Gage v. Reed

15 Johns. 403

Opinion

Per Curiam.

The judgment is erroneous ; for although the defendant below did not insist on the non-joinder of his wife, he did not waive that- objection. The agreement to try the cause on its merits, was a waiver only of formal and technical objections, and would operate no further than to cure defects of that nature.

The only foundation for the liability of the defendant below, was his marriage with Sally Green ; and it is well settled, that the husband alone cannot be sued for a debt contracted by his wife before marriage ; for in the event of his death, the cause of action survives against her. The case of Mitchinson v. Hewson, (7 Term Rep. 348.) is directly in point. The suit there was against the husband alone, for work and labour done for his wife, before marriage. The plea was the general issue, and a verdict was found for the plaintiff; and on a motion in arrest of judgment, the court said, that according to the best authorities on the subject, the action against the husband alone could not be supported, observing, that the case of Drew v. Thorn, (Alleyn, 72.) was directly in point; and they arrested the judgment. Whatever is a good cause for arresting a judgment, is a good cause, also, for reversing it.

Judgment reversed.