mains unaltered, and the wife may resort to trustees for all purposes of security.'

Where a wife claims property as her separate estate, it must have been conveyed to her before marriage, or, if afterward, it must have been by gift, devise or descent.'

A feme covert cannot contract under the laws of this state so as to render her liable in a suit at law.3

The act of April 17, 1850, provides that the husband shall have the entire control of the common property, with absolute power to dispose of it, and upon the dissolution of the community by death, one-half the property goes to the survivor. Held, that this power in the husband to dispose of the common property does not extend to a disposition by devise.*

The statute has done away with the common law right of dower, and substituted in place a half interest in the common property."

The husband and wife are jointly seized of the common property during coverture, with one-half interest remaining over to the wife, subject only to the husband's disposal during their joint lives.*

This interest in the wife is a present, definite and certain interest, which becomes absolute at the death of the husband.

The statute gives no greater rights or privileges to wives residing in the state than to those who do not reside here.*

The mortgage note of a married woman for a portion of the purchase money of a tract of land cannot be enforced."

All property acquired by either spouse during the existence of the community is presumed to belong to it, and this presumption can only be overcome by proof that it was acquired by the separate funds of one of them. The burden of proof lies upon the party claiming the property as separate. The possession of property by either spouse during the existence of the community, acquired by purchase, creats a presumption that the property is common; and this presumption can only be repelled by clear and decisive proof that it was either owned bofore marriage, or subsequently acquired in one of the modes designated by statute."

Snyder v. Webb, 8 Cal. 88.

24 Cal. 200.

id. 285.

4 5 id 252.

id. 457.

• Meyer v. Kinzer and wife, January Term 1859; Smith v. Smith.

The sale of separate property of the wife, whether real or personal, must be in writing, signed and acknowledged in the manner pointed out by the statute: otherwise it is void.'

The earnings of both husband and wife go into a common fund, and become common property, the control and disposition of which belong to the husband, and when applied by him, or with his assent, for her support, and are sufficient for that purpose, there is no basis for a decree."

A provision made by the husband for the wife is not void as against subsequent creditors, provided the husband is solvent at the time.'

Fraud by either party goes to the substance of the marriage contract, and vitiates it, ab initio. The concealment by the wife of the fact of her pregnancy by a stranger, at the time of her marriage, is such a fraud as will entitle the husband to a divorce.*

Wilful desertion of the other, by either party, for the period of two years, is ground for divorce under the statute, and desertion for a less period is not sufficient to bar a decree."

Though desertion for a less period than two years is not suffi cient, under the statute, to bar a decree where the adultery of the defendant is established, yet it furnishes a proper subject for consideration by the court in determining the character of the divorce to be granted. The statute does not intend that a divorce from bed and board, or from the bonds of matrimony, may be granted indifferently, according as the prayer of the applicant asks for one or the other modes of relief. A discretion should be exercised by the courts, according to the special circumstances of each suit, acting upon the settled principles of the common law, as applicable to this class of cases."

The true rule which should govern the courts in the exercise of their discretion in this respect is this, that to entitle to a decree for an absolute divorce from the bonds of matrimony, the applicant must be an innocent party-one who has faithfully discharged the obligations of the marriage relation, and seeks relief because really aggrieved or injured by the misconduct of the other; and, on the other hand, where there are circumstances

17 Cal. 266.

29 id. 475.

id 479.

4 Baker v. Baker, April Term, 1859.

10 Cal. 250,

showing a disregard of those obligations, though not carried to such a degree as to constitute itself a ground for divorce, the decree should be only for a divorce from bed and board. To obtain a release a vinculo matrimonii, the applicant must be without reproach, and, however guilty the defendant, if the applicant is chargeable either with similar guilt, or an offence to which the law attaches similar consequences, the relief must be denied; and if the applicant, though not thus guilty, is still not blameless, the relief must be limited to a divorce a mensa et thoro.'

In an application by a wife for a divorce on the ground of the wilful neglect of her husband, and his failure to provide her with the necessaries of life, for the period of three years, the residence of the husband with the wife within the three years is no answer to the application, where it appears that they were not living together at the commencement of the suit.

Wilful neglect, whether accompanied with desertion, or otherwise, is a distinct ground of divorce.'

The neglect must be such as leaves the wife destitute of the common necessaries of life, or such as would leave her destitute but for the charity of others. If those common necessaries are provided by the earnings of either, there is no such wilful neglect as is contemplated by the statute.'

OREGON.

It is provided by statute (Statutes of Oregon, 1855, p. 536), 1. That marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential.

2. Every male person who shall have attained the full age of eighteen years, and every female who shall have attained the full age of fifteen years, shall be capable in law of contracting marriage, if otherwise competent: provided, however, that nothing in this act shall be construed so as to make the issue of any marriage illegitimate, if the person shall not be of lawful age.

3. No marriage shall be contracted while either of the parties shall have a husband or wife living; nor between parties who

are nearer of kin than first cousins, computing by the rules of the civil law, whether the half or the whole blood.

4. Marriages may be solemnized by any justice of the peace in the county in which he is elected, and they may be solemnized throughout the state by any judge of a court of record, and by ministers of the gospel, or such other person as may be authorized by any church.

5. If any person intending to marry shall be under the age of twenty-one, if a male, or under the age of eighteen years, if a female, and shall not have had a former wife or husband, the consent in person or in writing of the parent or guardian having the custody of such minor, if he or she have either a parent or guardian living in this territory, shall be given to the person solemnizing the marriage before such marriage shall take place.

6. In the solemnization of marriage, no particular form shall be required, except that the parties shall declare, in the presence of the judge, minister or magistrate, and the attending witnesses, that they take each other as husband and wife; and in every case there shall be at least two witnesses present, besides the person performing the ceremony.

7. Whenever a marriage shall have been solemnized, the person solemnizing the same shall give to each of the parties, if required, a certificate thereof, specifying therein the names and residences of the parties, and of at least two witnesses present, and the time and place of such marriage, and where the consent of the parent or guardian is necessary, stating that the same was duly given.

8. The statute also provides for the filing and recording of certificates of marriages, in a manner substantially similar to that prescribed by the California statute.

9. It is further provided by "An Act relating to Marriages and Divorces," at p. 537 of the Statutes of Oregon, 1855,

That if any person shall undertake to join others in marriage, knowing that he is not lawfully authorized so to do, or knowing to any legal impediment to the proposed marriage, he shall, on conviction, be fined in any sum not exceeding three hundred dollars.

10. No marriage solemnized before any person professing to be a judge, justice or minister, shall be deemed or adjudged to be

void, nor shall the validity thereof be in any way affected, on account of any want of jurisdiction or authority in such supposed judge, justice or minister, provided the marriage be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage. 11. Illegitimate children become legitimatized by the subsequent marriage of their parents with each other.

12. Marriages contracted with the consent of the parties, when the residence of the parties is remote from any person duly authorized to solemnize such marriage, in any other manner than is herein prescribed, shall be valid: provided, that no legal impediment shall exist thereto; such contracts shall be made in writing, duly attested, and shall be recorded in the office of the recorder of deeds of the proper county, within sixty days after the execution of the same.

13. All marriages solemnized among the people called "Friends" or "Quakers," in the form heretofore practised, and in use in their meetings, shall be good and valid.

DIVORCES.

It is provided by chapter II. of the act relating to marriage and divorce (Statutes of Oregon, 1855, p. 538), that,

1. All marriages which are prohibited by law on account of consanguinity between the parties, or an account of either of them having a former husband or wife, then living, shall, if solemnized within this state, be absolutely void, without any decree of divorce, or other legal proceedings.

2. When either of the parties to a marriage, for want of age or understanding, shall be incapable of assenting thereto, or when the consent of either party shall have been obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be void from the time its nullity shall be declared by a court of competent authority.

3. In no case shall a marriage be adjudged a nullity, on the ground that one of the parties was under the age of legal consent, if it shall appear that the parties, after they had attained such age, had, for any time, freely cohabited together as husband and wife; nor shall the marriage of any insane person be ad