1 14. C. of 1819 p. 494 § 25 and p. 543 § 49. And, I presume, without examining these references he assumed, that this provision of the Code of 1849 and of our Code was taken from the revisal of 1819 or these acts of Assembly. But an examination of them will show, that it was a new provision.
We conclude therefore that there was no error in the conclusion we reached on the first argument of this case, that *735the plea of plene administravit tenders an immaterial issue and ought not now to be permitted to be filed.
In this case the defendant demurred to the plaintiff’s declaration and to each count thereof, in which demurrer the plaintiff'joined. The declaration consisted of two common counts correctly drawn. The demurrer was merely formal or put in for the purposes of embarrassment. The court never formally acted upon it, as it should have done; and this omission should now be corrected by this Court. The second replication was, that defendant’s intestate, Mary Marling, before and at the time of the making of said supposed promises-and undertakings in said declaration mentioned was, and till the time of her death continued to be, the wife of one Elijah Marling sr. It was in proper form and was of course a good plea. To this plea the plaintiff replied, that “The. several causes of action in his declaration mentioned accrued to him as the counsel and solicitor of said Mary Marling in her lifetime in prosecuting a suit in chancery in the circuit, court of Ohio county by the said Mary Marling against the said Elijah Marling, her husband, for a divorce from him, her-said husband; and that during all the time of said services she, the said Mary Marling, was living separate and apart from her said husband and the said suit was between her and her husband; and by the decree of said court she obtained a divorce from her said husband, and this the plaintiff is ready to verify.” The defendant demurred to this replication, the plaintiff joined therein and the county court of Ohio county, ip which this suit was then pending, sustained this demurrer, and this Court when the case was formerly argued before us approved this action of the county court of Ohio county.
According to what we have said the proper replication was that “said Mary Marling before and at the time of making the promises and undertakings in the said declaration mentioned was a married woman living separate and apart from her husband Elijah Marling, sr., and this the plaintiff is ready to verify, wheretorehe prays judgment, &c.” Was the .replication actually filed substantially equivalent to this? If it was, the demurrer to it should have been overruled ; otherwise, it was properly sustained. In the opinion expressed, when the case was first submitted to this Court, I *736gave it as my opinion, that the replication actually filed was not the equivalent of this which should have been filed. And in this the other members of the court then concun’ed. I said : “They seem to me to be materially different and.that the replication filed is defective in this, that it fails to state, that she was, when she made the promises in the declaration mentioned, living separate and apart from her husband, and instead thereof says that all the time the plaintiff was performing services for her in prosecuting a certain suit for a divorce from her husband, she was living separate and apart from her husband.” I then say, “for any thing, which is said to the contrary in this replication, she may have made the promises and undertakings named in the declaration, while living with her husband, in which case this suit could not be maintained.” Was I right in this conclusion? Upon careful examination and reflection I think I was not.
In considering this point it should be borne in mind, that there was no count in the declaration based on a special contract; no special count, nothing but common counts.. All that the declaration in the first count stated was, that Mary Marling was,.to-wit, on September 1, 1875, indebted to the plaintiff in the sum of three hundred dollars for work and labor, care and diligence performed and bestowed as the attorney of the said Mary Marling upon her retainer in and about prosecuting divers suits and business for her and for fees due and of right payable to the plaintiff in respect thereof, and being so indebted she the said Mary Marling in her lifetime to-wit, on September 1, 1875, undertook and promised the plaintiff’to pay him the said sum of money, when she should be thereunto afterwards requested. The second count stated that she in her lifetime accounted with the plaintiff, and upon such accounting was found indebted to the plaintiff in the further sum of three hundred dollars, and being so indebted she afterwards, to-wit, on September 1, 1875, undertook and promised the plaintiff to pay to him this last sum of money when requested. Yet she in her lifetime and her administrator since her death, though often requested, have not as yet paid the said sum or any part thereof, to plaintiff’s damage, three hundred dollars. The bill of particulars *737filed with the declaration was: “June 1, 1875 — -To services rendered in case of Mary Marling v. Elijah Marling, her husband, three hundred dollars.”
Now according to a legal construction of this declaration Avlien were the promises named in the first count made ? It seems tome clearly, when the services of the plaintiff named were performed. For unless there is some express contract to the contrary, the moment services are performed they may be sued upon for an implied pro mise to pay for them. Of course the declaration always states an express promise though based on an “implied promise, audit would be fatally defective, if it did not; but if it states this promise in the form, in which it is stated in this first count, the law construes it as a promise to pay for the services made immediately on the performance of the work; for on just such a declaration a suit may be sustained, though it was brought immediately after the performance of the service. When therefore the replication says: “That the several causes of action in the declaration mentioned accrued to the plaintiff as the' counsel and solicitor of Mary Marling in her lifetime in prosecuting a suit in the circuit court of Ohio county in chancery by Mary Marling against Elijah Marling, her husband, for a divorce from him, and all the time of said services she was living separate and apart from her said husband,” does he not in effect say : “That when the promises in this first count in the declaration were made, she was living separate and apart from her husband.” And could this promise named in the first count of this declaration have been made, while she was living .with her husband ? It seems to nie, that it could not consistently with what is alleged in this replication; for, as we have seen, the legal meaning oí the language used in this first count is, that the promise to pay was made by her immediately on the performance of the services named in it. And this suit on this first count of the declaration could have been maintained accordingly immediately on the performance of this service. Hence I infer that this first count in its legal construction says, that the promise and understanding to pay the three hundred dollars named in it were made immediately upon the performance of the services named in it; and the replication says, when these serviees-were performed she was living-*738separate and apart from her husband. Does it not then necessarily follow, that when the promises named in the first count were made (which the declaration in its legal effect says was when the services were performed) she was living-separate and apart from her husband according to the allegation of the replication ?
It has been suggested, that the request or retainer may have been while Mary Marling was living with her husband, though the services were rendered as stated in the replication, when she was living separate and apart-from him; and in that case there could be no recovery, because she had no* authority or power to retain counsel or request him to perform services for her, while she was living with her husband, and that such a request would be not obligatory ou her, and the services would then be regarded as performed without her request. There seems to me to be no force in this suggestion ; for the time of the request will be implied to be the time of the services rendered, and a request itself would be implied if the act stated as the consideration cannot from its nature have been gratuitous kindness; and this implication, that it was done at her request or an express statement of a request in the declaration would be a continuing implication during the rendition of the service; and when the replication says, that during the rendition of the service she was living-separate and apart from her husband, it says in effect, that when he was retained to perform this service, she was living-separate and apart from her husband; for the law would imply, that the request stated in the declaration was a request at the time the services were rendered. Of course this legal implication, when it would arise, might be rebutted by proof, for instance, that she protested against the rendition of such services. In this case the replication states, that in said suit, in which said'services were rendered, she obtained a divorce from her said husband; and thus she got according to the statement of the replication the benefit of the plaintiff’s services, and the law would imply, that it was, when rendered by the plaintiff, rendered at her request, and therefore the request is in effect stated in the replication to have been made, -when she was living separate and apart from her husbánd; for it stated that the services were ren*739dered at tliat time and tbat she got tbe benefit of such services.
I conclude, therefore, tbat so far as the promises and undertakings named in the first count of the declaration is concerned the replication does in effect state, that they were made while Mary Marling was living separate and apart from her husband.
The second count states, that Mary Marling accounted with the plaintiff' and. was found indebted to the plaintiff in the sum of three hundred dollars and thereupon undertook and promised to pay said three hundred dollars. The replication says this cause of action accrued to the plaintiff as her counsel in the prosecution of a suit for a divorce from her husband, in which she succeeded; and that all the time he was rendering these services she was living separate and apart from her husband. If by the causes of action men-tinned was meant the promises and undertakings named in the declaration, then this is an allegation that they arose in the prosecution of this suit, and during its whole pendency she was living separate and apart from her husband, and this would be the equivalent of an allegation, that when the several promises and undertakings in the declaration mentioned were made, she was living separate and apart from her husband. But by “ the several causes of action in the declaration mentioned” as stated in the replication may be meant the sources of her indebtedness to the plaintiff, which she settled and accounted with the plaintiff for, and on which she was found indebted to the plaintiff.in the sum of three hundred dollars. But if we take this to be the meaning of this language of the replication, it will not alter the meaning of the entire replication substantially. For it is expressly said, that these causes of action, we will suppose meaning sources of indebtedness, arose in prosecuting for her this divorce suit. It so, there arose immediately a promise to pay this indebtedness, and this promise to pay being thus made, •when said services were rendered, the replication in effect alleges that these promises were made, while she was living separate and apart from her husband, where it allfeges, that she was so living during all the time said services were being rendered. I infer therefore, that this replication in effect *740alleges, that all the promises in the declaration mentioned whether in the first or second count were made while' said Mary Marling was living separate and apart from her husband. And therefore the demurrer to this replication ought to have been overruled.
In the opinion, which I announced at the former term of this Court, I reached a different conclusion. This arose from my not bearing in mind the character of the declaration. If there had been, for instance, a count in the declaration, which had alleged, that on, a given day, say August 15, 1875, she had promised in writing to j)ay the plaintiff three hundred dollars for services rendered in this divorce-suit, in which she had succeeded in obtaining a divorce on the first of August, 1875, it is obvious, that this replication would not have been good; for an allegation, that she was living separate and apart from her husband while the services were being rendered, that is, pending this suit, would then not have been the equivalent of an allegation, that when this promise was made, she was living separate and apart from her husband. If on the other hand the special count had said, that ponding the said suit she had promised in writing to pay him three hundred dollars for his services past and to come in this suit, and that it was ended, then of course the replication would oven more obviously than in the case as it now is, have been the equivalent of an allegation, that when this promise was made she was living separate and apart from her husband. To determine then, whether this replication was or was not good, required a special examination of the declaration; and I think I reached a false conclusion formerly from not sufficiently considering the character of the declaration. In my former opinion in this ease I said: “This replication unnecessarily and improperly undertakes to set out the consideration, on which the promises in the declaration mentioned were based; and what is still worse so sets out this consideration, as to render it uncertain whether they were valid or a nudum -pac-tum.” This is all true, but it does not vitiate the replications on a general demurrer. It institutes a departure on pleading and is surplusage. Our Code, eh. 125, § 27, p. 608, declares, that such blundering in pleading, “unless there be omitted something so essential to the action or defence, that *741judgment according to the law and the very right of the case cannot be given,” shall be disregarded by the court. As I now regard this replication, nothing, which is -essential to the making of a perfect replication, has been omitted; all that has been done is to state it in an informal manner and to add thereto other matter, which also is stated so imperfectly as neither to aid nor detract from the plaintiff’s right of action. Under this provision of our Code, which in effect abolishes special demurrers, I am now of opinion that the county court erred in sustaining the general demurrer to this replication, and as a consequence the circuit court, when the ease was removed to that court, erred in entering up a judgment on this demurrer so improperly sustained. Of course I erred in sustaining this action of the county court.
I have now gone over and determined every point arising in this case and the judgment we should enter is, that the judgment of the county court of Ohio county of April 10, 1880, should be reversed in so far as it sustained the demurrer to the replication to the second plea, and in so far as it overruled the demurrer to the replication to the third plea; and that the judgment of the circuit court of Ohio county rendered on June 6, 1881, should be reversed, and the plaintiff in error should recover of the defendant in error his costs in this Court expended to be levied of the assets of his intestate in his hands, or which may come hereafter into his hands, to be administered; and this Court proceeding to render such a judgment as the circuit court below ought to have rendered, should overrule the demurrer to the replication to the second plea, and as to the demurrer to the replication to the third plea it should be stricken from the record as well as the replication to this third plea and also the third plea itself; and this cause should bo remanded to the circuit court of Ohio county that an issue may be properly made up on the replication to the second plea; that this issue and the issue on the plea of non asmimpsit may be tried according to the principles laid down in this and the former opinions of this Court in this cause, and further according to law, or for such other and further proceedings to be taken as may be proper.
I might here having fully disposed of this case properly *742stop. But assuming, that tlie county court did not err in sustaining the demurrer to the replication to the second plea in my former opinion, for the reasons therein stated I considered then, that the circuit court nevertheless erred in the judgment that on June 6, 1881, it entered úp based on this sustaining of the demurrer -to the replication to the second plea. If the action of the county court were now regarded by me as correct, I would not now deem this action of the circuit court based on it as erroneous. This conclusion I now reach not for the reason then urged, that the plaintiff moved the court to render final judgment therein, which reason I considered and acted upon, but for another and better reason not then urged, but which in the re-argument has been presented, and that is, that after the sustaining of the demurrer to the replication of the plaintiff to the second plea, if this.had been properly sustained, and after the plaintiff' informed the court, as the record shows he did, that he had no other replication to make to this second plea, the plea stood as to the facts stated in it as confessed, that is, the plaintiff admitted, that when the promises he sued on were made, the defendant’s intestate was a married woman, and as he stated he had no replication to file whereby he could show, that despite her being a married woman, when she made these promises, she was nevertheless bound'by them. It necessarily follows from these admissions, that the court must ultimately have rendered a judgment for the defendant. This being the case it was useless first to try the plea of non assumpsit. This issue had by these admissions of record by the plaintiff become immaterial; and therefore there was no necessity to try it before entering final judgment. These views are sustained by Huff v. Broyles, 26 Gratt. 283, cited by the counsel for the appellees on the re-argument of this case.
The law with reference to costs in the Appellate Courtis found now in section If chapter 146 of Acts of 1882, p. 469 and is: “That costs shall be recovered in such court by the party substantially prevailing.” In a chancery suit it frequently happens, that though a decree is reversed, costs are rendered against the appellant, as the appellate court may plainly see, that the decree rendered by it is more to the prejudice of the appellant than the decree of the court below, *743which, is reversed. Butitis difficult to see how a judgment for costs could properl}' be entered against a plaintiff in error in a common law suit, when the judgmeut of the court below is reversed and the case remanded to the circuit court for trial. It would seem that in any case, which occurs to my mind now, if the plaintiff in error gets a judgment, which he complains of, reversed and a new trial is to be had by a jury in the court below, such plaintiff in error must be regarded as the party substantially prevailing, as this Court cannot anticipate what may be the verdict of the jury when it is thereafter tried. But there are in this case, as I now view it, according to the opinion above expressed immaterial matters, about which I would have expressed no views, if I had not expressed views in my former opinion, which I regard in some respects as erroneous. Had I not done so, I would express no opinion now as to what judgment should have been entered by the circuit court, if the demurrer to the second replication had been sustained, as this would be a mere hypothetical case, as in my judgment such demurrer should have been overruled; nor would I express any opinion as to the costs in this Court on such hypothetical case. According to the views I now entertain of course the plaintiff in error is entitled to his costs in this Court, he being clearly the party substantially prevailing in this Court.
Woods, J., concurred — Johnson, P., concurred in the conclusion — SNYDER, J., concurred in the opinion except that portion which holds, that the replication to the second plea was substantially correct and dissents also from the conclusion.Reversed. Remanded.