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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.