policy or institutions of that state in which its validity is sought to be established.

3rdly, It is not admitted when the parties have no bonâ fide domicile in loco contractus, but have resorted thither to evade a prohibitory law in force in the place of their actual domicile, extending to marriages contracted in any other country, in terms or in effect, and which law has made void a marriage contracted in contravention of its provisions.

4thly, The parties are excused from conforming to the lex loci contractus, if they belong to a state, the subjects of which form a separate and distinct community in the foreign country in which they are married, as in the case of the British factories established in various parts of Europe and Asia; or if they belong to the state which has taken hostile possession, and is in the occupation of the foreign country; or if they belong to the state whose ambassador is established in the foreign country. In these instances, the parties may celebrate their marriage according to the law of their own country.

CHAPTER VI.

CIVIL STATUS-HUSBAND AND WIFE-PERSONAL
POWERS AND CAPACITIES OF.

Personal capacities incident to the status.-According to the law of England-Autorisation maritale essential to the validity of the acts of the feme. -Whether it may be implied, and in what cases.-When dispensed with. -State of the law in these respects in Ireland, Isle of Man, and in the principal British West India Colonies.-Under the coutumes of Paris and Normandy. In Lower Canada.-Code Civil.-Mauritius.-Holland.— British Guiana.-Cape.-Ceylon.-Spain.-Trinidad.-United States.Scotland.-Senatus Consultum Velleianum.-Agreements in derogation, of these conjugal rights and obligations.-To what extent admitted.

THE preceding chapter contained a general view of the matrimonial law prevailing under the several codes to which this work refers, and of the particular points in which they differed. It then submitted the law which ought to decide whether the contract was valid, that is, whether the status of marriage was constituted.

The personal powers and capacities which the husband and wife enjoy, as incident to, and as the legal consequences of that status, and their rights in the property of each other, are next to be considered.

The personal powers and capacities of the husband and wife, as they exist under the different systems of jurisprudence, and the appropriate law which must determine their nature and extent, will be first considered.

The rights of the husband and wife in the property real and personal of each other, and the law to which their decision must be referred, will be the subject of a separate enquiry.

SECTION I.

PERSONAL POWERS AND CAPACITIES OF HUSBAND

AND WIFE.

In the earlier period of the Roman law the marital power was as absolute as the patria potestas. It is not within the province of this enquiry to ascertain at what period, or from what causes, it was relaxed. At the time when the Digest was compiled, it had assumed a very different character, and became distinguished in its nature and extent, from the authority which has been conferred on the husband by the other codes of Europe.

In the right of the husband to compel the wife, and in the duty of the wife to take up her residence with him, in enjoining her obedience to his lawful commands, in giving him the power of personal correction, in imposing on him the obligation of protecting his wife, and providing for her necessary support and maintenance, and generally in the moral duties which they owed to each other, the doctrine of the civil law did not differ from that which is adopted by the codes of all civilized countries; but the distinction between that law and the other systems of jurisprudence regards the civil rights and capacities of the husband and wife. It treated the husband and wife as distinct persons, who might have separate estates. It enabled them to make contracts, and incur debts in their own names, and permitted the wife to be sued without her husband. (a)

(a) Pothier, Pand. lib. 1, tit. 6, de his qui sui, &c., art. 2. A. Wesel, de Connub. Bon. Societ. Tr. 1, n. 3, 4. Goris, Adv. Tr. c. 1, n. 8, 10. Cod. lib. 6, tit. 46, de Cond. insert. 1. 5. Cod. de Jure Dotium, lib. 5, tit. 12. 1. 12. Dig. lib. 48, tit. 5, Ad Leg. Jul. de Adult. 1. 20. Dig. lib. 47, tit. 10, de Inj. 1. 5. Cod. lib. 5, tit. 14, de Pactis Convent. 1. 8. Cod. lib. 4, tit. 12. Ne Uxor pro Marito, 1. 1. Dig. lib. 35, tit. 2, 1. 95, ad Leg. Falcid. Dig. lib. 34, tit. 1, 1 14, de Alimentis, vel Cibariis Legatis.

By the law of England, the husband and wife are one person, that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.

With some few exceptions the married woman is incapable of contracting or acting as a feme sole, or of suing or being sued as such. (a)

She cannot, therefore, be joined in any action as a defendant in respect of a contract subsequent to her marriage, (b) because the contract, as against her, is void. If a contract, made by her before her marriage, be put in suit against her, and in which she is sued jointly with her husband, (c) a promise made by her cannot be alleged. (d)

The deeds or other instruments under seal of a married woman are void. (e) The effect of the disability of coverture may be thus illustrated. If a married woman execute and deliver a deed to a person as an escrow, and the husband die, and then the grantee perform the condition, and the person to whom the deed was delivered gives it to him as the woman's deed, it is void; (f) because the instrument received its inception from the first delivery, and its completion upon performance of the condition; and the second delivery was merely the execution and consummation of the first; that the grantor or donor being under the disability of coverture at the time of the first delivery of the deed, the subsequent death of the husband, before the compliance of the grantee or donee with the terms of it, will not remedy the original defect. (g) But if the wife had

(a) Hatchett v. Baddeley, 2 Bl. Rep. 1079. 1195. Marshall v. Rutton, 8 T. R. 546.

(b) 4 Vin. Abr. 93, pl. 5.

Lean v. Schutz, 2 Bl. Rep.

(c) Mitchinson v. Hewson, 7 T. R. 348. Richardson v. Hall, 1 Brod. and Bing. 50.

(d) Morris v. Norfolk, 1 Taunt. 212. Pittam v. Foster, 1 Bar. and Cres. 248.

(e) Read v. Jewson, 4 T. R. 362. Perk, § 6. (g) Perryman's Case, 5 Rep. 84, b.

(f) Perk. § 11.

Graham v. Graham, 1 Ves. jun.

275,

been single at the period of the first delivery, and afterwards, but before the grantee or donee complied with the conditions upon which it was to be his deed, she took a husband, the marriage would not defeat the deed; for the instrument commencing in effect from the first delivery, was by relation the deed of a feme sole. (a)

It is not an exception to the rule which incapacitates her from binding herself by her contracts, that the husband has become discharged by her conduct from that liability, which it will be seen he incurs, as incident to his relation of husband. As a consequence of the wife's incapacity to make a contract binding on her at law, the rule prevails, notwithstanding she may have a separate property. (b) But in a court of equity in England, according to its doctrines, the contracts of the wife may be enforced under certain circumstances hereafter stated against her separate property.

The wife is incapable of making any personal contract or obligation, or of incurring any debt or engagement, to bind her husband, without his concurrence or authority, express or implied. (c)

Upon this principle she is not permitted to assume the office and responsibility of an executrix without her husband's concurrence. (d)

This disability extends to any contract which in its consequences may personally affect him. If, therefore, she purchase an estate without his knowledge, and he afterwards disagree to it, he may recover the purchasemoney from the vendor; (e) but his assent to the

(a) Perk. § 9.

(b) Marshall v. Rutton, 8 T. R. 547. Gilchrist v. Brown, 4 T. R. 766. Waters v. Smith, 6 T. R. 451. Wardell v. Gooch, 7 East, 582. Pritchett v. Cross, 2 H. Black. Rep. 17. Pitt v. Thompson, 1 East, 16. Crookes v. Fry, 1 Bar. and Ald. 165.

(c) The Earl of Derby's Case, 4 Leon. 42. Smith v. Plomer, 15 East, 607. (d) Godolph. part 2, c. 10, 2, 3. Wentw. Off. Ex. 377, 14th ed. Thrustout v. Coppin, 2 Bl. Rep. 801.

(e) Granby v. Allen, 1 Lord Raym. Rep. 224. Comberb. 450, S. C.