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Commentaries on American Law (1826-30)

Chancellor James Kent

LECTURE 28
Of Husband and Wife

THE legal effects of marriage, are generally deducible from the principle of the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union.1 From this principle, it follows, that at law no contracts can be made between the husband and wife, without the intervention of trustees; for she is considered as being sub potestate viri, and incapable of contracting with him; and all the contracts which subsisted between them prior to the marriage, are dissolved. The wife cannot convey lands to her husband, though she may release her dower to his grantee; nor can the husband convey lands by deed directly to the wife.2 The husband may devise lands to his wife, for the instrument is to take effect after his death; and by a conveyance to uses, he may create a trust in favor of his wife,3 and equity will decree performance of a contract by the husband with his wife, for her benefit.4 The general rule is, that the husband becomes entitled, upon the marriage, to all the goods and chattels of the wife, and to the rents and profits of her lands, and he becomes liable to pay her debts, and perform her contracts.

According to the plan of these general disquisitions, I cannot undertake to enter very minutely into the numerous distinctions and complex regulations which appertain to the law of husband and wife. My purpose will be answered, if I shall be able to collect and illustrate the leading principles only; and that I may be able to do this clearly, and to the satisfaction of the student, I shall consider the subject in the following order:

    1. The right which the husband acquires by marriage in the property of the wife.
    2. The duties which he assumes in the character of husband.
    3. How far the wife is enabled by law to act during coverture, as a feme sole.
    4. Her competency, in the view of a Court of Equity, to deal with her property.
    5. Other rights and disabilities incident to the marriage union.

I. The right which the husband acquires by marriage, in the property of the wife.

(1.) If the wife, at the time of marriage, be seized of an estate of inheritance in land, the husband, upon the marriage, becomes seized of the freehold jure uxoris, and he takes the rents and profits during their joint lives.5 It is a freehold estate in the husband, since it must continue during their joint lives, and it may, by possibility, last during his life. It will be an estate in him for the life of the wife only, unless he be a tenant by the curtesy. It will be an estate in him for his own life, if he dies before his wife, and in that event, she takes the estate again in her own right. If the wife dies before the husband, without having had issue, her heirs immediately succeed to the estate. If there has been a child of the marriage born alive, the husband takes the estate absolutely for life, as tenant by the curtesy, and on his death, the estate goes to the wife, or her heirs; and in all these cases, the emblements growing upon the land, at the termination of the husband’s estate, go to him, or his representatives.

During the continuance of the life estate of the husband, he sues in his own name for an injury to the props of the land; but for an injury to the inheritance, the wife must join in the suit, and if the husband dies before recovery, the right of action survives to the wife. If the husband himself commits waste, the coverture is a suspension of the common law remedy of the wife against him. If the assignee, or creditor of the husband, who takes possession of the estate, on a sale on execution of his freehold interest, commits waste, the wife has her action against him, in which the husband must join; for though such assignee succeeds to the husband’s right to the rents and profits, he cannot commit waste with impunity.6 So, also, the heir of the wife may sue the husband for the waste, and no doubt the Court of Chancery would stay by injunction the husband’s waste, on behalf of the wife herself. But it seems, that from want of privity, the heir of the wife cannot bring an action of waste against the assignee of the husband.7 The subtle distinction in Walker’s case,8 and which we have followed, was, that if the tenant by the curtesy assigns over his estate, the heir of the wife can sue him for waste done after the assignment; but if the heir grants over the reversion, the grantee cannot sue the husband, for the privity of the action is destroyed. He can only sue the assignee of the husband, for as between them there is a privity of estate.

If an estate in land be given to the husband and wife, or a joint purchase be made by them, during coverture, they are not properly joint tenants, nor tenants in common, for they are but one person in law, and cannot take by moieties. They are both seized of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole. The same words of conveyance, which would make two other persons joint tenants, will make the husband and wife tenants of the entirety. This is a nice distinction laid down in the old books, and it continues to this day to be the law.9 The husband alone may grant or charge the wife’s land during their joint lives, and if he be tenant by the curtesy, during his own life. He cannot alien or encumber it, so as to prevent the wife, or her heirs, after his death, from enjoying it, discharged from his debts and engagements. But from the authorities, when closely examined, says Mr. Preston,10 it seems, that the husband has the power to transfer the whole estate of his wife, and the estate will be in the alienee of the husband, subject to the right of entry of the wife, or her heirs, and which entry is necessary to revest the estate after the husband discontinues it. She was driven at common law to her writ of right, as her only remedy; but Lord Coke says,11 he found that in the times of Bracton and Fleta, the writ of entry cui in vita, was given to the wife, upon the alienation of her husband, and this was her only remedy in the age of Littleton.12 That writ became obsolete after the remedial statute of 32 Hen. VIII. c. 28, which reserved to the wife her right of entry, notwithstanding her husband’s alienation; and the writ of entry lay even if she had joined with her husband in a conveyance by feoffment or bargain and sale, for such conveyances were deemed the sole act of the husband, as the wife was not separately examined.13

(2.) [Missing text]

tate for her life, or for the life of another person, the husband becomes seized of such an estate in right of his wife, and is entitled to the profits during the marriage. On the death of the wife, the estate for her own life is gone, and the husband has no further interest in it. But if she have an estate for the life of another person, who survives her, the husband becomes a special occupant of the land during the life of such other person. After the estate for life has ended, the land goes to the person entitled in reversion or remainder, and the husband, quasi husband, has no more concern with it. This estate the husband can only sell or charge to the extent of his interest in it, and his representatives take as emblements the crops growing at his death.

(3.) The husband, upon marriage, becomes possessed, also, of the chattels real of the wife, as leases for years, and the law gives him power, without her, to sell, assign, mortgage, or otherwise dispose of the same as he pleases, by any act in his lifetime;14 except it be such an interest as the wife has, by the provision or consent of her husband, by way of settlement.15 Such chattels real are also liable to be sold on execution for his debts. If he makes no disposition of the same in his lifetime, he cannot devise the chattels real by will;16 and the wife, after his death, will take the same in her own right, without being executrix or administratrix to her husband. If he grants a rent charge out of the same, without altering the estate, the rent charge becomes void at his death. If he survives his wife, the law gives him her chattels real, absolutely, by survivorship; for he was in possession of the chattel real during the coverture, by a kind of joint tenancy with the wife.17

(4.) As to debts due to the wife, at the time of her marriage, by bond, note, or otherwise, and which are termed chores in action, the husband has power to sue for, and recover the same; and when recovered, and reduced to possession, the money becomes absolutely his own. So, he has power to release, and discharge, and assign the debts, and to change the securities, with the consent of the debtor. But if he dies before he recovers the money, or alters the security, the wife will be entitled to the debts in her own right, without administering on his estate, or holding the same as assets for his debts. If his wife dies, and he survives her, before he has reduced the chose in action to possession, it does not strictly survive to him; but he is entitled to recover the same to his own use, by acting as her administrator. By the statute of distributions of 22 and 23 Charles II, and the 25th sec. of the stat. of 29 Charles II c.3. in explanation thereof, and which have been re-enacted in this state,18 the husbands of femes covert who die intestate, have a right to administer upon their personal estate, and to recover and enjoy the same. Under the statute, it is held, that the husband is entitled, for his own benefit, jure mariti, to administer, and to take all her chattels real, things in action, and every other species of personal property, whether reduced to possession, or contingent, or recoverable only by suit.19 But if the wife leaves chores in action not reduced to possession in the wife’s life, the husband will be liable for her debts dum sola, to that extent; for those choses in action will be assets in his hands.20 It is also settled, that if the husband who has survived his wife, dies before he has recovered the chosen in action, his representatives are entitled to that species of property, and the right of administration follows the right of the estate, and is to be granted to the next of kin of the husband. So, if, after the husband has administered in part on his wife’s estate, and dies, and administration de bonis non of the wife should be obtained by a third person, he would be deemed a mere trustee for the representatives of the husband.21

It has been considerably discussed in the books, by what title the husband, surviving his wife, takes her choses in action. It has often been said, that he takes by the statute of distributions as her next of kin. But, from the language of the English courts, it would seem to be more proper to say, that he takes under the statute of distributions as husband, with a right in that capacity to administer for his own benefit; for, in the ordinary sense, neither the husband nor wife can be said to be next of kin to the other.22

What will amount to a change of property in action belonging to the wife, so as to prevent it from going back to the wife in case she survives her husband, was discussed in the case of Schuyler v. Hoyle.23 It was there shown, that the husband may assign, for a valuable consideration, his wife’s choses in action to a creditor, free from the wife’s contingent right of survivorship. But a voluntary assignment by the husband of the wife’s choses in action, without consideration, will not bind her if she survives him. The rule is, that if the husband appoints an attorney to receive the money, and he receives it, or if he mortgages the wife’s choses in action, or assigns them without reservation, for a valuable consideration, or if he recovers by a suit in his own name, or if he releases the debt, in all these cases, upon his death, the right of survivorship in the wife, to the property, ceases. And if the husband obtains a judgment or decree, as to money to which he was entitled in right of his wife, and the suit was in his own name alone, the property vests in him by the recovery, and is so changed as to take away the right of survivorship in the wife. If the suit was in their joint names, and he died before he had reduced the property to possession, the wife, as survivor, would take the benefit of the recovery.24 It is settled, that in a suit in chancery, by the husband, to recover a legacy, or distributive share due to the wife, she must be made a party with him, and then the court will require the husband to make a suitable provision for the wife out of the property. The Court of Chancery has always discovered an anxiety to provide for the wife out of her property in action which the husband may seek to recover. If he takes possession in the character of trustee, and not of husband, it is not such a possession as will bar the right of the wife to the property if she survives hint. The property must come under the actual control and possession of the husband, quasi husband, or the wife will take as survivor, instead of the personal representatives of the husband.

The equitable interests of the wife depend upon the same principles as her choses in action, in respect to survivorship, and she is only bound by an assignment for a valuable consideration. A general assignment in bankruptcy passes her property, subject to her right of survivorship; and if the husband dies before the assignees have reduced the property to possession, it will survive to the wife, for the assignees possess the same rights as the husband before the bankruptcy, and none other. It has been, accordingly, held, that a legacy in stock was not reduced to possession by such an assignment, so as to bar the wife’s right of survivorship, and the wife took it by survivorship as against the assignees.25

The wife’s equity to a reasonable provision out of her property for the support of herself and her children, makes a distinguished figure in the modern chancery cases, which relate to the claims of the husband upon the property of his wife in action. If the husband wants the aid of chancery to enable him to get possession of his wife’s property, he must do what is equitable, by making a reasonable provision out of it for the maintenance of her and her children. Whether the suit for the wife’s debt, legacy, or portion, be by the husband, or by his assignees, the result is the same, and a proper settlement on the wife must first be made of a proportion of the property.26 The provision is to be proportioned, not merely to that part of the equitable portion of the wife’s estate which the husband seeks, but to the whole of her personal fortune, including what the husband had previously received. And perhaps chancery ought, on just principles, to restrain the husband from availing himself of any means, either at law or equity, of possessing himself of the wife’s personal property in action, unless he would make a competent provision for her; but I believe no case has gone the length of interfering with the husband’s suit at law.

Chancery has never gone further than to restrain the husband from proceeding in the ecclesiastical courts for the recovery of the wife’s legacy, until a provision was made for her;27 and, upon that doctrine, a suit at law for a legacy, or distributive share, ought equally to be restrained, for such rights in action are of an equitable nature, and properly of equitable cognizance. The principle is, that chancery will lay hold of the property of the wife, as far as it may be in its power, for the purpose of providing a maintenance for her when she is abandoned by her husband; and in Dumond v. Magee,28 where the husband had abandoned his wife for many years, and married another woman, he was held to have forfeited all just claim to his wife’s distributive share of personal estate inherited by her, and the same was appropriated by decree to her separate use.

This subject was considered, and the principal authorities reviewed, in the case of Kenny v. Udall.29 It was there held, that the wife’s equity attached upon her personal property whenever it was subject to the jurisdiction of the court, and was the object of a suit, in any hands to which it might come, or in whatever manner it might have been transferred. It makes no difference whether the application to the court for the property be by the husband, or his representatives, or assignees, or by the wife, or her trustee, seeking a provision out of the property. This equity is equally binding, whether the transfer of the property be by operation of law, under a commission of bankruptcy, or by act of the party to general assignees, or to an individual, or whether the particular transfer was voluntary, or made upon a good and valuable consideration, or in payment of a just debt. The court may, also, in its discretion, give the whole, or part only of the property, to the wife, according to the circumstances of the case. So, again, in Haviland v. Bloom,30 the same subject came under consideration, and the rule in equity was considered as settled, that the wife’s equity to a suitable provision for the maintenance of herself and her children, out of her separate estate, lying in action, was a valid right, and extended not only to property which she owned dum sola, but to property descended or devised to her during coverture. A new equity arises to the wife upon property newly acquired, and attaches upon it equally as upon that which she brought with her upon marriage.

The wife’s equity does not, according to the adjudged cases, attach, except upon that part of her personal property in action which the husband cannot acquire without the assistance of a court of equity. The rule in equity does not controvert the legal title of the husband to his wife’s personal fortune; and if he once acquired possession of that property, though it should have been of an equitable nature, chancery will leave him in undisturbed possession of it. The claim attaches only on that part of the wife’s personal fortune which the husband cannot acquire without the aid of a court of equity. If he can acquire possession of it without a suit at law, or in equity, or by a suit at law, without the aid of chancery, (except, perhaps, as to legacies, and portions by will, or inheritance, as has been already suggested,) the husband will not be disturbed in the exercise of that right.31 But it is unnecessary to pursue this subject more minutely. The cases in chancery to which I have referred, have incorporated into the equity jurisprudence of this state, all the leading provisions and principles of the English courts of equity on this head: and though such a protection to the wife cannot be afforded in Pennsylvania, where there is no Court of Chancery,32 yet, I presume, it exists in those other states where courts, with distinct equity powers, according to the English system, are established. It exists in Tennessee, and is even exercised in their Supreme Court of law.33

There is a difference as to choses in action belonging to the wife, whether the husband sues in his own name exclusively, or jointly with his wife. The principle of the distinction is, that if he brings the action in his own name alone, (as he may for a debt due to the wife upon bond,34 it is a disagreement to the wife’s interest, and implies it to be his intention that it should not survive her. But if he brings the action in their joint names, the judgment is, that they shall both recover, and the debt survives to the wife. The judgment does not alter the property, or show it to be his intention that it should be altered. It is also the rule of equity, that if before marriage, the husband make a settlement or, the wife, in consideration of her fortune, he is considered in the light of a purchaser of her fortune, and his representatives will be entitled, on his dying in his wife’s lifetime, to the whole of her things in action, though not reduced to possession in his lifetime, and though there be no special agreement for that purpose. If the settlement be in consideration of a particular part only of her fortune, the right of survivorship in the wife will exist only as to the part of her property not comprised in the settlement, and not reduced to possession by the husband.35 The settlement must expressly state, or clearly import, that it was in consideration of the wife’s fortune, and it must appear to be adequate to the purchase of her fortune, before it will bar her right of survivorship.36

(5.) As to personal property of the wife, which she had in possession at the time of the marriage, in her own right, and not en auter droit, such as money, goods, and chattels, and moveables, they vest immediately and absolutely in the husband, and he can dispose of them as he pleases, and on his death, they go to his representatives, as being entirely his property.

II. The duties which the husband assumes.

The husband is answerable for the wife’s debts before coverture; but if they are not recovered during the coverture, he is discharged. He is answerable for her debts only in virtue of the duty imposed on him to discharge all the obligations of the wife; and that his responsibility should cease after coverture ceases, is, in some cases, rather against conscience; but then, as a compensation for the rule, it is to be considered that the charging the husband in all cases with the debts, would be against conscience also. It is a strict rule of law which throws upon the husband during coverture all the obligations of the wife; and by the same rule of law, he is discharged after the coverture ceases, by the death of the wife. Courts of equity have held, that they could not vary the rule of law according to the fact, whether the husband had, or had not received a portion with his wife, or charge his conscience in one case more than in the other. This is the meaning of the case of Heard v. Stanford,37 according to Lord Redesdale’s explanation of the rule on this point.38

The rule of law on this subject may operate very injuriously to creditors; for if the wife be largely indebted before marriage, and the husband takes and appropriates all her personal property to himself, and the wife dies before the creditors have collected their debts, the husband is no longer liable, and the creditors of the wife are left without remedy. If the husband himself dies before the debts are collected, his representatives are not liable; and though the wife remains liable after her husband’s death, for her former debts remaining unpaid, she may have no property to pay them. The answer to this objection is attempted by Lord Macclesfield, in the Earl of Thomond v. Earl of Suffolk.39 It may be hard, he observes, that the husband should be answerable for the wife’s debts, when he receives nothing from her; but we are to set off against that hardship, the rule that if the husband has received a personal estate with the wife, and happens not to be sued during the coverture, he is not liable. He runs a hazard in being liable to the debts much beyond the personal estate of the wife; and in recompense for that hazard, he is entitled to the whole of her personal estate, though far exceeding the debts, and is discharged from the debts as soon as the coverture ceases. In Heard v. Stanford, there was a strong effort made before Lord Ch. Talbot, to charge the husband, after the wife’s death, with a debt of her’s dum sola, to the extent of what he had received from her, for she happened to bring a large personal estate to her husband. The injustice of the case was pressed upon the court, for upon the rule as it stood, a feme sole might be worth £10,000, and owe £1000, and marry and die, and the husband might appropriate the £10,000 to his own use, and not pay one farthing of the debt. Lord Nottingham was so provoked at the hardship of the rule, in a case in which the wife brought a large portion to her husband, and died, and when the husband continued in possession of the goods, and refused to pay the very debt contracted by the wife for the goods, that he declared he would alter the law. But Lord Talbot said, that nothing less than an act of parliament could alter the law; and the rule was fixed, that the husband was liable to the wife’s debts only during the coverture, unless the creditor recovered judgment against him in the wife’s lifetime, and that only the wife’s choses in action not reduced to possession in her lifetime, would be assets in the husband’s hands, when they come to him, as her administrator. If relief ought to be given against the husband, because he received sufficient property with the wife, then by the same reason, if the wife had brought no fortune to her husband, and judgment was recovered against him during coverture, relief ought to be afforded to the husband against this judgment after his wife’s death. He declared, that the rule could not be disturbed by a court of equity; and it has continued unaltered to this day. The husband is liable, not as the debtor, but as the husband. It is still the debt of the wife, and if she survive her husband, she continues personally liable.40 It has also been held by the K. B. in Miles v. Williams,41 that the debts of the wife; dum sola, as well as the husband’s debts, are discharged by the bankruptcy of the husband. It is clear, that a certificate of bankruptcy discharges him; and Lord Ch. J. Parker thought, that the wife was also discharged forever, and not merely during the husband’s life, though on that point, he said, it was not necessary to give a decided opinion.

The husband is bound to provide his wife with necessaries suitable to her situation, and his condition in life; and if she contracts debts for them during cohabitation, he is obliged to pay those debts; but for any thing beyond necessaries he is not chargeable. He is bound by her contracts for ordinary purchases, from a presumed assent on his part; but if his dissent be previously made known, the presumption of his assent is rebutted, and it is said he is not liable; though the better opinion would seem to be, that he may still be liable; but the seller would be obliged to show, at least, the absolute necessity of the purchase for her comfort.42 If the tradesman furnishes goods to the wife, and gives the credit to her, the husband is not liable.43 Nor is he liable for money lent to the wife, unless his request be averred and shown.44 So, if the husband makes a reasonable allowance to the wife for necessaries during his temporary absence, and a tradesman, with notice of this, supplies her with goods, the husband is not liable, unless the tradesman can show, that the allowance was not supplied45 if the husband abandons his wife, or they separate by consent, without any provision for her maintenance, of if he sends her away, he is liable for her necessaries, and he sends credit with her to that extent. But if the wife elopes, though it be not with an adulterer, he is not chargeable even for necessaries. The very fact of the elopement and separation, is sufficient to put persons on inquiry, and whoever gives the wife credit afterwards, gives it at his peril. The husband is not liable unless he receives his wife back again.46 The duties of the wife, while cohabiting with her husband, form the consideration of his liability. He is, accordingly, bound to provide for her in his family, and while he is not guilty of any cruelty, and is willing to provide her a home, and all reasonable necessaries there, he is not bound to furnish them elsewhere. All persons supplying the food, lodging, and raiment, of a married woman, living separate from her husband, are bound to make inquiries, and they give credit at their peril.47

It has been a question, whether, if the wife elopes, and repents, and returns again, and her husband refuses to receive her, he is then bound for her necessaries. The opinion of Lord Ch. J. Raymond, in Child v. Hardyman,48 seems to be, that he would be liable; for he says, that if the husband should refuse to receive the wife, “from that time it may be an answer to the elopement.” Lord Eldon subscribed to that case, and the same doctrine has been declared in this state.49 It has also been a debatable point, whether, if the husband should refuse to provide necessaries for his wife, and prohibit a particular person, or any person. from trusting her, and she should, notwithstanding the prohibition, be trusted with necessaries suitable to her age and degree, and rank in life, the law would then, notwithstanding such prohibition, rare an assumpsit against the husband. In the case of Manby v. Scott, in the reign of Charles II,50 which was argued many times at the bar, and then in the Exchequer, by all the judges of England, it appeared to be the opinion of a large majority of the judges,. that the husband could not he charged even with necessaries for the wife, against his express previous prohibition to trust her, and that her remedy would be, in the Spiritual Court for alimony. But the minority of the court held, that the husband would be chargeable from the necessity of the case; and that the husband cannot deprive the wife of the liberty which the law gives her of providing necessaries at his expense, for her preservation. This opinion of the minority seems to be the received law at this day, and the extreme rigor of the old rule is relaxed. The husband is bound to provide his wife with necessaries, when she is not in fault, from a principle of duty and justice; and the duty will raise an assumpsit independent of his consent, and when no consent can be inferred, as in the case of a refusal on his prat to provide her with necessaries. If he turns her out of doors, and forbids all mankind from supplying her with necessaries, or if she receive such treatment as affords a reasonable cause for her to depart from his house, and refuse to cohabit with him, yet he will be bound to fulfill her contracts for necessaries, suitable to her circumstances, and those of her husband. The case of Bolton v. Prentice,51 which arose in the K. B. as late as 18 Geo. II, goes the length of establishing this reasonable doctrine. The wife took up necessaries on credit after the husband had used her ill, and abandoned her, and forbidden the plaintiff from trusting her. But the K. B. held, that the husband had no right to make such a prohibition in such a case, and they distinguished the case from that of Manby v. Scott, because, in that, the wife was guilty of the first wrong; and they sustained the action of assumpsit for the goods sold to the wife.

In a very modern decision in the K. B.,52 it was held, that if a man turned away his wife without justifiable cause, he was bound by her contracts for necessaries suitable to her degree and estate. If they live together, he is only bound by her contracts made with his assent, which may be presumed. If the wife goes beyond what is reasonable and prudent, the tradesman trusts the wife at his peril, and the husband is not bound but by his assent, either express or reasonably implied. The doctrine of the Supreme Court of this state is to the same effect.53

The husband is liable for the torts and frauds of the wife committed during coverture. if committed in his company, or by his order, he alone is liable. If not, they are jointly liable, and the wife must be joined in the suit with her husband. Where the remedy for the tort is only damages by suit, or a fine, the husband is liable with the wife; but if the remedy be sought by imprisonment, on execution, the husband is alone liable to imprisonment.54 The wife, during coverture, cannot be taken on ca. sa. for her debt dum sola, or a tort dum sola, without her husband; and if he escapes, or is not taken, the court will not let her lie in prison alone.55 If the tort or offense be punished criminally by imprisonment, or other corporal punishment, the wife alone is to be punished, unless there be evidence of coercion, from the fact, that the offense was committed in the presence, or by command of the husband. This indulgence is carried so far as to excuse the wife from punishment for theft committed in the presence, or by the command of her husband.56 But the coercion which is supposed to be conveyed by the command or presence of the husband, is only a presumption of law, and, like other presumptions, may be repelled.

III. How far the wife has a capacity at law during coverture, to act as a feme sole.

The disability of the wife to contract so as to bind herself, arises not from want of discretion, but because she has entered into an indissoluble connection, by which she is placed under the power and protection of her husband, and because she has not the administration of property, but has given up to him all personal property in possession,57 and the right to receive all such as may be reduced into possession. But this general rule is subject to certain exceptions, when the principle of the rule could not be applied, and when reason and justice dictate a departure from it.

In the first place, a wife may pass her freehold estate by a fine, and this was the only way in which she could, at common law, convey her real estate. She may, by a fine, and a declaration of the uses thereof, declare a use for her husband’s benefit. So, if the husband and wife levy a fine, a declaration of the uses by the husband alone, will bind the wife and her heirs, unless she disagrees to the uses.58 The husband must be a party with the wife to her conveyance, but if she levy a fine as a fern sole, without her husband, it will be good as against her and her heirs,59 though the bus, band may avoid it during coverture, for the benefit of the wife, us well as for himself.60 The wife, however, may as an attorney to another, convey an estate in the same manner as her principal could, and she may execute a power simply collateral, and, in some cases, a power coupled with an interest, without the concurrence of her husband.61 She may also transfer a trust estate, by lease and release, as a feme sole.62

The conveyance of land by femes covert, under the government of the colony of New York, was, in point of fact, by deed, and not by fine, and upon the simple acknowledgment of the wife before a competent officer, without a private examination. Such loose modes of conveyance were mentioned in the act of the 16th of February, 1771, and were confirmed; but it was declared, that in future, no estate of a feme covert should pass by deed without her previous private acknowledgment before the officer, that she executed the deed freely without any fear or compulsion of her husband. The deeds of femes covert, in the form used in other cases, accompanied by such an examination, have ever since been held sufficient to convey their estates, or any future contingent interest in real property. If the wife resides out of the state, she may unite with her husband, and convey all her right and interest, present and contingent, equally as if she were a fume sole, and without any such special acknowledgment.63

This substitute of a deed for a conveyance by fine, has prevailed throughout the United States, as the more simple, cheap, and convenient mode of conveyance. The reason why the husband was required to join with his wife in the conveyance64 was, that his assent might appear upon the face of it, and to show he was present to protect her from imposition. His concurrence in the conveyance is expressly made necessary, in this state, when a non-resident wife conveys without Acknowledgment; and though her release of dower may under certain circumstances, be good if duly executed by her alone, her conveyance of any other interest, without her husband, would, at best, be very imperfect, since his interest in her estate would not be affected. Whether the deed would be absolutely void without her husband being a party, seems not to be definitively declared, but to be left in doubt, by our American cases.65 No deed of a wife will operate as an estoppel to her subsequently acquired interest in the land;66 but whether that doctrine, as declared in this state, will apply to non-resident femes covert, may be doubted, since the statute says, that they shall be barred, by their deeds, of all right and title, “in like manner” as if they were femes sole.

If the husband was banished, or had abjured the realm, It was an ancient and another necessary exception to the general rule of the wife’s disability to contract, and she was held capable to contract, and to sue and be sued, as a feme sole. In such a case, both her and her creditors would be remediless without that exception. In the case of Belknap v. Lady Weyland,67 it was held, 2 Hen. IV. 7., that the wife of a man exiled or banished, could sue alone, though that exception was regarded at that day almost as a prodigy; and some one exclaimed, eccemodo mirum, quod foemina fert breve regis, non nominando virum conjunctum robore legis. Lord Coke seems to put the capacity of the wife to sue as a feme sole,68 upon the ground, that the abjuration or banishment of the husband, amounted to a civil death. But if the husband be banished for a limited time only, though it be no civil death, the better opinion is, that the consequences as to the wife are the same, and she can sue and be sued as a feme sole. And if the husband bean alien living abroad, the reason of the exception also applies; and it was held in the case of Deerly v. Duchess of Mazarine,69 that in such a case, the wife was suable as a feme sole, in like manner as if the husband had abjured the realm. Though it was mentioned in that case, that the husband was an alien enemy, and had been divorced in France, yet, as Lord Loughborough said,70 the decision did not rest on either of those grounds, but solely and properly on the ground, that the wife lived in England, on a fortune of her own, and separate from her husband, who had always resided abroad as an alien.

Again, in Walford v. the Duchess of Pienne,71 Lord Kenyon held, that the wife was liable as a feme sole, for goods sold, when the husband was a foreigner, residing abroad, and that this case came within the principle of the common law, applicable to the case of the husband abjuring the realm. If the wife was not to be personally chargeable for debts contracted under such circumstances, she would be without credit, and might starve. If, however, the husband was a native, instead of an alien, he thought the rule might be different, as in that case, he was to be presumed to have the animus revertendi;72 and in the case of De Gaillon v. L’Aigle,73 the Court of C. B. held the same doctrine, and that a feme covert was chargeable with her contracts, where the husband, being a foreigner, had voluntarily abandoned her, and resided abroad, and that it was for her benefit that she should be liable, in order to enable her to obtain a credit, and secure a livelihood. It was also said, in that case, that there was no instance, in which the wife was held personally liable on her contracts, on the ground of her husband residing abroad, when he was an Englishman born. In corroboration of the distinction contained in that suggestion, we may refer to the case of Boggett v. Frier,74 in which the K. B. held, that the plaintiff could not sue as a feme sole, for trespass to leer property, when her husband, being a natural born subject, had deserted her for years before, and gone beyond sea, but without having abjured the realm, or been exiled, or banished.

This is the extent of the English authorities on this subject, and it is easy to perceive that there might be most distressing cases under them; for though the husband be not an alien, yet if he deserts his wife, and resides abroad permanently, the necessity that the wife should be competent to obtain credit, and acquire and recover property, and act as a fence sole, exists its full force. It is probable, that the distinction between husbands who are aliens, and who are not aliens, cannot long be maintained in practice, because there is no solid foundation in principle for the distinction. But on this general subject of the liability of the absence of the husband, it is still an unsettled point, and attended with difficulty and embarrassment, whether the principle that she is to be deemed a feme sole, is to stop short at a matter of contract, or to go the length of considering her a feme sole, for all business purposes.

If the wife be divorced a mensa et thoro, according to a very common practice in this state, can she then sue and be sued as a feme sole? It is so stated in one of the elementary books;75 but I do not find any adjudged case to the point. I should apprehend, that she could sue alone for any injury to her character, or person, or separate property. She will have property settled upon her, in such case, by the decree of separation, and she will be entitled to acquire property by her own industry; and it would seem to be indispensable that she should have a capacity to act for herself, and the means to protect herself, since she is withdrawn from the dominion and protection of her husband. They are separated by a judicial sentence; and in such a case, Lord Loughborough has said,76 that she could be sued without her husband.

In Hatchett v. Baddeley, 16 Geo. III,77 the C. B. held, that a feme covert eloping from her husband, and running in debt, could not be sued alone, for that no act of the wife could make her liable to be sued alone. If she could be sued, she could sue, acquire property, and release actions, and this would overturn first principles. In no case, said one of the judges, can a feme covert be sued alone, except in the known excepted cases of abjuration or exile, where the husband is considered as dead, and the woman as a widow. It was afterwards held by the same court, in Lean v. Schutz, 18 Geo. III,78 that if the wife had even a separate maintenance, and lived apart from her husband, she could not be sued alone. There was no instance in the books, sail the court, of an action being sustained against the wife, when the husband was living at home, and under no civil disability. A wife may acquire a separate character by the civil death of her husband, but she cannot acquire it by a voluntary separation.

But a few years afterwards, the Court of K. B., under the influence of Lord Mansfield, in the celebrated case of Corbett v. Poelnitz,79 introduced a new principle into the English law, respecting the relation of husband and wife; but a principle that was familiar to the Roman law, and to the municipal law of most of the nations of Europe. The court, in that case, held, that a feme covert living apart from her husband, by a deed of separation, mutually executed, and having a large and competent maintenance settled upon her, beyond the control of her husband, might contract, and sue, and be sued, as a feme sole. Lord Mansfield put the action, upon the ground of the wife having an estate settled upon her to her separate use, and acquiring credit, and assuming the character and competency of a feme sole. The ancient law had no idea of a separate maintenance; and when that was introduced, the change of customs and manners required, as indispensable to justice, the extension of the exceptions to the old rule of law, which disabled a married woman from contracting. The reason of the rule ceased when the wife was allowed to possess separate property, and was disabled from charging her husband.

This decision of the K. B. was in 1785, and it gave rise to great scrutiny and criticism. It was considered as a deep and dangerous innovation upon the ancient law.

In Compton v. Collinson,80 Lord Loughborough held, notwithstanding that decision, that it was an unsettled point, whether an action could be maintained against a married woman, separated from her husband by consent, and enjoying a separate maintenance. Again, in Ellah v. Leigh,81 the K. B. in 1794, indirectly assailed the decision in Corbett v. Poelnitz, and did not agree that the court could change the law, so as to adapt it to the fashion of the times. They declared, however, without touching the authority of the decision, that upon a voluntary separation of husband and wife, without a permanent fund for her separate use, she could not be sued alone as a feme sole. Afterwards, in Clayton v. Adams,82 the Court of K. B. went a step further towards overturning the authority of Corbett v. Poelnitz, and held, that though the wife lived apart from her husband, and carried on a separate trade, she was not suable; for if she could be sued as a feme sole, she might be taken in execution, which would operate as a divorce between husband and wife. At last, in Marshall v. Rutton,83 the K. B. decided, in 1800, after a very solemn argument, before all the judges, that a feme covert could not contract, and be sued, as a feme sole, even though she be living apart from her husband, and have a separate maintenance secured to her by deed. The court said, that the husband and wife being but one person in law, were unable to contract with each other, and that such a contract, with the consequences attached to it, of giving the wife a capacity to contract, and to sue and be sued, would contravene the general policy of the law, in settling the relations of domestic life, and would introduce all the confusion and inconvenience, which must necessarily result from so anomalous and mixed a character, as such a married woman would be. The only way in which such a separation can be safe and effectual, is, by having recourse to trustees, in whom the property of which it is intended the wife shall have the disposition may vest, uncontrolled by the rights of the husband, and it would fall within the province of a court of equity to recognize and enforce such a trust. At law, a woman cannot be sued as a feme sole, while the relation of marriage subsists, and she and her husband are living under the same government.

Lord Eldon, afterwards, in the case of Lord St. John v. Lady St. John,84 speaking of these decisions at law, expressed himself very decidedly against the policy and the power of a feme covert becoming a feme sole by a deed of separation. She was incompetent to contract with the husband; and if separated, she could not be a witness against her husband; she could not commit felony in his presence; she must follow the settlement of her husband; her husband would be suable for her trespass. In short, the old rule is deemed to be completely re-established, that an action at law cannot be maintained against a married woman, unless her husband has abjured the realm.85

But if the husband and wife part by consent, and he secures to her a separate maintenance, suitable to his condition and circumstances in life, and pays it according to agreement, he is not answerable even for necessaries, and the general reputation of the separation will, in that case, be sufficient. This was so ruled by Holt, Ch. J., in Todd v. Stokes,86 and this general doctrine was conceded in the modern case of Nurse v. Craig,87 in which it was held, that if the husband fails to pay the allowance, according to stipulation in the deed of separation, the person who. supplies the wife with necessaries can sue the husband upon an indebitatus assumpsit. This rule, in all its parts, was adopted by our Supreme Court in Baker v. Barney.88 But our courts have not gone further, and have never adopted the rule in Corbett v. Poelnitz;89 and I apprehend, that the general rule of the common law, as understood before and since that case, is to be considered the law in this country; though, perhaps, not exactly under the same straitened limitation mentioned in the books.90 I should apprehend, that the wife could sue, and be sued, without her husband, when the separation between the husband and wife was the act of the law, and that takes place not only in the case of a divorce a mensa et thoro, but also in the case of imprisonment of the husband as a punishment for crimes. Such a separation may, in this respect, be equivalent to transportation for a limited time; and the sentence which suspended the marital power, suspends the disability of the wife to act for herself, because she cannot have the authority of her husband, and is necessarily deprived of his protection.

IV. The competency of the wife to deal with her property as a feme sole.

At common law, a married woman was not allowed to possess personal property independent of her husband. But, in equity, she is allowed, through the medium of a trustee, to enjoy property as freely as a feme sole.91 It is not necessary that the trustee should be a stranger. The husband himself may be the trustee; and if property be settled to a married woman’s separate use, and no trustee be, appointed, the husband will be considered as such, not withstanding he was not a party to the instrument under which the wife claims. Where the husband stipulates, before marriage, either that his wife shall enjoy her own property, or that she shall be entitled to a certain benefit out of his estate, he will be bound in equity to perform his agreement, even though it was entered into with the wife herself, and became extinguished at law by his subsequent marriage. Gifts from the husband to the wife may be supported, as her separate property, if they be not prejudicial to creditors, even without the intervention of trustees.92

The wife being enabled in equity to act upon property in the hands other trustees, she is treated in that court as having interests and obligations distinct from those of her husband. She may institute a suit, by her next friend, against him, and she may obtain an order to defend separately suits against her; and when compelled to sue her husband in equity, the court may order him to make her a reasonable allowance in money to carry on the suit.

The general grounds upon which equity allows a wife to institute a suit against her husband, are when any thing is given to her separate use, or her husband refuses to perform marriage articles, or articles for a separate maintenance; or where the wife, being deserted by her husband, has acquired by her labor a separate property of which he has plundered her.93 Though a woman may he proceeded against in equity without her husband, and though her separate estate be liable for her debts dum sola, yet the court cannot make a personal decree against her for the payment of a debt. All it can do is to call forth her separate personal property in the hands of trustees, and to direct the application of it.94 When the wife has separate property, the relief afforded is by following it in the hands of trustees; and, in this way, courts of equity can attain a pure and perfect justice, which courts of law are unable to reach.

If, by marriage settlement, the real and personal estate of the wife be secured to her separate use, the husband is accountable for that part of it which comes to his hands; and a feme covert, with respect to her separate property, is to be considered a feme sole sub modo only, or to the extent of the power clearly given her by the marriage settlement. Her power of disposition is to be exercised according to the mode prescribed in the deed or will under which she becomes entitled to the property; and if she has a power of appointment by will, she cannot appoint by deed; and if by deed, she cannot dispose of the property by a parol gift or contract. These marriage settlements are benignly intended to secure to the wife a certain support in every event, and to guard her against being overwhelmed by the misfortunes, or unkindness, or vices of her husband. They usually proceed from the prudence and foresight of friends, or the warm and anxious affection of parents; and, if fairly made, they ought to be supported according to the true intent and meaning of the instrument by which they are created. A court of equity will carry the intention of these settlements into effect, and not permit the intention to be defeated. These general principles pervade the numerous and complicated cases on the subject; though, it must be admitted, that those cases are sometimes discordant in the application of their doctrines, and perplexingly subtle in their distinctions.95

In the case of Jaques v. The Methodist Episcopal Church, as reviewed in the Court of Errors of this state,96 it was declared, that a feme covert, with respect to her separate property, was to be regarded in a court of equity as a feme sole, and might dispose of it without the assent and concurrence of her trustee, unless she was specially restrained by the instrument under which she acquired her separate estate. But it was held, (and in that consisted the difference between the decision in chancery and the correction of it on appeal,) that though a particular mode of disposition was specifically pointed out in the instrument or dead of settlement, it would not preclude the wife from adopting any other mode of disposition, unless she was, by the instrument, specially restrained in her power of disposition to a particular mode. The wife was, therefore, held at liberty, by that case, to dispose of her property as she pleased, though not in the mode prescribed, and to give it to her husband as well as to any other person, if her disposition of it be free, and not the result of flattery, force, or improper treatment.

This decision of the Court of Errors of this state, renders the wife more completely and absolutely a feme sole, in respect to her separate property, than the English decisions would seem to authorize; and it, unfortunately, withdraws from the wife those checks that were intended to preserve her more entirely from that secret and insensible, but powerful marital influence, which might be exerted unduly, and yet in a manner to baffle all inquiry and detection.

A wife may also contract with her husband, even by parol, after marriage, for a transfer of property from him to her, or to trustees for her, provided it be for a bona fide and valuable consideration; and she may have that property limited to her separate use.97 This was so held in the case of Livingston v. Livingston,98 and as the wife died, in that case, after the contract had been executed on the part of the husband, and before it had been executed on the part of the wife, the infant children of the wife were directed to convey, as infant trustees, by their guardian, the lands which their mother, by agreement with her husband, had contracted to sell.

A wife may, also, sell or mortgage her separate property for her husband’s debts, and she may create a valid power in the mortgagee to sell in default of payment. She can convey upon condition, and she may prescribe the terms.99 It was long since held, even at law, in the case of Wotton v. Hele,100 that the husband and wife might grant land belonging to the wife, by fine, with covenant of warranty, and that if the grantee should be evicted by a paramount title, covenant would lie, after the husband’s death, against the wife, upon the warranty. This is a very strong case to show that the wife may deal with her land by fine as if she were a feme sole; and what she can do by fine in England, she may do here by any legal form of conveyance, provided she execute under a due examination. The case states, that the Court of K. B. did not make any scruple in maintaining, that the action of covenant was good against the wife on her warranty contained in her executed fine, though she was a feme covert when she entered into the warranty. It is also declared, in the old books,101 that if the husband and wife make a lease for years of the wife’s land, and she accepts rent after his death, she is liable on the covenants in the lease; for, by the acceptance of the rent she affirms the lease, though she was at liberty, after her husband’s death, if she had so chosen, to disaffirm it.102

This doctrine, that the wife can be held bound to answer in damages after her husband’s death, on her covenant of warranty, entered into during coverture, is not considered by the courts in this country to be law; and it is certainly contrary to the settled principle of the common law, that the wife was incapable of binding herself by contract. In the Supreme Court of Massachusetts,103 it has been repeatedly held, that a wife was not liable on the covenants in her deed, further than they might operate by way of estoppel; and though the question in these cases arose while the wife was still married, yet the objection went to destroy altogether the effect of the covenant. So also, in Jackson v. Vanderheyden,104 it was declared, that the wife could not bind herself personally by a covenant, and that a covenant of warranty inserted in her deed, would not even stop her from asserting a subsequently acquired interest in the same lands.

Though a wife may convey her estate by deed, she will not be bound by a covenant or agreement to levy a fine, or convey her estate. The agreement by a feme covert, with the assent of her husband, for a sale of her real estate, is absolutely void at law, and the Courts of Equity never enforce such a contract against her.105 In the execution of a fine, or other conveyance, the wife is privately examined, whether she acts freely; and without such an examination, the act is invalid. But a covenant to convey is made without any examination; and to hold the wife bound by it, would be contrary to first principles on this subject, for the wife is deemed incompetent to make a contract, unless it be in her character of trustee, and when she does not possess any beneficial interest in her own right. The Chancery jurisdiction is applied to the cases of property settled to the separate use of the wife by deed or will, with a power of appointment, and rendered subject to her disposition. On the other hand, the husband has frequently been compelled, by decree, to fulfill his covenant, that his wife should levy a fine of her real estate, or else to suffer by imprisonment the penalty of his default.106 But Lord Cowper once refused to compel the husband to procure his wife to levy a fine, as being an unreasonable coercion, since it was not in the power of the husband duly to compel his wife to alien her estate.107 In other and later cases, the courts have declined to act upon such a doctrine;108 and Lord Ch. B. Gilbert questioned its soundness.109 In Emery v. Wase,110 Lord Eldon observed, that if the question was perfectly res integra, he should hesitate long before he undertook to compel the husband, by decree, to procure his wife’s conveyance; for the policy of the law was, that the wife was not to part with her property, unless by her own spontaneous will. Lastly, in Martin v. Mitchell,111 where the husband and wife
had entered into an agreement to sell her estate, the Master of the Rolls held, that the agreement was void as to the wife, for a married woman had no disposing power, and a Court of Equity could not give any relief against her on such a contract. She could not bind herself by contract, except in the execution of a power, and in the mode prescribed; nor would the court compel the husband to procure his wife to join in the conveyance. Such, said the Master of the Rolls, was not now the law.

The English courts of equity have recently thrown a further and very important protection around the property settled on the wife on her marriage, for her separate use, with a clause against anticipation. It was declared, in Ritchie v. Broadbent,112 that a bill would not be sustained, to transfer to the husband property so settled in trust, even though the wife was a party to the bill, and ready to consent on examination to part with the funds. The opinion of the Lord Ch. Baron was grounded on the effect to be given to the clause against anticipation, and does not apply to ordinary cases, or affect the general power of the wife, where no such check is inserted in the settlement.

A wife cannot devise her lands by will, for she is excepted out of the statute of wills; nor can she make a testament of chattels, except it be of those which she holds en autre droit, or which are settled on her as her separate property, without the license of her husband. He may covenant to that effect, before or after marriage, and the Court of Chancery will enforce the performance of that covenant. It is not strictly a will, but in the nature of an appointment, which the husband is bound by his covenant to allow.113 The wife may dispose by will, or by act in her lifetime, of her separate personal estate, settled upon her, or held in trust for her, or the savings of her real estate given to her separate use; and this she may do without the intervention of trustees, for the power is incident to such an ownership.114 It has been held, even at law, in this country,115 that the wife may, by the permission of her husband, make a disposition in the nature of a will, of personal property, placed in the hands of trustees, for her separate use, by her husband, or by a stranger, and either before or after marriage. If a feme sole makes a will, and afterwards marries, the subsequent marriage is a revocation in law of the will. The reason given is, that it is not in the nature of a will to be absolute, and the marriage is deemed equivalent to a countermand of the will, and especially as it is not in the power of the wife after marriage, either to revoke or continue the will, inasmuch as she is presumed to be under the restraint of her husband.116 But it is equally clear, that where an estate is limited to uses, and a power is given to a feme covert, before marriage, to declare those uses, such limitations of uses may take effect; and though a married woman cannot be said strictly to make a will, yet she may devise, by way of execution of a power, which is rather an appointment, than a will; and whoever takes under the will, takes by virtue of the execution of the power. Thus, in the case of Bradish v. Gibbs,117 it was held, that a feme covert might execute by will, in favor of her husband, a power, given or reserved to her while sole, over her real estate. In that case, the wife, before marriage, entered into an agreement with her intended husband, that she should have power during the coverture, to dispose of her real estate by will, and she afterwards during coverture devised the whole of her estate to her husband; and this was considered a valid disposition of her estate in equity, and binding on her heirs at law. The point in that case was, whether a mere agreement entered into before marriage, between the wife and her intended husband, that she should have power to dispose of her real estate during coverture, would enable her to do it, without previously to the marriage vesting the real estate in trustees, in trust for such persons as she should by deed or will appoint; and it was ruled not to be necessary; and the doctrine has received the approbation of the Supreme Court of Pennsylvania.118 Equity will carry into effect the will of a feme covert, disposing of her real estate in favor of her husband, or other persons than her heirs at law, provided the will be in pursuance of a power reserved to her in and by the ante-nuptial agreement with her husband.

With respect to ante-nuptial agreements, equity will grant its aid, and enforce a specific performance of them, provided the agreement be fair and valid, and the intention of the parties consistent with the principles and the policy of the law. Equity will execute the marriage articles at the instance of any person who is within the influence of the marriage consideration, as all such persons rest their claims on the ground of a valuable consideration. The husband and wife, and their issue, are all of them considered as within that influence, and at at the instance of any of them, equity will enforce a specific performance of the articles.119

Settlements after marriage, if made in pursuance of an agreement in writing entered into prior to the marriage, are valid, both against creditors and purchasers. The marriage is, itself, a valuable consideration for the agreement, and sufficient to give validity to the settlement. This was so decided in the case of Reade v. Livingston;120 and it was there held, that voluntary settlements after marriage, upon the wife or children, and without any valid agreement previous to the marriage to support then, were void as against creditors existing when the settlement was made, But if the person be not indebted at the time, then it is settled that the post-nuptial voluntary settlement upon the wife or children, if made without any fraudulent intent, is valid against subsequent creditors. This was not only the doctrine in Reade v. Livingston, and deduced from the English authorities, but it has since received the sanction of the Supreme Court of the United States, in the case of Sexton v. Wheaton.121

A settlement after marriage may be good, if made upon a valuable consideration. Thus, if the husband makes a settlement upon the wife, in consideration of receiving from the trustees of the wife possession of her equitable property, that will be a sufficient consideration to give validity to the settlement, if it was a case in which a court of equity would have directed a settlement out of the equitable estate itself, in case the husband had sought the aid of the court, in order to get possession of it.122 The settlement made after marriage, between the husband and wife, may be good, provided the settler has received a fair and reasonable consideration in value for the thin., settled, so as to repel the presumption of fraud. It is a sufficient consideration to support such a settlement, that the wife relinquishes her own estate, or agrees to make a charge upon it for the benefit of her husband, or even if she agrees to part with a contingent interest.123 But the amount of the consideration must be such as to bear a reasonable proportion to the value of the thing settled, and when valid, these postnuptial settlements will prevail against, existing creditors, and subsequent purchasers.124 A settlement upon a meritorious consideration, or one not strictly valuable, but founded on some moral consideration, as gratitude, benevolence, or charity, will be good against the settler and his heirs; but whether it would be good as against creditors and purchasers, does not seem to be entirely settled, though the weight of opinion, and the policy of the law, would rather seem to be against their validity in such a case.

If the wife, previous to marriage, makes a settlement of either her real or personal estate, it is a settlement in derogation of the marital rights, and it will depend upon circumstances, whether it be valid. If the settlement be upon herself, her children, or any third person, it will be good in equity, if made with the knowledge of her husband. If he be actually a party to the settlement, a Court of Equity will not avoid it, though he be an infant at the time it was made.125 But if the wife was guilty of any fraud upon her husband, as by inducing him to suppose he would become possessed of her property, he may avoid the settlement, whether it be upon herself, her children, or any other person.126 If the settlement be upon children by a former husband, and there be no imposition practiced upon the husband, the settlement would be valid, without notice;127 and it would seem, from the opinion of the Lord Chancellor, in King v. Colton, that such a settlement, even in favor of a stranger, might be equally good under the like circumstances. It is a general rule, without any exception, that whenever any agreement is entered into for the purpose of altering the terms of a previous marriage agreement, by some only of the persons who are parties to the marriage agreement, such subsequent agreement is deemed fraudulent and void. The fraud consists in disappointing the hopes and expectations raised by the marriage treaty.

It is a material consideration respecting marriage settlements, not only whether they are made before or after marriage; but if after marriage, whether upon a voluntary separation, by mutual agreement between the husband and wife. Lord Eldon, in St. John v. St. John,128 intimated, that a settlement, by way of separate maintenance, on a voluntary separation of husband and wife, was against the policy of the law, and void; and he made no distinction between settlements resting on articles; and a final complete settlement by deed; or between the cases where a trustee indemnified the husband against the wife’s debts, and where there was no such indemnity. The ground of his opinion was, that such settlements, creating a separate maintenance, by voluntary agreement between husband and wife, were, in their consequences, destructive to the indissoluble nature and the sanctity of the marriage contract; and he considered the question to be the gravest and the most momentous to the public interest, that could fall under discussion in a court of justice. Afterwards, in Worrall v. Jacob,129 Sir William Grant said, he apprehended it to be settled, that Chancery would not carry into execution articles of agreement between husband and wife. The court did not recognize any power in the married parties to vary the rights and duties growing out of the marriage contract, or to effect at their pleasure a partial dissolution of the contract. But he admitted, that engagements between the husband and a third person, as a trustee, for instance, though originating out of, and relating to a separation, were valid, and might be enforced in equity. It was, indeed, strange, that such an auxiliary agreement should be enforced, while the principal agreement between the husband and wife to separate, and settle a maintenance on her, should be deemed to be contrary to the spirit and the policy of the law. If the question was res integra, said Lord Eldon, untouched by dictum, or decision, he would not have permitted such a covenant to be the foundation of a suit in equity. But dicta have followed dicta, and decision has followed decision, to the extent of settling the law on this point too firmly to be now disturbed in Chancery.

I have thus given, for the benefit of the student, a sketch of the leading principles and distinctions (for to them I have confined myself) respecting marriage settlements, and the trusts created by them, and how far the wife is considered in equity as capable of acquiring, holding, and disposing of separate property in herself. The subject occupies an important and voluminous title in the code of English equity jurisprudence; and so extensive have become the trusts growing out of marriage settlements, that a lawyer of every great experience,130 considered, that half the property of England was vested in nominal owners, and it had become difficult to ascertain whether third person were safe in dealing for fiduciary property with its trustees, without the concurrence of the beneficial owner.131

The law respecting marriage settlements is, as I apprehend, essentially the same in Pennsylvania, Virginia, North Carolina, South Carolina, Kentucky, and probably, in other states, as in England, and in this state.132 But, in Connecticut, it has been decided, that an agreement between husband and wife, during coverture, was void, and could not be enforced in chancery.133 The Court of Appeals in that state would not admit the competency of the husband and wife to contract with each other, nor the competency of the wife to hold personal estate to her separate use. But afterwards, in Nichols v. Palmer,134 an agreement between the husband and a third person, as trustee, though originating out of, and relating to, a separation between husband and wife, was recognized as binding.

V. Other rights and disabilities incident to the marriage union.

The husband and wife cannot be witnesses for or against each other. This is a settled principle of law, and it is founded as well on the interest of the parties being the same, as on public policy.135 Nor can either of them be permitted to give any testimony either in a civil or criminal case, which may have the least tendency to criminate the other; and this rule is so inviolable, that no consent will authorize the breach of it. Lord Thurlow said, in Sedgwick v. Walkins,136 that for security of the peace ex necessitate, the wife might make an affidavit against her husband, but that he did not know one other case, either at law, or in chancery, where the wife was allowed to be a witness against her husband.

But where the wife acts as her husband’s agent, her declarations have been admitted in evidence to charge the husband; for if he permits the wife to act for him as his agent in any particular business, he adopts, and is bound by her acts and admissions, and they may be given in evidence against him.137 So, also, where the husband permitted his wife to deal as a feme sole, her testimony was admitted, where she acted as agent, to charge her husband.138 In the case, likewise, of Fenner v. Lewis,139 where the husband and wife had agreed to articles of separation, and a third person became a party to the agreement as the wife’s trustee, and provision was made for her maintenance and enjoyment of separate property, it was held, that the declarations and confessions of the wife were admissible in favor of her husband in a suit against the trustee. In such a case, the law so far regarded the separation, as not to hold the husband any longer liable for her support.140 The policy of the rule excluding the husband and wife from being witnesses for or against each other, whether founded, according to Lord Kenyon,141 on the supposed bias arising from the marriage, or, according to Lord Hardwicke,142 in the necessity of preserving the peace and happiness of families, was no longer deemed applicable to that case. In Aveson v. Lord Kinnaird,143 dying declarations of the wife were admitted, in a civil suit against her husband, they being made when no confidence was violated, and nothing extracted from the bosom of the wife which was confided there by the husband. Lord Ellenborough referred to the case of Thompson v. Trevannion, in Skin. 402 where, in an action by husband and wife, for wounding the wife, Lord Holt allowed what the wife said immediately upon the hurt received, and before she had time to devise any thing to her own advantage, to be given in evidence as part of the res gestae.

These cases may be considered as exceptions to the general rule of law, and which, as a general rule, ought to be steadily and firmly adhered to, for it has a solid foundation in public policy.

In civil suits, where the wife cannot have the property demanded, either solely to herself, or jointly with her husband, or where the wife cannot maintain an action for the same cause if she survive her husband, the husband must sue alone. In all other cases in which this rule does not apply, they must be joined in the suit; and where the husband is sued for the debts of the wife before coverture, the action must be joint against husband and wife, and she may be charged in execution with her husband; though if she be in custody on mesne process only, she will be discharged from custody on motion.144 The husband may, also, be bound to keep the peace as against his wife; and, for any unreasonable and improper confinement by him, she may be entitled to relief upon habeas corpus. If a woman marries, pending a suit against her, the plaintiff may proceed to judgment and execution against her alone without joining the husband;145 but for any cause of action, either on contract or for tort, arising during coverture, the husband only can be taken in execution.146 These provisions in favor of the wife are becoming of less consequence with us every year, inasmuch as imprisonment for debt is undergoing constant relaxation; and by an act of the legislature of New York, in 1824,147 no female can be imprisoned upon any execution issued in a suit before a justice of the peace.

I trust I need not apologize for having dwelt so long upon the consideration of this most interesting of the domestic relations. The law concerning husband and wife, has always made a very prominent and extensive article in the codes of civilized nations. There are no regulations on any other branch of the law, which affect so many minute interests, and interfere so deeply with the prosperity, the honor, and happiness of private life. As evidence of the immense importance which in every age has been attached to this subject, we may refer to the Roman law, where this title occupies two entire books of the Pandects,148 and the better part of the fifth book of the code. Among the modern civilians, Dr. Taylor devotes upwards of one sixth part of his whole work on the Elements of the Civil Law, to the article of marriage; and Heineccius, in his voluminous works, pours a flood of various and profound learning on the subject of the conjugal relations.149 Pothier, who has examined, in thirty-one volumes, the whole immense subject of the municipal law of France, which has its foundations principally laid upon the civil law, devotes six entire volumes to the law of the matrimonial state. When we reflect on the labors of those great masters in jurisprudence, and compare them with what is here written, a consciousness arises of the great imperfection of this humble view of the subject; and I console myself with the hope, that I may have been able to point out at, least the paths of inquiry to the student, and to have stimulated his exertions to become better acquainted with this very comprehensive and most interesting head of domestic polity.

There is a marked difference between the provisions of the common law and the civil law, in respect to the rights of property belonging to the matrimonial parties. Our law concerning marriage settlements appears, to us at least, to be quite simple, and easy to be digested, when compared with the complicated regulations of the community or partnership system, between husband and wife, which prevails in many parts of Europe, as France, Spain, and Holland, and also in the state of Louisiana. That system is founded on the Roman law, which Van Leeuwen, in his Commentaries, terms the common law of nations.150 I do not allude to the earlier laws of the Roman republic, by which the husband was invested with the plenitude of paternal power over the wife, but to the civil law in the more polished ages of the Roman jurisprudence, when the wife was admitted to the benefit of a liberal ante-nuptial contract, by which her private property was secured to her, and a community of estate between the husband and wife introduced. The civil law at first prohibited the husband and wife from making valid gifts to each other causa mortis; yet the rigor of the law was afterwards done away, and donations between the husband and wife were good if they were not revoked in the lifetime of the parties; and Justinian abolished the distinction between donations inter vivos ante nuptias et post nuptias, and he allowed donations propter nuptias as well after as before marriage.151 The wife could bind herself by her contracts without charging her husband. She was competent to sue and be sued without him. They could sue each other, and, in respect to property, were considered as distinct persons, and the contracts of the one were not binding on the other.

Whatever doubts may arise in the mind of a person educated in the school of the common law, as to the wisdom or policy of the powers, which, by the civil law, and the law of those modern nations which have adopted it, are conceded to the wife in matters of property; yet, it cannot be denied, that the pre-eminence of the Christian nations of Europe, and of their descendants and colonists in every other quarter of the globe, is most strikingly displayed in the equality and dignity which their institutions confer upon the female character.


NOTES

     1.    Co. Lilt. 112. a. 187. b. Litt. sect. 168. 291.
     2.    Martin v. Martin, 1 Greenleaf, 394. Rowe v. Hamilton, 3 Greenleaf, 63.
     3.    Co. Litt. 112. a.
     4.    Moore v. Ellis, Bunb. 205. Livingston v. Livingston, 2 Johns. Ch, Rep. 537. Shepard v. Shepard, 7 Johns. Ch. Rep. 57.
     5.    Co. Litt. 351. a.
     6.    Babb and wife v. Perley, 1 Greenleaf’s Rep. 6.
     7.    Bates v. Schraeder, 13 Johns. Rep. 260.
     8.    3 Co. 22.
     9.    Litt. sect. 291. 665. Co. Litt 187. b. 188 a. 351. Bro. Abr. tit. Cui in vita, 8. 2 Blacks. Rep. 1214. 16 Johns. Rep. 115. 5 Johns. Ch. Rep. 437.
   10.    Essay on Abstracts of Title, vol. i. 334, 435, 436.
   11.    2 Inst. 343.
   12.    Litt. sect. 594. The extent of the remedy under this ancient writ, may be seen in Bro. Abr. tit. Cui in vita, and F. N. B. 193. h. t.
   13.    Co. Litt. 326. a.
   14.    Co. Litt. 46. b.
   15.    Sir Edward Turner’s case, l Vern. 7.
   16.    Co. Litt. 351. a.
   17.    Co. Litt. 351. b. Butler’s note, 304. to Co. Litt. lib. 3. 351. a. 1 Rol. Abr. 345. pl. 40.
   18.    Laws of N.Y. sess. 36. ch. 75.
   19.    Whitaker v. Whitaker, 6 Johns. Rep. 112.
   20.    3. P. Wms. 409. 411. Cases temp. Talb. 173. S. C. Heard v. Stanford.
   21.    Butlers note, 304. to lib. 3 Co. Litt. 6 John. Rep. 118.
   22.    3 Vesey, 246, 247. 14 Vesey, 381, 382. 15 Vesey, 537. 18 Vesey, 49, 55, 56.
   23.    5 Johns. Ch. Rep. 196.
   24.    McDowl v. Charles, 6 Johns Ch. Rep. 132.
   25.    Mitford v. Mitford, 9 Vesey, 87.
   26.    Howard v. Moffatt, 2 Johns. Ch. Rep. 206. 1 Eden’s Rep. 67. 370, 371. 2 Atk. 420, 421, 422. 11 Vesey, 17. 20, 21. 1 Madd. Ch. Rep. 362. Clancy’s Essay, passim.
   27.    2 Atk. 419.
   28.    4 Johns. Ch. Rep. 318.
   29.    5 Johns. Ch. Rep. 464. 3 Cowen, 590. S.C.
   30.    6 Johns. Ch. Rep. 178.
   31.    Howard v. Moffatt, 2 Johns. Ch. Rep. 206.
   32.    Yohe v. Barnet, 1 Binney, 358.
   33.    McElhatten v. Howel, 4 Haywood, 19; and to the student who wishes to take a connected and comprehensive view of the whole doctrine, I would recommend the learned note of Mr. Butler, note 304. to lib. 3 Co. Litt. and more especially Clancy’s Essay on the Equitable Rights of Married Women.
   34.    1 Vern. 396. 3 Lev. 403. Howell v. Maine. But Mr. Preston, in his Essay on Abstracts of Title, vol. i. 348. condemns the doctrine in this case in Levinz, and denies that a husband can sue alone on a bond given to the wife alone.
   35.    Butler’s note, 304. to lib. 3. Co. Litt. 1 Vern. 396. note 5. Garforth v. Bradley, 2 Vesey, 677. Meredith v. Wynn, Eq Ca. Abr. 70. pl. 15. Packer v. Windham, Prec. in Ch. 412. Druce v. Dennison, 6 Vesey, 395.
   36.    Cleland v. Cleland, Prec. in Ch. 63. Carr v. Taylor, 10 Vesey, 579.
   37.    3 P. Wms. 409. Cases temrp. Talb. 173.
   38.    1 Sch. & Lef. 263.
   39.    1 P. Wms. 469.
   40.    Woodman v. Chapman, 1 Campb. N. P. 189.
   41.    1 P. Wms. 249.
   42.    Etherington v. Parrot, 1 Salk. 118. 2 Lord Raym. 1006. S. C,
   43.    5 Taunton, 356.
   44.    7 Ibid. 432.
   45.    4 B. & Aid. 252.
   46.    Robinson v. Grenold, 1 Salk. 119. Morris v. Martin, Str. 647. Child v. Hardyman, Str. 875. Manby v. Scott, 1 Mod. 124. 1 Sid. 109. 1 Lev. 4. S.C. 12 Johnson, 293. 3 Pickering, 289. Kirkpatrick, Ch. J. 2 Halsted, 146.
   47.    McCutchen v. McGahay, 11 Johns. Rep. 281.
   48.    2 Str. 875.
   49.    11 Johns. Rep. 281. 12 Ibid. 293. 3 Esp. Cases, 256.
   50.    1 Mod. 124. 1 Sid. 109. 1 Lev. 4. S. C., and the case is given at large in Bacon’s Abr. tit. Baron and Feme.
   51.    Str. 1214.
   52.    Montague v. Benedict, 3 Barn. & Cress. 631.
   53.    McCutchen v. McGahay, 11 Johns. Rep. 281.
   54.    3 Blacks. Com. 414.
   55.    Jackson v. Gabree, 1 Vent, 51.
   56.    1 Hawk. P. C. b. 1. c. 1. s. 9.
   57.    1 Vesey 305. 1 H. Blacks, 346.
   58.    Beckwith’s case, 2 Co. 57. Swanton v. Raven. 3 Atk. 195.
   59.    Bro. Abr. tit. Fines, pl. 75. Compton v. Perkins, sect. 20
   60.    Preston on Abstracts of Title, vol. i. 336.
   61.    Sugden on Powers, 148.
   62.    Burnabv v. Griffin, 3 Vesey, 266.
   63.    Laws of N.Y. sess. 36. ch. 97. s. 2.
   64.    Davey v. Turner, 1 Dallas, 11. Watson v. Bailey, 1 Binney, 470. Jackson v. Gilchrist, 15 Johns. Rep. 89. Fowler v. Shearer, 7 Mass. Rep. 14. Gordon v. Haywood, 2 N.H. Rep. 402. Thatcher v. Omans, Supplement to 3 Pickering, 521. Lithgow v. Kavenagh, 9 Mass. Rep. 172.
   65.    7 Mass. Rep. 21. 2 N. H. Rep. 405. In Rowe v. Hamilton, 3 Greenleaf, 63, the Chief Justice says, that the wife cannot convey her own lands to a stranger, unless the husband joins with her in the deed.
   66.    Jackson v. Vanderheyden, 17 John,. Rep. 167.
   67.    Cited in Co. Litt. 132. b. 133. a.
   68.    Note 209, to lib. 2 Co. Litt. Sparrow v. Carruthers, decided by Yates, J. and cited as a good authority in l Term Rep. 6. 1 Bos. & Pul. 359. 2 Bos. & Pul. 233. Carrol v. Blencow, 4 Esp. N.P. Rep. 27.
   69.    l Ld. Raym 147. 1 Salk. 116.
   70.    1 H. Blacks. 349.
   71.    2 Esp. N. P. Rep. 554.
   72.    Franks v. Duchess of Pienne, 2 Esp. N. P. Rep. 587.
   73.    1 Bos. & Pul. 357.
   74.    11 East. 301.
   75.    Bacon, tit. Baron and Feme, M.
   76.    2 Vesey, Jun. 145.
   77.    2 H. Blacks. 1079.
   78.    2 Blacks. Rep. 1195.
   79.    1 Term Rep. 5.
   80.    1 H. Blacks. 350
   81.    Term Rep. 679.
   82.    6 Term Rep. 604.
   83.    8 Term Rep. 545.
   84.    11 Vesey, 529, 530.
   85.    See the observations of the Master of the Rolls, in 3 Vesey, 443, 444, 445.
   86.    1 Salk. 116.
   87.    5 Bos. & Pul. 148.
   88.    8 Johns Rep. 72.
   89.    See 2 Halsted, 150. where that case was expressly condemned.
   90.    In some of the states, as Pennsylvania and South Carolina, a wife may act as a feme sole trader, and become liable as such, in imitation of the custom of London. Burke v. Winkle, 2 Serg. & Rawl. 189. Newbiggin v. Pillans, 2 Bay, 162.
   91.    Bennet v. Davis, 2 P. Wms. 316.
   92.    Rich v. Cockell, 9 Vesey, 369.
   93.    Cecil v. Juxon, 1 Atk. 278.
   94.    Hulme v. Tenant, 1 Bro. 16. Norton v. Turvill, 2 P. Wms. 144. Lillia v. Airey, 1 Vesea, jun. 277. Lord Loughborough, 2 Ves. jun. 145.
   95.    Jaques v. The Methodist Episcopal Church, 1 Johns. Ch. Rep. 450. 3 Ibid. 77.
   96.    17 Johns. Rep. 548.
   97.    Lady Arundell v. Phipps, 10 Vesey, 139. 145.
   98.    2 Johns. Ch. Rep. 537.
   99.    Demarest v. Wynkoop, 3 Johns. Ch. Rep. 129.
   100.    2 Saund, 177. 1 Mod. 290. S.C.
   101.    Greenwood v. Tyber, Bro. Jac. 563, 564. 1 Mod. 291.
   102.    2 Saund. 180. n. 9.
   103.    Fowler v. Shearer, 7 Mass. Rep. 21. Colcord v. Swan, Ibid. 291.
   104.    17 Johns. Rep. 167.
   105.    Butler v. Buckingham, 5 Day, 492.
   106.    Griffen v. Taylor, Tothill, 106. Barrington v. Horn, 2 Eq. Cas. Abr. 17. pl. 7. Sir Joseph Jekyll, in Hall v. Hardy, 3 P. Wms. 137. Withers v. Pinchard, cited in 7 Vesey, 475. Morris v. Stephenson, 7 Vesey, 474.
   107.    Otread v. Round, 4 Viner’s Abr. 203. pl. 4.
   108.    Prec. in Ch. 76. Amb. 495.
   109.    Gilbert’s Lex Praetoria, 245.
   110.    8 Vesey, 505. 514
   111.    2 Jacob & Walker, 412.
   112.    Ibid. 455.
   113.    Pridgeon v. Pridgeon, 1 Ch. Cas. 117. Rex v. Bettesworth, Str. 891.
   114.    Peacock v. Monk, 2 Vesey, 190. Rich v. Cockell, 9 Vesey, 369.
   115.    Emery v. Neighbour, 2 Halsted 142.
   116.    Forse & Hambling’s case, 4 Co. 60. B. 2 P. Wms. 624. 2 Term Rep. 695. S. P.
   117.    3 Johns. Ch. Rep. 523.
   118.    10 Serg. & Rawl, 447.
   119.    Osgood v. Strode, 2 P. Wms. 255. Bradish v. Gibbs, 3 Johns. Ch. Rep. 550.
   120.    3 Johns. Ch. Rep. 481.
   121.    8 Wheaton, 229.
   122.    Moor v. Rycault, Prec. in Ch. 22. Brown v. Jones, 1 Atk. 190. Middlecome v. Marlow, 2 Atk. 518.
   123.    Ward v. Shallet, 2 Vesey, 16.
   124.    Lady Arundel v. Phipps, 10 Vesey, 139.
   125.    Slocombe v. Glubb, 2 Bro. 545.
   126.    Butler, J. in Strathmore v. Bowes, Ibid. 345.
   127.    King v. Colton, 2 P. Wms. 674.
   128.    11 Vesey, 530.
   129.    3 Merivale, 256, 268.
   130.    Mr. Butler.
   131.    In addition to the general abridgments, there are several professed treatises recently published on this head, as Atherley’s Treatise on the Law of Marriage, and other Family Settlements, published in 1813; Keating’s Treatise on Family Settlements and Devises, published in 1815; Bingham on the Law of Infancy and Coverture, published in 1816; and the title of Baron and Feme in Ch. J. Reeve’s work on the Domestic Relations. In those essays the subject can be studied and pursued through all its complicated details.
   132.    Rundle v. Murgatroyd, 4 Dallas, 304, 307. Scott v. Lorraine, 6 Munf. 117. Bray v. Dudgeon, ibid. 132. Tyson v. Tyson, 2 Hawks. 472. Crostwaight v. Hutkinson, 2 Bibb. 407. Browning v. Coppage, 3 Bibb. 37. South Carolina Eq. Rep. passim.
   133.    Dibble v. Hutton, 1 Day, 221.
   134.    5 Day, 47.
   135.    Davis v. Dinwoody, 4 Term Rep, 678.
   136.    1 Vesey, jun. 49.
   137.    Anon. 1 Str. 527. Emerson v. Blanden, 1 Esp. N. P. Rep. 142. Palethorp v. Furnish, 2 ibid. 511, note.
   138.    Rutten v. Baldwin, 1 Eq. Cas. Abr. 226, 227; but Lord Eldon said, in 15 Vesey, 165. that he had great difficulty in acceding to that case, to that extent.
   139.    10 Johns. Rep. 38.
   140.    Baker v. Barney, 8 Johns. Rep. 72.
   141.    4 Term Rep. 678.
   142.    Baker v. Dixie, Cases temp. Hardw. 252.
   143.    9 East, 182.
   144.    Anon. 3 Wils. 124.
   145.    Doyley v. White, Cro. Jac. 323. Cooper v. Hunchin, 4 East, 521.
   146.    Anon. Cro. C. 513. 3 Blacks. Com. 414.
   147.    Sess. 47. ch. 238. sec. 42.
   148.    Lib. 23. and 24.
   149.    Vide Opera Heinec. tom. 2. De marito Tutore et Curatore Uxoris legitimo, and tom. 7, Commentarius ad legem Juliam et Papiam Poppoeam.
   150.    In Louisiana, according to their new civil code, as amended and promulgated in 1824, (Art. 2312. 2369.) the partnership, or community of acquests, or gains, exists by law in every marriage, where there is no stipulation to the contrary. This was a legal consequence of marriage, under the Spanish law. (Christy’s Dig. tit. Marriage.) But the parties may modify or limit this partnership, or agree that it shall not exist. They may regulate their matrimonial agreements as they please, provided the regulations be not contrary to good morals, and be conformable to certain prescribed modifications. (Art. 2305.) In the case of married persons removing into the state from another state, or from foreign countries, their subsequently acquired property is subjected to the community of acquests. (Art. 2370.) This very point was also decided recently in the case of Saul v. his Creditors, published at New Orleans, in 1827. The Supreme Court of Louisiana, in the able opinion pronounced by Judge Porter, on behalf of the court, held, that though a marriage was contracted in a state governed by the English common law, yet if the parties removed into Louisiana, and there acquired property, such property on the dissolution of the marriage in that state, by the death of the wife, would be regulated by the law of Louisiana. Consequently, a community of acquests and gains did exist between married parties, from the time of their removal into the state, and the property they acquired after their removal, became common, and was to be equally divided between them, on the principles of partnership. The decision was founded on an ancient Spanish statute in the Partidas, which governed at New Orleans when it was a Spanish colony. While it was admitted that by the comity of nations, contracts were to be enforced according to the principles of law which governed the contract in the place where it was made, yet it was equally part of the rule, that a positive law regulating property in the place where it was situated, (and which the European continental, jurists called real statutes, in contradistinction to those personal statutes which follow and govern the individual wherever he goes,) must prevail when opposed to the lex loci contractus. The right of sovereignty settles that point, whenever the rules of the place of the contract, and of the place of its execution, conflict. The comity of nations must yield to the authority of positive legislation; and it was admitted, that independent of that authority, the weight of the opinion of civilians in France and Holland was, that the law of the place where the marriage was contracted ought to be the guide, and not that of the place were it was dissolved. The property of married persons is divided into separate property, being that which either party brings in marriage, or subsequently acquires by inheritance or gift, and common property, being that acquired in any other way by the husband and wife during marriage. (Art. 2314.) The separate property of the wife is divided into dotal, being that which she brings to the husband to assist in the marriage establishment, and extra dotal, or paraphernal property, being that which forms no part of the dowry. (Art. 2315.) The husband is the head and master, and the proceeds of the dowry belong to the husband, during the marriage, and he has the administration of the partnership or community of profits of the matrimonial property, and he may dispose of the revenues which they produce, and alienate them, without the consent of the wife. (Art. 2373.) He cannot alienate the dotal estate, and he is subject, in respect to that property, to all the obligation of the usufructuary. (Art. 2344.) If the husband and wife stipulate that there shall be no partnership between them, the wife preserves the entire administration of her property, moveable and immoveable, and may sell it; (Art. 2394, 2395.) and if there be no agreement as to the expenses of the marriage, the wife contributes to the amount of one half of her income. (Art. 2397.) A sale by the husband to his wife, to replace her paraphernal property sold by him, is good. Her land, whether dotal or not, is not affected by her husband’s debts. Christy’s Dig. tit. Husband and Wife. I cannot here go further, and give a detailed view of the law of the marriage contract in Louisiana. My object is merely to state enough to show, that its regulations are, peculiarly for this country, very complex; and to a mere English lawyer, they will probably appear to be embarrassing, and rather forbidding. Our taste, and modes of thinking, are very much under the influence of education; and we are naturally led to give a preference to the institutions under which we live, and with which we are best acquainted.
      The Louisiana code appears to be a transcript in this, and in many other respects, of the Code Napoleon; and the very complicated regulations of the French code on the subject of marriage property, occupy a wide space, even in that comprehensive and summary digest of the French law. Pothier had devoted three volumes of his works to the conjugal rights in community, and M. Toullier, who had discussed extensively the law of marriage, in the former part of his Droit civil Francais suivaut l’ordre du code, has devoted his last or 12th volume, to a commentary upon the regulations of the Code civil, concerning the community system; and as he is proceeding with his great work, he will probably exhaust several volumes upon that extensive title. I have selected, for the information of the student, a few of the leading principles in the French code, on the subject.
      It is declared, that the husband owes protection and maintenance to the wife according to his means and condition. (Code civil, No. 213, 214.) The wife owes him obedience, and cannot do any act in law, without the authority of her husband; and without his concurrence, she cannot give, alien or acquire property. (Code civil, No. 215, 217.) But if the husband refuses to authorize his wife to do any act in law, she may apply to a judicial tribunal, for leave to act. (Ibid. No. 218, 219.) If she be a public trader, she may bind herself without the authority of her husband, in whatever concerns that business. (Ibid. No. 220.) She may also make a will without his authority. (Ibid. No 226.) No general authority, though stipulated by the marriage contract, is valid, except as to the administration of the wife’s property. (Ibid. No. 223.) But the law allows the husband and wife to make any special contract as to property, which is not incompatible with good morals, and does not derogate from the power of the husband over the person of the wife and children, nor change the legal order of succession (Code civil, No. 1387, 1388, 1389.) The parties may stipulate in writing, before marriage, that the conjugal relation, in respect to property, shall be regulated either under the community, or under the dotal rule, and the code prescribes their rights and powers under each of those systems, and they may modify as they please the management and disposition of the joint property placed in community. They may stipulate that each of the married parties shall separately pay their own debts, and this stipulation will bind them, on the dissolution of the community, to account to each other. (Ibid. No. 1391, 1395, 1401, 1402, 1421, 1497, 1500, 1510, 1526.) These marriage contracts cannot be altered after marriage; and, ordinarily, the husband administers the personal property in community, and may sell or encumber it, but he cannot take away by will the rights of the wife as survivor. If they stipulate that they shall be separate in property, the wife retains the entire administration of her real and personal property and revenues, and each party contributes to the charges of the marriage according to agreement. (Ibid. No. 1536, 1537.) In no case can the wife have a power given her to alienate her real estate without the consent of her husband; and if they marry under the dotal rule, and not under the rule of the community, the husband has the sole administration of the dotal property during the marriage. (Ibid. No. 1531.)
      The Dutch matrimonial law in respect to property, is essentially the same. See Van Leeuwen’s Commentaries on the Roman Dutch Law, b. 4. ch. 23, 24. and Voet’s Commentaries on the Pandects, under the appropriate titles. The same general usages and rules prevail throughout all the European nations which have adopted the civil law.
   151.    Inst. 2. 7. 3. Bynk. Opera, tom. 1. 166. Obser. Jur. Rom. lib. 5, ch. 18.