Sprague v. Daniels, Elgin & Co.

RICE, C. J.

— Husband and wife are here jointly sued, upon a note alleged to have been made, and an account alleged to have been contracted by them, since the Code went into effect. The case, then, must be determined by the Code, and not by the statute of February 13th, 1850, (Pamph. Acts 1849-50, p. 65,) which was materially different from the Code, so far as a case like the present is concerned. In certain specific cases, the act of 1850 *446 declared, tbat “ the husband shall be severally, and the husband and wife jointly, liable and suable at law.” — Henry and Wife v. Hickman, 22 Ala. R. 685; Cunningham v. Fontaine, 25 ib. 644. The Code makes no such provision or declaration, but provides as follows: “For all contracts, for articles of comfort and support of the household, suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law, the separate estate of the wife is liable; to be enforced by action at law against the husband alone, or against the husband and wife jointly.” — Code, §§ 1987, 1988.

The authority given by section 1987 of the Code, above copied, for suing the wife, at law, with her husband, is given only as a means of enabling the owner of such a contract as' is therein provided for, to subject her separate estate to its payment. — Cunningham v. Fontaine, supra. The separate estate here referred to, is that made so by statute. The complaint in this case does not show any contract embraced by that section, nor that the wife has any separate estate. It shows no cause of action whatever against the wife, and no right to make her a defendant in the suit. — Gibson v. Marquis and Wife, 29 Ala. R. 688, and authorities cited supra.

The judgment is clearly erroneous, as to the wife; and we do not see how we can withhold a reversal as to the husband. We cannot know that, in executing the writ of inquiry, a larger amount of damages was not assessed, than would or ought to have been assessed, if the wife had not been a defendant. The damages, as assessed, were assessed against both husband and wife. We cannot know how much should have been assessed against the husband, if he had been the only defendant. We cannot, therefore, reverse and render. The only way in which we can give the law its due course, is to reverse the judgment in toto, and remand the cause to the court below, in which it may be put in such a condition that right and justice may bé administered according to law. — See Hall v. Cannte and Wife, 22 Ala. R. 650 ; Gibson v. Marquis, supra.

Judgment reversed, and cause remanded.