
    
      Jane Reid v. Peter Lamar et al. Peter Lamar v. Jane Reid et al.
    
    An agreement, entered into in contemplation of marriage, between the intended husband and wife, providing for die wife’s having, through the intervention of a third person, called her “ agent,” “the full and free disposal” and the “ sole direction” of all her property, and registered in conformity with the laws of Georgia, the State in which it was executed, was supported by the Court as a marriage conkact.
    
    It is the settled law of this State, that where property is given or settled to the separate use of a married woman, she has no power to charge, encumber or dispose of it, unless in so far as power to do so has been conferred on her by the instrument creating her estate; which power must be strictly pursued — in contradiction to many English cases, in which it has been held that she is a feme sole with respect to hef separate property, and may charge or dispose of it as she pleases, unless in so far as she is expressly restricted by the instrument
    
      Before Johnson, Ch. at Abbeville, June, 1845.
    Johnson, Ch. The case made by the last stated case is precisely that made by the original bill, and the object seems to have been to obtain, by the cross bill, a relief which the complainant supposed he could not obtain at law. I propose, therefore, to consider, in the first place, the case made by the original bill, unconnected with the cross bill, and with reference to the parties to that bill.
    The complainant, Jane Reid, (then Jane McKinney,) and the defendant, William R. Reid, in contemplation of a marriage between them, on the 31st July, 1828, entered into a marriage contract, which, on account of its peculiarities and the questions growing out of it, requires a particular notice.
    They were both residents of Lincoln county, Georgia, and the property intended to be settled was there. The contract, after reciting the intended marriage, and the necessity or propriety of making a settlement, proceeds : — “ The said William R. Reid doth firmly agree that Harvey Wheat shall act as agent for and in behalf of the said Jane McKinney, for the better security and management of all and singular the property in her vested at this time, or in which she has or may hereafter have any interest, and all proceeds which may hereafter arise therefrom; and the said William R. Reid doth further agree and contract with the said Jane McKinney, through and by her said agent, to surrender to her the full and free disposal of all and singular the property which she has now in possession, consisting of negroes, stock of different kinds, household and kitchen furniture, together with all she has now or may have any interest or claim to, with all the increase that may hereafter arise therefrom or in any wise from their proceeds, and all choses in action, to have and to hold the sole direction and guidance thereof; and the said Jane McKinney, of her own good will and free choice, and through Harvey Wheat, her chosen agent, doth hereby agree and firmly contract to afford the said William R. Reid a decent and competent support by her labor through the proceeds of her above named property; provided he also give his labor and assistance thereto in rendering to his own and the support also of her and her family; and the said Jane McKinney doth further agree, not to interfere, dispose of, or in any wise intermeddle with any or singular the effects or property of the said William Reid, which he has now or may hereafter accumulate by his own industry or labor, or with any of the proceeds arising therefrom.”
    It is signed and sealed by William R. Reid, Jane McKinney and Harvey Wheat. The marriage was shortly after solemnized, and it is conceded on the part of the defendant, Lamar, that the deed was registered in conformity with the laws of Georgia, and that he had actual notice of its existence and contents, he being himself the Register.
    The complainant states in her bill that the property protected by this settlement included, amongst other things, ten slaves, who are named; the possession of which she had transferred to her brother, Gabriel Gox, residing in this District ; that on the day of 18 , the said slaves were seized by the Sheriff of the District, in virtue of certain writs of attachment sued out of the Court of Common Pleas of the said District of Abbeville, against her said husband, William R. Reid, at the suit of the defendant, Lamar, and other creditors residing in Georgia, and that under subsequent proceeding had in the said causes, her said husband was held to bail, and his sureties having surrendered him in discharge of their liability, he, to enable himself to take the benefit of the prison bounds Act, rendered his Schedule, and made an assignment to the defendant, Lamar, of all his interest in the negroes and other property included in the settlement, who has obtained possession of them; that Harvey Wheat, the trustee, has declined to act in the matter, and desires to be discharged from the office of trustee. The prayer of the bill is, that Wheat, the trustee, should be removed and another substituted in his place ; that defendant, Lamar, should be enjoined from disposing of or removing the slaves out of the State; and that he should be decreed to deliver them to the complainant and account for the hire. The defendant, Lamar, admits all the material allegations of the bill; the fact of the execution of the settlement; the identity of the property; the regular registration of the deed according to the laws of Georgia, and his knowledge of its existence and contents; that the complainant removed the negroes from Georgia, and put them into the possession of her brother, Gabriel Cox, in Abbeville District in this State; that they were seized by the Sheriff of that District, by virtue of writs of attachment issued at his own suit, and that of Felix Crossen; that William It. Reid was surrendered by his bail; and that to obtain his discharge, he assigned and delivered to him, the defendant, the said slaves, for the benefit of himself and Felix Crossen, another suing creditor; and he insists:
    1st. That the contract is void for want of a schedule or other apt description of the property. 2nd. That the deed does not operate as a conveyance of the property to Harvey Wheat; but that the legal estate remained in the complainant, and vests in her husband, jure mariti, and was subject to the payment of his debts. He states, 3dly. That the causes of action on which the suits at law were brought against William Reid were three several promissory notes made to himself by the said William R. Reid and the complainant, with the knowledge and consent of Wheat, the trustee, amounting together to more than eleven hundred dollars, three other notes amounting together to about $360, likewise signed by the complainant and her husband, with the like consent of the said trustee. The assignment of the negroes by William R. Reid to this defendant, was intended to satisfy the judgments obtained against him on these demands and the judgment in favor of Felix Crossen. That the consideration of the notes due to this defendant and his partner, Daniels, was goods and merchandize furnished the complainant and her husband, and for money paid and advanced for them at the particular request of complainant, with a distinct understanding, that her separate property should be liable for the payment ; and he insists, in the 3d place,- that if the complainant has a separate property in the negroes, it is in law liable for the payment of these debts.
    Felix Crossen was not a party to the original bill, but in his answer to the cross bill he stated that the consideration of the judgments obtained by him against William R. Reid, consisted of $324, advanced by him at the particular request of complainant and her husband, to pay a note given by them to one Perry Griffin, and for which he, the defendant, was bound as their surety, and to reimburse which the complainant promised to mortgage one of her negroes — of $150, advanced by him at the request of complainant, to pay a note given by her and her husband to one Trammel — and of $30, to pay a note given by them to one Reynolds.
    
      The object of the cross bill is to charge the complainant and her separate property with the payment of these demands, in the event of its being determined that the complainant took a separate estate in the property, and nothing passed to the defendant, Lamar, under the assignment made by William R. Reid, and the bill does not vary materially the case before stated. The complainant in the original bill admits in her answer to the cross bill that she joined her husband in the notes to Lamar, and Lamar & Daniels, and Crossen. But denies that their consideration was' for the benefit of the trust estate, and states, on the contrary, that they were given for debts due by her husband exclusively, contracted some before and some after their marriage, and that she was induced to join her husband in the notes by the importunity of the creditors.
    On looking through the evidence, all of which is in writing, I am satisfied that the consideration of the judgments obtained by Lamar, Lamar & Daniels, and Crossen, were principally debts contracted origin ally by Reid himself, and an inconsiderable part only on account of the complainant, without being able to distinguish how much of either. The notes signed by Jane Reid all bear date subsequent to the marriage ; but the evidence shows that some, perhaps most of them, were for debts previously contracted by the husband, but whether before or after the marriage, does not appear; that can be ascertained on reference, if it becomes necessary.
    There is no evidence of any one of the creditors practicing any importunity to procure the complainant to join her husband in the notes. • Reid was insolvent and much involved in debt, and the creditors were doubtless willing to obtain the security which the name of complainant would, as it was supposed, give to their debts, and she, on her part, was, it would seem, influenced by a desire to obtain time for her husband, in the hope that he would be able to pay his debts.
    The proposition that the marriage contract is void, because there is no schedule of the property or other particular description of the property, is obviously founded on the provisions of our own statutes, which provide that such contracts shall be void unless they are accompanied with a schedule describing the property intended to be settled; and it was argued, that in the absence of any evidence as to what the laws of Georgia are on the subject, we are bound to follow the rule prescribed by our own statute.
    There is no doubt, as a general rule, contracts are to be construed and have effect according to the lex loci contractus, and that in the absence of any evidence as to what those laws are, they will be controlled by the laws of the place or State in which they are to be enforced; but this rule applies only to the general, and not the statute laws. Now we linow that the common law of England, as it existed in 1776, was declared to be of force in Georgia, Try an Act of the legislature of that State, unless altered by statute, or was inapplicable.— Prince Dig. Laws of Georgia, 570. 2d Ed. And if it has been altered in this respect by statute, it was incumbent on the defendant, Lamar, to prove it. Now if the description of property conveyed, is such as to render it impossible to ascertain what it was, the conveyance is of course void, because there is nothing upon which it can operate; but id cerium est quod cerium potest, and if it be so described that its identity can be ascertained by extrinsic evidence, it must prevail: that is the rule of the common law. The proof here is, that the negroes in controversy are those, with their issue and increase, which belonged to the complainant when she married Reid, and thus their identity is ascertained.
    Marriage contracts, as a class, seem to be more ill fated than any other in their preparation. This is another of the many instances which have occurred, in which the Court has been called on to give effect to a marriage contract which, for want of proper skill in the draftsman, does not express what the parties probably intended. Reid was involved in debt at the time of marriage, to the extent, it is said, of more than he was worth, .and was, according to the account which he gives of himself, intemperate and improvident. The complainant had some fortune, and I should suppose that it was desirable to both, that it should be secured to the use of the wife. The ordinary and proper mode would have been, to convey it to a trustee, for that and such other uses as she might think proper ; and the introduction of the name of Harvey Wheat into this deed, was no doubt intended for that purpose; but it gave him no title to or interest in the property, nor any control over it; on the contrary, the contract on the part of Reid is “ to surrender to her (complainant,) the full and free disposal of all and singular the property which she has now in possession, consisting of negroes, &c. to have and to hold the sole discretion and guidance.” Wheat is characterized as the agent of the complainant, but no duty is assigned him, nor does it impose any obligation on him. As the mere agent, he could do nothing but what she might authorize. The legal right in the property remained, therefore, in the complainant, and vested in the husband on their marriage.
    These contracts are so much favored, that however irregular and informal, if a practical legal intent can be deduced from them, the Court of Chancery will give them effect. — In Ballard vs. Taylor, 4 Eq. Rep. 550, the husband and wife entered into an agreement before marriage, without the intervention of a trustee, by which it was stipulated, “that the property belonging to each shall remain as if no marriage had taken place, and that the husband shall not have it in his power to sell any part of the same without the consent of the wife,” and it was held, that the property was liable to the debts of the husband, contracted after, and not before, the marriage, and a settlement to the separate use of the wife, of what remained after paying the debts, was decreed. Allen vs. Rumph, 2 Hill Ch. Rep. 1, is to the same effect; and so in Colclough vs. Colclough, cited in the last case. In both, contracts entered into by husband and wife before marriage, were set up as valid settlement, although there was no trustee.
    Now, informal as this deed is, it very plainly expresses an agreement on the part of Reid, to allow to complainant, “ the full and free disposal” of the property, and the “ sole direction” thereof; and on the part of complainant, to allow him “ competent and decent support” out of the proceeds, provided he would contribute “ his labor and support” in aid thereof; and this is utterly inconsistent with the absolute right of property remaining in him. Such are the rights of the complainant and her husband.
    Lamar and Crossen both admit that they had explicit notice of this deed; as creditors of the husband only, they are bound by the equities of the wife. Whether the wife’s separate property is chargeable with the payment, in consequence of her joining him in these notes, is another and the only remaining question.
    I am much indebted to the learning and ability with which this important and somewhat novel question has been argued, particularly by the Junior Counsel, (Mr. McGowen, for complainant, and Mr. Martin, for the defendant, to whom I supposed it had been more especially confided,) and having bestowed on it a good deal of consideration, I have come to the conclusion, that the complainant’s separate property is chargeable with the payment of these notes and all her pecuniary obligations.
    According to the common law, husband and wife are so identified, that they are regarded as one person, of which he alone is the representative. By the marriage, all her rights of property vest in him absolutely as to personalty, and the “usu fruct,” in the realty during their joint lives. She cannot, therefore, incur any personal obligation, because of the paramount right of the husband, nor can she contract about property, for. she cannot have any which is not under the control of the husband during their joint lives; and these rales, to the extent of their application, are enforced in Equity. But looking beyond the positive rules, and with a juster perception of the rights of married women, the Court of Equity, following the civil law, recognize, for some purposes, the individuality of the wife as distinct from and independent of the husband, and although the boundaries between the absolute rights of the husband, and the qualified rights of the wife, are not minutely defined throughout all their ramifications, some principles regulating them have been well established. Amongst the first of these, is the right of a married woman to possess and enjoy a separate estate, independent of the control of her husband. Secondly, that she may exercise over it all the powers which the grant, or other muniment, contract or bequest, under which she acquires it, authorizes, and a fortiori. Thirdly, that when the power is absolute, she may dispose of it as she thinks fit.
    The deed here confers on the wife the “ sole direction,” and the “full and free disposal” of the property, powers as ample as any owner can exercise over property in which he has an absolute and unqualified right, and it is not questioned, that under this power she might have disposed of it by a parol or written contract, with or without consideration, or by will; or that it would have been bound if she had mortgaged it for the payment of these debts; and the question is, whether it is chargeable with the payment of them.
    The question as to the liability of the wife’s separate property, for debts contracted by her, has been very fully considered in Magwood Patterson vs. Johnson, 1 Hill Ch. Rep. 228, in which all our own cases up to that time were reviewed ; and again in Clarke vs. Makenna, Cheves Eq. Rep. 163; but none of these involve the precise question. That of Clarke vs. Makenna approximates it more nearly than any of the others, and that was put upon the ground, that by the terms of the marriage contract, the wife was expressly authorized .to contract debts, and that her separate estate should be chargeable with them. The cases of Herbemont vs. Herbemont, and Baskins and Giles, which followed, turned upon the power of the wife to dispose of the corpus of her separate estate.
    Conceding, as before stated, that the wife might dispose of her separate estate, or charge it with the payment of debts, the Court of Equity, in analogy to the rule of the common law, held that she is not generally bound by her personal contracts, on account of her legal incapacity to make a personal contract. But a rigid adherence to such a rule might operate to disappoint the object of conferring on the wife a separate estate. It might be unproductive, at the time -when her wants were most pressing, and impose on her the necessity of selling or charging it for every item of her daily supplies, and the necessity of doing either, might subject her to positive loss or great inconvenience: and falling back upon her right of disposition, the Courts have held, that her separate property is liable fqr her engagements, whenever her intention to charge it is manifested, even impliedly, by her contract; and the making of a bond, note or other written promise for the payment of a debt, is sufficient evidence of that intention. The question is too well settled in the English Courts to render it necessary to travel through the numerous cases and authorities which relate to the subject. I will refer, however, to some of the more recent, as illustrative of the principle, and showing its application. In Murray vs. Barlee, 4 Sim. 82, reported 6 Eng. Con. Ch. Rep. 43, the defendant, a married woman, having a separate estate, had employed the complainant, as her solicitor, in a suit in Chancery, between herself and husband, and in the course of her correspondence with him, she promised to pay his costs and charges in the cause; and the question, whether her separate property was bound by this undertaking, came before the Tice- Chancellor, on demurrer. In deciding that it was, he remarks that the security is evidence of a contract to pay the debt out of her separate property. As a married woman is bound, by giving the security providing for the payment of her debt, it must be paid out of the only property which she has. The separate property is her’s for all the purposes of enjoyment, and to answer all her obligations. The security is evidence of ¿ contract to pay the debt, and it must be considered as an obligation to pay it out of her separate property. This judgment was affirmed on an appeal,-and the Lord Chancellor, (Brougham,) in delivering! his opinion, remarks that the wife has a separate estate subject to her own control, and exempt from all other interference. If she cannot affect it, no one can, and the very object of the settlement, which vests it in her exclusively, is to enable her to deal with it as jf she was discovert; and he goes on to ridicule, I think most successfully, the distinction which cases make between written and verbal obligations, the latter having been held not to be a charge upon the separate property. The case on appeal is reported in 3d Mylne & Keen, 209, but not having access • to that book, I cite it from a note to the 3d Ed. of 2d Story’s Eq. Jur. 774, where the opinion is given at length.
    In Stead vs. Nelson, 2d Beavan, 245, reported 17th Eng. Ch. Rep. 245, husband and wife, by writing not under seal, for valuable consideration, undertook to mortgage the wife’s separate property when required. The husband died before a mortgage was executed, and it was held that the wife was bound by- the agreement, and specific performance was decreed, the Master of the Rolls observing, that a separate estate in the wife gave her, during coverture, the same right over the estate, as if she had been a feme sole, and having that right, she was bound- by the agreement to mortgage. The . case proceeds on the principle, that a married woman having a separate estate, is capable of contracting in reference to it, and that the agreement to mortgage, although not a mortgage, was evidence of her intention to charge the estate with the payment of the debt.
    The right of a married woman to dispose of, incumber or charge her separate estate, over which, as in this instance, she has unlimited control, is fettered by many arbitrary rules, growing out of what I regard as an idolatrous devotion to the common law, which denies to her the right of volition, and even an existence independent of the husband. As conventional rules, they subserve, generally, the purposes of society ; but by nature, she possesses all the faculties, passions and necessities of the sterner sex, and in the more ordinary and amiable pursuits of life, equal prudence and address; and the Courts of Equity having, so to express it, endowed her with the capacity to hold property independent of the will of her husband, what motive can exist, to restrict her in the enjoyment of it ? Is it for the benefit of those to whom she may sell or give it in her life-time, or for those who may inherit it after her death? Men obtain credit upon the faith of the property which they own. They are under no necessity to sell or mortgage it to supply their daily or other wants. Their credit alone often enables them to raise funds for carrying on trade profitably, or to make profitable investments in the anticipation of accruing income : and why are these rights and privileges denied to a married woman ? It is said that the common law denies it. The Courts of Equity have broken the fetters which bound her as to her separate estate, so far as to enable her to dispose of or charge it; and why, as Lord Brougham says, should she, by a scrip of paper, for money borrowed to be lost at play, bind her estate, when it would not be bound for necessaries to supply her absolute wants, without that formality? I agree with him, that there ought to be no distinction. There is certainly none in reason, and when the case arises, I shall be prepared to go the whole length. The question does not, however, arise here, for these demands are all on promissory notes and fall within the rule before laid down.
    
      The negroes were not bound by the executions against the complainant’s husband obtained at law, nor did the property in them pass under his assignment. The cross bill was, therefore, properly brought, as this Court alone could furnish an adequate remedy. The prosecution of the suits at law was unnecessary and useless in obtaining this remedy, and the costs there, are not chargeable on this property; and Lamar must, for the same reason, account for the hire of the negroes during the time he has had them in possession.
    It is ordered and decreed, that the defendant, Lamar, do, upon demand made, deliver to the Commissioner of the Court, the negro slaves named in the pleadings, with their issue and increase, since he has had them in possession, if any: and that he account before the said Commissioner for the hire of the slaves during the time he has had the possession or control over them. And it is further ordered, that the said Commissioner do sell the said slaves, or so many of them as may be necessary to raise a sum sufficient to pay the principal debt and interest of the judgments referred to in the pleadings, deducting the amount of the hire of the negroes from the debts dire to Lamar, and the costs of the original and cross-bills, and apply the same to the satisfaction thereof.
    The complainant, Jane Eeid, appealed, and moved the Court of Appeals to reverse the decree, on the grounds:
    • 1st. Because a' married woman has no power to contract, so as to sue or be sued.
    2d. Because a married woman having a separate estate, has no control over or power to contract in relation to it, except what is expressly given by the deed which creates the estate. Her incapacity is general, and her power of disposition is limited by the instrument, both as to its extent and the manner of exercising it.
    3d. Because a married woman cannot bind her separate estate by a general personal engagement.
    4th. Because the decree is contrary to the equities of the case, as administered in South Carolina.
    Perrin & McGowen, for motion.
    
    Wilson & Martin, contra.
    
   Harper, Ch.

delivered the opinion of the court.

We agree with the Chancellor, that the very informal instrument set forth in the decree, must be supported as a marriage contract.

It is hardly necessary to consider the ground chiefly debated (though perhaps not strictly involved m the case). If any thing can be considered as settled, it is the settled law of this State, that where property is given or settled to the separate use of a married woman, she has no power to charge, encumber, or dispose of it, unless in so far as power to do so has been conferred on her by the instrument creating her estate; which power must be strictly pursued — in contradiction to many English cases, in which it has been held that she is a feme sole, with respect to her separate property, and may charge or dispose of it as she pleases, unless in so far as she is expressly restricted by the instrument. This has been the settled law since the decision in Ewing vs. Smith, cited in argument, (3 Des. Eq. R. 417) followed by a great number of cases decided in conformity to it, for a period of more than thirty years, and without any decision impugning or conflicting with it — though some dicta of judges were found, seeming to imply, that they thought the subject might still be open to consideration. But no such dictum or intimation has been found since the decision in Magwood & Patterson vs. Johnson, decided in 1833. I can say that, while at the bar, I considered the doctrine so well settled as not to make the question where it might have been raised, and as Chancellor, I have decided several cases involving the principle, in which it was not mooted. The general doctrine was not questioned in Cater vs. Eveleigh, in James vs. Mayrant, in Montgomery vs. Eveleigh, or in Magwood & Patterson vs. Johnson, though it was contended that the transactions in those cases came within the exception to it.

The court certainly does, sometimes, review its own decisions, and I am apprehensive there is too general a disposition to regard it a matter of course, that every question, however well settled, may be agitated again and again, and argued as de novo. Nothing can be better calculated to shake all confidence in the administration of Justice and the security of property. Where the operation of decided principle has been found inconvenient or injurious in practice, there is more reason that it should be reviewed and the mischief corrected. Though even when such consequences have been felt, yet if the decision has long obtained, and rights may have been acquired on the faith of it, the court refuses to interfere. But with respect to the decision in question, even those wh<x dissent from it on the score of authority, acknowledge the wholesomeness of its operation, and its tendency to promote the objects which the Court of Equity had in view, in recognizing a separate property in femes covert, and in protecting them against the influence or practices of their husbands; which might be exercised without the possibility of detection; as also to guard them against their own generous or devoted impulses. The Judges who dissented 'from the opinion of the majority of Ewing vs. Smith, afterwards acceded to it, and I am yet to- learn that any inconvenience has followed to married women or their children — the objects of the court’s protection.

But it is contended that though this may be the law of our own State, yet this instrument must have effect according to the law of Georgia — the State in which it was made: that Georgia has generally adopted the English law, from which she is not known to have departed, and that we should determine according to the general current of the English decisions.

I do not know whether it is worth while to remark that, at the time our Act of 1721 was passed, adopting the principles and practice of Equity law, as administered in the high court of Chancery of South Britain, South Carolina and Georgia constituted one colony. Upon such a separation as that which afterwards took place, each party carried along with it its own laws — such as before had been common to both. It must be observed that, in following the case of Ewing vs. Smith, we are to regard it as a decision upon English'law; the court had no other law to decide upon; and if the decision be binding on us as authority — as every decision of our courts in the last resort must in general be— we must regard it a correct decision upon English law. The court disclaims all power to introduce new law; though they thought themselves at liberty, in deciding for a new community, amidst the conflicting decisions and jarring opinions of the English courts, to adopt such views of the law “ as might obviate the inconveniences of which the British courts had so much complained, and which seemed most conformable to general principle and the sounder opinions. And were they not so at liberty ? As I have said, we sometimes review our own decisions, when inconvenient consequences are found to follow from them; unless they have been so long established and followed, that the alteration might interfere with vested rights. In England, it may well be, that under the predominant current of decisions, for a great length of time, rights had become so fixed, and. property so disposed of, that the Judges who most strongly condemned those decisions, would not venture to depart from them. Such reasons would not apply to our own courts, deciding, so far as we know, for the first time. Was it not their duty to guard against the evils so loudly complained of in the country from which our laws are derived ? They were as much at liberty to review the English decisions as their own.

I need not do that which has been done before by abler men; compare and collate the cases (though I have examined many of them) with a view to shew that they are uncertain and contradictory between themselves; many of them referable to no fixed principle, and a source of embarrassment and regret to the ablest Judges who have administered the English Chancery law. I need only, for this purpose, refer to the opinion of Chancellor Kent in the case of the Methodist Episcopal Church vs. Jaques, 3 John. Ch. 77— and indeed to the dissenting opinion of Chancellor DeSaussure, in Ewing vs. Smith. It is true, that the decision of Chancellor Kent in the former case, was overruled by the Court of Errors of New-York. But neither the one decision nor the other, is conclusive on us as authority: they only receive the consideration to which their reason and justice may seem to entitle them. The opinion of the Court of Errors seems to have a strong leaning against the making of any separate provision for a married woman, and in favor of carrying back the doctrine to that of the old common law; by which the existence of the wife is, to every purpose, merged in that of the husband. But whatever may be the opinion as to the superior strength of the argument for each decision, I think the argument of Chancellor Kent quite sufficient for this purpose — to shew that, in adopting the doctrine of Ewing vs. Smith, the Court was guilty of no usurpation or flagrant violation of unquestioned principles; but might well adhere to that which seemed the safer and better rule. It might be different in relation to the present case, if it were shewn that a different course had been pursued in the Courts of Georgia, the State in which the contract was made; but this was not alleged or shewn.

Were the cases, contradictory ? I believe no one has attempted to reconcile the case of Sackett vs. Wray, 4 Br. Ch. Ca. 473, and other cases to the same purport, with Pylus vs. Smith, 3 Br. Ch. Ca. 340; 1 Ves. Jr. 189, and others which are supposed to be the more numerous and governing English decisions. The former cases are said to be opposed to the current of previous decisions, and to be overruled by subsequent ones. It is held, in consequence of the general expression, that a married woman must be regarded a feme sole in relation to her separate estate; that although a particular method of charging or disposing of her separate estate is directed by the instrument creating it, yet she may charge or dispose of it any way she thinks proper — in violation of the general principle, that expressio unius exclusio alterius. In Jones vs. Harris, 9 Ves. 497, Lord Eldon thought it a doubtful question, and deserving a very full review, whether a married -woman could charge her separate property in any other manner than that prescribed by the deed. If he was prepared to review, he was not unprepared to reverse, the previous decisions, by which he so far considered himself bound. So in Parker vs. White, 11 Ves. 209, this Judge declares his mind to be in a state of great distraction on the subject, and elsewhere speaks of the law’s being in a distracted state. There are contradictory cases, whether a married woman can bind her separate estate by her general personal engagement, without a specific charge. And supposing her to have such power, there are various cases inconsistent with each other or separated by impalpable distinctions. It has been questioned, whether such engagements must be in writing — by note or bond' — or whether air express verbal promise will do, or whether an implied undertaking will be sufficient. Yet, I think there was a stronger equity against the wife in the cases of Duke of Bolton vs. Williams, and in Jones vs. Harris, where the wife herself had received the money, than in Hulme vs. Tenant, where she became bound for her husband’s debt. The former were cases of an implied undertaking. The case cited by the Chancellor, of Murray vs. Barllee, in which a married woman was living apart from her husband, was one in which a verbal promise was held to bind the separate estate. That case may, perhaps, be supported on the ground that, apart from the express promise, the services of the lawyer constituted a necessary part of the expenses of the trust estate. The husband could not be expected to pay the costs of the suit against him. If there was any thing which could be considered necessary to the trust estate, it was that the wife’s title to it might be vindicated, and its possession or profits recovered or secured to her. It might well come within the distinction laid down in Magwood & Patterson vs. Johnson, 1 Hill 228, that when a person has paid his money or given credit to effect the purposes of the trust, he may have an equity to stand in the place of the cestui que trust for his reimbursement. The ridicule of the distinction between written, verbal, or implied engagements only proves that such distinctions existed, and were insisted on. Questions have been made in the case of a trust merely to the separate %ise of a married woman, without specifying any method of appointment or disposition; whether she must necessarily have the power of making a will, or what was the further extent of her power.

There has been a conflict also, in cases where the trust was, generally, to pay rents and profits into the hands of a married woman, or to pay them from time to time. In short, doubt,' contradiction and uncertainty overspread the whole mass of decisions growing out of the fundamental doctrine— that in the disposal of her separate property a married woman is to be regarded as a feme sole ; so as well to justify the complaint of Mr. Sugden, in his treatise on Powers, p. 114, that it is almost impossible for a practitioner to advise confidently in any case where the very words have not received a judicial determination. From this labyrinth, the case of Ewing vs. Smith has happily extricated us, and I feel no disposition to plunge into it again. I believe it may be said, that since the time of Lord Hardwicke, hardly any Judge has sat on an. English Chancery bench, before whom the subject was brought, who has not condemned the doctrine or some of its modifications.

It is contended, however, that this is a case in which the requisite power has been conferred on the wife by the settlement; the property being placed at her “sole direction and free disposal.” Suppose this equivalent to a power to give, sell or charge at her discretion; and the question is, does the joining her husband in the notes of hand, constitute a charge on her separate estate 1 This is, in fact, but a modification of the doctrine we have already considered ; and one of those which the English Judges have regarded as most exceptionable. Lord Thurlow perceived the absurdity, in the case of Hulme vs. Tenant, the case principally relied on — that by the execution of an instrument purporting to bind herself personally, which she could not do, and which, by the general law, was absolutely void, she might bind her separate estate. He yielded to the weight of previous authorities, determining that a married woman was a feme sole with respect to her separate estate; and if a feme sole, that-, her estate must be bound by all her engagements. It was in relation to this case, that the strong expressions were used by Lord Roslynn, in Whistler vs. Newman, 4 Ves. 143,— that “nothing could be more perfectly without all law than the bond in that case.” It seems to require this principle in all its extent; that where the married woman has the property in the principal or dividends, whatever disposition she makes of it, if it is her pleasure to do it, even in so absurd a way as by giving a bond, supposing her to know she is doing it, this Court will support ii and build upon it. It takes away all the protection from married women, and makes trusts for their benefit of little importance.” Lord Alvanly expressed himself hardly less strongly, and so said Lord Thurlow, though he conceived himself bound by authority; and none more frequently than Lord Eldon, who often expressed his wish that the cases should be reviewed. The eases are very well collated and commented upon by Mr. Clancey in his treatise on Marriage Settlements, p. 137.

But it is a misconception to suppose that this point of the case is to be separated from the general doctrine I have considered. A married woman is supposed to bind her property by her general engagements, because with respect to it she is regarded as a feme sole.

But though it has sometimes been said in relation to our doctrine, that she is only a feme sole sub modo, or to the extent that the settlement makes her so; yet these expressions are inaccurate. She can, in no manner of respect, be considered a feme sole. A feme sole disposes of, or charges, hex-property by her own' act, and according to her own will, by her inherent power as owner. A feme covert exercises a delegated authority, and cannot exceed it. She is enabled to execute a power, as, in some instances, any third person— feme covert or other — even those having no interest in the property, might be enabled to execute it, and bind her by their act. ■ The case of Clarke vs. McKenna, Cheves Eq. 163, rested on no authority of the wife to bind her property as a. feme sole, but upon the terms of the instrument, by which, the property was made liable to her “ debts and contracts.” This resulted from the power of the grantor over the property.

It follows, that the notes in question in this case were void, both at law and in equity, the complainant having no power to charge her estate in that way.

It is hardly necessary to advert to a distinction attempted to be enforced, between a case in which the wife has the fee, and those in which she has only a particular estate. Nor should I do so, but for a suggestion thrown out in the circuit opinion of a Judge to all whose suggestions I listen with deference. But this does not amount even to a dictum, and I have found no such suggestion in any other case. The case of Ewing vs. Smith was one in which the wife had joined her husband in a bond, and payment was sought out of a fund of which the property was her’s absolutely. The truth is, that the protection of the Court is more necessary and useful where the wife has the absolute property, than where she has a particular estate. If there be a life estate with remainder to children, or contingent limitations, she cannot defeat these by any disposition of her estate, any more than in any other case of a life estate with remainders. The power to dispose of her own estate, does not imply that she may dispose of the estates of others. But if she squanders the fee, children may be left destitute, when by restraining her power of disposition, the property might be secured to them.

'It is ordered and decreed, that the decree of the Chancellor be reversed, and that the defendant, Peter Lamar, deliver up to the complainant the slaves in question, and account for' their hire, and that the cross bill be dismissed.

Johnston, Ch. and Dunkin, Ch., concurred.

Decree reversed.  