Upon a note executed by tlie wife while a feme sols, suit was brought against herself and her husband, and judgment rendered against them without qualification. It- is certainly the law of this State that the husband can not be made liable for the debts of the wife contracted before marriage. nevertheless, the separate property of the wife, though placed by law under the control of the husband, is still subject to the payment of her debts contracted prior to the marriage. And it is because of the control which the statute gives the husband over the separate property of the wife during the coverture, that the husband is a necessary party to a suit against the wife for debts contracted by the wife prior to the marriage. The property is in his legal custody. That custody can not be disturbed without making him a party. Although the judgment is proper enough against the husband and wife, because of this marital custody, yet, it ought to be specifically ordered in it that the execution, which issues thereon, is to be levied upon the separate property of the wife in his possession, or under his control. Every judgment of this character ought always to be so modified.
Besides this error in the judgment of tlie District Court, it is also assigned for error that there was no revenue stamp affixed to the note sued on. This is matter of inspection for tlie court which tried the cause. And as the original paper is not before this court, by agreement of the parties, nor has it been brought hither by application for process of this court, the determination of the fact can not be here assumed. As, however, from the peculiar condition of the case, the court will reverse and remand it for re-trial, it may expedite the dispensation of justice-by presenting now the rule of law which controls the question raised by the assignment of error for want of a revenue sta mp.
*289The note was executed on the 23d day of April, 1863. The act of Congress which fixed the status of this written instrument, Avas approved the 3d of March, 1863. In § 16 of that act are these two provisos: “ Provided, that no instrument, document or paper, made, signed or issued prior to the first day of June, 1863, without being duly stamped, or having thereon an adhesive stamp to denote the duty imposed thereon, shall, for that cause be deemed invalid and of no effect.” And: “ Provided that no instrument, document, writing or paper, required by Iuav to be stamped, signed or issued, without being duly stamped prior to the day aforesaid, or any copy thereof shall be admitted or used as evidence in any court, until a legal stamp or stamps, denoting the amount of duty charged thereon, shall have been affixed thereto, or used thereon, and the initials of the person using or affixing the same, together with the date when the same is so used or affixed, shall have been placed thereon by such person. And the person desiring to use any such instrument, document, writing or. paper, as evidence, or his agent or attorney, is authorized, in the presence of the court, to stamp the same, as heretofore provided by laAV.”
It is by this act of Congress that the validity of this paper or note, as an instrument of evidence, is preserved, by affixing the stamp before or at the time of trial, in the presence of the court. The subsequent acts of Congress did not change the law in relation to instruments of writing in the condition of this note. The Aralidity of all such instruments, coming within the purvieAV of these provisos may still be preserved in the manner therein pointed out.
The judgment is reversed, the cause remanded, and a nev’ trial awarded.
Reversed and remanded.