Opinion
Spring Sessions, 1836.
Mr. Cullen moved for leave to enter judgment at the suit of Turpin Wright, against Isaac Bradley and Eliza Ann his wife, on a bond and warrant of attorney to confess judgment given by the said Eliza Ann, before her marriage with the said Isaac. He founded his motion on an affidavit of the marriage, and that the bond (which he produced) was still due and unpaid.
Cullen. — The application is reasonable in principle, and sustained by precedent. Without it injustice would be done to the creditor. He cannot reach the husband's property by a judgment against the wife, yet by force of the marriage, her property has become his, and if she were to die, the creditor's remedy is gone. Yet the law makes the husband liable for the wife's debts; and justly, for he has her property, and he should take her cum onere. 3 Burr. Rep. 1460, Leave granted to enter judgment for husband and wife, on bond with warrant given to wife before marriage. 2 Chitty Rep. 114; 18 Com. Law. Rep. 269. Judgment allowed to be entered up against husband and wife, on a warrant of attorney given by the wife dum sola. 1 Shower 91; 3 Harr. Digest 568; Tidd 570.
Per curiam. We refuse the motion. There is no authority given to enter judgment against the husband; the terms of the warrant do not authorize it. The case in 18th Com. Law Rep., seems not to have been much considered; there was no objection made. A case in 1 Salk. 117, 399, is against it, and we think on sound principles.
Motion refused.