Bryan v. Doolittle , 38 Ga. 255 ( 1868 )

Waknek, J.

There are two questions presented by the record in this case for our consideration and judgment. First, as to the liability of the husband for the debt of his wife. Second, the rejection of the will when offered in evidence by the defendant, in the Court below. We will consider the rejection of the evidence offered first. In our judgment, the will offered in evidence should have been admitted, for the purpose of showing that the parties were married prior to the 1st of January, 1863, the time when the Code was adopted. The witness who testified as to the time of the marriage, says, the parties were married in 1862 or 1863. The will is dated 31st of July, 1862, in which the maker of the note is recognized as the wife of Brown at that time. By the common law, the husband is not liable to pay the debts of the wife contracted by her before marriage, unless judgment was obtained against him therefor during the coverture; 2 Kent’s Com., 145; Nicholson and wife vs. McWhorter & Wilborn, 13 Ga. R., 470. The Act of 1856 restricts the liability of the husband for the debts of the wife, to the amount of the property received through her, but does not further interfere with the common law rule of liability. If the debt is not reduced to judgment against the husband during the coverture, he would not be liable, even to the extent of the property received through her; -but in no event, beyond that amount. The Act of 1856 only defines the extent of the husband’s liability when sued for his wife’s debts, according to the law as it then existed. The Old Code goes further, in the latter part of the 1701st section, and declares, that “the property received through the wife shall be liable for the payment thereof.” That Code, however, did not take effect until the first day of January, 1863, so that the law was just as the Act of 1856 left it, in regard to the liability of the husband for the debts of the wife, contracted by her before marriage. See Revised Code, sec. 2. The husband, in this case, only assumed such liability for the debts of his wife, as the law imposed on him at the time of his marriage, which was in 1862, before the adoption of the Code. As the law then existed, in 1862, the husband was liable for the debts of his wife to the extent of the property received through her, when judgment was recovered against him therefor, during the coverture; but as no judgment was recovered against the husband in this ease, for the debt of his wife, contracted before marriage, during the coverture, his estate is not liable to pay it, although he may have received property through his wife, sufficient for that purpose. Under the common law rule, it made no difference whether the husband received property through his wife or not; if his liability was not fixed by a judgment during the coverture, he was not bound, in law, to pay the debt.

Let the judgment of the Court below be reversed.