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marriage, or, according to Lord Hardwicke,a in the necessity of preserving the peace and happiness of families, was no longer deemed applicable to that case. In Aveson v. Lord Kinnaird, 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. Rep. 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 anything to her own advantage, to be given in evidence as part of the res gesta.

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.c

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; 181 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

a Baker v. Dixie, Cases temp. Hardw. 252. b6 East's Rep. 188.

The policy of the rule of the English law, that husband and wife cannot be witnesses for or against each other, is much questioned in Am. Jur. No. 30, p. 374. I remain, however, decidedly against the abolition of the rule.

d If a note be given to the husband and wife, on a sale of her property, and she survive him, she, and not his administrator, must endorse it; for the interest being joint, it went, of course, to the survivor. Draper v. Jackson, 16 Mass. Rep. 480. Executors of Schermerhorn v. Elmendorf, 10 Johns. Rep. 49. Richardson v. Dagget, 4 Vermont Rep. 336.

execution with her husband; though if she be in custody on mesne process only, she will be discharged from custody on motion. 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. But as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority and control over her person, and he may even put gentle restraints upon her liberty, if her conduct be such as to require it, unless he renounces that control by articles of separation, or it be taken from him by a qualified divorce. The husband is the best judge of the wants of the family and the means of supplying them, and if he shifts his domicil, the wife is bound to follow him wherever he chooses to go.d If a woman marries, pending a suit against her, the plaintiff may proceed to judgment and execution against her alone, without joining the husband ;e but for any cause of action either on contract or for tort, arising during coverture, the husband only can be taken in execution. These provisions in

a Anon. 3 Wils. Rep. 124. The wife will be discharged from execution in such a case, if it appears that she has no separate property to pay the debt. Sparks v. Bell, 8 Barnw. & Cress. 1. The application for her discharge has been held to rest in the discretion of the court. Chalk v. Deacon, 6 J. B. Moore's Rep. 128. The husband and wife may be jointly guilty of a tortious conversion of a chattel, and may be sued jointly, provided the conversion be charged to be to the use of the husband. 2 Saund. Rep. 47. note i.

b In the matter of William P. Brown, on habeas corpus, before the circuit judge of the 1st judicial circuit in New-York, Feb. 1843, it was ruled that a wife may be kidnapped by the husband within the provisions of the Revised Statutes, vol. 2, 664, and he and his accessories be held to answer for the crime

< Bridgman, Ch. J., in Manby v. Scott, Bridg. Rep. 233. Rex v. Mead,

1 Burr. Rep. 542. Lister's case, 8 Mod. Rep. 22.

d Christian v. Her Husband, 17 Martin's Louis. Rep. 60.

521.

Doyley v. White, Cro. Jac. 323. Cooper v. Hunchin, 4 East's Rep.

↑ Anon. Cro. C. 813. 3 Blacks. Com. 414.

favour of the wife are becoming of less consequence with us every year, inasmuch as imprisonment for debt is undergoing constant relaxation; and by statute in *182 *several of the states, no female can be imprisoned upon any execution for debt, a

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. It occupies a large title in the English equity jurisprudence. So extensive have become the trusts growing out of marriage settlements, that a lawyer of very great experience,b considered that half the property of England was vested in nominal owners, and it had become difficult to ascertain whether third persons were safe in dealing for fiduciary property with the trustee, without the concurrence of the beneficial owner. 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 honour, 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, 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. Pothier, who has examined, in thirty-one volumes, the

See infra, p. 399. n. b.

b Mr. Butler.

Lib. 23 and 24.

a Vide Opera Heinecc. tom. ii. De marito Tutore et Curatore Uxoris legitimo, and tom. vii. Commentarius ad legem Juliam et Papiam Popреат.

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 labours 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 stimulate his *exertions to become *183. 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. This system was carried by the colonists of those European powers into their colonies, such as Ceylon, Mauritius, the Cape of Good Hope, Guiana, Demerara, Canada and Louisiana. Many of the regulations concerning the matrimonial union, though not the community system, are founded on the Roman law, which Van Leeuwen, in his Commentaries, terms the common law of nations." I do

• In Louisiana, according to their new Civil Code, as amended and promulgated in 1824. (Art. 2312, 2369, 2370,) the partnership, or community of acquets or gains (communauté des biens) arising during coverture, exists by law in every marriage contracted in the state, where there is no stipulation to the contrary. This was a legal consequence of marriage, under the Spanish law. The doctrine of the community of acquets and gains was unknown to the Roman law, but it is common to the greater number of the European nations, and is supposed to have taken its rise with the Germans, and may be founded on the presumption that the wife, by her industry and care, contributes, equally with the husband, to the acquisition of property.

not allude to the "earlier laws of the Roman republic, by which the husband was invested with the plenitude of

All the property left at the death of either party, is presumed to constitute the community of acquets and gains, and this presumption stands good until destroyed by proof to the contrary. Touillier's Droit Civil Francais, tom. xii. art. 72. 17 Martin's Louis. Rep. 258. Christy Dig. tit. Marriage. Cole's Wife v. His Heirs, 19 Martin's Rep. 41. 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.) Parties can, by an express matrimonial contract, subject themselves to the communio bonorum as to personal property, or adopt the law of any country in respect thereof, and the courts will give effect to it unless prohibited by a positive law, either of the matrimonial domicil, or of the locus rei sita. Vide infra, p. 459, and note b. Ibid. 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 acquets. (Art. 2370.) This very point was decided at New-Orleans, in Gale v. Davis, 4 Martin's Rep. 645, and in the case of Saul v. His Creditors, 17 Martin's Rep. 569. The supreme court of Louisiana, in the able opinion pronounced by Judge Porter, on behalf of the court in the latter case, held, that though the 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 acquets and gains did exist between the 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; and it is also the law of the Civil Code of Louisiana, as already montioned. So property acquired before the removal from the matrimonial domicil is governed by the law of that domicil, and if married persons move out of the country where the community of acquets and gains exists, into one where it does not, their future acquisitions are govern. ed by the law of their new domicil. Porter, J., 4 Miller's Louisiana Rep. 193. McColum v. Smith, 1 Meig's Tenn. R. 342. Kneeland v. Ensley, ibid. 620. The principles declared in the case of Saul v. His Creditors are essentially re-declared in the case of Packwood v. Packwood, 9 Robinson's Louis. Rep. 438--12. Ib. 234. The community of acquets and gains applies to all the property real and personal acquired while the parties were domiciled in Louisiana, though not to property previously acquired during their matrimonial domicil in another state, nor to property subsequently ac

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