"Wright, C. J.
That at common law, a feme covert could not be sued, even for necessaries, is admitted. Her separate existence was not recognized, or by the coverture, it was merged in that of the husband. In equity, however, both as to her liabilities and her rights, her separate existence was abundantly acknowledged. In that court, her property, but not her person, could be made liable, through a suit instituted against herself and trustees. Murray v. Barlee, 4 Sim. 82; S. C. 3 Mylne & Keene, 209. How far she might, in equity, make a contract, which would bind her separate property, seems to have been a subject of much controversy. And we find that the books and cases abound in discussions upon the analagous questions, whether her general engagements, without any expressed intention to charge her separate estate, would be binding upon such estate. 2 Story’s Eq. Jur., section 1401 and note; Hulme v. Tennant, 1 Bro. C. C. 16; Francis v. Wigzell, 1 Madd., 258; Nantes v. Corroch, 8 Ves., 189.
*428Without now entering upon this discussion, we shall consider the case, in reference to her rights and liabilities, under the Code, and see how far, under its provisions, she is to be treated as a feme sole. And, in the first place, we remark, that we do not deem it necessary, that a party shall seek his remedy in all cases against a feme covert, in a court of equity. But if she, by her contract, as upon a promissory note or the like, becomes liable, she may be sued at law, in the same manner as any other person. We also understand, that generally, her liability upon her contracts, is not a personal liability, but it only tends to, and can only affect, her separate property or estate. And further, that grima facie, she is still unable to contract, sue and be sued, as a feme sole. With reference to certain matters, however, she may thus contract, and sue and be sued. Except as in the Code is otherwise declared, the husband is not liable for the separate debts of the wife. But the separate debts of the wife, are only those growing ■out of the contracts mentioned in section 1454, which provides, that “ contracts made by a wife, in relation to her separate property, or those purporting to bind herself only, do not bind the husband.” And then, by the next section, it is provided that the expenses of the family, the education of the children, and such other obligations as come within the equity of this provision, are chargeable upon the property of both husband and wife, or either of them, and in relation thereto, they may be sued jointly, or the husband separately.
Under these provisions, we conclude, that iii order to make the wife liable in her separate property, upon a contract entered into during coverture, the plaintiff should show that such contract related to the expenses of the family, or other proper expenses, as contemplated by section 1455; or that it related to her separate property; or that it purports to bind herself only. During coverture, she cannot be sued in law, as a feme sole, unless the contract is of such a character as is contemplated by the above cited sections.
*429In this case, the coverture of the defendant, Lydia Eodman, does not appear from the petition of plaintiff, but it is first disclosed by her answer. Neither is there anything to show, that the contract is of the nature, nor that it relates to those matters, about which she may bind her separate property. "We conclude, therefore, that her answer, which sufficiently avers the coverture, was a sufficient prima facie defence; and that if plaintiff would show, or rely upon her liability as a feme covert, he should have confessed the coverture, and avoided its effect, by setting up or showing such a state of case, as is contemplated by the provisions of the Code before mentioned. The rule is that she is not liable; and if he seeks to bring her within some one of the exceptions to the rule, he should plead the exception. And this, upon the familiar doctrine which is applied to minors, or others who have no legal ability to contract, except under particular circumstances, it being incumbent upon the party seeking to charge them, to show that his case comes within the exception claimed. To sustain the foregoing views, see the following cases, decided upon statutes, not very unlike the provisions of the Code: Colvin v. Cornier, 22 Barb. 371; Fireman’s Ins. Co. v. Bay, 4 Ib., 414; Yale v. Dederer, 21 Ib., 286; Coon v. Brook, Ib., 546; Dickerman v. Abrahams, Ib., 551; Kavanaugh v. Brown, 1 Texas, 481.
We do not undertake to decide, that even if the note should not have been given for some one of the purposes contemplated by the Code, the property of the wife may not, in equity, be made liable. This question is not before us, and it is unnecessary to consider it. We conclude that there was error in sustaining the demurrer to the answer, and the judgment is therefore reversed.
Stockton, J.,
dissenting. — I dissent from the foregoing opinion, and from the reasoning by which the majority of the court arrive at the conclusion, that the judgment of the district court should be reversed. I find no authority for holding, that the liability of the wife upon *430her contracts, is not a personal liability; nor for bolding that it extends to, and affects, only ber separate estate. If tbe wife is liable upon ber separate contracts, (as upon a promissory note,) I do not see bow it can, with propriety, be said, that sbe is still prima, faeie unable to contract, and to sue and be sued. So, if tbe wife execute a promissory note, in conjunction with ber husband, I see no sufficient reason wby, in order to render ber liable on sucb contract, it is incumbent on tbe plaintiff to allege and show that it was made in relation to ber separate property, or to tbe expenses of the family, or that it was an obligation, coming within tbe equity of tbe provisions of section 1455 of tbe Code.
Whether tbe change made by the Code, in tbe relations of married women to their separate property, was a wise one or not, I do not undertake to discuss. But, in my opinion, tbe law has cast no sucb burden upon tbe plaintiff, as is placed upon him by tbe opinion and judgment of this court. If tbe defendant would be released from tbe obligation of ber contract, its invalidity should be shown by some other fact, than that of ber being a married woman, at tbe time of its execution. Sucb defence, in our opinion, is insufficient, and tbe judgment of tbe district court should be affirmed.