Rowe v. Kohle , 4 Cal. 285 ( 1854 )

Mr. Ch. J. Murray

delivered the opinion of the Court.

Mr. J. Heydenpeldt concurred.

This suit was originally commenced against Amelia Kohle and her husband, upon an alleged promise to pay the plaintiffs for legal services rendered in defending him in a criminal prosecution.

Judgment by default was taken against the husband.

The wife demurred to the complaint, upon the ground that as a femme covert she was unable, during coverture, to bind herself by contract, unless the same related to her separate estate, which was sustained by the Court; from which decision the plaintiffs appealed.

We have repeatedly held that our statute does not change the rule of the common law upon the relation of husband and wife, except in the particular cases expressly provided by the statute, and that a femme covert cannot contract under the laws of this State so as to render her liable in a suit at law.

There are cases laid down in the books in which a married woman may bind herself and her separate property. In such cases, a court of equity would enforce the contract.

If this suit was intended for a common law action of assumpsit, the demurrer was properly sustained, as no such action will lie. If it was intended as a proceeding'in chancery,. there are no equities disclosed in the bill.

Judgment affirmed, with costs.