
    John M. Witherspoon, and Wife v. Daniel Dubose.
    After the death of the wife, the husband cannot be made liable, in equity, for debts contracted by her before the marriage, where judgment has not been recovered against him in her life time, although he received with her a fortune sufficient to pay all her debts.
    Heard by De Saussure, Chancellor, at Darlington* February, 1830.
    This was a bill to render the defendant liable for a debt contract, ed by his deceased wife, prior to his marriage with her, on the ground, that he had received with her a fortune more than sufficient to pay all her debts. The debt was upon a bond to the wife of the complainant, dated in January, 1818, and became due in October of the same year. The defendant intermarried with the obligor on the 4ih March, 1819; and she died on the 15th November, 1820, no judgment having been recovered, or suit instituted, against the defendant on the bond, in her life time. The defendant, in his an. swer, staled that he had no notice of the existence of this debt until December, 1823 ; but that, on the contrary, at the time of his marriage, the debts due by his wife were enumerated, and he was assured that the debts enumerated were all that were due by her, and that this debt was not among them : and that in consequence of this assurance, he had consented to give up a part of his wife’s property to her children by a former marriage ; and that he had surrendered property to them, accordingly, since her death, and before notice of complainants’ demend. He admitted, however, that he had retained, of the fortune received with his wife, more than suffi- . ♦ i i • cient to pay all her debts, including that claimed by the complainants.
    His Honor at the hearing dismissed the bill, and the complainants now moved to reverse his decree.
    Blanding, for the motion.
    Wilkins, contra.
    
   Johnson, J.,

delivered the opinion of the Court.

Tiiis Court concurs with the Chancellor in his decree in this case. In the case of the Earl of Thomond v. the Earl of Suffolk, 1 P. Wms. 469, the rule was established to be, in equity, as at law, that if a woman contract debts dum sola, and afterwards marry, the husband is liable during coverture ; but if the wife die, the liability of the husband ceases, unless judgment has been obtained against him in her life time, in which case it then became his own debt: but if no judgment has , been recovered, he cannot be made liable, although he had received a fortune with her. In Heard v. Stamford, 3 P. Wms. 411, and Cas. Temp. Talb. 173, S. C., Lord Talbot reiterated the rule, and said, that he was unable to see how any thing but an act of parliament could alter the law. Our own Court of Equity adopted the same rule in Buckner v. Smyth, 4 Desaus. 371; and .although that was merely a circuit decision, it has received the approbation both of the bar and the bench.

It is impossible to reconcile the case of Moone v. Herndon, reported under the title of Moone v. Henderson, in 4 Desaus. 459, to this rule: but however it may have been actually violated under the peculiar circumstances of that case, it is very clear from the note of the reporter, who was one of the members of the Court, that the rule was intended to be preserved. The case professes to be one of peculiar circumstances, but these are not stated. My own knowledge of the parties enables me to state, certainly, that the defendant’s wife, the executrix of Andrew Lee, was also one of his children ; and it may be, that by the terms of the will she was intitled, in common with the other children, to a portion of the estate, and had committed a devastavit, to the extent of her interest, and the husband, nevertheless, claimed an equal dividend of what remained of the property bequeathed. If that were the case, the amount of the devastavit was properly chargeable to her, as so much of her dividend, and the other legatees were intitled to the residue. See Phœlon v. Houseal, 2 M’C. Ch. 432.

The motion to reverse the Chancellor’s decree in the present case is dismissed.

O'Neall, J , and Evans, J., sitting for Harper, J., absent from indisposition, concurred.

Decree affirmed.  