McGinty v. Mabry , 23 Ala. 672 ( 1853 )

PHELAN, J.

The only ground upon which the liability of McGinty, the husband, can be based, is his intermarriage with Mrs. Griffith, who, previous to her marriage with him, was guardian to her minor son by a former marriage, now the ward of the defendant in error.

It is well settled, that the husband cannot be sued alone, for the debts of the wife contracted before marriage.—Gage v. Reid, 15 Johns. 403; 7 Term R. 348. The same principle will cover every species of civil liability incurred by the wife before marriage, whether by tort or contract, in her own right or as administratrix or guardian.—2 Williams on Executors 632; Bacon’s Abr,, Title Baron and Feme; 5 Johns. 66; Williamson v. Hill, 6 Porter’s R. 184. It being necessary to make the wife a party to this proceeding for a final settlement of her guardianship, a decree against her husband only was of course erroneous.

The point made in the argument of plaintiff in error, that the husband is not liable at all under the statute of 1846, (Pamphlet Acts 25,) which declares that the husband shall not be “ liable to pay the ante-nuptial contracts or liabilities of the wife further than the property received by the wife,” was not presented in the court below in any shape, and cannot be noticed here.

For the error in not rendering a decree against both husband and wife, the judgment of the court below is reversed, and the cause remanded.