Callan v. Kennedy

4 F. Cas. 1073, 3 D.C. 630, 3 Cranch 630

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: May 15, 1829
• Status: Published

Opinion

Crancii, C. J.,

delivered the opinion of the Court.

The question arising upon this state of the case seems to be, whether an action can be maintained against'the husband for the debt of the wife, after her death, upon an express promise made by the husband in the lifetime of his wife, upon no other consideration than his liability, as husband, for the debt of his wife, and the property acquired by him in right of the marriage.

It was decided in Mitchenson v. Hewson, 7 T. R. 348, and in the case of Rann v. Hughes, there cited, that the promise can only be coextensive with the consideration. During the cover-ture, the husband was bound to pay, whether he received property with his wife, or not; and his promise made during the coverture, did not increase his obligation, or create a new contract, unless it were made upon a new consideration, other than his previous obligation as husband, and his acquisition 'of the property of his wife, in right of the marriage. (See Heard and wife v. Stamford, 3 P. Wms. 411.)

The'CouRT is, therefore, of opinion that the plaintiff cannot recover in this action, and that judgment of nonsuit must be entered.