Gilchrist, J.
This is an action against a woman whose husband is still living, but who has for twelve years been absent from her and from the State, and who has, during that time, made no provision for her support.
As to all the items of the account stated by the auditor that accrued before the 24th day of December, 1840, it is clear that this action does not lie, the common law not recognizing in a married woman in general the power and capacity to become, by any act of her own, a debtor or a creditor.
By the statute passed on that day, she became, under the circumstances of desertion adverted to, capable of acquiring property. So far, then, as the items which were allowed to her credit since that time appear to be in the nature of her acquisitions or earnings, and do not appear to have been intended by her as payments to be applied upon an antecedent indebtedness from her to the plaintiff, she is entitled to have them applied to the payment of the subsequent charges against her; and if they exceed the amount of such charges, the balance is a claim in her favor against the plaintiff. If, however, the items which make up the gross sum of $44.63 are in the nature of payments, to be applied generally to the extinction of an antecedent indebtedness; or if they or any of them are money paid over to the plaintiff without any direction of the defendant as to their appropriation, the general rule will prevail, which permits the party receiving the payment to appropriate it to such debt as he elects, or, in the absence of an express election, it will go to extinguish the earliest item due to him not over six years old.
The form in which the account is stated, therefore, renders it impossible to compute and ascertain the amount due, upon the principles laid down — the items allowed to the credit of the defendant not appearing with their proper dates.
The general instruction given by the court to the jury, that the action would lie, without the qualification restricting it to items of the account that have accrued since the time that the statute clothed her with the capacity to act as a feme sole, was, for the reasons that have been stated, erroneous; and the verdict must be set aside and a new trial granted, for the purpose of ascertaining the nature of the items, with their dates, and whether they were applicable as payments of the plaintiff’s account, or otherwise.
New trial granted.