
    Letitia Dickson vs. Joseph W. Miller et ux.
    The separate property of the wife, owned before marriage, may be subjected in equity to the payment of necessaries furnished to her while sole and a minor; notwithstanding a verdict, in an action at law against the husband and wife, for the same cause of action, rendered in favor of the defendants, on the husband’s plea of bankruptcy.
    It seems that where the wife holds, at the time of marriage, separate property, by the laws of the state not under the control or subject to the debts of the husband, her debts contracted while sole will not be discharged by the bankruptcy of the husband.
    Whether, since the act of 1839, preserving to married women a separate estate in slaves, &c. on their marriage, the husband is liable for the debts of the wife contracted while she was sole ; and those contracted during coverture.— Query ?
    The separate property of a wife cannot be subjected for her general debts contracted during coverture ; it can only be when a distinct intention to bind such property exists.
    A verdict and judgment for defendants, on a plea of bankruptcy of the husband, in an action against the husband and wife, for necessaries furnished to the wife while sole, is no bar to a proceeding in equity, to subject the wife’s separate estate, owned at the time the necessaries were furnished, to their payment ; the plea of bankruptcy was but a plea in abatement, and the verdict upon it could not affect the creditor’s right to subject the property of the wife to the debt for necessaries; but it could not be subjected for the payment of the cost and expenses of the suit at law.
    Whether, if it appear by the allegations of the bill, that the claim, to which it is sought to subject a wife’s separate estate, was barred by the statute, at the time the bill was filed, the defendant may take advantage of it by demurrer, or must make the defence by answer— Query ? If the former, it must clearly appear from the bill that the claim is barred.
    On appeal from the superior court of chancery; Hon. Henry Dickinson, vice-chancellor, presiding.
    On the 23d of April, A. D. 1845, Letitia Dickson filed her bill against Joseph W. Miller and Martha, his wife, stating that about the 1st November, 1835, Martha, who was then single, a minor and an orphan, went to live and reside with complainant, and so lived with her for three years; during which time she was boarded, clothed, maintained and educated by the complainant ; and for which complainant is entitled to a reasonable sum, which has been often demanded, and is yet due and unpaid ; that this maintenance, education, &c. were suitable to the condition and degree of said Martha.
    Some time in 1839, and whilst yet a minor, the said Martha intermarried with said Joseph.
    That complainant sued Miller and wife on this demand at the May term, 1839, of the Hinds circuit court, and obtained a verdict, which was set aside. The cause was continued from time to time until the March special term, 1844, when Miller filed his plea of bankruptcy, and upon that plea a verdict was rendered for defendants, and judgment for costs against complainant for about $175, under an execution; upon which judgment her property had been levied on, and was about to be sold.
    That said Martha was so placed to live, &c., with complainant by Jacob Womack, her guardian.
    That said Martha is possessed, by inheritance from her father, of sufficient real and personal estate in her own right and for her separate use, and which is in no manner liable for the debts of said Joseph.
    The bill prays for an injunction against the sale under the execution on said judgment at law, payment of complainant’s demand, and of the costs and expenses of the suit, out of the separate estate of said Martha.
    The defendants filed a general demurrer, which was disallowed by the vice-chancellor, and they appealed.
    
      Charles Scott, for appellants.
    1. The husband is answerable for the debts of the wife, contracted dum sola. 2 Kent’s Com. 130, 143.
    The law then makes him alone liable during the coverture. Here, then, is a clear legal remedy, which precludes the complainant from coming into this court for satisfaction out of the separate property of the wife. During the coverture, there is no remedy, legal or equitable, against the wife.
    2. The debts of the wife, drum sola, as well as the husband’s debts, are discharged by the bankruptcy of the husband. 2 Kent’s Com. 144, (new edition); 1 P. Wms. R. 259; 2 Nev. & Man. R. 255.
    The wife is certainly not liable during the husband’s life. 2 Kent, 144, 146.
    3. The statute of limitations is a bar to a suit in equity, as well as at law; and when it appears upon the face of a bill that the statute has run, advantage may be taken of it by way of demurrer. Story, Eq. PL § 484, 503, 751.
    The statute in this case commenced running before the marriage, and more than six years had elapsed before the filing of the bill. Mrs. Miller would not be. liable even after coverture. Payment is presumed from lapse of time, and if the debt is paid, of course no action could be maintained after the cover-ture. 2 Greenl. Ev. § 528.
    
      G. Baker, for appellee.
    1. It is clear that the appellee has a right to payment of her demand, and it is equally clear that she once had a complete legal remedy by which to enforce that right. Of that legal remedy, however, she has been deprived by an act of Congress, passed after the commencement of her action at law, and before she could prosecute it to effect. This is admitted by the demurrer; and the very fact of the existence of a right without a remedy at law, constitutes the strongest claim to the interposition of the powers of a court of equity. 1 Story, Eq. Jur. 60, § 53; Mitford, PI. 112; Cooper, PI. 128; Billon v. Hyde & Mitchell, 1 Atk. R. 126; American Insurance Company v. FisJce, 1 Paige, Ch. R. 90; Teague v. Russell Sp Moore, 2 Stewart, R. 420, 423; 1 Paige, above cited; Ratlibone v. Warren, 10 Johns. R. 595; Weymouth v. Boyer, 1 Yesey, Jr. 424.
    It is insisted for the appellee that her case, as presented by the facts set forth in the bill, falls clearly within the scope of the doctrine of the above cited cases, and that these principles are strictly applicable to the present case. In fact, the matters of the bill in this case presents a stronger claim to, and calls more imperatively for, the interposition of the powers of a court of equity. In those cases'there was a legal remedy, but inasmuch as it was uncertain or incomplete, equity entertained jurisdiction ; whereas, in the present case, there is no remedy whatever at law. 1 Story, Eq. Jur. 30, § 32; lb. 32, § 33.
    2. That a minor may contract, or become liable, for necessaries, is a proposition not to be doubted, and more especially, for such as- appellee seeks to charge Mrs. Miller for; and upon principle, it seems clear that the estate of a female minor, which she afterwards holds during marriage, separate from her husband, may be subjected to the charge for necessaries furnished while single, and while a minor; and more especially so, if the husband is insolvent, as is alleged to be true in this case.
    3. There is no pretext for urging that the trial at law is ground for sustaining the demurrer, because the trial of the case was not upon its merits, but went off upon the simple plea of the bankruptcy of Miller, the husband. If a case at law is not tried on its merits, there is no authority holding that such trial will preclude relief in equity, because the very reason and philosophy of the rule is, that you shall not have two trials, when you might have had the merits fully tried in the first.
    4. The discharge of Miller is ,no satisfaction- of the debt, either at law or in equity; nor does the verdict at law, in favor of the appellants, when the merits were not tried, negative the existence or justice of the demand. Anterior to the marriage of Mrs. Miller, the appellee’s right of action against her was clear; upon the marriage, this right extended to both her and her husband jointly, and her legal existence became, by the policy of the law, merged in that of her husband, the right of action against the wife alone, becoming thus suspended during cover-ture; and if no recovery be had during coverture, and the wife survive, the right of action also survives, and she may be sued and a recovery had, in the same manner as if she had never married.
    
      A judgment rendered against the appellants in the action at law, would only have reached the property of the husband, and that of the wife would have remained wholly exempt from its effect. A court of equity, under a state of facts such as is presented in this case, would not hesitate, upon bill filed, alleging the insolvency of the husband, to subject the separate estate of the wife to the payment of such judgment, founded upon her contract, dam sola.
    
    Wherever an estate comes to the wife for her sole and separate use, she may dispose of it, and it is subject to the same liabilities as if she were sole. Hearle v. Greenbank, 3 Atlc. 709; Wil-lats v. Cay, 2 lb. 67, and cases cited. The moment separate estate can be enjoyed, it must be enjoyed with all the incidents and liabilities peculiar to such estates. Fittiplace v. Gorges, 1 Yesey, 48.
    5. The counsel cited the following cases, which he contended were analogous to the present, and showed that the claim was not barred by the statute of limitations. Norton v. Turvill, 2 P. Wms. 144; Clarke v. Cole, 2 Coxe, 173.
    6. Although the husband is not liable for the wife’s debts after her decease, unless judgment has been obtained in her lifetime, yet equity will make him liable, so far as the wife brought him any fortune. 2 Freeman, R. (English) 231; Poioell v. Bell, Prec. in Ch. 255.
    Where feme sole bought goods, and married and died, the husband, upon bill filed for the amount, is liable, the goods being in his possession. Freeman v. Goodham>, 1 Ch. Ca. 295.
    Upon the death of one partner, the survivor is alone liable at common law for demands against the firm; yet equity, upon the insolvency of the survivor being established, will subject the assets of the deceased partner to the payment of such demands. Hamersley v. Lambert, 2 Johns. Ch. R. 508.
    7. The bankruptcy of Miller cannot be taken advantage of by demurrer, and courts of equity will always lean against a strict construction of the bankrupt act, when such strict construction would prejudice the rights of a fair creditor. Rider v. Fowle, 3 Levinz, 58, 59, referred to in 1 Atk. 126, above cited.
    
      In the case of Miles v. Williams and wife, 1 P. Wms. 249, the court of K. B. determined that the debts of the wife dum sola, are discharged by the bankruptcy of the husband, and that debts due to the wife dum sola, though unrecovered, are assignable by the commissions on the husband’s bankruptcy. But this is by virtue of the statute of 4 Anne, ch. 17.
    The principle upon which this decision rests is obvious, Upon the marriage, the husband becomes liable for the wife’s debts dum sola, and is entitled to all her personal estate and choses in action. All such debts of the wife become those of the husband, and all her personalty and choses in action become assignable by the commissioners in bankruptcy. It would be a hardship if all the wife’s personal estate and choses in action should, upon the marriage, vest in the husband, and become assignable for the payment of the husband’s debts; and the debts of the wife dum sola, should still remain enforceable against both husband and wife. But inasmuch as the wife’s personalty and choses in action are assignable by the commissioners, for the payment of the husband’s debts, and as the wife’s debts dum sola, are the debts of the husband, and may be proved under the commission, they are deemed to be discharged in like manner as those of the husband. Such is the rule at common law, in cases where the wife has no separate estate. But in the present case, as the wife has separate estate not liable to assignment for the payment of either the debts of the husband, or those of the wife dum sola, the same reasons do not govern; and the maxim that “where the reason of the law ceases, the law also ceases,” should be allowed its full weight in the determination of the points involved.
    Here the wife has real and personal estate separate from and independent of her husband, which is in no way liable for his debts, either under the assignment or otherwise. This property was vested in her previous to her marriage, and was then liable for her debts. Can the subsequent marriage be allowed, in justice and equity, to place the appellee in a worse position than she occupied before ? It is true that if the appellants can make it appear, upon the trial of the case, upon its merits, that the appellee, upon the dividend under the commission in bankruptcy, received any part of her demand, they ought to be entitled to the benefit of such sum so received. See Lockwood et al. v. Slater and wife, 27 Eng. Com. Law R. 82. In that case, which was an action to recover the debt of a wife dum sola, it was held that a plea of the discharge of a husband under the insolvent act, was a good plea; but it was doubted whether it might not be replied that the wife had separate property. The court intimated that such separate estate might be reached in equity. 1 Scho. & Lef. 169; 8 B. & C. 1.- See 15 Eng. Com. Law R. 143.
    In this last case, it was determined that a woman taken in execution for a debt due by her before marriage, is not entitled to be discharged, unless it appears that she has no separate property, even although the husband has been discharged under the insolvent act. See 3 Wilson, R. 124; Clayton v. Adams, 6 Term R. 604; 2 Story, Eq. Jur. 628; Frost v. Doyle, 7 S. & M. 68.
    
      George L. Potter, on same side.
    The demurrer was properly disallowed.
    1. The discharge of Miller in bankruptcy is no bar to the demand against the separate estate of his wife.
    The authorities cited for appellants do not sustain the assertions of their counsel; for they do not establish that a wife is discharged from her liability by the certificate of her bankrupt husband, even when she has no separate estate.
    It is clear that the liability of the wife for debts dum sola, is not extiguished by her marriage. She may be sued upon them with her husband, and they survive against her after his death. 2 Kent, 143, 144, 145.
    The husband is liable for such debts, as husband only, and when his wife dies, his liability ceases. 2 Kent, 144, 145.
    Now the bankrupt act does not discharge the debt; the certificate of one does not discharge all of several joint debtors. The debt still remains, although Miller is discharged, in full force against the wife. It may be that all legal remedy thereon is suspended during the marriage, inasmuch as she could not be sued apart from him, in a court of law; but I see no reason or authority for the position, that she is discharged by the certificate of her husband. The wife is the principal debtor; the husband owes but incidentally and by reason of his marriage; by his death his estate is discharged from the debt, but she continues liable.
    The intent of the act of Congress was, that all who were to be discharged thereby, should surrender their estates; otherwise, they could not be discharged. Is Mrs. Miller to obtain the benefit of the certificate, and retain her estate 1
    
    If tMiller and wife had mortgaged her estate to secure this debt, would his certificate discharge the mortgage, even though there had been no saving in the act 1
    
    We think it clear, that neither the wife nor the husband can claim to enjoy her estate, and to be exempt from this debt. The assignees of Miller could not claim her estate under the proceedings in bankruptcy, and so we think she cannot claim her discharge under the certificate of her husband, and insist that, by reason of that certificate, her property is also discharged.
    The matter is very plain; the act did not discharge property from its liability to be subjected; and even though Miller and his wife are no longer liable, a court of equity will reach the estate she holds. When this claim accrued, it was a just demand against the inheritance of Mrs. Miller, and we see not how it has ceased to be so; we demand that such inheritance shall be subjected.
    2. The act of limitations is no bar. It is not relied on in the demurrer. Suppose a party should demur, but not insist on the act of limitations in the court below; that his demurrer was disallowed, and he should appeal. As a party may waive the statute, and is bound to declare, in due form, that he relies on it, if he would take advantage of it, it would seem that he could not insist upon the statute, on appeal, when he had so waived it below. If he could, this court would be compelled to reverse the decree of the chancellor when he had properly disallowed a demurrer.
    But the equity of complainant is not barred by limitations, so far as the record shows that equity did not exist until after the judgment at law, as it clearly did not as to the matter of costs of the suit at law.
    It is quite certain that the fact, that the claim is barred does not appear from the bill, and so a demurrer will not reach it.
    As the property we seek to subject came to Mrs. Miller by inheritance from her father, and is the very fund from which expenses incurred for her maintenance, education, &c., after her father’s death, should be paid, it would seem that a court of equity should subject that property in this case, inasmuch as the husband has been so-discharged.
   Mr. Justice Thacher

delivered the opinion of the court.

Before the act of 1846, making the separate property of a married woman liable in certain cases, this suit in chancery was instituted to make the separate estate of a wife chargeable for a debt contracted by her while a minor and sole; and under these circumstances, an action at law was instituted against the husband and wife upon a bill of necessaries supplied the wife while a minor and sole, to which action the husband pleaded ultimately his bankruptcy, and recovered a verdict. It appears by the bill in equity, that the necessaries were supplied more than six years previously to the institution to the suit in chancery. A general demurrer to this bill was disallowed by the vice-chancellor, and hence this appeal.

The ground upon which it has been settled as a general rule, that the debts of a wife dum sola, are discharged by the bankruptcy of the husband, as well as his own, is based upon the principle, that all her estate being in his power, and every thing in his power being assignable, the estate which the wife brought the husband falls into the hands of the commissioners in bankruptcy, for the benefit of all creditors both of husband and wife. 1 P. Wms. 259. But this is the case of a wife holding a separate estate, which cannot come into the possession of the husband, or be assigned in bankruptcy for his debts. Hence it would seem that the ground upon which the principle stands is taken away.

The separate property of a wife cannot ordinarily be subjected for her debts contracted during coverture. Certainly not for her general debts, and .only when a distinct intention to bind such property exists. It is a strict general rule which throws upon the husband, during coverture, all the obligations of the wife, which even courts of equity will not vary, whether the husband has or has not received a portion with the wife. 2 Kent, 144. But this rule arises also from a similar principle to that by which it has been settled, that the bankruptcy of the husband discharges also the wifels debts. It is that in marriage, although a husband runs the hazard of becoming liable for his wife in an amount greater than the value of the estate he receives by her, he also has the chance of receiving by her an amount far exceeding her debts. But where the whole estate of a wife, notwithstanding coverture, continues separate to her, there is no such recompense to the husband for his obligation for his wife’s debts, but on the contrary, there may be a certainty of his becoming indebted on behalf of his wife, with no possibility of his receiving an amount even equal to her debts. Thus such rules have originated from the common law principle, which bestows upon the husband the personal estate of the wife, and they may well be shaken under a system of legislation, repealing those rules, and excluding the husband from the title and control of such property of the wife. Hence, the intimations which have been thrown out by this court in James v. Fisk et al., 9 S. & M. 144, and Doty et al. v. Mitchell, Ib. 435.

But the circumstances of this case are much stronger than the case of debt contracted by a married woman, when her intention to bind her separate estate is doubtful, or the case of an attempt to subject her separate estate for the payment of a general obligation contracted by her while sole. The claim sought to be enforced, is remuneration for the maintenance, education, &c., of the wife when sole -and a minor, and at a time when such expenses were a proper charge .upon the property now sought to be thereto subjected. There can be no doubt that this property was liable at the time for necessaries supplied to the minor, and, indeed, it might have been proceeded against directly, instead of being subjected through the guardian or other person. Steele et al. v. McDowell et al., 9 S. & M. 193. This right has not been divested, and the present suit may be deemed as a proceeding to enforce a right which accrued against the particular property. The action at law does not constitute a bar to the prosecution of the proceeding in equity. The plea of bankruptcy is but a plea in abatement, and the real merits of the controversy have not been adjudicated upon.

The act of limitations does not fairly arise in this proceeding. It is not relied upon expressly in the demurrer. This is a matter that may most properly be set up hereafter in the answer, when also matters may be replied, which may tend to take the indebtedness out of the statute. It is also questionable, whether the statute commenced running until the judgment at law, or whether it applies in such a state of case, when the fact that the claim is barred does not distinctly appear from the bill.

So far, then, as the charges for maintenance and education, &c., are concerned, a court of equity may subject the property, but the same principle does not hold in reference to the costs and expenses of the suit at law.

We think that the demurrer was properly disallowed, and affirm that decree, and remand the cause for further proceedings.  