The exceptions taken by the plaintiff on the trial to the rulings of His Honor in rejecting the testimony offered by him, were properly overruled. Whether the plaintiff was a competent witness under section 343, it is needless to consider ; for whether competent or not, the testimony he proposed to give touching the assent of J. J. Long to the purchase of the slave by the defendant’s testatrix, was clearly irrelevant to the fifth issue, the issue itself was immaterial, and if the rejected testimony had been admitted and the issue found in the affirmative, it could in no manner have affected the case j and the exception to . the *279refusal to admit proof of the insolvency of Johnson is, for the same reason, untenable.
The action is in nature of assumpsit for money paid to the use of the defendant’s testatrix, founded upon her implied promise to repay to the plaintiff the money he had expended for her use. The alleged consideration was, that the plaintiff as her surety on the bond given by her for the purchase of a female slave, had been compelled to pay the sum sued for in this action.
The action cannot be maintained. There is no consideration to support an implied promise on the part of the defendant’s testatrix. She was a married woman at the time of giving the bond to Douglas, and there is no principle of law better settled than that the contract of a married woman is not only voidable, but absolutely void. The effect of the marriage for most purposes is to render husband and wife one person, in contemplation of law, and her legal existence is merged in that of her husband, and having no legal entity, she is on that ground incapable of binding herself by a contract, and consequently no action will lie against her for a breach of it.
Huntley v. Whitner, 77 N. C., 372, is directly in point. The action was upon a bond given by a feme covert as a tenant in common upon the partition of land for owelty of partition. The court say, “ to put it in the strongest Light for the plaintiff, it was a bond given for the acquisition of property to make equality of partition of land between her and her sisters. She is not bound upon the bond.”
But the plaintiff says, although the testatrix was a married woman at the time she executed the bond to Douglas, she had a separate estate, and the bond was a charge upon that property — -was so intended to be at the time of its execution — and ho has the right to subject the property to the satisfaction of his debt, which stands upon the same footing with the bond. Admitting that to be so, the separate estate *280of the defendant’s testatrix cannot be subjected to the payment other debts in this - form of action. The separate estate of a married woman could under the former practice only be reached by a bill in equity. It was a proceeding in rem and not in personam. There is no error, the judgment must be affirmed.
No error. Affirmed.