*Beaufort.*

Heard by Chancellor James.

#### Buckner, Administrator of Foster, *vs.*Smyth et al.

CASE MV.

The husband is not.liable for the debts of the wife, contracted •dum sola, unies.'. judgment be obtained ..g.nnst him during’ the eorer-ture ; even though lie receives an estate by her- And the interest' of the husband in the se.lied eita'e during hfe, lie be ng the survive., is no more liab'e to the debts of the Wife, duin sola, than any other property of the husband.

The wife of the defendant, Smyth, dam sola, had become indebted to the intestate, Foster, in'the sum of *97 L*C.s. 9ii. She afterwards intermarried with the. defendant : and previous to the marriage, a settlement was made of her property, for the joint lives of Smyth and wiie, and the sum ivor of them for life : then for the issue of the marriage; and if none, then for a child of the wife by a former marriage. She died leaving a son- of the last murria^", who is one. of ’.he defendants. The debt was sued for during the coverture; but judgment was not obtained. The prayer of the petition is, that the settled estate may be made liable for the debt. «

“ it is extremely clear,” says lord Talbot, “that by law, the husband is liable to the. wife’s debts, only during coverture, unless the creditor recovers judgment against him, in the wife’s lifetime,” Heard and ux. *vs.*Stansford. 3 l*. Wins. 410. Tips case was so decided by the Lord Chancellor, although the husband had re-eeived TOOL which came by the wife.

Ami although the point had been pressed upon him, that if a feme sole, who brought a fortune to her husband, and did not owe more than one tenth of it, should ma’T.v and die. and on her death, the husband should not be liable for a farthing of her debts, it would be of pernicious consequence to creditors; yet his lordship answered, *“*if I relieve against the husband, because he bad .sufficient with his wife, wherewith to satisfy the demand in question : by the same reason, where a feme indebted dum sola, afterwards marries, bringing no for*372tune to her husband, and judgment is recovered against the husband, after which the wife dies, by the same reason, I say, I ought to grant relief to the husband, against such judgment, which yetis not in my power; consequently, there can be no ground for a Court of Equity to interfere in the present case.” — Ibid.

*371DECREE.

*372FEB’Y. 1813.

The case of the petitioner now before me, differs but little from the case cited. By this it appears, that the property of Smyth, independent of the settlement, cannot be made liable for the debt. . Yet, it is said, that as survivor of the wife, his life estate, which was settled, should be made liable. But this is also his property, and 3 cannot see, how the settlement can place him in a worse situation, than if there had been none. Had there been none, his marital rights would have attached upon the property; and by law it would now have been out of the reach of the creditor. It appears to be well settled, at the present day, that marriage may be either a natural or valuable consideration. It is valuable, where there is a transmutation of property, made by the settlement. It is-simply natural, w'here the consideration is love and affection, and the settlement is intended to make provision for the family. . This consideration goes further than that of blood, for a man seized of land in fee simple, may covenant to stand seized of it, to the use of the woman he intends to marry, or to the use of any woman, whom his son, or his kinsman is about to marry; and if the marriage take effect, the use will arise. Plow. *307.*2 Roll. Abr. 783. And if a settlement be made to stand seized, the nsc will be. carried by the natural consideration of marriage. to all the objects of the matrimonial union. Roberts on Fraudulent Contracts, 110. Now although the settlement in tiiis case does not appear to be for valuable consideration, agreeable to the above definition, yet, it is certainly founded upon the natural consideration of marriage, and the providing for a family, which is fully sufficient to prevent, a debt from attaching, which had no pri- or lien. The life estate of the husband, who has survived, and also the remainder to the son, were intended as a provision for those “ two objects of the matrimonial uni*373on,” the father and .son ¿ and therefore they are well se-«ured by the settlement.

Wherefore I am of opinion, that the petitioner is remediless, and that his petition must be dismissed, but -not with costs, as the act provides for none, in the case of a petition.

(Signed) W. D. James.

There was no appeal from this decree.