^, ^ K^^^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I MH'iTA 12.5 ■^ B^ 12.2 us Ki Li 12.0 IL25 i 1.4 I* n m il.6 Hiotographic Sciences Corporation 23 WIST MAIN STRUT WiBSTIR.N.Y. MSSO (716)179-4503 ^ 6^ '4^ CIHM/ICMK Microfiche Series. CIHIVI/ICIVIH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian da microraproductions historlquas mmm ^^!f Technical and Bibliographic Notoa/Notas tachniquaa at bibliographiquaa Tha Inatituta haa attamptad to oLtain tha baat original copy availabia for filming. Faatuiaa of thia copy which may ba bibliographically uniqua, which may altar any of tha imagaa in tha raproduction. or which may significantly changa tha uauai mathod of filming, ara chaclcad balow. nColourad covara/ Couvartura da couknir |~n Covara damagad/ D D D D n D Couvartura atidommagia Covara raatorad and/or laminatad/ Couvartura rastaurta at/ou pallicuMa □ Covar titia miaaing/ La titra da couvartura manqua r~~l Colourad mapa/ Cartaa gtegraphiquaa it eouleur Colourad ink (i.a. othar than blua or black)/ Encra da coulaur (i.a. autra qua blaua ou noiral |~n Colourad plataa and/or illuatrationa/ Planehaa at/ou illuatrationa an coulaur Bound with othar matarial/ RalM avac d'autraa documonta Tight binding may eauaa thadowa or diatortion along intarior margin/ Laraiiura aarria paut eauaar da I'ombra ou da la diatorakMi la kuig da la marga intiriaura Blank laavaa addad during raatoration may appaar within tha ta»t. Whanavar poaaibla. thaaa hava baan omittad from filming/ II sa paut qua cartainaa pagaa blanches ajoutiaa iora d'una raatauratlon apparaiaaant dana la taxta, mala, lorsqua cala Atait poaaibla. eaa pagaa n'ont paa «ti filmAaa. Additional commanta:/ Commantairaa supplimantairaa; to L'Inatltut a microfilm* la maillaur axamplaira qu'il lui a it* poaaibla da aa procurar. Laa details da cat axamplaira qui sont paut-itra uniquas du point da vua bibliographiqua. qui pauvant moJifiar una imaga reproduita. ou qui pauvant axigar una modification dana la mithoda normala da filmaga sent Indiquia ci-daaaoua. rn Colourad pagaa/ D Pagaa da coulaur Pagaa damagad/ Pagaa andommagiaa Pagaa raatorad and/oi Pagas raatauriaa at/ou palliculiaa r~~] Pagaa damagad/ p*~| Pagaa raatorad and/or laminatad/ Q Pagaa discolourad. stainad or foxad/ Pagaa dAcotorias. tachatias ou piquias □ Pagaa dataehad/ Pagaa dAtachias Showthrough/ Tranaparanca Quality of prir Quallt* inAgala da I'impraasion Includaa supplamantary mataris Comprand du material suppiimantaira Only adition available/ Saula Mition disponibia fyl Showthrough/ r^ Quality of print variaa/ [~~1 Includaa supplamantary matarial/ rn Only adition available/ Pages wholly or partially obscured by errata slips, tissuaa. etc.. have been ref limed to ensure the best possible image/ Lee pegea totalement ou pettiellement obacurciaa par un fauillet d'errata. una pelure, etc., ont itt filmies k nouveau da fa^on i obtanir la mailleure imaga poaaibla. Tl P< of fll Oi ba th ai< ot fir sic or Tl ah Ml dll ani b* rig rat mi Thia item ia filmed at the reduction ratio checked below/ Ce document eat filmi au taux da riduction indlqui ci*deaaou8. 10X 14X 18X 22X 2SX aox / 12X 16X 20X MX ax 32X Th« copy filmad hw has bMn rcproduead thanka to th« gaiwrosity of: Library of tha Public Arcltivat of Canada L'axamplaira fiim4 fut raproduit grioa i la 04n4roalt« da: La biblioth^qiia daa Archivaa publiquaa du Canada TIta imagaa appaaring hara ara tha baat quality poaaibia conaidaring tha condition and lagibtHty of tha original copy and In kaaping with tha filming contract apaciflcatlona. Original copiaa W\ printad papar covara ara fllmad baginning with tha front covar and anding on tha iaat paga with a printad or llluatratad impraa- sion. or tha back covar whan approprlata. All othar original copiaa ara fllmad baginning on tha f irat paga with a printad or llluatratad impraa- sion, and anding on tha iatt paga with a printad or llluatratad ImpraMton, Tha lairt racordad f rama on aach microflcha •hatli contain tha aymbol — ► (moaning "CON • TINUEID"), or tha symbol y (moaning "END"), whichfivar appllas. Laa Imagaa auhrantaa ont *tt§ raproduitaa avac la plua grand aoln, compta tanu da la condition at da la nattatA do l'axamplaira film*, at an oonformitA avac laa conditiona du contrat da fllmaga. Las axamplalraa originaux dont la couvartura an papiar aat Imprim4a aont filmAa an commandant par la pramtor plat 9t an tarminant salt par la damMra paga qui comporta una amprainta dimpraaaion ou d'iiluatration, soit par la sacond plat, aalon la cas. Tous los autras axamplalraa originaux aont fllmto an common^nt par la pramlAra paga qui comporta una amprainta d'impraaalon ou d'iiluatration at an tarminant par la damMra paga qui comporta una talla amprainta- Un daa aymbolas suhranta apparaltra sur la damMra Imaga da chaqua microficha, salon la caa: la aymbda -^ aignifia "A 8UIVRE". la symbola V aignifia "FIN". ^ IMape, platas, charts, ate. may ba fllmad at diffai ant raductlon ratioa. Thoaa too larga to bo antiruiy includad In ona axpoaura ara fllmad baginning in tha uppar laft hand comar, iaft to right and top to bottom, as many framaa aa raquirad. Tha following diagrams iilustrata tha mathod: Laa cartaa, planchaa, taMaaux, ate., pauvant Atra fllmte i daa taux da rMuctton diffArants. Lorsqua la document oat trap grand pour ttra raproduit an un aaul cllch*, il est fHm4 i partir da I'angla aupMaur gaueha. da gaucha i droita, at da haut an baa, an pranant la nombra d'Imagaa nAcaasaira. Laa diagrammaa suivants iliustrant la mAthoda. 1 2 3 1 2 3 4 5 6 ,#•■ A TREATISE I ON TBI LA¥ EELATING TO MARRIAGES, If IH LOWEE CANADA. BY JAMES ARMSTRONG, MONTREAL : PRINTED BY JOHN LOVELL, AT THE CANADA DIRBOTOBY OFPIOB. BT. BICHOLAB 8TBBBT. 1867. Ml -d-. TO THE honorable ^« ^, iHorm» ONE OF THE JUSTICES OF THE SUPERIOR COURT, FOB LOWER CANADA. THIS TREATISE. 18 MOST RESPECTFULLY DEDICATED AS A MARK OF ESTEEM AND REGARD BT Ci^e ^utfior. h-i CONTENTS. Pao« Property, 9 Marriage, 12 Contract of Marriage, 14 Civil Eflfects of Marriage, 16 Community, 21 Dissolution of Community, 27 Second Marriage,s 33 Divorce, ^ 35 Dower, 3<5 Continuation of Community, 40 i: INTRODUCTION. The following pages are intended to convey to the reader a gene- ral knowledge of the laws which govern the condition of married persons. That there exists some necessity for a work like this, however elementary it may appear lo professional men, and actu- ally is, will be generally admitted. Few of British oirth are aware of the importance of a knowledge of the laws affecting marriage in this section of the Province. It is not pretended that our system of law is faultless ; on the contrary, it is admitted by all who have devoted any time to its study, that many improvements may be made. A knowledge of the laws of Lower Cauada would, it is believ- ed, pave the way for an assimilation of the laws of both Provinces. The difficulties in the way are by no means insurmountable. Montreal^ August, \85l. ii i, A TREATISE ON THE LAW RELATING TO MARRIAGES IN LOA\^li:R CA^ISTA-Dj^. PROPERTY. Property is, by our Law, divided into two classes ; Moveable and Imnioveablt\ (1) Thinfjs movciilile by their nature arc such as may be carried away from one place to another, wliether they move by them- selves as cattle, or cannot be n moved witiiout an extraneous power, as inaiiim;ite thinos. Obligations and actions, the object of wliich is to recover money due or moveables, alt! ough these obligations ar(! accompanied with a mortgage, obligations which have for their object a specific performfHK'e, and those wiiirh from their nature resolve themselves into damages, shares or interest in banks or companies of commerce, or industry, or other specu- lations, although such compfinies be ] ossessed of immoveables depending upon such enterprises, such shares or interests are con- sidered as moveables with respect to every associate as hmg only as the Society is in existence ; but as soon as the Society is dissolv- ed, the right wliich each member has to the division of the im- inoveables belonging to it, produces an immoveable action. (2) (1) Custom of Paris, Art. 88. (2) Civil Code of Louisiana, Act 465, 466. Pothier des Choses 2ud part, 2. Com. No. 69, 70, 76. De rente, No. 112. 10 All the furniture of a house which can be taken awny without fraction or deterioration (l)isconsidt'rcd moveable, ItuMliat which is annexi d l>y iron, or fixed in witli plaster, with ablo rue : 1st. Ma Imen and idiots. 2d. Males under the age of 14, and gils under the age of 12. 3d. Impotents who from physical defects ari' incapable of coinilation. 4th. Those who a''e already married ; all i hcsc arc absoluiely incapable of contracting marriage. Rohi ive ineapacitv arises from too close relationship, and is in- dicated, in the closer degrees, by the law of nature, which makes us n'i:ard with horror, a marriage between lineal relations. Tlie Rnman Catholic churcli jirohibits the marriage not only of cousin-geinians, but even of the children of cousin-germans ; but a disp' nsa i.n may he obtained from the Bishop. N.itii.al nlationship produced by conculdnage and the affinity 13 which the marriage creates between one of the married parties and the relations of the other, render the marriage null to the same degree as lawful relationship. The Ordinance of Blois and the declaration of 1639 require, for a valid marriage, the publication of the banns upon three succes- sive Sundays or holy-days, with a sufficient time intervening. This publication must be made in the church of the parish where the parties are actually domiciled, if they have been actually domi- ciled in the parish during the previous six months, otherwise the banns must be published in the parish of the previous domicile. If the parties about to be married are minors, the publication should be made not only in the parish where they have their actual domicile, but also in that of their father and mother, tutor or curator. Notwithstanding the invalidity denounced by the Ordinance, a marriage publicly solemnized without a dispensation fiom a Ro- man Catholic bishop or a 'marriage license, would not be set aside. (1) A marriage license (supposed to be given after due inquiry into the civil state of the parties,) is the substitute, in the Protestant churches, for the dispensation from banns which we have just now mentioned. A requisite formality is the presence of four credible witnesses, besides the clergyman ; all of whom must sign the certificate of the marriage. It is true that if the conjuncts, after a marriage made without witnesses, have publicly declared themselves man and wife, the want of witnesses cannot invalidate it ; provided al- ways that the marriage has been actually celebrate J. A fourth formality as regards minors, is the consent of father and mother, tutor or curator ; but only the father and moiLer, tutor or curator can demand that the marriage be annulled upon the pretext of want of consent. (2) There are marriages which the law regards as valid, and to wh'ch neveithelcss it refuses all civil effects ; so that the children, issue of such marriage, are treated as illegitimate with respect to the inheritance of their parents. Such are marriages which arc kept (1) Prevoat de la Jannes, p. 9. (2) De la Jannea, p. 10. !t f : 14 secret up to the time of the death of one of the conjuncts : thoge which liave been contracted in the last moments of one of the par- ties, between partifs who had previnuslj' lived in a criminal con- nection ; those which have been contracted by parties civilly dead, (outlawed or attainted ;) that which a woman has contracted with her ravisher, since she has been released; for if the ma'riai^e had taken place while she was unhall enjoy them separately, and shall have the administra- tion of them. (4) But the wife cannot stipulate that she )iiay sell her propres without the authorization of the husband; (6) that, (Hause, being opposed to the dependence in which the wife is placed by nature and law with respect to her husband, would be regarded as against public policy. General autliorizaiions stipulated in a contract of marriage are iiull. (6) The clause in a contract of marriage stipulating that the marriage rights of the parties should be governed by the luvs and oust ms of Great Britain, is too vague and general to construct a con rMct of marriage. In Judge Story's Conflict of laws an authority always cited with respect, it is laid down that a man cannot by his mani.ige contiact, submit his matrimonial rights to the laws of a (1) Ord. of 1639, Art. 3. ,(2) De la Jannes, p. 24. (3) Louet on Brodeau. (4) Loizeau, 1. 2, c. 4. (5) Lebrun, 1. 2, c. 1, s. 4, 2, 3. (6) De La Jannes, p. 25. 16 foreign state, and the word foreign is used by the author not in its custoiiiary sense to distinguish between an ah'en and a na- tive, (1) l>iit precisely as it would express the relation l)etween the laws of England and those of Lower Canada, the latter country having a code of laws distinct from, and a legislature independent of the former, although boih countries form one bodv politic the author is speaking of the bearing which the laws of the st;ite of Mis>isip|ii have on those of Lousiania. The above reasoning: supposi s the word England to have been used in the clause of the contract contended to be void ; but the actual words of that clause wore that the parties submitted their matrimonial lights " to the laws, usages and (Ustoinsot Great Britain" : (ireat Britain comjireheuds England. Scotland and Wales, and the rannicipal law of Scoiland is totally ditferent from that of England, it is in fact more like the law of Canada inasmuch as cominunaut6 exists in it &c. &c. (2) Contracts of rnai riage should be passed before notaries ; as they must have an authentic date ; but would be valid if made sous seinff prive The contract, which the conjuncts have made, or which the law has made foV them on their wife, and from thence our laws have established that the wife can do nothing without the authorization of the husband, and that the husband has the enjoyment and administration of the property of the wife, upon the condition of his supporting the family expenses, (2) whether community exists between them or not. So that all the agreements and dispositions made by a married woman, to take effect during her life, are null, if they are not authorized by the husband given in express terms, or if they are not authorized by the Judge with a full knowledge of the facts upon the refusal of the husband ; (3) and it is a question whether subsequent authorization of the husband can ratify them so as to have effect, from the day of the ratification, (4) or whether the deed is void from the beginning and therefore unsusceptible of ratification. (5) If a hus- band who is a minor authorize his wife who is of age, and be relieved from his authorization, the annulling of the authorization will occasion the nullity of the obligation entered into by the wife. (6) The need uf the authorization by the husband, is such, that contracts passed without it cannot be pleaded even by way of exception against the husband, (7) or against the wife after the death of her husband, or against her heirs, if the wife do not vivify it after the death of her husband, either by making a new obligation or tacitly by executing it. (1) Burge Col. Law, p. 97. (2) 1 Domat 1. 1 c. 9. § 6. (3) 2 i)e La Jannes, p. 16, G.P. Art. 234. (4) 2 De La Jannes, p. 14. [5) Diet ; de Droit, verbo Ratification. (6) Arret of 22nd June, 1674. (7 C. P. Art. 223. B 'l)T!|M,H|''P'>t»' ii|iii|iw)»i'««»..»*iw :^r ]: ^ II t u ij; ; 18 Tliere are nevertheless some cases in which the wife may validly contract without the authorization of the husband, viis : when a wife has the separate enjoyment of her property, (1) either by virtue of her marriage contract or by a judgment of a competent court, in this case she can contract without the authorization of her husband, as far as respects the administration of her property and the disposal of her revenues. 2nd. When the wife is marchande puhlique, that is, carvies on a business not that of her husband, she is deemed to have his implied, and is not required to obtain the express authorization of her husband, in matters connected with that business. (2) 3rd. When the husband is civilly dead, and has thus lost his conjugal authority. 4tb. When the wife has obliged herself to get her husband out of prison. (3) 6th. When she contracts with her hus- band in those cases allowed by law as the don mutuel (mutual gift) ; his being a counter-party to the contract is a sufficient authorization. The husband, in the absence of any contrary covenant in the contract of marriage, has the enjoyment of all the property of his wife, as well of that which she had before the marriage, as that which she acquires under whatever title duringr the marriage, un- less the grantor has given them upon the express condition that they shall not be under the control of the husband ; he has there- fore the right to all the fruits and revenues, ordinary as well as extraordinary. Although the husbaud has the unlimited enjoyment of the property of his wife, he cannot nevertheless, sell this right, or his creditors could not have the same sold, because it belongs to him in his sole quality^ of husband, (4) and only as long as the mar- ri^e exists, and for the purpose of supporting the family. Such right on the part of the husband is confined to the administration of the property and the perception of its revenues, but he cannot alienate and hypothecate, or otherwise incumber it, without her consent. (6) I-* (1) C. P. Art. 234. (2) C. P. Art. 234. (3) Pothier, "Puissance du Mari," p. 469. (4) Domat, 1 t^ 9 Art. 3. (5) C. P. Art. 226. ^'f^rjirTiTrvr^ 'i," -'T^* Tm-(jy"rT*f-;«^ 19 If the property of the wife be sold by the husband without her consent, and she revendicate it, she can only do so for the one-hal^ unless she renounce to the community or at least give up all she has received from it ; otherwise- she will be held for one-half of the guarantee, which is a liability of the commu- nity, and this liability consists in the obligation to maintain the purchaser in possession of the property. It is evident that she cannot evict him whom she is bound to maintain in pos- session, but she may return the purchase money. If the wife were in possession of conquits hypothecated in favor of the pur- chaser of the property revendicated, the action could not be main, tained by the wife even if she renounced the community, unless she cor^sented to abandon the said conquits for the benefit of the purchaser, (1). For if proprietor of hypothecated property, she owes a guarantee to the purchaser of the property in question. Necessary alienations may be regarded as administrative acts ; they are, notwithstanding, not permitted to be made by the hus- band, although he be administrator, (2) because the wife's in- terest is to watch over the property and see if she cannot prevent these alienations ; it is upon this that the custom of Paris (3) decides that the husband cannot alone demand nor prevent the licitation of the propres of his wite. Generally speaking, the hus- band cannot institute immoveable actions relative to her property, unless the wife be a party to the suit ; and an action cannot be instituted against the husband only ; but the husband and wife must be summoned. (4) It is otherwise with regard to actions for moveables and pos- sessory demands ; (5) the latter concern the enjoyment which belongs to the husband, and the fonner have moveables for their object. The husband alone cannot accept nor renounce the succes- sions which the wife has inherited, unless such inheritances were by the contract of marriage covenanted to be in common. The husband is bound to perform all the necessary acts of ad- ministration ; he may lease the property of his wife ; and as he <1> 2 De la JanB«s, 20. (2) Ferriere, Com. on 0. P., Art. 226 k 233. (3) Art. 226. (4) 2 De la Jaones 21. (5) G. P. Art. 233. ■■f! I- to 'If m Mi. Ill' I docs 80 in the quality not only of usufructuary, but of administra- tor, the wife is obliged to maintain such lease after the dissolution of the marriage, provided it be made in good faith, and for no more than nine years. (1) The husband is bound to watch over the interests of his wife, interrupt the course of prescription against her, cause declarations en hypothique to be made, have the donations made to the wife duly enregistered, have the necessary repairs made to her propres, ill short, manage the property carefully and in good faith, and vtrith the same zeal and attention as a good father, {en bon pere de famille,) would manage property which he intended to trans- mit in the best condition to his children. It results from these duties that the husband is liable for any losses or disadvantage that may have been occasioned through any neglect of them. Separation as to property can be obtained by the wife, if it appear that her property is in course of dissipation by the mis- conduct, injudiciousness, or even misfortune of the husband. Separation as to body and habitation is obtained on the ground of the cruel treatment of one of the conjuncts by the other ; slight altercations between the parties are not sufficient to found a demand. The wife demanding a separation either of property or person, must obtain the authority of the Judge to sue her husband. In the latter case the Judge will assign her a residence apart from her husband, (usually with some old and discreet person) during the pendency of the suit ; and if she have not a suffi- cient income, a certain sum will be allowed her by the Judg« proportioned to the means of her husband. Neither the separation as to property, nor the separation as to habitation, wholly take the wife out of the power of the husband, nor give her the right to alienate or encumber her immoveables without his express authorization, unless it be for debts within the bounds of a simple administration, because the wife separated may, without the authority of her husband, perform all acta of administration concerning her property, enjoy her propres, and collect the revenues of them. (2) (I) C. P. Art. 227. (2) De La James, 68. i; and 21 The law of the domicile of the parties (in the absence of a contract of marriage) will govern the estate of the conjunct, (1) so that between parties married in England, and who were domi- ciled there at the time of the marriage, and who afterwards be- come residents in Lower Canada, no community of property exists. This doctrine is also held by the Scottish courts. (2) It has been decided in the Superior Court at Quebec, that a wife, separie quand aux Mens, (separated as to property) by her contract of marriage, may sue for the preservation of hor personal estate, without the assistance or authority of her hus- band ; (3) but I have heard the soundness of this decision ques- tioned. COMMUNITY. There exists between man and wife, a community of property as to the moveables belonging to each of them at the time of the marriage, and as to such as they may acquire during the marriage. That community also comprehends such immoveables as the conjuncts acquire during the marriage, otherwise than by inheri- tance, direct or collateral, or by donation from a relation in direct line with the donee. It comprehends, also, the fruits and revenues of such immoveable property belonging to the conjuncts as does not fall into the community. (3) Community exists by law unless there be a marriage contract, executed before the marriage, A^hich expressly stipulates that there shall be no community. The words of the custom are, '' Man and wife, joined in matrimony, are common in all movea- " bles and conquits immoveables made during their said marriage. " And the community commences from the day of the solemuiza- •' tion of the marriage." Community will be presumed to exist in the country where the parties have been married, unless the contrary is proved. This is important as the rule of law, is, that all matrimonial con- ventions must be governed by the law of the place where the • (1) McTavish vs. Pyke, S. 0. Mont. (2) 1 Biirge Col. Law, 623. This subject is fully discussed in the 6th chapter of Story, " Conflict of Laws." (3) Gary vs. Ryland & Gore, opposanis. L. C. R., p. 132. ! 1 22 I ' li- i u , 1'.' ■ii ■ id I party was domiciled nt the time of the marriage and cannot be e-il'ected by a subsequent change of domicile Hence, parties married in England and afterwards adopting a domicile in this country are nut subject to the communaute de biens. In the case of Brodie against Cowan decided in the Superior Court for the district of Montreal in April, 1862, the court in delivering its Judgment is reported to have said : " The declaration set out that the first marriage was contracted in Scotland, and that by the laws of that country a community was created between the parties ; that the Plaintitf's father hud rendered no account of that community after the death of his wife ; that he had removed to Canada, and contracted a second mari-iage with the defendant ; that afterwards he died, leaving her in possession of his estate, and that she was by law bound to rendor an account. In this case the difficulty arose from the absence of any proof of the na'^ure of the Scotch law. The defendant had declared it to be different from ours but had not proved i b. In such a case, the universal law, was, that the foreign law must be tak^n to be the same as our own. The Plaintiffs right to recover must therefore be determined by the law of Lower Canada. This gave her the right to demand the account which she sought." Moveables or immoveables granted unconditionally to one of the conjunct* during marriage, by collaterals or strangers, fall into the community without any restriction and must consequently be divided upon the dissolution of the community. To obviate this, it should be stipulated in the marriage contract, that all that shall devolve to one of the conjuncts during marriage, by inheritance, donation or otherwise, shall be and shall remain the property of the party to whom it shall have so devolved. From what we have above said, it appears that the moveables which the conjuncts have atthetime of the maiTiage fall into, that is, form part of the com- munity; while, on the contrary, the immoveables, which they then have, do not. Again, the moveables they acquire during the marriage do fall into the community ; while, of the immovea- bles which they acquire during that time, some do not fall into the community and some do : those they acquire by direct or collateral inheritance, or by donation in direct line, do not fall 1 !:il I 39 into the community : thoHO which are acquired in any other manner do. Such are tho enactments by tito coutume de Parity in cases where contracts of marriage do not covenant otherwise ; but, parties about to be married arc not obliged to adhere to these enactments, but may make such dispositions, in that respect, as they may think fit; for marriage is highly favored by tho laws, and a marriage contract is, even in a greater degree, than other contracts, susceptible of every covenant which is not con- trary to law and morality. " Les contrats de manage sont susceptibles de toutes les clauses et conventions qui ne sont con- traires ni a la loi ni aux bonnes moeurs." Although by the coutume all moveables belonging to the conjuncts at the time of their marriage, fall into the community, they may nevertheless stipulate by their contract of marriage, that a part of the moveable effects which do belong to them shall he propre (proprea immeu- blea) to them, that is, shall not fall into the community, so that at its dissolution the property shall not be divided between the deceased conjunct and the representative of the other, but shall belong to the conjunct whose property it was at the time of the marriage, or the heirs of such conjunct. It may be stipulated that no community shall exist or that either party may have a limited right in the community. And it may, on the other hand, be stipulated that the immoveables belonging to either of the conjuncts shall be considered as moveables and this is called ameublissement or mobilizing. The effect of such a clause is that any immoveable so mobilized forms part of the comnmnity ; and that the husband can dispose of such immoveables in the same manner as the actual moveables of the community. The donation by an ascendant of one of the conjuncts, to such con- junct, in a marriage contract, of an immoveable, destined to enter into the community, is an ameublissement within the meaning of the law, such ameublissement has no effect except as regards the community, and between the conjuncts themselves. The immove- able preserves its quality oi propre up to the time oipartage, (or division of property on the dissolution of the communaute.) One of the conjuncts being dead, and the child born of the marriage afterwards dying without issue and before partage, the ameublis- I ■ 24 !! M r'l cement has no longer any effect, and the ccMateral heirs of th« conjunct, in whose favor it was stipulated, can claim no rights in such immoveables. (1) Arrears of rents of immoveables are moveables and form part the community. The products of quarries and mines opened before the marriage, are regarded as the revenues of the property and fall into the community ; but they are excluded from the community if the mines and quarries have been opened during the marriage. (2) Moveables substituted during the community for some property, exclusively belonging to either conjunct, do not form part of the (iommunity. Thus the pnce of an estate, the exclusive property of one of the conjuncts, sold during the community, although it remains a moveable of that conjunct, is, as regards the community, immoveable and excluded from it. (3) A sum of money, which, upon the division of a succession consist- ing only of immoveable property, may be due to one of the <^onjuncts ^Mr retour to make his share equal to the share of his oo-heirs, is an immoveable, because it is substituted for his right in that which was immoveable. (4) The husband although he be master of the community, and, as such, may dispose of it as he thinks fit, provided he do it without the fraudulent intention of diminishing or expending the share of the community to which the wife, or her heirs, will become entitled to at its dissolution, cannot make a uni- versal donation of moveables belonging to the community. He cannot, by his will, dispose of the half share of the commu- nity to which his wife, if she survive him, or her heirs if he survive her, will be entitled to at the time of his decease ; nor (•an he give the property of the community to the children of his former marriage, nor to a concubine ; nor to his illegitimate children. He is the master of the property of the community, but can only dispose of it with due regard to i(s interests. (1) Charlebois vs. Hedley. L. C. R., p. 213. (2) Pothier, " Communaut^," No. 97. (3) lb. No. 99. (4) lb. No. 100. :| 25 If community exist, the husband is personally bound for the payment of the personal debts incurred by his wife as well before as during their marriage ; and can be sued for the same during their marriage ; and the wife is likewise bound, after the death of her husband, to pay half of the personal debts created by him as well during his marriage as previous thereto, and this to the extent of the benefit she derives from the community ; (1) unless there be a marriage contract containing certain precautionary cove- nants of which we are about to speak. This precaution consists in the stipulation that the conjuncts shall pay th iir separate debts contracted before the marriage. It 's necessary that an Inventory (2) of the property of the wife be made at the same time, otherwise this stipulation will not protect either conjunct against the creditor of the other. If such Inventory be made, and the husband be sued for debts contracted by the wife before marriage, in that case, if the debts of the wife exceed the value of the moveables Avhich she brought into the community, the husband is discharged by producing the Inventory, and abandoning the property of the wife to her creditors, to be by them sold, and the proceeds distributed among them. If the move- ables have been sold or have ceased to exist, the husband is bound to pay their value, and if they be not suflScient to pay the wife's debts, her creditors have their recourse against her immoveable property. If the value of the inventorized property have been estimated at the making of the inventory, the husband must pay the value therein mentioned. The creditors of the wife, who became such previous to the marriage, having no just claim upon the husband, can, in such a case, seize only the inventorized property of the wife, as she has but a contingent right in the community, and her claims cannot be established but at its dissolution. The Inventory must be made in good faith ; and the estimate of the value of the property of the wife must not be under its real worth. If the Inventory be fraudulent, it will be considered as in- valid and inefficient. A deviz*^ by the husband of the share of the communaute belonging to his wife, under a condition to pay her a life-rent, is (1) C. P. Art. 221 and 228. (2) C. P. Art. 222. 26 y:: valid, if she accept of the condition annexed to such devize. (1) The husband being the chief of the community, his creditors may seize all the property belonging to it, for the payment of his debts; although part of that property was brought to the com- munity by the wife ; but the wife by virtue of the article of the coutume, and having had an Inventory made, may make her de: mand in separation as to property from her husband and oppose the sale of the moveables which she has so brought, and which have been entered into the Inventory, and demand distraction thereof; and her moveables in that case will not be liable for the payment of her husband's debts. If the very same moveables are not to be found in the community, either from having perished or having been alienated, she cannot take, in their stead, other movea- bles of the community, but her husband is bound to indemnify her. As there are certain immoveables which do not enter into the community, debts due for the purchase of such immoveablesj proprea de la communauU can be recovered from the conjunct only who owes them ; and such conjunct becomes debtor to the community, if the amount of the debts be paid by it. The communaute enjoys the benefit of the issues and profits of the propres on either side, and consoquently is bound to pay and discharge the reiites with which they are burthened during its continuance. (Guard vs. Leraieux, Quebec, 1810.) No married woman can become security for her husband, or incur any liability whatever on his behalf, otherwise than as commune en Mens with him, for any debt, contract or obligation which may have been contracted or entered into by her husband before their marriage, or during its continuance. (2) (1) Roy vs. Gagnon, 3 L. C. R., p. 45. (2) Registry Ordnance, § 36. ..I P (1) 97 DISSOLUTION OF THE COMMUNITY. The community is dissolved by the death of one of the con- juncts or by the judgment of separation as to property duly exe- cuted or by a judgment of separation as to person, which latter carries with it separation as to property. The widow after the death of her husband may renounce the community, and by so doing will avoid all liability with respect to the debts due by the community at the time of her husband's death, provided she make a good and faithful inventory of the property of the community. (1) The wife who has joined in any obligation with her husband as commune en Mens may nevertheless be bound as regards such obligation, for the article of the coutume whicb exempts the wife renouncing the community from paying the debts of the community, refers only to debts contracted by the husband as head of the community but she has recourse against the representatives of the husband- The liberty to renounce extends to the heirs and other represent tatives of the wife, if the community be dissolved by her death The renunciation must be made bydeed before notaries, and duly enregistered. If the parties have been separated by a judgment of the court, it has been held (2) that that judgment cannot be set aside by a mere notarial act. The judgment which is in these words show the reasons upon which it is founded.* "The said respondent having, in pursuance ot the said judgment, (of separation de biens) and for the purpose of car- rying it into execution, duly renounced to the said community which existed between her and her husband the appellant, the same could not be legally re-established but by an authentic act or agreement by and between the said parties, passed before no- taries to that effect, homologated by the said court which had pronounced the said separation de bicns, and made public by the due enregistration thereof in the Greffe of the tribunal, where such sentence had been pronounced, and considering that no such (1) C. P. Art. 23t. (:!) Court of Appeals, Bender Appellant, and Jacobs Respondent, 1 Revue de Leg. 326. * Sir James Stuart, the President of that Court, and acknowledged to be the first lawyer in Lower Canada, dissented from that judgment. ill 28 .4IH iiii act or agreement re-establishing the said community was made and entered into by and between the said appellant and respon- dent, and that the right of the said respondent, to cause the said judgment of separation de Mens to be duly executed, could only be barred by a lapse of thirty years, the said judgment could not be invalidated or annulled by the effect of the aforesaid deed of transaction." A married woman can claim the value of an immoveable property, sold upon the representatives of her husband, such property having been given to her during the community, not. withstanding the clause of ameublissement in the contract of marriage provided there is a stipulation in the contract of marriage that the wife may r«nounce the community, and take back whatever she brought to it, and notwithstanding that the contract of marriage executed previously to the coming in force of the registry ordinance was never registered, the claim of the wife in such case, being rather in the nature of a right of property than in the nature of an hypothecary right. (1) The wife who renounces cannot profit by the community, nov can she recover that which she put into it, or that has devolved upon her by succession of moveables, donation, or otherwise ; un- less the marriage contract contains the clause that in renouncing she will resume, without deduction, all that which she have brought or put into the community ; and without this clause, un- less she be a minor, she cannot resume the property ; (2) for a minor may obtain relief from the omission of such a clause. The favor in which contracts of marriage are held, permit this stipulation, although it be contrary to the rules of a partnership as the wife may take part in the community if it be profitable, and resume her own, if the partnership have been unprosperous ; and this right of reprise, resumption, should be stipulated not only in favor of the wife but of her heirs and other representatives if she do not survive her husband ; for this right of resumption is founded solely upon the agreement of the parties and being contrary to the common law of this country must be limited to persons in whose favor the stipulation is made, hence (1) Labreque vs. Boucher, 1 L. C. R., 47. (2) Com. on Art. 237. 29 the wife and children are included in the stipulation but not the collateral heirs. The wife who has abandoned her husband, or has been con- victed of adultery has no share in the community. The courts have a right to declare that a married woman has forfeited her matrimonial rights, in an action of separation de corps et de Mens, by reason of the adultery of the wife. (1) Upon the dissolution of the community, by the death of one of the conjuncts, the property belonging to it is equally divided between the survivor of the one part, and the re- presentatives of the deceased of the other part. The debts due by the conjuncts during their marriage must be paid out of the funds of the community. The funeral expenses of the deceased are paid by his representatives. The wife is seized ipso jure of one-half the debts due to the community ; and she may therefore demand one-half of each of them. She also becomes the debtor of one-half the amountdue by the community ; but, as we have seen, she may avoid the obligation of paying these debts by renouncing, and even if she accept it, she is only held for one- half of the debts to the extent of her half-share of the commu* nity. It must, however, be observed, that she cannot exercise this privilege of renunciation, or of limited liability, unless she have made a good and faithful Inventory of the property of the com- f.nunity. The creditor who has a mortgage upon any part of the con- ifuits which has devolved to the wife, has his recourse against her individually as the holder of the property hypothecated ; but in such a case, the wife who has paid the debt, has her recourse against the representatives of the husband for the one- half. The wife may at any time renounce the community, as long as she has not acted as commune, but until she renounces she may be sued by the creditors of the community for the debts due by it. The law gives her delay, namely, three months to make an inventory and forty days to deliberate, which forty days however begin to run from the completion of the inventory, if it be completed (I) 3 L. C. B., p. 418. ao ■ 1 1 i' ■ ' 1 : 1 ' C If-. A- I; I ; I sooner than in three months. If the wife sued by a creditor of the community before the expiration of these delays, chooses, she may, by a dilatory exception, obtain from the court a stay of pro- ceedings until their expiration, upon which expiration, the Plain- tiflP creditor may force her to declare her option. Should she ne- glect to do either, she will be deemed to be commune ; neverthe- less, she may renounce at any time during the suit, because such renunciation can do no positive injury to the creditors. When the wife accepts the community the division is made thus : — If, by the contract of marriage, part only of the moveables of one of the conjuncts have entered into the community, the sur- plus is a propre to such conjunct. After the deduction of all such sums and other moveables as would have formed part of the community, had they not been excluded by special covenant, (which are technically called propres de communauti,) the debts are paid, and if the dissolution of the community have been occasioned by the death of one of the conjuncts, the residue is divided equally between the survivor and the heirs or other representatives of the deceased ; if the dis- solution have been occasioned by a judgment of separation of person, or of separation of both person and property, the residue is divided equally between the conjuncts. The wife, if the community be dissolved by the death of the husband, re-enters into the posssession and administration of her immoveable property. If any immoveable of either of the con- juncts, have been sold during the marriage, or some of the rent«s {foncieres or constituies) with which any immoveable of such con- junct was encumbered, have bean paid off out of the funds of the community, that conjunct to whom such sold immoveable belonged, or his representative will be re-imbursed the amount of the sum produced by the sale, with interest from the day of the dissolution ; and on the contrary, the conjunct whose rentes were so paid cff, or his or her representatives will be bound to re-im- burse to the community the sum borrowed from it for such purpose. When the property of one of the conjuncts has been alienated, during the marriage, subject to a life annuity, the indemity is only n for the amount which the annuity has yielded, for the community has been benefitted by the alienation to that extent only. (1) The husband owes the wife the re irabursement not only of that which he has received for her alienated proprea ; but even for any loss she has sustained through his negligence. If, for example, he has allowed sums of money due to his wife upon the alienation of her propres^ to be lost by prescription, or has neglected to en- force payment from a debtor who has subsequently become insol- vent ; he must also indemnify her for deteriorations to her property caused by his want of proper attention, a liability which arises from his office of administrator. The re-irabursement for the alienated propres of the husband are only due by the community ; (2) but the wife has her recourse against the individual property of the husband, when the property of the community is not suflB- cient, this also follows from the husband's liability as adminis- trator. If one conjunct, out of the funds of the community, erect or repair any building upon, or otherwise improve any of his or her propre, or pay any debt to ^^hich the propre was subject, he must indemnify the community after its dissolution. If the improvements made on the propre of the conjunct cost more that the increased value of the property, the compensation will be made for the improved value only, but if the property was increased in value much more than the actual cost of the improvement, the compensation will only be for the amount expended. The indemnity is due even if the buildings should be subsequent- ly burnt down or destroyed. Simple repairs required to keep the property in good order are paid by the community. The husband and wife are incapable of deriving from each other by donation, inUr vivos, any advantage, directly or indirectly, unless it be by such mutual or reciprocal donation as the law per- mits, and which will be presently stated. This prohibition extends not merely to simple donations, but also to those which are mutual, unless they are made in strict conformity with the condi- tions under which they are permitted. From the general terms of (1) 1 De la Jannes, p. 86. (2) 2 De la Jannes, p. 8t. 82 the 2l9ih Art. of the coutunie, it may be stated, that every disposition or act, whatever be its form or character, or however it may be disguised by the introduction of a nominal donor or donee, is, ii;' either conjunct derive an advantage from it, null and void. An acknowledgment by the one that he or she has received from the other, more than the former did actually receive, or a release by the one of the other, is therefore void. The incapacity, induced by this prohibition, continues, notwithstanding the separation of the husband and wife, unless that separation be the effect of a sen- tence declaring the marriage null. No title can be acquired under such a donation. (1) One conjunct cannot give to a child of the other, by a former marriage, as such donation would be considered as a circuitous method of making a donation to such other con- junct. ('2.) Mutual donations are, however, permitted under certain restric- tions. (3) Both the conjuncts must be in good health at the time the donation is made. The construction given by Duplessis to the expression etanten santi, in which Pothier concurs, is, that the donation is null, if it be made when the conjunct is laboring under a dangerous illness, although it does not ultimately end in death. The conjunct must have been married under a community of goods. This donation cannot be made if there be children of the marriage, or if either conjunct has a child by a preceding marriage. No other property than moveables and the immoveable conquits of the conjuncts can be included in this donation. It enures to the survivor, and is enjoyed only for the life of such survivor, who must give sufficient security to restore it, and until the security has been given, the donee is not entitled to enjoy it. (4) There must be no such disparity in health or age, as to render the pro- bability of survivorship considerably unequal. It must be irre- vocable, and any reservation inconsistent with its irrevocability,, renders the donation void. (6) The gift being made to the sur- vivor of the two conjuncts, it takes effect on the death of the one who first dies. The donee is not seized of it, but must demand it from the heirs of the deceased. (6) (1) 1 Bnrge, p. 389 and seq. (2) C. P. Art. 283. (3) C. P. Art. 280,. (4) C. P. Art. 285. (5) 1 Burge 400. (6) C.P. Art. 284, Hi 88 The deed of donation should be enregistered within fonr months. Any gift inter vivos of goods and chattels, made either before or since the passing of the Registry Ordinance, is sufficiently regis- tered or insinuie, provided the same be registered in the Registry Office of the Registration Division in which the lands and tene- ments thereby giv r> are situate ; and if there be goods and chat- tels only, in the l.dgistration Division in which the donor is a resident at the time of the execution of the deed. If the lands given be situated in two Registration Divisions, the deed must be enregistered in both, if it be enregistered but in one, it will affect the lands only, which are situate in that division. (1) If the conjuncts have made a mutual donation, the property which is the subject of the gift is charged with the expenses of the funeral of the deceased, and with the share or moiety of the debts which wore dae by the community, or by the conjunct to the community. If the gift does not consist of the entire share of the conjunct in the community, the liability of the survivor for the debts is proportioned to the amount of the gift. (2) SECOND MARRIAGES. By second marriages, whether it be that of the husband or of the wife, is understood every marriage which is not the first ; and whatever number of marriages there may have been, they aie all comprehended under this name of second marriages, with respect to that one of the conjuncts who has been i^arried before. (3) A parent, on his second marriage, in some particulars is denied certain privileges which he would otherwise enjoy. The protection of the children is somewhat secured by the restrictions to which the parent is subject, in the disposition of his property on a second marriage. Those restrictions, which are borrowed from the Civil Law, were imposed by the edict of Francis II., July 1560, and the 279th article of the Custom. The husband or wife who has a child, or the issue of a deceased child, or children by a former marriage, cannot, on a second mar- riage, make a disposition of moveables or immoveable property in (1) 14 and 15 Vic, c. 93, § 4. (3) Domat 1. 3 t. 4, § 1. (2) C. P. Art. 286. 1 Burge, p. 401 34 J, t s i At I i ? ;ii'' i i;;: I 'V favor of the person whom he or she may marry, exceeding the least share of any of the children. If it exceed that share it is subject to reduction. In making this reduction, the number of children is computed at the time, not of the second marriage, but of the death of the deceased. The prohibition extends to every species of donation made by the person so remarrying to the person whom he or she is about to marry. (1) The share to which the donation or advantage is reduced, is the least to which any one of the children is entitled. Thus, if a widow, having children of a former marriage, marries again, and by her contract of marriage makes a donation to her new husband, and, by her will, makes her children universal legatees, with the exception of one by the first marriage, to whom she leaves only his legitime, (2) the donation, if it exceed the legitime — which is the least share either of the children takes — is subject to be reduced to the amount of such legitime. Although the edict of 1660 was introduced for the protection of the children of the first marriage, yet the re- duction of the donation operates equally for the benefit of those of the second. The excess which is the subject of reduction be- comes distributable amongst the children of both marriages. (3) Legitime is the one Lalf of such part and portion as each child would have had in the succession of his father and mother, grandfather and grandmother, or other ascendants, dying intes- tate, if the said father and mother or other ascendants had not disposed of the same by donation, inter vivos. (4) The provision of the Edict by which the party marrying a second time, is bound to reserve the property for the children, formerly subjected the wife to a species of fidei commissary substitution in their favor, which took effect on her death ; but since the enact- ment of our Provincial Statuie, 41 George III, c. 4, (which removed all restrictions with respect to the persons to whom property might be bequeathed,) it would seem that the conjunct, so a-emarrying and having children of a former marriage, may, al- though still restricted from advantaging the new conjunct by a contract of marriage, effect the same object by will, provided, of (1) 1 DupIesBis p. 533. (2) Burge p. 403. Burge 403. (4) C. P. Art. 298. (3) Poth. Mar. No. 567. 1 course, that the other conjunct survives the conjunct so re-mar- rying. So entirely does the law contemplate the interest of the children, that the deceased husband cannot release his widow from the restriction as to advantages by the contract of marrriage. The coutume has made an important addition to the lat- ter provision of the edict. 1st. It prohibits any disposition, by the wife to the second husband, of the conguita of her pre- ceding marriage, to the prejudice of the children of. that mar- riage; and, 2ndly, it prohibits her from making such a dis- position to any other person. Her disposition to a second husband of a conquit is null in toto, and not merely as to the share which the child would have taken therein. The children of the second, as well as of the first marriage, can set it aside ; but the disposition made by the wife in favor of any other person is void only in respect of the shares of the children of the first marriage. Thus, if the wife had two children by the first, and three by a second marriage, the disposition in the latter case would be void only for two-fifths, and would be valid as to the other three-fifths. (1) Although the article of the coutume speaks only of the wife, it has been decided that the restriction on the disposition of the conquets in favor of a second husband applies to the husband who may take another wife. (2) DIVORCE. In the earliest age of the monarchy of France, it seems divorces d vinculo were permitted. But that kingdom adopted the pre- vailing opinion of the Roman Catholic Church, that the marriage was indissoluble, and admitted only a divorce a mensa et thoro, or as it is called la separation cThabitation. This species of divorce is granted at the instance of the wife, when the husband has falsely accused her of a capital crime, or has treated her cruelly, not only by offering her personal violence, or withholding fi"om her the necessary means of subsistence, but by habitually treating her before the visitors of the house, the domestics, and children with contempt. (3) (I) Poth. Mar. No. 641. 1 Surge 405. (2) lb. p. 406. (3) I Surge, p. 644. 86 I ' r-i -< is A ■ Hi The wife cannot obtain a divorce for adultery committed by ther huflband, although the adultery of the wife affords a ground on which the husband might obtain a divorce from her. This separ- ation can only be effected by judicial sentence. The parties can- not by any act or agreement between themselves, or by any ad mission of the facts because they enter into the two communities as the survivor ac- quires them for the community existing between himself and the children. (2) The revenues of all the property which the wife has or may have ; and all the property which the survivor acquires since the socond marriage, and which enter into the two commu- nities, form part of the tri-partite community, as well as all the moveables which the survivor is or becomes possessed of. If a child having a share in the contii>ued community, dies leaving children, they would represent the parent and have the same interest in the continued community. The marriage of the children during the continuation does not dissolve the community ; and if a donation be made to them, they will be obliged to account for it when the division is made ; if the property given was more than the share coming to the children, the surplus will be charged to the survivor, because he had no right to give what did not belong to him. The children, whether they be minors or of age, who have part in the continuation, may either accept it or refuse it, and abide by the community in the state in which it was upon the death of the deceased parent ; they have, in that case, the right to verify the quantity, amount and quality of the property, as well by ti- tles as by witnesses, and by common report ; they even have, if the mother be the parent deceased, the right to renounce the first community. (1) Poth. Com. No. 910. (2) lb. IM \% 45 The children must either accept or renounce the continued com- munity as a whole ; they cannot even accept it as it stood on the day of the subsequent marriage, and renounce it as it was after- > wards, because it is regarded as but one partnership. The effect of the renunciation, by the children, of the continua- tion, is to give them an action against the survivor to render them an account of the first community ; but they cannot lay claim to any part in the property acquired by the survivor after the death of the deceased ; they are not, on the other hand, responsible for debts contracted by the survivor since that time. When the children accept the continued community, they must, when it is divided, return to the mass of the partner- ship, all the property which they have received from it. The monies paid them are compensated by the amount due to them as far as their share goes. The survivor must account to the children for any proprea be- longing to the deceased or to the children which may have been sold during the continuation, as well as any moveables belonging to the children which the survivor may have alienated. The division is made with the same formalities as on the disso- lution of the community. When some of the children accept, and others renounce, the continuation of the community, the share of those who renounce does not accrue to the others. So that, when there are three children, of whom one renounces and two accept, as the survivor had three-sixths in the community, against each of them one' sixth, the part of the survivor in the partnership which exists be- tween him and the two children accepting, must be as three is to two ; he must then have three-fifths, and the two who accept, each one-fifth. The amount due to the child who so renounces, for his portion of the property of the deceased conjunct, is a debt of the continued community, to the payment of which, the survivor and those who accept, contribute each according to the amount of their in- terest The debts due by the tri-partite community are payable by the three parties composing it ; but the second wife cannot be held 1 1 46 to paj more than she has benefitted by the community, the sur- phis must be paid by the husband and the children of the first marriage. K the wife be the surviving party, and be in continued oommunity with her children and her husband, the wife and chil- dren are not bound to pay more than they benefit by the commu- nity, the husband, as head of the community, is l)ound for the surplus. As regards the creditors, however, the parties composing the tri-partite community are responsible each for a third of the debts; except the holder of a property hypothecated by the head of community, for the holder is hypothecarily bound for the whole. h<^ ■CR^«' V.'!? sur- firet lued ihil-, mu- the the ibts; d of 1