(dissenting):
I can not concur in the unqualified conclusion of Judge English that all judgments at law against a mai’ried woman are void. I think judgments for tort are valid and bind her estate, as if she were unmarried. I refer to the views on the subject of her liability and that of her estate for torts iu the opinion in the case of Gill v. State, supra p. 480 (20 S. E. Rep. 568) and to the note at its close. A look at the cases iu this Conrt holding void judgments against married women will show that they are carefully confined to judgments on contracts. The reason why the judgment is void if rendered on a contract is that the married woman has no capacity to contract except in the view of equity and there only as to the thing, her separate estate, and can not be sued at law on a couti’act. She is, however, liable to be sued at law, for tort, because marriage does not disable her from committing a tort except in cases, where the act is chai’geable to her husband’s coercion. The validity of the judgment against her tlierefoi’e depends on the question whether she was competent to incur the liability. Competency or incompetency is the test. 14 Am. & Eng. EncJLaw 661. Then, how is it as to judgment for costs in litigation ? She can lawfully be a party to litigation, since the adoption of the Code, c. 66, s. 14, lias allowed her to sue and be sued *720in her own name, where the suit concerns her separate property and some other cases. It would seem, that a judgment for costs in those cases ought to bind her estate. If she were to sue for one horse or tract of land and fail, would not a judgment for costs be leviable out of another horse ox tract of her estate ? It would since chapter 109, Acts 1891 (Code 1891, c. 66, s. 15) as it provides that in any action at law prosecuted by her, in which she fails to recover, judgment may go against her for costs and be -enforced as if she were sole. The said section of the Code goes no further to render her estate liable to costs than as to cases in which she is plaintiff, not where she is defendant; and, as I now think, it touches only those suits brought in her name alone in those cases, in which the section allows her to sue alone. It was passed to enable her to sue alone in certain cases, which she could not do before. It does not touch cases where she can sue -with her husband; at least it does not touch other cases of joint suit than those mentioned in the section.
The judgment involved-here is for costs not in a suit concerning her separate property prosecuted by her and does not fall under the statute, hut is an action of ejectment against her and her husbaud. I confess I do not entertain a decided opinion as to whether it binds her separate estate.-Ejectment is an action not ex contractu and must therefore be classified as ex delicto — an action of trespass for the tort of unlawful entry or claim; and on the principle, that a judgment for tort binds the wife’s separate estate, this judgment would seem to bind it. The Illinois court, in Musgrave v. Musgrave, 54 Ill. 186, held a wife’s separate estate liable to a judgment for costs in an unsuccessful suit by her for separate maintenance ; and the opinion is expressed in Wells, Mar. Worn. § 621, that such is doubtless the rule in all other eases, where she fails to maintain her suit.