Peck v. Marling's Adm'r.

GREEN, Judge:

The principal question involved in this case is whether the county court erred in sustaining the demurrer to the replication of the plaintiff to the plea of the defendant, that his intestate was, at the time of making the contract sued on, a married woman. Tlie plaintiff in error claims that the replication alleged substantially, that she was then living separate and apart from her husband. Admitting for the present for argument’s sake that this is the correct interpretation ,of this replication, ought the county court to have sustained the demurrer to it ? It may be regarded as settled law in 'this State, that the plea of coverture, when the, contract was made, is a good plea in bar to any action brought on any contract. (Stockton v. Farley, 10 W. Va. Rep. and also Carey & Co. v. Burruss Pitzer, 20 W. Va. 571.) We are now to determine whether a replication to such a plea, that she was at the time the contract was made living separate and apart from her husband, is good. It is well settled in this State .by the decisions, that a married woman living with her husband is in all eases utterly incapable of making any contract, which a court of law would regard as binding upon her. Such a contract is absolutely null and void as against her in a court of law.

The question now is: Would the fact, that, when the contract was made, she was living separate and apart from her husband, vary the case and render such contract valid against her in a court of law? At common law her contract would in a court of law be regarded as invalid and null as against her, when made while living separate and apart from her husband, precisely as it would be if she were living with him; and the only question to be considered is whether this legal incapacity to make any contract binding on her, which the common law imposed on every married woman, has beeii removed in this State by statute-law. If it has been so removed, it must have been by section 13 of chapter 66 of the Code of West Virginia, pages 449 and 450, which is as follows: “A married woman living separate and apart from her husband may in her own name carry on any trade or business; and the stock or property used in such trade, and the issues and profits thereof, together with her .own earnings, realized from such trade or business, shall be her sole and separate property, and shall not be subject to the control of her husband nor liable for his debts.” ■

Does this .section remove the incapacity, which the common law imposed on a married womaii living separate, and apart from her husband to make any contract binding on her ? If it does, a common law court should recognize as valid against her a contract made by a manned woman when living separate and apart from her husband, otherwise, it should not. This section does not expressly remove such incapacity from such married woman. ■ Does it do so by implication.? We ought not in interpreting a statute of this description to extend the fair meaning of the language of the statute, so as to include in it a removal of such incapacity of a married woman to contract, so universally recognized by the common law, when such purpose is not expressed in the statute, unless the implication of the removal of such incapacity is obviously necessary to carry out the clearly expressed objects of the statute. This we understand is the spirit, which pervades the West Virginia decisions above referred to.

It remains then to consider, whether the expressed objects of section 13 of chapter 66 of our Code would be practical!)' defeated, unless we construed this section as impliedly removing the incapacity of a married woman living separate and apart from her husband to make contracts, which would be recognized by the conxmou law courts as valid againsther. This section expressly authorizes her in her own name, when living separate and apart from her husband, to carry on any trade or business. Can she practically do this, unless the common law courts recognize her contracts made in carrying on such trade or business as valid and binding on her? It seems to me obvious, that she can not. If, for instance, she was engaged- in the very common business of buying and selling on credit goods, wares and merchandise or live-stock or provisions or meats, could she practically carry on such a business or many other kinds of business, if the common law courts refused to recognize her contracts as valid and binding on her? Who would deal with her if in every instance, where she did not comply with a contract of purchase, a chancery suit had to be brought to enforce against her separate estate any debt she might contract in her business? If engaged in business she could make contracts every day; and if these contracts were all deemed invalid in the common law courts against her, the practical effect would be to prevent any person from dealing with her in'her business; and thus she would be practically prevented from carrying on such trade or-business, tliougb expressly authorized to do so by this statute. ¥e feel therefore compelled to construe this statute as impliedly removing from married women living separate and apart from their husbands the common law incapacity or disability of making contracts binding on them; and to hold that contracts made by such married women must be recognized as valid against them by the common law courts; and that if sued upon them in a common law court, they could not successfully rely upon their coverture, when the contracts were made as a bar to their liability on them.

These views are sustained by the spirit of the decisions generally in other States. Thus in Frecking v. Rolland, 53 N. Y. 422, 425, where the statute expressly authorized a married woman to carry on a trade or other business, the power to make contracts in relation to the business comes by implication from such statute. Andrews, judge, says in this cause: “ The statute of March 2, 1860, provides that a married woman may carry on any trade or business and perform any labor 'or services on her sole and separate account, and the earnings thereof shall be her sole and sepárate property. The power of a married woman to make contracts relating to her separate business is incident to the power to conduct it. It cannot be supposed, that the Legislature, while conferring the power upon a married woman to enter into trade or business on her own account, intended that her common-law disability to bind herself by contract should continue as to contracts made in carrying on the business, in which she was permitted to engage. The power to engage in business would be a barren and useless one disconnected with the right to conduct it by the means usually employed.” See also Adams v. Honness, 62 Barb. 336, in which this statute received the same construction.

In Plumer v. Lord, 5 Allen 460, under a precisely similar statute in Massachusetts it was held, that a married woman could under this statute enter into partnership in business with a third person, which would be recognized in a law-court as binding on her.

These were common law suits, in which these views were expressed, and with other decisions construing statutes, which authorized married women generally to carry on business, confined her legal capacity to make a contract binding on her to be inferred from such statutes, to contracts made in carrying on such business. A difficulty would almost of necessity arise in determining wliat was meant by carrying on a business and when a contract was to be regarded as made by a married woman in carrying on a business. And on this question there have been various decisions. See Holmes v. Holmes, 40 Conn. 117, 120; Chapman v. Briggs, 11 Allen 546; Proper v. Cobb, 104 Mass. 589, 590.

It will be observed, that in these cases the statutes, which were being construed, authorized married women generally in their own names to carry on business, and of course were intended to be applied and in almost all cases would be applied to married women living with their husbands. And it seems, the courts reasonably construed such statutes as not 'removing the general incapacity of married women to enter into contracts, but confined it to contracts made by married women in carrying on their business. These statutes were thus confined in their operation to the few isolated cases, where married women engaged in business, but had the courts extended the meaning of these statutes and declared that they meant to remove from married women generally the disability of making legal contracts, the effect of such decisions would have been to extend to all married women the provisions of laws intended to be applied only to married women engaged in business. This it seems to me would have been an unwarrantable construction of these statutes; and the courts were forced to give to them this narrower construction, though it necessarily gave rise to controversies as to what was meant by “carrying on a business,” and what was a contract made in carrying on a business.

Our statute however, as we have seen, is not applied to married women generally. They are not authorized to carry on a trade or business by the words of the statute; but only those married women who were living separate and apart from their husbands. And no doubt our statute was passed, because the Legislature saw that a married woman, abandoned by her husband or for any reason living separate and apart from him, would necessarily be compelled to support herself:, and would generally be necessitated, in order to do so, to engage in some trade or business, and therefore it was authorized. This necessity wouldp as a general rule exist with the whole class, to whom it was applied, married women living separate and apart from their husbands. No mischief would therefore arise from giving a liberal construction to this statute to promote its general object to enable this class of married women to earn a living, and in carrying out this purpose to relieve them generally from the disability to make contracts, -which the common law imposed on them. While doing this the court, would also avoid the embarrassing questions as to what was carrying on a business, and thus enable persons to deal with this class of married women without running the risk of a decision by the courts that a particular contract made with one of this class was not legally binding, because it was not made in carrying on a business. Tt seems to me therefore that this section 13 of chapter 66 of our Code being confined in its application to a small class of married women ought to be construed liberally in favor of this unfortunate class, and should be held to remove from them the common law incapacity to make contracts generally, and should not be confined to a removal of such disability, only when they were actually engaged in a trade or business, and should not be confined to contracts in carrying on such business.

It seems to me, that this class of married -women having lost all the privileges and advantages, which the married state confers on women, was intended also by our statute-law to be relieved of the disabilities which the law imposed on married women. That this was the true spirit and object of section 13 of chapter 66 of our Code seems to me to be further shown by section 3 of this act p. 448, which provides, that while no married woman living with her husband can sell or convey real estate without the husband’s consent, yet the unfortunate class of -women not living with their husbands are by this third section authorized to convey their lands at their own pleasure in the same manner and with the same effect, as if they wore unmarried. Taking the third and thirteenth sections together I think, that the object of the Legislature was to remove from married women not living with their husbands all the disabilities imposed by the common law to making contracts of any description; and that this class of married women have the same capacity to enter into contracts of any sort, which will be recognized, by the courts of common law, as have unmarried women.

The next enquiry is, if we admit that a married woman living separate and apart from her husband is bound generally by her contracts and that they may be sued upon in a court ot law, will she be so bound by a simple contract to pay to a lawyer a fee in a suit, which she proposes to bring and does bring against her husband for a divorce either a vin-culo matrimonii or a mensa et thoro, and in which she succeeds. This must depend upon whether or not this is a sufficient consideration, on which to base a promise to pay the lawyer’s fee, for if it be not, her promise is a nudum pactum, by which she is not bound; for on such a promise she could not be bound, if she were a feme sole. It is true, that Lord Mansfield in the case of Lee v. Muggeridge, 5 Taun. 37, (1 Eng. C. L. 14) did use the following language: “It has been long established, that where a person is bound morally and conscientiously to pay a debt, though not legally bound, a subsequent promise to pay will give a right of action.” But it may be now regarded as well settled, that this statement of the law is to some extent loose and inaccurate. We need not trace the course of decisions, from which it may be deduced, that this exposition of the law is wanting in accuracy. The correct exposition of the law is contained in the more recent case of Eastwood v. Kenyon, 11 Ad. & E. 438. It is that a moral as distinguished from a legal obligation, where there never was anything more than a moral obligation, is never a sufficient consideration to sustain an express promise. The cases cited in the note to Wennall v. Adney, 3 Bos. & P. (N.) 249, excludes the idea that a mere moral obligation can support an express promise. The consideration is deemed by them as sufficient where there was a precedent good consideration, or one from which the law would imply a promise, which might have been or could yet be enforced but for some positive rule of law, as for instance, a debt valid and subsisting but discharged in bankruptcy, or barred by the statute of limitations, or the contract of an infant, which by a new promise may be confirmed at his majority.

As I conceive, according to the true principle when applied in its real spirit, whenever the promisee had a right either in law or equity, which has been lost or was unavailable only by some, positive rule of law, this right, legal or equitable, which once existed or was prevented from having an existence only by some positive rule of law, would be a sufficient consideration to support a promise. In the case of Littlefield v. Shee, 2 B. & Ad. 811; (22 E. C. L. 187), the plaintiff, a butcher, supplied-the defendant, a married woman, while her husband was abroad, with meat for her own use; and after his death she made an express promise to pay the butcher’s bill. It was held, that this promise was a nudum, pactum, as she was, when the meat was obtained, under no legal obligation to pay for it, her husband being the party bound to pay for the same, and therefore her promise after his death to pay for this meat was a promise based on a mere moral obligation, and therefore a nudum pactum. But I apprehend, that the case would have been otherwise decided, if, when she purchased the meat, she had been possessed of a separate estate, out of which she had then promised to pay the bill, and if by lapse of time this could not have been enforced in equity against her separate estate, and after her husband’s death she had promised to pay it she could have been sued at law; for there would then have been a good consideration, a former equitable obligation, to support this promise.

Now a -wife though living separate and apart from her husband, as when, he has deserted her, has a legal right to necessaries on his credit; and a suit will lie against him for necessaries so furnished. (Boeten v. Prentice, 2 Stra. 1214; Etherington v. Parrot, 2 Ld. Raym. 1006 & 1 Salk. 118; Harris v. Morris, 4 Esp. 41; Rawlyns v. Vandyke, 3 Esp. 250; Rotch v. Miles, 2 Conn. 638.) What are deemed necessaries within this rule are defined in Whittingham v. Hill, Cro. Jac. 494. They are diet and apparel and, in the case of an infant, necessary learning; but the materials, whereby he is to maintain his trade, though he earns his living by his trade, are not regarded, as -necessaries; and therefore his contract for such materials does not bind, nor is his covenant binding on him, whereby he binds himself as an apprentice. So too the wile could not borrow money on the husband’s credit, so as to bind him, though she applied the money to buying necessaries. (Earle v. Peale, 1 Salk. 386; Stephenson v. Hardy, 3 Wills. 388.) She could however by her contract bind her husband, who had deserted her, for the rent oí a house, in which she lived and kept boarders. (Rotch v. Miles, 2 Conn. 638.)" Upon these principles it is further held, that, when a husband turns his wife out of doors, and she exhibits articles of peace against him or binds him over to keep the peace, her attorney may maintain a suit against him for liis fees on her employment. On this subject Lord Ellenborough thus laid down the law:

“If she was turned out of doors, she carried along with her a credit for whatever her preservation and safety re-required. She had a right to appeal to the law for protection, and she must have the means of appealing effectually. She might therefore charge her husband with the necessary expense of the proceeding, as much as for necessary food or raiment. (Shepherd v. Mackoul, 3 Campb. 326; Turner v. Rookes, 10 Ad. & E. 47; Williams v. Fowler, McClel. & Y. 269.)”

This principle has been extended still somewhat further, and it is held, it seems to me, properly, that where a wife has employed an attorney to obtain a divorce from her husband for actual cruelty, and there is reasonable apprehension of violence, when the suit is brought, or this apprehension of violence is established by her success in such a divorce suit, she may charge her husband without of course his concurrence with her attorney’s fees in such suit, and the attorney may sue the husband therefor as the fees are, in such case regarded as necessaries to her effectual pi'otection, just as her attorney’s fees are, when her husband is bound over to keep the peace, regarded as necessaries. (Brown v. Ahroyd, 5 El. & B. 819; L. & Eq. R. vol. 36 p. 214; Rice v. Shepherd, 12 C. B. 332; Eq. C. L. & Eq. 104, 330.) But this is the full extent to which the wife can go in charging her husband as for necessaries against his consent. If she sues for a divorce a vinculo matrimonii because of his adultery, though she sue-ceed in her suit, her attorney cannot sue him for his fees in such suit as necessaries furnished his wife. This obtaining a divorce from him because of his misconduct rendering it distasteful and offensive for her to live with him as his wife any longer is a very different thing from food, raiment, lodging or protection to her person from his cruelty. These are in contemplation of law necessaries; but the saving of her feelings from outrage is not in law-regarded as one of the necessaries. Indeed it can hardly be well conceived how the dissolution of a marriage can be necessary for the protection of- a woman as a wife. The authorities as well as reason sustain the position, that a lawyer can not sue a husband for his fees in obtaining a divorce a vinculo matrimonii for his wife because of his adultery. (Wing v. Hurlburt, 15 Vt. 607 Dorsey v. Goodenow, Wright 120; Shelton v. Pendleton, 18 Conn. 417; Coffin v. Dunham, 8 Cush. 404; McCullough v. Robinson, 2 Ind. 630; Williams v. Monroe, 18 B. Mon. 514; Johnson v. Williams, 3 Greene, Iowa, 97.)

To- apply these principles of the common law to cases in this State as affected by our statute-law in force when the cause of action in this case, if any, arose. The grounds on which a divorce a vinculo matrimonii could be granted to a wife were: 1. Adultery of the husband; 2. Natural or incurable impotency of body existing at the time of the marriage; 3. Sentence of the husband to confinement in the penitentiary; 4. Conviction of the husband without the knowledge of the wife and prior to the marriage, of an infamous offence; 5. Willful abandonment and desertion by the husband of the wife for three years ; 6. Notorious licentiousness of the husband prior to the marriage and without the knowledge of the wife. (Code, chapter 64, section 5.) Now from what we have said it is obvious, that the obtaining of divorce by a wife from her husband for any of these reasons can not be regarded as necessary in the only sense in which this word is used, when a wife is authorized by law without' her husband’s consent or even against his protest to charge him with necessaries; and hence we conclude, that theattor-' ney for the wife in obtaining a divorce a vinculo matrimonii in this State can never sue the husband' for his fee on her employment.

A divorce a mensa et thoro might be obtained by a wite, 1. Por cruel and inhuman treatment; 2. Por reasonable apprehension of bodily hurt; 3. Por abandonment and desertion. (Code, chapter 64, section 6.) It follows from what has been said, that if the wife obtain a divorce for the first or second of those causes, her attorney might sue the husband for his fees, except when the cruelty complained of was not actual cruelty but only the statutory cruelty named in the clause of section 6 of chapter 64 of the Code, that is, the falsely charging the wife with prostitution. But if the divorce was obtained by the wife for the third of these causes, he could not sue the husband for his fees.

It remains now to determine where in this State the attorney would have a right to sue the wife for his fees, when he was employed by her to obtain a divorce, when she was living separate and apart from her husband, as in this case I suppose she was, and where she succeeds in this suit. And first if the suit was for a divorce a vinculo matrimonii. As the husband is not liable to be sued in such a case, it is obvious,that as when living separate and apart from her husband in this State she can make any contract as a feme sole, she could contract to pay her attorney’s fees, whether she had or had not a separate estate; and if she made no express contract, she would in such case be responsible on her implied contract, as the services would have been rendered at her request and for her benefit; and her attorney could not demand compensation in such a case of her husband. It has been decided, that if she made a promise to pay her attorney’s fees in such a case, after the dissolution of the marriage she could be sued on such promise. (Wilson v. Burr, 25 Wend. 386 and Viser v. Bertrand, 14 Ark. 267.) Here a like promise in such case would bind her, if made before the dissolution of the marriage, if, when she made it, she was living separate and apart from her husband; for, as we have seen, such a promise is in this State as binding on her in a court of law, as if made while she was a feme sole, as'for instance, after the dissolution of the marriage.

The next enquiry is: Could she be sued by her attorney for his fee on a promise made by her while living separate and apart from her husband, and when he was employed by her to obtain for lier a divorce a mensa et thorol If the basis of the suit for a divorce was an abandonment or desertion of her by her husband, clearly she would be as liable to such suit, as she would be, if the divorce sought was one a vin-culo matrimonii. And it would lie equally whether she had or had not a separate estate, and whether her contract was expressed or implied. But the cáse would be different, if the basis of the divorce suit was either cruel or inhuman treatment on her husbaud’s part or a reasonable apprehension of bodily hurt on her part. The question is then one more difficult to solve. 'Whether she has a separate estate or not, and whether he has much or little or no property, if the suit is of the character above described, and the contract only implied from the fact that the services were rendered by her attorney, she can never be sued by her attorney for his fees. In such case, we have seen, the husband is responsible for them, and the law itself would imply that he was under such circumstances looked to by the attorney for the payment ot his fees to some extent, and it is immaterial to what extent he was thus looked to by the attorney; for the authorities have clearly settled, that if the credit of a third party is at all relied on, no matter how little, the defendant cannot be liable, unless her promise is in writing; for her contract in such case is necessarily collateral. (Anderson v. Hayman, 1 H. Black 120; Cahill v. Bigelow, 18 Pick. (Mass.) 369; Elder v. Warfield, 7 Harr. & J. (Md.) 391; Norris v. Graham, 33 Md. 56; Jack v. Morrison, 48 Pa. St. 113; Hanford v. Higgins, 1 Bosw. (N. Y.) 441; Allen v. Scarff, 1 Hilt. (N. Y.) 209; Bresler v. Pendel, 12 Mich. 224; Welch v. Marvin, 36 Mich. 59.

Of course she would in such case be responsible, if she had given a written guarantee, though her husband had still been looked to in whole or in part for such fees. The services having been rendered at her instance and for her benefit would be a sufficient consideration to support her written guarantee that he would pay the fees. But such a case cannot be made on the trial of this suit, because the declaration is on a direct promise and not on a guarantee of a debt of another, and therefore such proof could not be received under this declaration. But though her husband might be responsible tor her attorney’s fees, if tlie divorce sought was. one a mensa et thoro and based on his cruelty, still she might be bound, if when living separate and apart from her husband she employed the attorney to bring such suit and expressly by a verbal contract promised to pay his fees, so that she and she alone was looked to by the attorney for such fees. The above cases and many others establish, that, ii the defendant enters into a mere verbal contract or for a sufficient consideration makes a verbal promise to pay for the work to be done or goods furnished, if he alone was credited, he may be sued on such contract or promise, because in such case it is not a promise to pay a debt of another or to answer for his default within the meaning of the statute of frauds. Chapter 98 of Code, page 535, paragraph 4. "When there is such express verbal contract, the difficulty is to determine whether as a matter of fact the credit was wholly given to the defendant. If so, she is responsible on her express promise; but if not, she is not responsible, unless her promise is in writing. In the case before us she could not be responsible, even if her contract was in writing, if it was a contract to pay her husband’s debt, because such contract could not be proven under the declaration in this case, which is not on a collateral contract but a direct one.

• My conclusion therefore is, that under the declaration in this case, if Mary Marling was living separate and apart from her husband, when she employed the plaintiff to bring the suit to obtain a divorce from her husband, though no express contract be proven, the mere rendition of the services would entitle the plaintiff in this suit to recover of her whatever the services were reasonably worth, provided -the suit was brought for a divorce a vinculo matrimonii or for a divorce a mensa et thoro based on abandonment or desertion by her husband. But the plaintiff cannot recover of the defendant in this suit on such implied contract, if the suit was for a divorce a mensa et thoro based on his actual cruelty or on apprehension of bodily hurt on her part. In such case the plaintiff: must look to the husband alone for his fees in such suit. If while living separate and apart from her husband Mary Marling entered into an express contract, though verbal, to pay the plaintiff’ his fees in such divorce suit, she would be responsible in this suit, wlienever she would be responsible on such implied contract, and also- when by the express contract she promised to be responsible alone for the fees, and the plaintiff credited her alone and did not look to her husband for the payment of the fees to any extent.

I have thus far failed to notice the provision of our statute-law on divorces. In my judgment chapter 64 of the Code does not modify the law as we have stated it above. The first section of this chapter provides, that “In granting a divorce from bed and board the court may decree, that the parties be perpetually separated and protectee] in their persons and property. Such decree shall operate upon property thereafter acquired,'and upon the personal rights and legal capacities of the partios, as a divorce from the bond of matrimony, except that neither party shall marry again during the life of the other.” This provision evidently restores to a married woman, who has obtained such a divorce, a legal capacity to make contracts which shall be binding on her. And if it had been passed for the first time by the same Legislature, which passed the thirteenth section of chapter 66 of our Code, it might perhaps render it doubtful, whether the construction we have given this section was correct, as it leaves the removal of the legal incapacity of a married woman living separate and apart from her husband to be implied, while this, divorce-law removes the legal incapacity of a married woman in express terms. But this provision contained in this thirteenth section of chapter 66 of our Code in reference to married women living separate and apart from their husbands was not enacted till the passage of the Code of West Virginia of 1869; while the other provision in the divorce-law has been always the statute-law of this State, being found just as it is in the Code of Virginia of 1849 chapter 109 section 11 page 473. So that from the failure of our Legislature in. 1869 to use as express language on this subject as was used in the Virginia Code of 1849 in reference to divorced women, but little can be argued .with reference to the legislative intent. It will be observed too under our construction of this thirteenth section of chapter 66 of our Code, the position and rights of a married woman simply living separate and apart from her husband are in material respects different from those oí a married woman, who has been perpetually divorced a mema, et thoro.

The ninth section of the chapter on divorces page 442 of our Code provides, that the court may make any order, which may be proper to compel the man to pay any sum, that may bo necessary to enable the woman to carry on the divorce-suit. It might be argued, that, as the husband could under this provision be ordered during the pendency of any divorce-suit to pay fees to the attorney of the wife, therefore he ought not in any case to be liable to a common law suit for such fees; but no such inference can be properly drawn. His common law liability in the cases, in which it exists, as we have explained, cannot be taken away ,in this indirect maimer. Of course he would be entitled to a credit in such suit for the amount, which the chancery court had compelled him to pay, which might of course destroy his whole responsibility, if the chancery court had ordered him to pay the whole amount of the fees of the wife’s attorney; but this is often not done; for the amount so ordered to be paid does not depend, as it does in a suit against him, on the value of the services only but also depends in the chancery court on the wife’s ability herself to pay her attorney his fees. It has been accordingly held, that this making of a husband pay the fees of his wife’s attorney in a divorce court does not take away the common law action against him. Thus in Rice v. Shepherd, 104 E. C. L. 332 (12 Scott N. S.), Welles, J., says: “As to the mode of making the husband pay in the divorce court, this is only one of the numerous methods of giving a remedy. The action at common law is not taken away.”

It remains only to apply these .principles of law to the case now before us. To the plea that “Mary Marling before and at the time of the making of the promises and undertakings in the declaration mentioned was, and till the time of her death continued to be, the wife of Elijah Mar-ling, sr.,” the plaintiff, as we have seen, could have replied, that “at the time of the making of the promises and undertakings in the declaration mentioned, she, the said Mary Mamng, was living separate and apart from her husband, Elijah Marling, sr.” And such replication would have been good. .It is argued, that this is substantially the replication which was made in this case. But it seems to me to be materially different, and that the replication made in this ease is defective in this, that it fails to state that she was, when she made the contracts in the declaration named, 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. For anything 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 have been maintained.

Again this replication unnecessarily and improperly undertakes to set out the consideration, on which the promises and undertakings in the declaration mentioned were based; and what is still worse, so sets out this consideration as to render it uncertain, whether the consideration, on which these promises were based, was a valid consideration or not. This consideration is stated in so vague a manner as to make it questionable, whether the promises and undertakings named in the declaration were or were not nudum pactum. It states that the consideration was the prosecution by the plaintiff of a suit in the circuit court of Ohio by Mary Marling against her husband 'for a divorce from him, and that she was divorced from him. But whether this divorce was á divorce a vinculo matrimonii or a mensa et thoro does not appear, nor doesitappear,if it were a divorce a mensa etthoro, whether the ground of it was the actual cruelty of her husband or apprehended bodily hurt to her, or whether it was abandonment or desertion on his part. Yet, as we have seen, the decision of the question of nudum pactum depends -not only upon the nature of the contract, whether or not it was implied or express, but also upon the character of the divorce, whether a, vinculo matrimonii or a mensa et thoro, and if a mensa et thoro upon the grounds upon which it was based.

All these questions and considerations were necessarily involved in the issue of non assumpsit which has never been tried. They wore improperly introduced into this special replication. It was a defect in pleading to state anything about the consideration in this replication. The county court therefore dicl not err in sustaining the demurrer to this replication; but it did err in simply overruling the demurrer to the replication to the third plea instead of deciding the plea itself to be bad. In considering this demurrer the court should have gone back to the first error committed, which was in this third plea. It was the old plea of no assets in the hands ot the administrator to be administered. This was a-u immaterial plea, and the court ought not to have permitted it-to be filed; and upon its demurrer to the replication to this plea it should have decided, that the plea itself was bad. The twentieth section of chapter 131 of the Code provides, that a judgment for a debt due from a decedent may be entered to be paid out of the personal estate of, in, or which shall come into the hands of the personal representative to be administered. If the judgment entered is guando acciderent it is evidently immaterial whether there are assets in the hands of the administrator to be administered or not. And if this judgment is the one to be entered the plea of plena administra oil would be immaterial, unless it would on such a judgment be condusive as res adjudicata, that there were -when the judgment was rendered, no assets in the hands of the administrator to be administered; but it is not so conclusive, nor would the judgment, if ill the form of a judgment to be paid out of the assets of the decedent,’in the hands of the administrator, be conclusive,, that, when such judgment was rendered, there were assets in his hands to be applied to the payment of the judgment. This is the usual form of a judgment against an administrator for the debt of the decedent, simply because it has no such effect now; and it is entirely immaterial in what form such judgment is entered, and therefore immaterial whether the verdict of the jury, on this plea o? plane administraoil is for the plaintiff or defendant; for section 24 of chapter 85 of the Code provides that “ no personal representative or surety of his shall be chargeable beyond the assets of the decedent, by reason of any omission or mistake of pleading, or false pleading of such representative; and in an action on his bond the defendant may plead any plea and offer any evidence, which would be admissible in an action against a personal representative suggesting a devastavit?’

It tlius eoulcl not be determined in this cause, whether the personal representative had or had not assets in his hands to be administered applicable to the debt sued on. This plea therefore of plene administravit in this action was immaterial and on this demurrer it should have been so pronounced and ordered to be stricken from the record. The judgment of the circuit court of June 6, 1881, is erroneous in this that the circuit court proceeded then to pronounce a final judgment, though the plea of «on assumpsit, upon which issue had been joined, had never been tried. The case was therefore in no condition to justify the court in rendering a final judgment. Instead of rendering such final judgment the circuit court ought to have required the plaintiff, if he did not elect to dismiss his suit, to go to trial on the issue of non-assump-sit and ought to have declined to render any final judgment, till this issue was tried. The only judgment, which could be rendered on the sustaining of the demurrer to the replication to this second plea had been rendered properly by the county court, when it sustained this demurrer.

It is argued however, that as the plaintiff moved the court to enter up a final judgment- in the case then, he can not complain that the court entered up this judgment, though the case was in no condition to justify the rendition of a final judgment. No authority is cited to sustain this-position; and it is untenable. It does not follow, because a party has asked a court to finally decide a case, when the, condition of the case with reference to the pleadings does not then authorize the court to render a decision, that he would be bound by it aud could not reverse it in an appellate court. It is obvious, that the other party, had the judgment been erroneous to his prejudice, could have it reversed;-and in fact, it being an entirely unauthorized act for the court to enter judgment in the case, any party prejudiced thereby can ask its reversal.

The ease of thq Baltimore and Ohio Railroad Co. v. Faulkner, 4 W. Va. 180, like the present case, was a suit brought by Faulkner to recovera fee for professional services rendered the defendant in the court below, the Baltimore and Ohio Railroad Company. The company pleaded the statute of limitations and non assumpsit. No issues were joined on these pleas ; but at the instance of the Baltimore and Ohio Railroad Company, the intervention of a jury being waived by the parties, the court proceeded to hoar the evidence, and judgment was rendered for the full amount of the fee claimed by the plaintiff. The Baltimore and Ohio Railroad Company, the defendant, brought the case to this Court on a writ of error and supersedeas; and this Court reversed the case because the circuit court had no authority to render any judgment in the case, when it did so, as no issues had been made on the pleas filed. Mr. Faulkner in that case, as do the counsel for the defendant in error in this case, urged that the Baltimore and Ohio Railroad Company could not be heard to complain, as the court had assumed to decide the case at the instance and suggestion of the company; but this Court paid no attention to this suggestion evidently regarded as of no value. We cannot sustain a judgment prejudicial to the plaintiff in error, which the court had no authority to render, when it did, simply because the plaintiff wanted a judgment then rendered, that he might obtain a writ of error to it with a view of avoiding the trouble and expense of a trial of an issue already made up; saving himself cost and trouble by imposing labor on this Court improperly; requiring this Court possibly to try and determine this case twice. If we had any discretion in the matter, we might for this cause be disposed to impose on him the costs' in this Court; but in cases decided on writs of error this Court has certainly in most cases no discretion as to costs. But we cannot for such a reason refuse to reverse á judgment of the circuit court against the plaintiff, which it had no authority to render, the case being in no condition to justify the rendition of any judgment by the circuit court.

This judgment must therefore be set aside, reversed and annulled; and the plaintiff in error must recover of the defendant in error his costs in this Court expended, to be levied of the assets of his intestate in his hands to be administered ; and this cause must be remanded to the circuit court of Ohio county, with instructions to strike from the record the second plea filed by the defendant as immaterial, and to permit the plaintiff to file another replication to the defendant’s plea, if he should -desire so to do, and then to proceed further with this case according to the principles laid clown in this opinion, and further according to law.

Tiie Oti-iee Judges Concurred.

REVERSED. REMANDED.