Murray, C. J., concurred.
This action is upon a contract made during the Mexican dominion, and must have its effect and construction according to the laws then prevailing,
Several interesting questions entered into the consideration of the case at the bar, and were argued with an ability which displayed much erudition and research on the part of the counsel engaged on both sides. But from the view we take of the case, only one question is necessary to be considered. The proof shows, that at the time of making the contract, she was a married woman, and entered into it jointly with her husband. By giving to the evidence the construction *111most unfavorable to the wife, the contract would appear to have been a joint purchase for the joint benefit of husband and .wife.
By the Mexican laws, all property acquired during marriage is common property. See Novissina Recop., ley 1, tit. 4, lib. 10. By the 61st Law of Toro, the wife can neither be bound as security for her husband, nor liable as a joint contractor, except it be shown that the contract has been advantageous to the wife. Schmidt's Law of Spain and Mexico, sec. 4, ch. 2.
To establish that the contract was advantageous to the wife, means necessarily that it accrued to the benefit of her separate estate, for whatever the husband is bound to furnish is expressly excluded from the qualification of advantage to her, and there would be no use for the rule, if her advantage was referred to some new acquisition to the common property. In this case, the record does not disclose any benefit to the defendant arising from the contract. But it is urged that she is liable, being the survivor of her husband, under the rule of the Mexican law, for one-half of the community debts. To fix this liability, however, it must be shown that a fruitless effort has Keen made to obtain payment through an administration of the community assets, or that there is no common property, and that the community is insolvent. Until this is done, the defendant cannot be made to answer personally for any part of the debt.
It results from these views of the rules under the Mexican system of jurisprudence, that the Court was correct in ordering a nonsuit, and the judgment is affirmed.