and the acquittance given by him, is sufficient proof of the contribution by the wife. (a) The parties may, by their agreement, exclude from the community the whole or a part of their moveable, by declaring it to be propre; this is called, under the coutume, la Convention de Réalisation. (b) This réalisation is express or implied. When the parties declare that the whole, or a part of the moveable property shall be propre, the realisation is express. The convention d'apport is a tacit or implied realisation. (c) The Code adopts the principles of this convention in article 1500, but it does not designate it by the same terms. This agreement excludes from the conventional community that which would have formed part of the legal community. The parties may make a stipulation of a direct contrary effect, for they may agree that the whole or part of their immoveable property shall be deemed moveable, and thus, that the conventional community shall consist of that which would have been excluded from the legal community. This is called la convention d'ameublissement, and the property is called propres ameublis. It may comprehend all or part of the immoveable property, and is either déterminé or indéterminé. It is said to be déterminé, when the party agrees that such a particular estate shall be deemed moveable, and form part of the community, either for the whole estate, or to a given sum. It is indéterminé, when it is agreed that immoveables are brought into the community, to the amount of a certain sum. When the immoveable or immoveables of the wife are rendered wholly moveable, the husband may dispose thereof as of the other effects of the community, and alienate them entirely. (d) (a) Code, art. 1502, 1503. (c) Pothier, ib. 316. (b) Pothier, Tr. de la Com. n. 313. (d) Ib. n. 315. Code, art. 1506. If the immoveable is only rendered moveable for a certain sum, the husband cannot alienate it without the consent of his wife, although he may pledge it without her consent, but to the amount only to which a portion is rendered moveable. (a) When the ameublissement is indéterminé the community does not become proprietor of the immoveables, but the conjoint who has made the ameublissement becomes a debtor to the community, and, on its dissolution, must bring some of his immoveables to the amount promised. The husband cannot, therefore, alienate in whole, or in part, without the consent of his wife, the immoveables of which the ameublissement had been indéterminé, but he may pledge them to the amount to which they have been made moveable. (b) In marrying under le régime dotal, the parties may stipulate for a community of acquisitions, and the effects of such a community are subject to the regulations prescribed by the articles 1498 and 1499. (c) The parties usually stipulate they shall take, par preciput, certain specific articles. The term preciput signifies its being separated from the other effects of the community on its dissolution, and its being, in the first instance, deliverable to the party entitled to it. The preciput generally consists of those articles which are adapted to the habits or sex of the party; as the library, carriage, horses, &c. of the husband, or the ornaments, &c. of the wife. They may be estimated at a certain sum, which may be constituted the preciput. It was considered that the amount, or value, of the preciput might be reduced by the authority of the judge, if it exceeded the station and fortune of the parties. The Code, however, has not vested any court with this discretionary power. (d) (a) Code, art. 1507. (c) Ib. n. 1581. (b) Ib. art. 1508. (d) Pothier, Tr. de la Com. n. 441. Toullier, tit. 5, c. 2, n. 407. The reservation of this preciput does not, under the coutume or Code, prejudice the creditors of the community, for it is competent for them to seize the property. The party entitled to it has his indemnity. (a) The preciput cannot be claimed when the community is dissolved by divorce or separation de biens. (b) F On the Communauté Legale and Conventionnelle, under the Coutume of Paris, reference should be made to the following works :--Pothier, titles Du Contrat de Mariage, De la Puissance du Mari,-and De la Communauté; Poullain du Parc, sur la Coutumes Générales de Bretagne, and Principes du Droit Francais; Renusson, Lebrun, Dumoulin, Ferriere and Duplesses; Le Maistre on the Coutume of Paris, D'Argentrée sur la Coutume de Brétagne; Brodeau sur Louet, the title De la Communauté, in the 10th vol. of the Works of Pothier by M. Dupin; under the Coutume of Normandy, Basnage and Mervile]; on le Regime de la Communauté, under the Code Civil, liv. 1, tit. 5. and liv. 3, tit. 5, of the Code, and this title in Toullier, in the 12th and 13th vols. of his Droit Civil Francais, and the Traité de la Communauté des Biens entre Epoux, by B. Battur; on le Douaire Coutumier, and Conventionnelle, the articles in the Coutumes of Paris and Normandy, and the preceding Commentators; on Le Régime Dotal of the Code Civil, liv. 3, tit. 5, c. 1 and 3; Toullier on that title in the 14th vol. of his Works, Carrier, Traité sur les Engagemens, &c.; on Donations entre Mari et Femme, the articles on that title in the Coutumes of Paris, and Normandy, and the above Commentators; Ricard, on the title De Donations du don Mutuel, liv. 3, tit. 2, c. 9, of the Code Civil, and the Commentary of Toullier, in the 5th vol. of his Works; Grenier, Traité des Donations, des Testamens, &c.; Duranton, Cours de (a) Bourjon, Droit Comm. tit. De la Com. p. 3, §1, n. 9, 10. Code, art. 1519. (b) Pothier, Tr. de la Com. 441. Code, art. 1518. Droit Francais, &c.; on Second Marriages, those titles in the Coutumes of Paris, and Normandy, and the above Commentators; the Dictionaries of Denisart and Merlin, on these several titles, and on those of Acceptation de Communauté, Avantage, Aport, Ameublissement, Conquét, Confiscation, Domicile, Douaire, Noces, Propres, Réparations, Réalisation, Récompense, Société d'Acquêts, Usufruct. SECTION IV.. EFFECT OF MARRIAGE ON THE PROPERTY OF THE HUS BAND AND WIFE IN TRINIDAD UNDER THE LAW OF SPAIN, AND BRITISH ORDERS IN COUNCIL. Classification of property.-Bienes dotales.-Dote, husband's powers in relation to it. Bienes parafernales. - Bienes Contradotales.-Arras.— Bienes proprios.-Bienes comunes.—Ganancias, rights and interests of consorts therein.-Extent of the liability of husband and wife for the debts of each other.-Order in Council.-Acceptance or renunciation of Ganancias by the wife.-Continuation of Community.-Donations between husband and wife.-Order in Council.-Second Marriages.Nuptial contracts. THE law of Spain is retained in Trinidad, with some few alterations, made by orders in council, since that colony has been in the possession of Great Britain. Its commentators describe the property which is contributed by or on behalf of the wife, ad sustinenda onera matrimonii, as los bienes dotales, (bona dotalia), and the property which is brought by her, exclusive of that which is assigned in dote, as bienes parafernales, or extra judiciales. They distinguish the property contributed by the husband in consideration of the dote by the terms bienes antefernales, or contradotales. All other property is described by the terms bienes proprios, or bienes comunes. By the terms bienes proprios is intended the property of either conjoint, acquired by succession, testament, or lucrative title. The terms bienes comunes, are applied to bienes gananciales, or multiplicados, that is, to all such property as the conjoints have acquired during the marriage by their labour, or industry, or by purchase. (a) There is so great a resemblance between the dote under the law of Spain, and the dos of the civil law, that the observations, which in a preceding section have been made on the latter, are strictly applicable to the former. (b) It exists in the constitution of the dote, (c) the persons who are under an obligation to assign it, (d) the limits of that obligation, (e) the property of which the dote may consist, (ƒ) its distinct species, (g) the right of the husband to manage it, and receive its rents and profits, (h) to sue for it, (i) the nature and extent of his liability to restore it in kind, or to pay the sum at which it has been valued, (k) the restraint on his alienation of it, (1) the protection which the wife may claim when there is danger of the husband's insolvency, (m) his right to be indemnified from it for the expenses incurred by him in its management, the person to whom, and the time when he is bound to restore it, (n) the apportionment and allowance in respect of the fruits of the last (a) Febr. Nov. lib. 1. tit. 2, c. 3, § 1. (c) L. 10, 11, 12, 13, tit. 11, part 4. year, (0) (b) Ante, p. 263, et seq. (d) L. 7, 8, 9, tit. 11. part 4. L. 3, tit. 5, lib. 10, Nov. Rec. Covar. de Matrim. part 2, tom. 1, c. 8, § 6, n. 15. Febr. Nov. lib. 1, tit. 2, c. 3, § 13, (ƒ) L. 14, 15, 21, 22, tit. 11, part 4. Febr. Nov. ib. § 8. (e) Ib. et seq. (h) L. 18, 25, tit. 11, part 4. (k) L. 28, 21, 18, 27, 22, 15, tit. 11, part 4. (i) L. 15, tit. 11, part 4. (1) L. 7, 21, tit. 11. part 4. Febr. Nov. ib. § 9, 10, et seq. (m) L. 29, tit. 11, part 4. (0) L. 23, 30, 31, tit. 12, part 4. (n) L. 32, tit. 11, part 4. |