Allers v. Forbes

Miller, J., delivered the opinion of the Court. In this case husband and wife were sued on three promissory notes, each for $679.31, signed by them as makers, and dated the first of May, 1878. The husband in his own behalf pleaded that he was discharged under the insolvent laws on the 25th of September, 1878, and that the claim sued on accrued before the filing of his petition. And for a further plea both defendants pleaded this discharge of the husband, averring “ that thereby said defendants were jointly and severally discharged from all liability for or on account of said claim.” The plaintiff demurred to these pleas, and the Court overruled the demurrer as to the separate plea of the husband, hut sustained it as to the further plea, and gave judgment against the wife for the amount of the notes.

From this judgment the wife has appealed, so that the single question distinctly presented, is, did the discharge of the husband operate to discharge the wife from her obligation to pay these notes? It is conceded these notes are within the terms of the Act of 1872, ch. 270, which declares that any married woman may be sued at law, jointly with her husband upon certain obligations, including “notes and bills of exchange” which she may have executed jointly with her husband. This Act allows the wife to employ counsel and defend the action separately, or jointly with her husband, and provides that judgments recovered in such cases shall he liens on the property of the defendants, and may he collected by execution or attachment “ in the same manner as if the defendants were not husband and wife.” It also re-enacts the second section of Article 45 of the Code, which provides that the wife shall hold all the property “ real and personal,” which belonged to her at the time of her marriage, or which she may subsequently acquire, by purchase, gift, ³⁷⁶ grant, devise, bequest, or in course of distribution, for her separate use, with power to devise the same as fully as if she were a feme sole, and to convey it by a joint deed with her husband. Moreover the first section of the same Article declares that the property thus belonging to or acquired by the wife “shall be protected from the debts of the husband and not in any way liable for the payment thereof.” While the law thus secures the wife’s property for her separate use and protects it from the debts of her husband, it allows her to sign with him a certain class of obligations, and says if she chooses to do so she may be sued at law jointly with him, and that a judgment recovered in such suit shall be a lien on, and may be enforced against her property in the same manner as if she were a feme sole.

In view of these plain provisions of the law we can discover no possible reason why the discharge of her husband under the