1 Day 221 | Conn. | 1804
The petitioner’s claim, in he* bill in chancery, rests on the ground of the husband and wife’s, contract, or a combined view of the facts contained in the bill. Hence, the questions made relate to the competency of a husband and wife to contract with each other ; the competency of the wife to have estate for her separate use ; and the equity of the particular case.
By the common law, the husband and wife are considered as one person in law, the existence of the wife being merged in that of the husband, or suspended during the coverture. As a consequence of this union of persons, the principles necessarily result, and have been established, that husband and wife cannot contract with each other, nor the husband make a grant or gift to the wife, nor the wife have personal estate, to her sole and separate use.
If these principles are to be received and applied, in their obvious import, to this claim, they, at once, determine all the questions, that arise in considering the case. They preclude the idea of the husband’s and wife’s competency to contract with each other, and the wife’s competency to have, during coverture, personal estate to her separate use ; and these being precluded, no equity arises out of the facts in the case, which, consistently with those principles of the common law, can be recognised by a court of chancery. Nor, indeed, is any equity-perceived to exist in this case, to distinguish it from the ordinary transaction of the wife’s estate being sold, and the avails thereof coming, in personal estate, to thehusi band.
It is, however, insisted on, that those principles of the
The construction and principles, assumed by tbe English courts of chancer}', on these subjects, are correctly stated. The important consideration is, whether they are to be incorporated into our chancery system.
In tracing the history of the English chancery, on this subject, it is found, that the doctrine of the wife’s separate personal estate, a little more than a century past) since' the emigration of our ancestors into this country, first insinuated itself into practice. It was not received without difficulty; but it gradually gained ground, and soon introduced the principle of contract between husband and wife. Both have advanced, and been extended, till a system has grown up, widely different from the principles of the ancient common law, upon this ..point* and others arising out of the mamrtge relation. .
It owes its rise to that state of manners and society, which it has followed, and accommodated.
By a kind of fiction, the husband is considered a trustee for the wife, as to her separate estate ; and, on the ground of its being trust estate, chancery has taken cognizance of it; and a husband and wife, have become suitors, and litigant parties, against each other, before the court.
The principle, that governs with respect to contracts between husband and wife, does not appear to be definite. Some kinds of contracts are recognised and enforced, but a wide latitude is left for the discretionary power of the chancellor.
The system is complex, originating numerous, complicated questions, as to the relative rights and property of husband añd wife, and changing the form of legal proceedings.' -
It is unnecessary to enter on a detail of those manners, different ranks, and general state of society in England, which induced the system ; they greatly differ from ours.
•At the time of the emigration of our ancestors from England, the principles of the common law, on this subject, were in full force, unqualified by the modifications of the court of chancery : they have ever been received and applied in their unqualified sense, both in cur courts of law and chancery.
This' is a case of novel impression; the maxims of the ancient common law, on this subject are plain and simple; our state of manners and society do not require that they should be relaxed, or qualified. The principles, therefore, which govern in the English courts of chancery, ought not to engrafted into our chancery system ; but those of the common law remain unimpaired.
