which shall derogate from the rights given by law to the husband, over the persons of his wife and children, or which belong to the husband, as the head of the family, or to the surviving husband or wife, as the guardian of their children.


By the act of April 12, 1852, “to authorize married women to transact business in their own name, as sole traders,” it is provided as follows:

1. Married women shall have the right to carry on and transact business under their own name, and on their own account, by complying with the regulations prescribed in this act.

2. Any married woman residing within this state, desirous to avail herself of the benefit of this act, shall make a declaration before a notary public, or other person authorized to take acknowledgments of deeds, that she intends to carry on business in her own name, and on her own account, specifically setting forth in her declaration, the nature of the business, trade, profession, or art; and from that date she shall be individually responsible in her own name, for all debts contracted by her on account of her said trade, business, profession or art; said declaration shall be recorded in the office of the county recorder, in the county where said business, trade, profession or art is to be carried on or practised, and also to be advertised in some public newspaper of general circulation in said county for three successive weeks, and if any newspaper be published in said county, said publication shall be made in the paper so published in said county.

3. After the declaration has been duly made and recorded, as provided in the second section of this act, the person so making her declaration as aforesaid, shall be entitled to carry on said business, trade, profession or art, in her own name, and the property, revenue, moneys, and debts and credits, so invested, shall belong exclusively to said married woman, and shall not be liable for any of the debts of her husband, and said married woman shall be allowed all the privileges, and be liable to all the legal processes now or hereafter provided by law against debtors and creditors.

1 Wood's Dig. p. 489.

4. Any married woman availing herself of the benefit of this act, shall be responsible for the maintenance of her children.

5. No married woman shall commence or carry on business on her own account, under the provisions of this act, when the amount originally invested in said business is more than five thousand dollars, unless the declaration provided for in section second, contain also a statement under oath, that the surplus of money above five thousand dollars, invested in said business, did not come from any funds belonging to her husband.

6. The husband of the wife availing herself of the benefit of this act, shall not be responsible for any debts contracted by her in the course of the said business, without the special consent of her husband, given in writing, nor shall his separate property be taken on execution, for any debts contracted by her.


By an act, passed February 14th, 1855, “to authorize married women to convey real estate held in their own right,” it is provided as follows:

1. That a married woman of legal age, shall have power to convey and transfer lands, or any estate or interest therein, vested in or held by her in her own right, as fully and perfectly as she might or could do if single or unmarried; provided, the husband of such married woman be not, and for one year next preceding the execution of the instrument of conveyance by the wife, has not been bona fide residing in this state.

2. The execution of an instrument of conveyance by a married woman, independent of her husband, as provided in the preceding section, shall be acknowledged before the district judge of the county in which the lands described in the conveyance are located, and the judge taking such acknowledgment, shall, before he certify the same, be satisfied by the oaths of at least two credible disinterested citizens of this state, that the husband of such married woman does not, and for one year next preceding the day of acknowledgment, has not resided in this state, which fact, and the names of the witnesses by whom the same was proved, shall be recited in the certificate of acknowledgment.

* Wood's Dig. p. 490.

See chapter on ACKNowLEDGMENTs, also, on HoMESTEAD. In reference to the power of married women to make wills, see chapter on WILLs.


By the act of May 11th, 1854, “in respect to insurance for lives for the benefit of married women,” it is provided as follows:

1. It shall be lawful for any married woman, by herself or in her name, or in the name of any third person, with his assent as her trustee, to cause to be insured for her sole use, the life of her husband, for any definite period, or for the term of his natural life; and in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable by the terms of the insurance, shall be payable to her, to and for her own use, free from the claim of the representatives of her husband, or his creditors; but such exemption shall not apply where the amount of the premium annually paid shall exceed three hundred dollars.

2. In case of the death of the wife before the decease of her husband, the amount of the insurance may be made payable to her children, and shall be received by them; or, if under age, by their legal guardian, for their use.


By the act of March 25, 1851, “concerning divorces,” it is provided as follows: 1. The several district courts of this state, within their respective districts, shall have exclusive jurisdiction to grant a divorce from bed and board, and from the bonds of matrimony. 2. Divorces may be granted from bed and board, or from the bonds of matrimony. 3. No person shall be allowed to apply for a divorce under the provisions of this act, who has not been a resident of this state for a period of six months immediately preceding such application. 4. (Amendment of April 1st, 1853.) Divorces from bed and board, or from the bonds of matrimony, may be granted: 1. For

1 Wood's Dig. p. 490. o * d. p. 491.

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natural impotence existing at the time of marriage. 2. When the female, at the time of the alleged marriage, was under the age of fourteen years, and the alleged marriage was without the consent of her parents or guardian, or other person having the legal custody or charge of her person; and when such marriage was not voluntarily ratified on her part, after she had attained the age of fourteen years. 3. By an act of adultery by either of the parties; but no divorce shall be granted upon the application of the party guilty of the act of adultery complained of, nor if it shall appear to the court that the adultery complained of was by collusion of the parties; nor when it shall appear that the parties have lived and cohabited together as man and wife, after knowledge of the act of adultery complained of 4. For extreme cruelty in either party, or for habitual intemperance, or for wilful desertion by either party for the period of two years; or for wilful neglect on the part of the husband to provide for his wife the common necessaries of life, having the ability to provide the same, for the period of three years. 5. When the consent of either of the parties to the marriage was obtained by force or fraud, upon the application of the injured party. 6. In case of the conviction of either party for a felony after marriage, where the punishment is not less than imprisonment for two years. o 5. No action for a divorce, on the ground of natural impotency existing at the time of the marriage, shall be allowed except by the injured party; nor unless instituted within two years after the solemnization of the marriage. 6. When a divorce is granted on the ground of adultery on . the part of the wife, the legitimacy of any children born or begotten of her before the act of adultery complained of, shall not be affected by the divorce. 7. In any action for a divorce, the court may, during the pen: dency of the action, or at the final hearing, or afterward, make such order for the support of the wife, and the maintenance and education of the children of the marriage as may be just, and may at any time thereafter annul, vary or modify such order, as the interest and welfare of the children may require. 8. No divorce shall be granted in any action by default of the defendant, nor on the admission or statement of either party;

but in all cases the court shall require proof of the facts alleged as the grounds for a divorce. 9. By the supplementary act of April 24, 1857, it is provided, that no divorce shall be granted in any action, by default of the defendant, nor on the admission or statement of either party, but in all cases the court shall require proof of the facts alleged as the grounds for a divorce, which proof, if taken before a referee, shall be upon written questions and answers, and free from all legal exceptions as to its competency, admissibility and sufficiency. Nor shall it be lawful for any court to grant a divorce upon any statement or finding of facts by a referee, but only upon the legal testimony taken in the cause. In every action for a divorce, the complaint must be verified.


Living together as man and wife is not marriage, nor is an agreement so to live a contract of marriage.' Marriage is a civil contract, and no form is necessary for its solemnization. Where parties are able to contract, an open a avowal of the intention, and an assumption of the relative duties which it imposes, are sufficient to render it valid and binding.” Under the act defining the rights of husband and wife, property owned by the wife before marriage, and that acquired afterward by gift, bequest, devise or descent, shall be her separate property.” The rents and profits of the separate property are declared to be common property.” The act governs, if there be no marriage contract containing stipulations contrary thereto.” The act confers on the parties, before marriage, an unlimited right to make whatever stipulations they may agree upon, in re..spect to property, and this is not confined to property in esse, but contemplates property to be acquired, and the rents and profits of the present estate.” Our statute does not dispense with the interposition of trustees to protect the wife, except with respect to the property specified in the act. In all other respects the common law re

1 Letters v. Cady, 10 Cal. 583. * Snyder v. Webb, 8 Cal. 88, 2 Graham v. Bennet, 2 Cal. 503.

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