
    
      BEAUREGARD EX’TOR &c. vs. PIERNAS & WIFE.
    
    Spring 1811.
    First District.
    Wife, becoming surety for her husband must officially renounce the laws in favour of women & wives.
    This was an action brought to recover, out of the property of the wife, (the husband having become insolvent) the price of a slave, sold by the testator to the husband, by a notarial act of sale, to which are wife became a part, as a surety, and as such, in conjunction with her husband, hypothecated her property, present and to come. Upon the failure of the husband, a suit was instituted against the wife, before the Spanish tribunal, in which, an order of seizure was granted, and certain property of the wife seized, by the alguazil mayor and put in deposit; but all proceedings therein, had beea suspended by the change of government.
    
      Ellery for the plaintiff.
    In this suit I rely,
    1. Upon the Spanish proceedings.
    2. Upon the notarial bill of sale, to which the wife, as surety, voluntarily made herself a party, and which, by the laws of this country, makes the contract binding upon her, and renders her property liable, upon the default of her husband.
    I. From an examination of the Spanish proceedings, it appears that this suit, before the Spanish tribunal, had gone through its several Stages, and that the legal contestation of the parties terminated in an execution, by virtue of which, the goods of the wife had been seized, and put into the custody of the law, from which they were only released by the change of government, which suspended all judicial proceedings. This execution, or fi. fa. into which the order of seizure granted in the beginning of the suit had ripened, always supposes, as indeed does an order of seizure, (if in this case, it should be. construed to be an order of seizure, rather than an execution) a previous judgment to support it, either judicially delivered, or legally implied, from the nature of the instrument declared upon, which by the principles of the Spanish law, may either import a confession of judgment, or carry with it the authority of the thing judged. In this case, the proceedings before the Spanish tribunal, were matured into an execution, proceeding from a judgment, judicially delivered and which, though not pronounced in the form of our judicial decisions, is yet sufficiently clear and certain. The counsel of the defendant, must, therefore, dispose of this judgment, before he comes to the intrinsic merits of this action.
    II. Should the court not be with me upon this point; I rely, with confidence, upon the nature of the instrument produced, which is not only founded upon the principles of the Spanish law, but minutely and laboriously observant of all its forms and technicalities. The Spanish law, like the common, supposes the wife under: the coercion of her husband, and examines with attention, if not also with jealousy and suspicion, every act executed by her during coverture, in favor of her husband, and a variety of provisions have been made to secure her rights and privileges from infringement or invasion. But this has not been carried so far, as wholly to lock up her property, or to deprive her totally Of the power of pledging or alienating it. Her privileges are all summed up in the 61st law of Toro, as inserted in the Recopilacion de Castilla, and found also in the Partidas. Of this law, the leading principle is, that the wife shall not be bound in solidum with her husband, or become a surety for him. Recop. de Cas. T. 1. L. 7. F. 709. But to this principle, there are exceptions, and the present case will be found to fall under them. These- exceptions are. numerous and important, of which the third meets and embraces our case, viz : “ That when the wife, “ apprized and knowing, that she is not allowed “ or compellable by law, to be a surety, af- “ terwards renounces her privilege, and waves “ the right which the law secures to married “ women, in this behalf.” “ La tercera es, “ quando la muger fuesse sabidora e cierta que no " podia nin decia entrar fiadora : si despues lo “ fiesse, renunciando de su grado y desamparando “ el derecho que la ley otdrgo a las mugeres en esta “ razon" 5 part. 3 l. 12 p. 2 Feb. de escrit. 4 c. 35. n. 125. Now by the notarial bill of sale, we find, that the wife was fully knowing and apprized of the existence and purport of the laws grade in heriavor, and voluntarily and deliberately renounced them, and that this renunciation was made in a solemn and legal form. Thus Rave we brought ourselves completely within this exception, and should the judgment of the Spanish court be questioned or denied, still are we entitled to the amount we claim, by virtue of this notarial act, to which the wife voluntarily and knowingly made herself a party, and bound herself in conformity to the principles and forms of the Spanish law, and made her property liable, upon the default of her husband.
    
      Moreau for the defendant.
    As it respects the order of seizure, granted by the Spanish tribunal, although called an execution, no great reliance can be placed upon it. It is a provisional order of seizure and rather in the nature of an attachment, than an execution ; it terminates, indeed, in an execution, if not opposed; but it is always notified to the defendant, who has three days within which to make his defence or opposition ; here such defence or opposition was made, and no definitive judgment has been pointed out, or was rendered ; the proceedings were left incomplete at the cession. With regard to the bill of sale, wherein the wife became a surety for her husband, it will be found illegal and invalid, and not made conformable either to the principles or forms of the Spanish law. This law is not only unfavorable to, but prohibitory Of any such engagement, on the part of the wife. The wife is considered as a minor. And her rights are not only liberally extended, but jealously watched, and securely guarded. But me are told of exceptions, and that the present case makes one of these exceptions. To this effect, the third exception has been quoted, but too many of the legal requisites and provisions have been neglected or violated, to permit the party to hope for the benefit of this exception, and I will proceed to shew,
    1. That the wife was not duly authorised to become a surety for her husband.
    2. And if so authorised, that she has not legally renounced the laws forbidding her to become such surety.
    3. That the property purchased, has not. been proven, as the law requires, to have been converted to her use, or purchased upon her account.
    I. The 2 law, 3 tit. 5 lib. of the Recopilacion Castilla ordains, that die wife can neither make a contract, nor renounce those in her favor, nor appear in court either as plaintiff or defendant, without the express authority of her husbaind. But in this bill of sale where she is brought to be made a surety, no such authority is given. It is true, that the clause of surety is inserted in the bill of sale, and therefore a tacit authority may be thought to be inferred, but the law upon this point, is imperative, and requires a formal written act of authorisation. 
      Pot. traité de la puissance maritale 69. n. 2 Febrero, Libreria de escribanos 99. cap. 6 s. 4. n. 109.
    II. The law 2 tit. 12, Partida 5, which is drawn from the famous senatus-consultus Velleianus, forbidding a woman to become surety, annuls all obligations contracted in violation of its disposition. The reason is, that it is presumed that it is thro’ ignorance or weakness that she binds herself for another.
    This reason operates more powerfully in the case of a wife, who binds herself for her husband. The law 61 of Toro, which is the l. 9, tit. 3. lib. 5, de la Recopilacion de Castilla, declares null and void, any obligation contracted jointly with her husband, or to secure any debt due from him : even when the instrument mentions that the obligation is contracted for her henefit : unless it be actually proved that it turned to her advantage, and that the thing, which is the object of the obligation, is not one of those which the husband is bound to supply : as raiment, food and others necessary to her.
    III. It is true that the law 3, tit. 12, Partida 5, contains an exception to that which forbids women becoming sureties, authorising them to derogate from a law established for their henefit. But, how is this derogation from the law, this renunciation of the benefit, to be effected in order to validate the suretyship ? It is necessary, says, the law. cited, that the woman have a certain 
      knowledge, sea sabidora y cierta, of the dispositions of the law, to which she is about to renounce.
    
      Febrero requires that the notary, who receives the instrument, should explain these dispositions to her, 2 Libreria de los Escribanos, cap. 4 s. 4 n. 15. If it appears from the drawing of the instrument, or from the interrogatories put to him, that he is not well acquainted with the laws, to which he makes a woman renounce, the instrument is to be declared void, because, says Febrero, the notary cannot properly have explained what he was not well acquainted, with. id.
    
    Hence the wife must expressly renounce to the prohibitory law established for her benefit : and a general renunciation to all laws concerning women would not suffice to give effect to her obligation as surety. 2 Colomb. Instruccion de Escribanos, 154. n. 4.
    
    Here the notary has caused the wife, to renounce to the benefit of the law 61 de Toro or the law 9. tit. 3, lib. 5. which are the only Spanish laws, declaring that a wife cannot become surety for her husband. He has also caused her to renounce generally to the laws of the Emperor Justinian, to the senatus-consultus Velleianus, to the laws del Toro, of Madrid, of the Partidas, to the ancient and modem constitutions, and to the others laws in favor of women : that fe to say, to a crowd of laws mostly foreign to the subject, ill which no doubt are mixed with others, most of, and likely: all, the dispositions to which it was necessary she should renounce, is order to give validity to the contract, and of which the notary ought carefully to have given her, detailed and particular information. This bungling way of making the renunciation announces the confused idea which the officer had of these laws, and shows how impossible it is that the wife should have had a clear and distinct view of t£e dispositions in her favor, in a number of laws so generally and vaguely cited. Lastly, when the notary was particularly interrogated, by the Spanish judge, and required to specify the particular laws, by titles and numbers, which lie had informed the wife were to be renounced, his answer clearly indicated that he had no correct idea of what it was his duty to explain to her.
    It is conceded that if it were in proof that the contract for the performance of which she became surety had been for her benefit or advantage, the court ought not to listen to her objection. But of this, there is not the slightest proof. For the declaration drawn from her, in the notarial instrument, cannot prejudice her according to the authority cited l. 9, tit. 5, of the Recopilacion de Castilla. For if this declaration, were to bind a wife, it would be easy to elude all the laws provided for her defence and protection, and it would be in vain to have established it as a principle that the husband can in no ways alien or bind the dotal property of the wife during the coverture, even with her consent.
    
    
      Ellery in reply.
    
    The court will determine, from an inspection of the Spanish record, whether the executory proceedings bad in the suit, before that court, were limited to a provisional order of seizure, or whether they did not ripen into an execution. The provisional order of seizure is the first process of the court, and was here issued in May 1798, and it was not, until July following, that execution was ordered, and not until the succeeding September, that the property of the defendant was seized by the alguazil mayor, and put in the hands of the public depositary, where it remained until the cession. But we are not obliged to rely upon the Spanish proceedings, the nature of the instrument produced, and the form of its execution, bear us fully out in our claim. We have proven by it, that the wife voluntarily made herself a surety for the payment of the debt, and that she renounced all the laws existing in her favor.—But it is objected,
    1. That she was not duly authorised by her husband to become such surety, and that a notarial act to this effect, on the part of the husband, should have been first executed; This undoubtedly would have been necessary, were the wife to become a surety for a third person, in order to protect her husband from the effects of any rash engagement into which the wife might be seduced, but certainly it cannot apply to a case where she acts for and with her husband. Her signing the instrument before a notary public, in presence of, and in conjunction with her husband, is sufficient authority. Again if this authority is to be questioned, by whom, but by the husband can it be questioned ?
    2. But it is next contended, that even if the Wife were duly authorised so to sign as a surety, still, the clause of renunciation is too vague and indefinite, and that instead of renouncing all and every law made in her favor, the wife ought specially to have enumerated and distinctly renounced the 61st law of Toro. But in the Partidas, (the original text) no form of renunciation is prescribed or indicated ; and though a particular form is suggested in Febrero (who is a mere commentator,) still it is not by him stated, to be a necessary, but only a convenient one, and may or may not be adopted. He himself observes, that it is not necessary to the validity of the obligation, but only conducive to tire neatness of the instrument in which the obligation is contained, and is given, aS he quaintly expresses it, to guard notaries from the commission of classical errors, and the unnecessary repetition and renunciation of laws which have no bearing upon the subject. We do not deny the necessity of a clause of renunciation on the part of the wife, but we contend that the one here inserted is sufficient. It is, indeed, difficult to imagine one more solemn, to which are superadded the rites of religion, the solemnity of an oath, and if violated, the imprecation of infamy. The words are remarkable. The wife, here renounces the laws of the Emperor Justinian, the senatus eonsultus Veleianus, the laws of Toro and of Madrid, the new Partida, and the old constitutions, as well as all other laws enacted in favor of the wife, acknowledging that she has been informed of them, and that with this knowledge, she renounces them, and then swears by our Lord, making the sign of the cross, according to law, that to execute this instrument, she was not enticed nor intimidated, by her husband, nor by any other person, and declares that she did it of her own free will and authority, in order to convert the property purchased to her own use; and that to invalidate this oath, she has made no protestation or mental reservation, and even if authorised to revoke it, that she will not, neither will she receive any absolution, relaxation, or change therefrom, either from our holy father the pope, his nuncio, or legate, or any one invested with authority to this effect, and if it should be dispensed with, that she will not avail herself of such dispensation, under pain of perjury, and of falling into infamy &c. It is difficult to dress up a clause of renunciation with more solemnity, or to invest it with greater terrors. It also closely follows the form pointed out by the classic Febrero vid 2 Feb. de Cont. cap. 4 s. 4 Ar. 117. But it seems, that the 61st law of Toro, is not particularly recited and renounced, in conformity to the form given by Febrero. I have already stated that it is not required by the Partida, arid that it is not made indispensably necessary by Febrero. But suppose it were, in renouncing all the laws of Toro, is not the 61st law of Toro renounced ? In renouncing the whole, are not the parts forming that whole, renounced ? And was it not stronger on the part of the wife, as well as safer on the part of the Notary, to renounce every law, than to limit the renunciation to any particular law ? Febrero to be sure thinks It sufficient to renounce only the 61st law of Toro, but Martinez, it seems, another commentator, makes mention only of the Partida, and perhaps, another commentator might be found, who thinks other laws equally necessary to be the subject of renunciation. In these perplexed paths, what guide are we to follow, and who will decide, when doctors disagree ? One says, renounce the Partida, another the 61st law of Toro; According to one, if we step out of the Partidas we are lost, according to the other, there is nd safety but in the 61st law of Toro. Even if both had been renounced, and the extension of the clause of renunciation to embrace the two, had not weakened its validity, still is it not probable that in the numerous codes of laws, forming the motly system of Spanish jurisprudence, (laws always increasing, and never expiring) that some pretermitted clause or provision, some dormant principle, buried in the legal lumber of ages, might be dug up to destroy this instrument. The navigation among these codes and Recopilacion is certainly difficult and dangerous, thick-set with points, and abounding in sands and shoals : the path dazzled by the deceitful lights of expositors, and pursued with unskilful pilotage ; we have weathered the Partidas and the Recopilacion, we have steered clear of the laws of Madrid and Toro, but is there no risk of striking upon the Fuero Real, or Fuero Juezgo, or being lost upon the shoals of the Ordenamiento, even a senatus consultus Veleianus, or an unheeded law of Justinian might prove fatal to our voyage. Safety, therefore, required, that we should insure against all these Jaws. But it is suggested that the notary could hardly have time to instruct the wife in all the laws, which she is here made to renounce; neither was it necessary : it was sufficient, that he apprized her, that there were laws in existence in the different codes, by which her rights were protected, and she secured from the coercion of her husband, by which she was not obliged to become a surety for him, Without her free consent, and that if she wished to give validity to the instrument, that she must renounce them. Again, a notary public, is an officer worthy of credit, whose acts import verity, and if her renunciation is there recorded, we have no right to travel or enquire out of this record. When a wife, under the common law, releases her right of dower, the certificate of the judge or justice of the peace, before whom the release is made, that she did it free from the coercion of her husband, is sufficient.
   By the Court.

It clearly appears that the proceedings before the Spanish tribunal, had not ripened into a final judgment. It is true, at the inception of the suit, a writ of seizure was awarded against the property of the husband and afterwards another against that of the wife, but these writs of seizure, like writs of attachment, are original writs to bring in parties into court, as the nature of the case requires.

The renunciation of the wife, is not, as the plaintiff contends, a matter of form, introduced by practitioners. The civil law considers women generally to certain purposes as in a kind of perpetual nonage and the law 2, tit. 12, part. 5, declares null all contracts of suretiship, entered by a woman, for any other person than her husband. It is true that the law 3, tit. 12, part. 5, allows a woman to renounce the former, but it requires she should be made acquainted with its provisions.

Febrero, informs us, that the notary, who receives the contract, is bound to make the woman acquainted with the disposition of the law in her favor, and the consequences of her renunciation, and he ought to certify that this has been done, 2 Libreria de los Escribanos, cap. 4, sect 4, n. 115, unless he takes the trouble to recite at full length, the law itself. If he neglect to do so and does not apprise the woman, he incurs corporal punishment, and the act ought to be declared null. Loco citato.

The act is also to be annulled, if it appear by the interrogatories that the notary was not himself master of the dispositions which it was his duty to make known, id.

In the present case, from the generality of the laws cited, out of the Spanish and Roman codes, we are perhaps justified in presuming the ignorance of the notary. His examination manifests his inability to refer to the particular law of the Toro, all of which, 83 in number, are renounced in the lump. The case is rendered much stronger from the deposition of a person, present at the extecution of the act, who contradicts the notary in the belief which he expresses of the ability of the wife to have understood these laws, had they been read to her, from her very imperfect knowledge of the Spanish language.

If this renunciation be stricti juris, when the wife becomes surety for a stranger, as she then has the aid of her husband, it is much more to be required, when inops consilii, he makes her take an engagement for his benefit : since the civil law, in order to protect the wife, agrainst the consequences of conjugal affection, will not allow her dotal property to be aliened, during the converture, even with her consent. Law 7 tit. II. Part. 4. For it would be to expose her to remain without property, indotata, to allow her to become his surety, since on defect of his, her goods would have to be taken.

On this principle, the law 61 del Toro, which is the law 9, tit. 3. lib. 5, de la Recopilacion de Castilla, declares void, any contract in which the wife binds herself in solidum with her husband, or becomes his surety for any debt of his, unless contracted for her particular benefit, and for some article which he was not bound to provide for her. This last law, has no clause allowing a renunciation to its dispositions, but, it appears, that the courts of Spain have in practice, construed it as admitting it.

But, the uniform opinion of every Spanish writer is, that, when the wife becomes surety for the husband, the instrument is to be clothed with all the formalities required, in cases in which she binds herself for another person.

Colom, formally says, that in all cases of suretyship, the laws in favor of women, must be specially renounced, because a general renunciation to all laxos in favor of women, would not be sufficient to render the instrument valid. 2 Libreria de los Escribanos, 154. n. 4.

Febrero, speaking of general renunciations, says, they are absurd, and tend only to introduce error and confusion.

This point was also determined, in a judgment rendered in this city, when under the dominion of Spain, July 13th 1803, in the case of Fletcher vs. Piernas.

As we are of opinion, that the renunciation, ought to have been special, it is unnecessary to inquire, whether the wife ought not to have been authorised.

Judgment for the Defendant.  