
    
      DURNFORD vs. GROSS & WIFF.
    
    Appeal from the court of the first district.
    The ¶1⅛ ⅛ not boi :nd by a “¾⅞⅛
    
      iJlemnen, for the plaintiff.
    This is an action ou a promissory note, w bpreby the Charles Gross and Marie Gro->s, his wife, bound themselves jointly and severally, to the plaintiff the sum of 88,600, for value reeery- ®&>' Tire defendant, -Masá© Gross, contends she was juot authorised by her husband to sub-⅛ scribe the note, and that she is not bound as *he security of her husband. In discussing the question of the liability of Marie Gross," it will be necessary to examine ip, what nianner mar? ried womep-may-contract, and to what extent they can bind themselves by their contracts.
    Thpugh the present contract was made under our civil code, it will be. useful, if not indispensable, to trace the history of the jurisprudence on the subject, down from its Origin ip the Homan civil law, through the codes of Spain to our own state.
    The senatus eonsultum Velleianum prohk bited all women, married and unmarried, from, contracting for others, ff. 16, 1, Códe, 4⅝ ¾9> Pothier’s Pandects tQ, 1, IS. Alertin’sReper-toire de Jurisprudence, 88S. Verbo Senatus-Consulte Velleien. % Dictionaire du IHgeste 2 9, «. 1610. But to the general rule were a multiplicity of exceptions, as vuay be seen by a recurrence to the above citations; and in all cases where the woman renounced the priviledges granted by the senatus eonsultum, she could bind herself, ff. 16, 1,"3¾, \ 4, with Godefroy’s comiPent. no. 15. Code% 29, St, with Góde-
      ■fttvM oommettttey-~fr0$t ■ m' ■ Pandectas ifi, ftt> . • ' r ' •. . . ,. . 9. 7 Mulleri Pomptuwrium, 7*60, 773- Frota the Roríián law, the satafe principles ⅛ eré traflá-planted into the-laws of Spain by Aiphónso the wise, Partida, 5, lá, & & 3. See afeo, the gloss of Gregorio feopez.' Fufthér provisions Were in roduced by the 61st. law’of Toro ; JVhviHima Recopilación 10, 11, 3. But in Spain, as well as at Rome, by renouncing in due form the above laws,-the contract of a married woman became binding on her; 6 Rodriguez’s Digest, 106, 1 Sala, 371, 3. 8 Febrero, edit. 1817, 81. r Ibid.'nos. 114, 1¾1. The sena- . • ⅜ tus consultara Velleianüra tfas in full force itf most part of France, prior to the code of Na-
    , The present contract, under all *the above laws, would have been invalid, as far as regard sMarie Gross.
    But I contend that our civil code has abrogated the laws of the Partidas, which introduced into Spain the provisions of the sen tus cOrtsultum VeUeiauums; also, the laws of Toro, which prohibit women from contracting* jointly^ Witb fhSir husbandg, ’ —
    In the first placó, the concurrence of the hrts-Band iu the act is a sufficient authorisation on his/paCt. Civil Code, 2i), art. ⅛¾. • And if the wife can bind herself at all, she has ail tlH an* ‘' ''' " - -⅜ .tborisatioitf requisite fra®, hep husband, who binds himaelf joint!/ and sever illy with .her.
    Now, ⅛ the second, place$Kthe. civil co-fe, ¡841, .art. 85, recognizes expressly the- power of the wife toobligate herself jointly with her huss band : it likewise,.383, art, 53, ⅝ 8 & ⅝5⅞, nri. <7* § gives tlje wife a priv,¡ledge or tacjt npjjf’t-gage on the estate of her husband, for her ¡A-demuiffeatipn against any contracts for which the may have bound hprself, jointlywiAhim.
    In short, our civil code gi?*s power ½,^⅜§‡-ried women, to contract arid bind tbemselvos 'n all cases, except those, particularly exceptld hf law. Civil Code, ⅞(⅞ art. St, ¾4 & ¾5,
    No other change was introduced by the civil code,,*than dispensing with the senseless formality pf reoouncing .before a notary, in due form, the laws of the Partidas and of Toro ; for, as 1 have already shewn, married women could, by this means, always obligate themselves.
    It appears to me, no douhUcan remain that these l%ws were abrogated by the. civil code, 1 he expressions of the code arfi piear^and totally irrecoucilable with the pld law*
    .Repeated decisions of the court of cassation have determined that since tlie publication of %ué 
      code Napoleon, 'the senaittis consultan leianum has been' abrogatedin those parts of France, where it vyas, followed- ‘ Oiwr own cF vil code contains verba tint,; the same- prqvi-sions on this ‘subject, with t)ie code NapolepiRi as far then, as the decisions of the. highest eourjt of judicature in that country can hav e weight, the question is settled, it Merliv’s Rppert. 896, 8. ñ Merlin’s, Questions de Droit, 5€(¾ 5iS.r Pailliefs Manuel 81, ¾79*
    The very case* now before this court, has been decided by the court of cassation, A married woman who subscribed a negotiable note,. binding herself jointly and severally with her husband, was condemned to pay its a-upnnt, though she was not explicitly authorized by her hus-ba>¡d. Duehau v. Jaquan, i sens. 1806. 7 Sirey, 2 pfirt. t-13. So the wife who accepts a bill of exchange, drawn ou her by her husbaud, is sufficiently authorised by him, to hind herself as his security ; a,!d an action can he üiaintain-ed on such hill, against her. 4 Sirey: 2 part, 3 9, Lamote v. Laeauvéi Unless the defendants’ counsel cad* shew that these cases were incorrectly 'decided* this court Will certainly give the same, decision.
    
      Mjiingéton, for the defendants.
    In ⅜⅛ ease-the facts on which I shall relv are simnly these. Challes (iroSs, the husband of the de-fendaht, Marje .Gross, negociated a loan with the plaintiff for them ; the money was paid to him and he secured it by a .note, subscribed Jointly by him and his wife. He has since become insolvent, and the defendant, Marie Gross, has obtained a separation of goods and estate. This suit is brought to make her personally responsible on the joint undertaking.
    The following questions arise on these facts;
    1. Can the,wife bind herself without the express authorisation of the husband?
    S. Are not all contracts by which a married woman, whether authorised or not, binds herself for the debt of her husband voidable by the laws now in force in this state ?
    3. Can the laws be renounced so as to violate the contract ?
    4. If they can, must not the renunciation be formal and express
    I. It is conceded on the part of the plaintiff, that, prior to the promulgation of our code, the wife could not contract without being expressly authorised by the husband : and if it be not fully admitted by the plaintiff that an implied authority was not sufficient, it is clearly shewn by all.the authorities. 2 Febrero J 8, § 4, u 109. ' ;
    Bat. it is-argued that our Civil Code, art. 22. has made the concurrence of the husband in the act a sufficient authorisation. The decisions under it in France, 1 acknowledge'* go the*' full lengths contended for by the plaintiff. As these decisions carry with* them no authority beyond the force of judgment, and to support them* those arguments may without presumption be canvassed, and if they are not found to support the conclusions, or if there be any difference in the law on which they are founded, the decisions themselves will have no weight. The case relied on is in,7 Sirey, 2nd part, 818. There the point is indeed decided, but the decision is only supported by an assertion. " *3i-tendu que suivant Varticle du Code le eoncours du mqri vaut autorisation, without any reasoning whatever to support it. The next case from. 14 Sirey contains the same assertion nearly in the same language, but no argument whatever on this point. To determine, however, whether the article relied on (Civ. Code 82, art. 28) ought to authorise this conclusion, let u$ examine it more closely and compare it with the pre-existing law. This law required the express, not the implied, authorisation of the husband to give validity, not only .to alieri&tidiis, J J ’ grants, mortgages, or acquisitions, but to promises to pay money. By the act uromtilsating: the code» 2 -Martin’s Digest, §0, no other part of the ancient civil laws is abrogated hut what is contrary to the civil code or irreconcilable with it. Oie article of the code declares that unless the husband concur in the act, or give bis consent in writing, toe wife cannot alieiiatp, grant, mortgage, or acquire, admitting, therefore, that the concurrence of the husband was made equivalent by this section to the authori-sation formerly required, it does not touch the present cas?1, because this is neither an alienation, a grant, a mortgage, nor an acquisition : and these are the only cases in which tile law is changed, in all others it remains in force.— If the law had been intended to make the change apply to all other cases, a single word, contracts, would have elected the object without any enumeration of the different species of co tracts. That, enumeration, by tfrte role ex-pressio unius est exclusio alterius, shews that the change was intended in the enumerated cases only, and though we have nothing to do with the wisdom of the law when it is clear, vet, very good reasons may be found fir the res'riction. Tne mortgage, alienation, or acquisition éf nrffnertv are alwavs acts of more solemiiitv • anti deliberation, than the mere personal contract to pay money; and t'het most commonly require the advice of counsel, or friends, and generally the intervention of a notary and the presence of witnesses. It might reasonably be supposed, therefore, that the concurrence of the husband, in a Solemn act of this nature, should be deemed equivalent to an express authority, but that it should not be dispensed^ With in the informal act of borrowing money or signing a note.
    Tiiis section, also, clearly applies to property, or contracts, exclusively of her own. Our . law making a clear distinction between the two-cases, rendering the contracts of the wife, relative to her own affairs, valid when authorised by the husband — but giving her the power to a$ void those in which she becomes bound for him, unless she knows and renounces the laws |n her favor.
    But a conclusive reason, fliat must have operated in omitting to euumeiate contracts for payment of money, and rendering them more difficult of execution, is the facility that vtoul® Jbe givefi to evade the laws made to secure do-tai property. ⅜
    The alienationsSentfobed in !&e 25ad articif ,¶0 nr>t relate to this species of estate, because ■ ’ , ' . even if the husband 'authorized the sale, or concur in the act, it cannot be disposed of. What avail would this be if the wife, ignorant of her rights, merely by the husband’s joining in a note for ttfoney borrowed, on his own account, should give the creditor a right to seize.and sell the dotal property t>n an execution in default of payment? Therefore, I should conclude that this article relates solely to tile wife’s separata property and separate acts relating to U ; but does uot expend to contracts for the payment of money simply ; still less to a contract for the ,use of the husband, where the wife joins only as uis security. This tram of reasoning appeared so conclusive, that l was at a great loss to discover why'it should not have occurred)# to so ie..rneJ , a tribunal as that of cassation m France, until i discovered that there was an essential difference between the effect.of the Napoleon code and that of our digest, even in cases'where the one is an exact transcript of the other. Because the French code repeals all prior laws -and customs in jwm materia, whereas ours only repeals such provisions as are .inconsistent with it — The last section of the law, |or the promulgation of the Napoleon code, deu ces. ‘‘From the day in which.jhe^e laws areitSuree —the Roman law, the .ordinances, the fustoms, . ,- , -» ' 1 » ‘ eiíi.vr general ol* local, statutes aud regulations, shall cease to have the force of general» or particular law, in the matters which are the object of the said laws which compose the code.” — - Now, the power of a married woman to contract, being one of the objects of the new code, all f rmer laws on the subject are in France repealed ; and as there is no authorization required by a y article of the Napoleon code, other than in the particular cases there enumerated, their tribunals could give no other decision than they have given.
    11. This species of contract is of a different nature from the separate personal can tract of the Wife. It is the subject of separate laws, and is guarded with: more care.
    There are several statutes in the Spanish law •h the subject : one Recop. ó. 3. 9. This expressly declares, “ that the wife shall not he bound by any contract entered into for-securing; the husband’s debt, or by anv obligation in s ili-d'i with him to others, unless thev can be sh"wa bv t e creditor, to have been applied to ber be* neflt.”
    Has this law been repealed ? The.ajkiln iff thinks it has ; and to sitéw it, he ca,ílrous atc tention first to our statute. Civ. Cod,. S65, art. ¾⅜, «4, ⅜* 85. These provisipns, however, merely say, that “married women are incapable of contracting ón ly in cases expressed by law,?⅜ Hence inferring, that unless the incapacity be expressed in the code, it doefs not exist: but the words of the articles are in cases expressed by law generally, not by the laws of this code. If, therefore, the incapacity existed in the prior law, it is not taken away by this. The next articles relied on are, first, the 55th : which de-dares, that notwithstanding a renunciation of the community, the wife continues bound to t* e creditors of the husband, when she has obligated'herself jointly with her husband. Secondly, 53d : giving the wife a tacit mortgage fi>r the amount of the debts for which she has bound herself jointly withdher husband. And lastly, that which repeats verbatita, the provisions of the last article quoted. Civ. Code, 455, art. if. These are all: and these prove only that, there are circumstances under which the wife may bind herself witli her husband. But they, in no sort, shew that the law allowing her to avoid her contract, is not in force. If she will not avail herself of the priviledge given'by the S; anish statute, |nd pays the money due on a -joinl dijligalioii, she shall have a lien ou her bushand’e property for the amount ; or she q»ay ? ■ '*'• , renounce the advantages secure# to her by these laws, here the- debt was contracted as security in solidum ; and then, according,to the 53d article, quoted by ^ie plaintiff, she continues bound to the creditor, although she ¡^ves up her right to the community : and thus, aU the passages quoted may be satisfied, without, supposing an abrogation of the Spanish law on this [subject.
    ITT. This right of renunciation, has been so repeatedly recognized in this court, that it is deemed unnecessary to argue it. It is called by the plain tiff’s counsel, a senseless formality; because, by performing it, the wife could always bind herself.. -with her* husband for his debts, |tnd render the prohibition of the law ineffectual. It is true, that by the practice. established under these Spanish statutes, and by tljte.implication of the maxim, that any one may renounce what is for his benefit, *a married^ woin an Upay make herself the surety qf her husband. But in order to effect this, the act must he passed" before a sworn officer, who, before he passes it, is bound to explain fully to the wife fbe privi-" ledges she enjoys and Hie effect of heriretnurn$ia-i. gurel^ then, that cannot ⅛ ¡a sansa-léss form, which gives »tl ne for-dteliberatlon^ put* tne rights 5f the woman '(frequently -aci-ing from uiitfue influence) under tne ''protection. of the magistr&te, protects agamst domestic tyranny, prevents ner^cting until she is fully in forfeit of her *figtrj, and deprives her of the power of rfetiVun flag. theaHinadvistediy,
    Whether senseless, however, or wcise, if ⅜⅜ been determined to be the law, and thongír the plaintiff asserts that it has been abrogated' by oiir civil code, he refers to no article as abolishing it.
    Having proved that the restrictions of the Spanish law still exist, and that the provisions of the code, which recognise the force of an obligation entered into by the wifo for the sei curity of the husband, are not inconsistent with those laws, but, that they apply to the case, of a ’ renunciátten which is permitted by theta, I have only to shew: that ' -
    [¾⅛ Such renunciation nfusf he express, and it is never implied, and, of coPrse, if tfoes not exist in the presentcase. FébrerdWmeiñ#, c ¾ § t, *p. BQ&. JDcfntratoS, eh. 4, § ⅜, no. 1 1⅜. ddV.;5 fidly recognised in the case of Bourdier vs. ⅞«-nmse, &■ Martin, ■ 585. ;Jr'- :
    The, undertaking, thArefoi^ uf Marie Hroisy the defendant, considered merely as her act, is ".'■■■ , ‘ void for want of express duthopz»tjon of her Misband;, v ⅛ % j .-V
    Considered as an undertakiag in solido with bfer husband, or a security for his; debt, it is voidable, if not void. ,
    And, lastly, never having renounced the right of pleading it to be void, she may ip Ais,; suit exercise that right, anti claim a judgment for the defendant. '
    
    
      ' Hennen, in reply.
    It is contended on tin» part of the defendant, that our civil cod^limits. the cases in which the concurrttyee of the him-band gives validity, to the act of .the wife, 1» those expressed in the aricle, to w it:. mortgages, donations, grants, acquisitions ; and that an express authorisation is requisite, where she in epds to contract jointly with, her husband, But the defendant’s counsel overlook the most i-nportaut, because the m0^ general, tyord 1⅝ tqe text $, ajignate. The wife may alienate her ' property' wjth,.-the concurrence of her husband in the act. «
    Alienation, certainly includes every gpeoie* of obligatjpn, w hereby one binds his proper,'' orengagps tp perform apy aft, or mafcjfe á ,⅞¾⅜* Suck ⅛ the plai% Jaipur t of the waffj^ ,* and such is the méamng given to it. the authors of the Pandects; Fran caises. LeS termes de cet article comprennent virtUelle-m.ent ions les acfes, tons les coñtráts qu’une femme pent faire, He quélque espéce 8f nature que ce soit; car, tous contiennent necessairement, ou uñe alienation, on une tendance a I’hypotfieqke; en sorte que cet article maintiñnt' la disposition de la coutume de Paris, ne au-emnement contracter. 3 Pand. Franc. 39⅜, commenting on the corresponding article of (he •ode Napoleon, from which the article in our own is copied verbatim. Therefore, if the concurrence of the husba.id in an act of mortgage^ made by his wife, is. sufficient, it is, likewise, in a note of hand, where they bind themselves jointly and severally.
    In further support of what 1 advance, I will quote the same authors, ainsi, Facte dans le-qnelle mari aura parti avec s& femme, dans le-quel it aura eté en nbm, soit pour y donner settle men ¡son approbation, soit poitr y stipuler con-jóintemerit avec sa femme, sera valakle, et nbli-" ligera -reggtlierement la femme. 3 Pand. Frani. 408. > ⅜. '
    1⅞⅛1)1⅞ t&ere can be no doubt thsft the present contract is embraced ⅛ Ú& term? aliénate ; asd* that there is sfcfficieiát authorization froth the husband to the wife by his conchrrence m it3 as a party jointly obligated.
    Á second question theh is ⅛⅛⅛ ⅛⅜ the defendants’ eouirsel; caá a maPried Woman bind her- > self at all, without expressly renouncing her rights? If the civil code has abrogated 9⅜ Spanish laws, or cbntains provisions irreconcilable with them, the question is decided. ⅜
    The civil code sats expressly, th:>t married women may contract with their husbands, without any restriction, or limitation;. page 841* art. 85. page 333, oj^|>3 page 455, ⅛⅜⅛. 17. They may contract wrtl them jointly, also, when separated in goods. €iv. Code. 343, ’ art. 91. Novy, these provisions are eleariv inconsistent ard irieconcilable with the Fist law <sf Toro*,' which says that a married woman ca'n-riótWontrael jointly with her hnsl and awarfrb-bun. And, in consequence of this change, in oiir jurisprudence, it was necessary to protect the rights of women, by giving them a piviledge, which they had not before, on thfe property of their husbands, for an indemnity ®f the debts coutracted jointly with them. In fee present case, the defendant is notsimply t he security of her husband; she contracted and' ho rid herself jointly and, severally, soltétóire-
      iWeng-with him, and is equally a party to the contract.
    The defendant’s counsel admits that a contract’ “by á married woman, unauthorised by her husband, is voidable only, and not void: this is clear from the statute.' Civil Code, 303, art. 204. From the same article, also, an induction may be drawn, that in all acts where the wife is authorised by her husband, the contract is valid.
    The above passages from the civil code being so plain, and so directly irreconcilable with the 61st law of Toro ; the defendants’counsel has resorted to a method of reconciling them which certainly cannot be supported on legal principles. He insists, that those passage-of the civil code refer only to the private property of the wife, and that, in order to bi d herself, she must renounce the above laws; and it was contemplated that she would do so.— But is thL not adding and restricting the legislator’s words, in a manner totally inconsistent with the rules of interpretation given by the code itself. “When a law is clear and free, from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.” Civil Code, 4, art* 13.
    The law of Toro had become a dead letter from tKe effect given to renunciations" of it.— ° _ ■ ■ ■ - How the .effect of a prohibitory law could be done away by renouncing'it, appears absurd and illegal to the annotato^on Febrero, 1817, val. 2, page 92, note 117, and must revolt common sense. But, such being the 0⅛1 law, and the evil of it being evident, the ciy-, il code gave power to marriedT women to contract, with the authorisation of their husbands, in all but specified cases*; a»d, in order jto secure them against the loss of their property, to Which they were before exposed, gave them an indemnity on the estate of thei# husbands.
    Thus our civil code reduced the laws to'the standard of common sense, and introduced a most important remedy for the effect of those interpretations which repealed laws by renouncing them; For, where was the advantage of such laws,in favor of women, if they could at any time renounce them, and thus expose themselves to the ver^evils which they were intended to remedy, and that too without any hppe of an indemnity.
    The counsel for the defendants acknowledges that the cases, I have quoted from the Sirey, go the full length that I contend for; but says that, the general provision r< pealing all the Roman laws in pari materia, with the code Napoleon is^he,.íopn49>ti' n pf those decisions*. The • ; ⅜* - ‘ c.purt of scassation, hgpev^r, refej,{1 ⅞.]⅜/⅜⅛, 39 ’>} to the 1481 art. of the code ^-apoleon, as proof of the, power of a married fdi’áñ to hfnd herself jointly** with her husband. That article is substantially the same, as the art. %5⅜ ⅞ 3, of the civil code, in page 333, and art» 17, in page 455."
    The decisions of the court of cassation, l do pot ur^ge as absolute authority i# this cou r . I refer to them only as the reasoning arid ,opi;n iops of learned men>5 they throw much lig t. on this subject, and are, in my opinion, ooBclur sive.. ■ ⅜
   Derbigny, J.

delivered the opinion of the court. The defendant has subscribed, conjointly with her husband, a promissory note to the order of the plaintiff. Her husband i- now insolvent, and the plaintiff demands of her the full amount of the note-⅝

⅜ that demapd sftébpposes several objkc-tions, the most important of which are,

1. That she was not authorised by her husband, In the manner required by law, to contract this pretended debt.

2. That supposing such authorizaiion to have been given, the obligation op which she is sued is void, or at least, voidable.

I. The wife chnnot pénfraet without ⅛© .'.... , , , , . , , tbqrisabon. of her husbanch that is the general principle. How is that authorisation to be gLy* . # . ‘ en, is the question to be exari&aeii here. .

It was by the ancient taws,*&nd we believe it is still, required that the authorisation be express, not tacit. La licencia ha de ser expresa⅜ p*ues no hasta la tacita” saj-s Febrero. The plain sense Of which is, that the authorisation must appear from some declaration or apt .of the husband, andshuil not be implied from his silence or taci ta acquiescence. The defendant seems' to think that nothing will amount to an express authorisation, unless the word autho-rise be itself used, and he quotes Pothier, who calls that w>;rd sacrumential, consecrated, indispensable. It appears, indeed, that such was formerly, the general opinion of French juris-consults, within the, jurisdiction of the parliament of Park,-founded, as that of Pothier, n the expressions of the 223d article of the custom of Paris. See Merlin’s Repertoire de jurispr. V. autorisation maritale, sect. 6. But with any opinion, which may have been entertained there, as to the correct interpretation of that article, wit have nothing to do. Our own authors, commenting upon our own laws, have told how an express authorisation is understood to be given by the husband to the wjfe. With them thf word authorise has no peculiar and exclusive power. . Any expression, or any act, which clearly shews the intention of the husband to authorise his wife, amounts to an authorisation: a construction, we must confers, which, hpwever inferior it may be, in téchnical nicety, is certainly more satisfactory to reason. Among the variety of instances enumerated by I ebrero, where.the authorisatinn, though not called by its name, is deemed sufficiently man lest, is the very case upder consideration. Thp authorisation needs not be expressly mentioned, where husband and wife enter jointly into a contract with a third person, for by that fact itself, it is evident that, the husband gives it, though it is not expressed: Ni la nexesiiá quando ambos juntos de mancomún ortogan algún contrato, con tercero, pues por el mismo hecho es visto dársela, aunque no se ex-prese. Febrero de escr. c. 4, § 4, n. 111. Upon this point, then, there is no difficulty. Whether we follow the doctrine laid down by the Spanish jurists, or the present opinion of the French under the code, the result must be that the concurrence of the husband, in the act, amounts to an express authorisation.

TT. The other question is far more important, i . , , „ and we approach it with dim lenc.e. Has our civil code so altered the former laws, that the wile can now bind herself jointly with her husband in every case absolutely and unconditionally ? '

Our code has, in several places, recognised* in a collateral manner, that the wife may contract debts jointly with her husband. Is that an innovation ? The plaintiff conlends that it is, and relies on the 61st law of Toro,so often cited, as establishirigfthat the wife could not formerly enter into any such contract. It is, therefore, necessary first to resort to that law in ordei to verify whether it contains the alledged prohibition; the words of it are as follows : De aqui ade-lante la muger no se pueda obligar por fiadora de su marido, aunque se diga, y alegue que se convertid la tal deuda en provecho de la muger. Y asimismo mandamos que quando se ubligazen a mancomún, mando y nuger en un coñtrato, ó en diversos, que la muger ne sea obligada d cosa alguna: salvo st• se probare que se convertió la tal deuda en provecho de ella; ca entonces man-üamm que por rata del dictio provecho sea, obli-gada: pero si lo que se convertid en provecho de, ella fue en las cosas que el marido le era obligado cí dar, asi como vestir la y darle de earner, y Ins otras cosas necessarias, mandamos ,que por esto illa no sea obligada a cosa alguna. u prom henceforward, it shall not be íavvft# for wife to bin 1 herself as security for her husband, although it should be alledged that the debt was converted to her benefit; and we do also order that when the husband and wife shall obligate themselves jointly in one eon-tract or severally, the wife shall not be bound in any thing, unless it shall be proved that the debt was converted to her benefit, and she shall then be bound in proportion to what shall have been so applied. But, if the debt so applied to her use, served only to procure that which her husband was obliged to supply;» her with, such as food, clothing and other necessaries, then we say that she shall not be bound in any thing.” The simple reading of that law shows not only that it was not forbidden to the wife to contract jointly with her husband, but that it was expressly recognized that she could. The prohibition, which it contains, is only as to her béfng security for her husband, which is, in 00 case, permitted. But it T positively said that she may contract obligations in solidum with him. The only restriction is that she is bound conditionally ; if the debt is converted to her benefit, she is r bound; i»The contrary «fee ⅜⅛ ⅛⅛⅜. - !? when otír dode speaks ofSeSts>%hich the ipfe may contract jointly with her husbartd; dófes it innovate ? ffo : so far from innovating it mast t>e taker» as referring to the existing laws, for the wife could make stfch contracts before. I>oes it remove the,'“restriction' imposed in such cases? it would, if that restriction was contrary to the dispositions contained in the code* or irreconcilable with them. Is there qny such incompatibility? We eannot perceive any.

We are. therefore, bound to Say, that the re--Sfriction imposed by the Spanish laws on thq obligations,contracted by th^ wife jointly,’with her husband,, has .not ceased to b° in forcé, and that, according to it, when the creditor, wishes to compel her to the performance óf Such an obligation, he must prove that the debt was converted to her benefit. Whether-that restriction was attended with inconvenience is not for us to consider. Our duty is to declare the law, nof to modify it, ,

. In ibis case, therefore, no proof having beéft made that the debt contracted by the defendant jointly with her husband was applied tp her use, in the manner required by law, we must sáy that the plaintifF cannot recover ; and thfs view of the subject precluding the necessity of .investigating the other points of the defence, we dismiss their consideratipn.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.* '*> : 
      
       MahAs, X 4id not join, in-this opinion, having some interest thg. decisión pf the question ofl^w arising in it.
     