may differ materially from that now contained in the record. But if, instead of the complex instructions under which the case was decided at the last trial, the following directions had been given, it would have conformed to the opinion of this court when the case was formerly before it, and at the same time have enabled the jury to understand more distinctly the matters of fact in dispute between the parties, and submitted to them for decision. The judgment of the Circuit Court was then | before it, because the testimony then offered reversed, and the case remanded, with directions to award a venire facias de novo. 226*] *Upon the second trial some additional testimony appears to have been offered, and two instructions given by the court to the jury, one upon the prayer of the defendant, the other upon the prayer of the plaintiff, to the last of which the defendant, who is now the plaintiff in error, excepted; and the judgment of the Circuit Court being against him, he has again brought the case here by writ of error. The opinion expressed by this court in reversing the former judgment and remanding the case is summed up in the following paragraph in 1 Howard, 240: "If, therefore," say the court, "the jury find that the course of dealing between the Commonwealth Bank and the Bank of the Metropolis was such as is stated in the testimony; that they always appeared to be and treated each other as the true owners of the paper mutually remitted, and had no notice to the contrary; and that balances were from time to time suffered to remain in the hands of each other, to be met by the proceeds of negotiable paper deposited or expected to be transmitted in the usual course of dealing between them, then the plaintiff in error is entitled to retain for the amount due on the settlement of the account." 1. If, upon the whole evidence before them, the jury should find that the Bank of the Metropolis, at the time of the mutual dealings between them, had notice that the Commonwealth Bank had no interest in the bills and notes in question, and that it transmitted them for collection merely as agent, then the Bank of the Metropolis was not entitled to retain against the New England Bank for the general balance of the account with the Commonwealth Bank. 2. And if the Bank of the Metropolis had not notice that the Commonwealth Bank was merely an agent, but regarded and treated it as the owner of the paper transmitted, yet the Bank of the Metropolis is not entitled to retain against the real owners, unless credit was given to the Commonwealth Bank, or balances suffered to remain in its hands to be met by the negotiable paper transmitted or expected to be transmitted in the usual course of the dealings between the two banks. 3. But if the jury found that, in the dealings mentioned in the testimony, the Bank of the Metropolis regarded and treated the Commonwealth Bank as the owner of the negotiable paper which it transmitted for collection, and had no notice to the contrary, and upon the credit of such remittances made or anticipated in the usual course of dealing between them balances were from time to time suffered to remain in the hands of the Commonwealth Bank, to be met by the proceeds of such negotiable paper, then the plaintiff in error is entitled to retain against the defendant in error for the balance of account due from the Commonwealth Bank. The only question now open upon this second writ of error is, whether the Circuit Court, in their instructions to the jury, have conformed to this opinion. We have examined them with a good deal of care, and regret to find them so complicated and involved that we have some difficulty in ascertaining the meaning of the Circuit Court. It would seem to be almost impossible for a jury acting under such instructions to comprehend distinctly the issues of fact upon which they were to find their verdict. Indeed, as we understand these two instruction, the last paragraph in the second seems to this court to be inconsistent with the direction contained in the first. And if the last instruction stood by itself, without any refer- | ence to the first, it might perhaps be construed We restate the former opinion of this court to be substantially the same with the direc-in this form, because we presume it must have tions given by the Circuit Court at the former been misunderstood by the Circuit Court. And trial, which were reversed upon the former writ as it was not followed in the proceedings under the mandate, the judgment must be reversed, and the cause remanded, with directions to award a venire facias de novo. of error. It is not usual in remanding a case to state in the opinion of this court the particular manner in which the instructions to the jury should have been framed, but to state in the opinión the principles of law which govern the case as it appears in the record, and leave it to the Circuit Court to apply them to the case, as it may appear in evidence upon the second trial, in such manner and form as it may think advisable. From the manner, however, in which the directions of the Circuit Court appear in the record before us, upon the trial under the mandate, we may perhaps prevent future diffi227*] culty by stating the *form in which instructions to the jury might have been given so as to carry into effect the opinion of this court, and enable the jury to understand more clearly the points in issue before them. Of course we do not mean to prescribe this form to the Circuit Court when the case again comes This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo. RICHARD BEIN and Mary, His Wife, Appel-der a mortgage from the latter, dated the 8th. lants, V. MARY HEATH. Husband may be prochein ami of wife on bill in equity where he has no interest-when equity will not lend aid to set aside mortgage given to secure loan in wife's name for benefit of husband. The Civil Code of Louisiana, article 2412, enacts, that "the wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage." Where a wife mortgaged her property to raise money, and the question did not turn upon her doing so as the surety of her husband, it was not ncessary for the lender to prove that the proceeds of the loan inured to her separate use. The fact of the application of the money may be proved to show the character of the transaction, with a view of establishing collusion or fraud. The decisions of the State courts of Louisiana upon this subject examined. Where a wife mortgaged her property, and then sought relief in chaucery upon the ground that the contract was void in consequence of her disability to contract, and it was shown that the lender acted in good faith; proceeded cautiously under legal advice, under assurances that the loan was for the exclusive use of the wife, to whom the money was actually paid; the interest upon the loan paid for several years; the mortgaged property insured by her, and the policy assigned to the mortgagee; a bill to relieve her from the contract cannot receive the sanction of a court of equity. But it is no objection to such a bill, as a rule of pleading, that the husband is made a party to it with the wife. He acts only as her prochein ami. cery. The facts are sufficiently set forth in the opinion of the court. It was argued by Mr. Crittenden and Mr. Johnson for the appellants, and Mr. Bradley and Mr. Jones for the appellee. There were also printed briefs for the appellee filed by Mr. Eustis and by Messrs. Elmore and King. Mr. Crittenden, for the appellants, stated the substance of the case as follows: The bill in this case was filed by the appellants, Bein and wife, to enjoin proceedings un229*] der a writ of seizure and sale *taken out by the appellee, Mary Heath, to sell certain property of the appellant, Mary Bein, un NOTE. Of obligation of married woman as surety, or guarantor, for her husband or othersrights as creditor of her husband. Where a married woman having a separate estate executes a promissory note as surety for her husband or another, such estate is presumably charged with its payment in Ohio. Avery v. VanSickle, 35 Ohio St. 271, and in Maine, Mayo v. Hutchinson, 57 Me. 546; also in Missouri. Lincoln v. Rowe, 51 Mo. 571; Metropolitan Bank v. Taylor, 53 Mo. 444; also in Kansas and California. Wicks v. Mitchell, 9 Kans. 80; Wood v. Orford, 52 Cal. 412. New York decisions require a distinct written obligation expressing the intention to bind her separate estate, in order to bind the wife where the debt is not contracted for the direct benefit of her separate estate. Yale v. Dederer, 18 N. Y. 265; 22 N. Y. 450; White v. McNett, 33 N. Y. 371 Ledlie v. Vrooman. 41 Barb. 109'; White v. Story, 43 Barb. 124; Merchant's Bank v. Scott, 59 Barb. 641; Woolsey v. Brown, 74 N. Y. 82. A married woman can incur obligations as sure May, 1838, to secure two notes drawn by her in favor of her husband, and by him indorsed -the one for $10,711.71, the other for $535.59. The complainants allege allege that these notes were given for a loan obtained by Richard Bein, the husband, for his own use, and which was so applied; and that in such a case, by the laws of Louisiana, the mortgage of the wife, and her promise to pay the debt, or to make her property responsible, is not binding, but void. The answer of the appellee denies the averment of the bill as to the purpose of the loan, or the use of the money, and evidence was taken on both sides. And then he contended 1st. That the loan was for the exclusive use of the husband, and that it was so applied. the notes and mortgage were void as against 2d. That being for such use, and so applied, the wife, and her property; and that, consequently, the injunction prayed by the bill should have been made perpetual. Upon the first point, Mr. Crittenden said, that Mrs. Bein was a widow when she married Bein, that she was worth $85,000 and free from debt. Her revenue was ample, as she had only two or three children. Bein was a merchant and speculator, in fact insolvent at the time of the loan, although apparently engaged in business. Soon afterwards he became openly an insolvent, and divided little amongst his creditors. In May, 1838, when the loan was made, the witnesses say he could not raise money upon his own responsibility. For whom is it likely, then, that the loan was made? The husband was surrounded with unpaid bills and pecuniary embarrassments of every description. The question is for whom the money was borrowed, and that is the only question under the Louisiana law. We do not find in the record that the wife wanted money. On the contrary, the husband was pressing Heath for the money. A lawyer was consulted, who said the loan must be made to the wife, and an effort was made to give the affair that semblance. Hence the interlineation in the mortgage. Can these written papers prevent the wife from showing the truth of the transaction? Bein paid to one person $4,000 in that same month of May, and also paid other people. But he had no means to pay them with except this loan. He owed Sherman & Co. a debt, which he paid. Not a dollar went to ty for other persons. Com. Exchange Ins. Co. v. Babcock, 42 N. Y. 613. Her obligation, in due form to bind her separate estate can be enforced in an action at law. Carpenter v. O'Dougherty, 50 N. Y. 660; Maxon v. Scott, 55 N. Y. 247; Manhattan Co. v. Thompson, 58 N. Y. 80; Third National Bank v. Blake, 73 N. Y. 260. In Massachusetts, New Jersey, Georgia, Tennessee, Nebraska, and other States, the rule is more restricted, as to her liability on obligation executed by her as surety for another. Willard v. Easthman, 15 Gray, 328; Perkins v. Elliott, 7 C. E. Green, 127; Veal v. Hurt, 63 Ga. 728; Saulsbury v. Weaver, 59 Ga. 254; Robertson v. Wilburn, 1 Lea, 623; State Savings Bank v. Scott, 10 Neb. 83 Harris v. Finberg, 46 Tex. 79. But the latest legislation in Massachusetts does not require the consideration of a wife's contract to enure to her own benefit, and her joint note with her husband, or her indorsement, binds her to quite, or nearly, the same extent as that of any single woman. Major v. Holmes, 124 Mass. 108; the benefit of the wife. But according to the same effect, and he could act for his wife. forms of the transaction, she received the mon- | Civil Code, art. 2330-2333. In this case he 230*] ey. It was paid by a check *to her, was her proper agent. Ibid. art. 2340, 2362, which was placed in her own hands. What is 2363; 2 Rob. 20; 11 La. Rep. 258; 7 Martin, the law of Louisiana in such a case? [Mr. N. S. 144. Crittenden then cited the article 2412 of the Civil Code, and all the State authorities set forth in the opinion of the court, upon which he commented.] Mr. Bradley, for the appellee, made the following points: 1. The loan was made to the wife. 2. She could borrow money and mortgage her property; or, 3. If not loaned to her, it was a fraud practised by the complainants on the defendant. 4. In either case she can have no relief in equity, and there is no error in the decree rendered by the Circuit Court; and, 5. This is a bill by husband and wife, respecting her separate property, in which he is indirectly charged with seeking to injure her. Their interests are adverse. It is his suit. They are improperly joined. Advantage of this can be taken at the hearing, and the bill must be dismissed. The marriage contract shows that the wife had power to contract. Having this power, she admits that she made this contract in the most formal manner konwn to the laws, holding out the idea that the loan was for her benefit. We do not say that she can be a surety for her husband. The court ought to protect her in her rights, but there are also other persons to be protected, who were dealing fairly in the transaction. Can she now say that she led the other party into a snare, and that this other party must show that the money was actually expended for her sole benefit? The question is, Upon whom is the burden of proof? We say that the complainants must show that the money did not, in fact, go to her use. We have her declaration before the notary that it was so. In none of the cases which have been cited can such a formal admission be found. The books and payments of the husband cannot be admitted to contradict this notarial act of the wife. Civil Code, art. 2233-2235; 8 Martin, N. S. 693, 694; 10 Martin, 439. The letters of Heath show that he thought he was making the loan to the wife. These letters were ruled out below, but exceptions were taken. Starkie, Ev. 57, 62-64; Story, Agency, secs. 131, 135. The declaration of the husband was to the Kenworthy v. Sawyer, 125 Mass. 28; Goodnow v. Hill, 125 Mass. 587. A married woman cannot be sued at law on such a promissory note. Vankirk v. Skillman, 5 Vroom. 109. In Louisiana a married woman may bind herself as surety for anyone except her husband. Wickliffe v. Dawson, 19 La. Ann. 48. A married woman's promissory note does not, as a rule, secure her husband's debts, nor does she, by executing it, bind herself lawfully as his surety or guarantor, on a contract not relating to her separate estate, nor for its benefit, so as to render herself liable to suit. Lawyer v. Fernald, 59 Me. 500: Shannon v. Canney, 44 N. H. 592; Debries v. Conklin, 22 Mich. 255; Vankirk v. Skillman, 5 Vroom. 109; Parker v. Simonds, 1 Allen, 258: Keaton v. Scott, 25 Ga. 652; Yale v. Dederer, 18 N. Y. 265; Emory v. Lord, 26 Mich. 131; Schmidt v. Postel, 63 Ill. 58; Sweazy v. Kammer, 51 Iowa, 642; King v. Thompson, 59 Ga. 380; Athol Machine Co. V. Fuller, 107 Mass. 437; Wolff v. Van Meter, 19 Iowa, 134; Sweeny v. Smith, 15 B. Mon. 325. There was collusion and fraud between the husband and wife to cheat Heath. Civil Code, art. 1841, defines fraud. 1 Story's Eq. 384, 385. *If the other side are right in saying [*231 that the lender must look to the manner in which the money is spent, then all married women, under such circumstances, would be placed under the supervision of trustees who might be strangers. She was not a surety for her husband, because he owed us nothing. After borrowing the money, if she chose to lend it to him, she brought herself within the provision of the civil law. Ulpian, book 16, tit. 1. Bein was insolvent in 1840, two years after the loan was made. But the interest was paid for four years afterwards. In the admission of facts upon the record is this: "It is also admitted that the first four years' interest on the loan was regularly paid, and that for that time the policy of insurance on the house mortgaged to secure the loan was regularly assigned, in conformity with the contract of loan. (Signed) "R. Heath, (Signed) "R. Hunt, Complt's sol. "Elmore & King, The "Att'ys for Respondents." Who paid the interest all this time? policy, too, was made out in the name of the wife, and indorsed by her. She was returned, also, as a creditor in her husband's schedule. She must, therefore, have been acquainted with the whole affair. But it has been said, that the decisions in Louisiana require that we should have seen that the money was expended for the wife's separate use. [Mr. Bradley here critically examined these authorities.] In point of fact, although we are not bound to show it, the record does prove that the money was actually used for her benefit. On the 29th of May, seventeen days after the money was borrowed, Bein paid $5,500 on account of an elder mortgage, which secured a debt of $15,000 due to the wife. On the 5th point of the brief, the misjoinder of parties, Mr. Bradley cited 1 Sim. & Stu. The same rule, nearly, applies to her undertakings for the benefit of third persons, as an accommodation indorser, etc. Shannon v. Canney, 44 N. H. 592; Crane v. Kelley, 7 Allen, 250; Kohn v. Russell, 91 Ill. 138; Bailey v. Pearson, 9 Fost. 77; Lyttle's appeal, 36 Penn. St. 131; Peake v. LaBaw, 6 C. E. Green, 269; Bauer v. Bauer, 40 Mis. 61. Where a husband actually borrows money or property from his wife with the understanding that it shall be repaid, he will be treated in equity as her debtor accordingly. Jaycox v. Caldwell, 51 N. Y. 395. Such a loan constitutes a valid indebtedness le gally enforceable against him or his estate on her behalf as a creditor. Whitford v. Daggett, 84 III 144; Monroe v. May, 9 Kan. 466; Woodworth v Sweet, 51 N. Y. 8. She may now, by force of statute, in New York and some other States, become surety or guarantor, in some cases. Woolsey v. Brown, 74 N. Y. 82; Hart v. Grigsby, 14 Bush, 542; N. W. Life Ins. Co. v. Allis, 23 Minn. 337. 185; 2 Ib. 464; 2 Keen, 59, 70-72; 5 Simons, Messrs. Elmore & King filed the following Lombard v. Guillett and Wife, 11 Martin, 453. In this case there was no proof that the husband authorized the wife to sign the note with him, nor did she sign the act of mortgage, although it was given by the husband, upon her property. 232*] *Banks v. Trudean, 2 New Series, 39. -In this case, the wife was admitted and proved to be surety for her husband. The case was decided upon the law of Toro. [Wife might bind herself with the husband, provided she renounced the law of Toro.] Perry v. Gerbeau and Wife, 5 New Series, 19. In this case the wife was surety. Sprigg v. Bossier, 5 New Series, 54.—The note sued on was given for property purchased by the husband, and she was surety merely. McMicken v. Smith and Wife, 5 New Series, 431.-The note sued on was given in part for negroes sold to the husband, and in part for a balance then due by him on another obligation to plaintiff. ticle 2412, two things have first to be ascertained. First. Whether the wife has bound herself for her husband, or as his surety; and, Second. Whether the debt was contracted by him before or during the marriage. Both of these conditions are absolutely necessary, to bring any case within the prohibition of that article. It will be seen from the above, that the law under which the case of Brandegee v. Kerr and Wife was decided was very different from the law as it now stands. The facts differed still more widely from the case before the court. In the case of Brandegee v. Kerr and Wife, there was no evidence that the contract was the wife's; there was no notarial act showing this. As the law then stood, the check being given to her was not sufficient evidence of this. our case, the evidence is conclusive that the original contract was made by the wife. The note and mortgage were not given for a debt of the husband, but of the wife. In Pilie v. Patin et al. 8 New Series, 693.-In this case the wife was clearly shown to have been surety merely for her husband, for a preexisting debt due to the plaintiff, and at his solicitation gave a mortgage, in which the facts were purposely misrepresented to evade the law. This was clearly proved. The plaintiff was a party to the whole transaction. In the case before the court, Sherman Heath believed the loan was really made for the benefit of Mrs. Bein, and that the representations enumerated in the act were true. Hughes v. Harrison, 7 New Series, 251.The note sued on was given "for their and plantation use." The wife was surety merely for her husband, for part of the debt. The case was remanded, to enable the plaintiff to prove how much was for the wife's use and benefit. Brandegee v. Kerr and Wife, 7 New Series, 64.—This action, although decided in the year 1828, was brought on a note for $1,800, dated August 31st, 1821, and due three years after date. This I know, from having examined the record in the Supreme Court. The case was consequently decided under the law of Toro, which had not been repealed before the execution of the note. The court say the husband and wife were bound jointly and several- Davidson v. Stewart et al., 10 Louisiana, 146. ly. This made the case fall completely within-In this case, the court decided, that, although the law of Toro. There was no evidence that the land for which the note was given was purthe note was given for the wife's benefit. Upon chased in the name of the wife, yet still it was this the court lays great emphasis, and upon it, community property. in fact, decides the case. The court decided, that the circumstance that she received the money was not sufficient evidence that it was for her separate use and benefit. As the law then stood, the wife was not bound at all on the contract or note; it was a nullity on the face of it. She was only bound for what was used for her separate benefit, upon a quantum meruit. Her receiving the money did not at all prove that the note was made for her separate use, or that the money was applied to her separate use. Guasquet v. Dimitry, 9 Louisiana, 585. This case was widely different, in all its features, from the case before the court. The court decided that a renunciation made by the wife was done for the benefit of the husband, and that the act was prohibited by art. 2412, Civil Code; that the wife was, in fact, surety for her husband. Being community property, the husband had as much right to sell or otherwise dispose of it as if it were in his own name; consequently, the price due for it was a debt of the husband's. Firemen's Insurance Company v. Cross and Wife, 4 Robinson, 509,-In this case, the court say that the money was borrowed for the husband' benefit, that the wife never received a dollar of it, and that the plaintiffs were aware of these facts. *It will at once be perceived that [*234 the case differed widely from our case, where there is not a particle of evidence showing that Sherman Heath knew this money was borrowed for Bein's benefit. On the contrary, the evidence shows that he believed it was for Mrs. By our law, as it now stands since the repeal of the law of Toro, there is no impropriety in a wife binding herself conjointly with her husband, provided it be not for a debt contracted by him. A husband may be surety for the wife for debts contracted for her separate ben-Bein's benefit. efit, and he may be bound jointly with her for such a debt. The prohibition of article 2412 does not extend, as it did under the law of Toro, to the form of the instrument, but only to a joint contract for the husband's debt. Maddox v. Maddox, Ex. 12 Louisiana, 14; Martin v. Esther Drake, 1 Robinson, 219; Petit Pain v. Therese Palmer, i Robinson, 220these cases no principle was decided different from that decided in the others above cited; 233*] *To determine, then, whether a con- and they are relied on by the defendant to tract falls within the prohibition of that ar- I show that it must be proved by the evidence whether the loan was made to the husband or | S. 64, were all decided under the law of Toro. the wife. This case, though decided in 1828, was on a note dated the 31st of August, 1821, and consequently regulated as to its obligations by the It is proper to give the views of Mr. Eustis, also, upon this subject, who filed a printed brief, as has been already stated. The follow-law under which it was made. ing is an extract from that brief: Some confusion exists in the decisions of the Supreme Court of Louisiana which have been made under the dominion of the Spanish laws. These laws have since been abrogated. They, however, require some explanation, so far as this subject is concerned. The 61st law of Toro provided:-"From henceforth it shall not be lawful for the wife to bind herself as security for her husband, although it be alleged that the debt was converted to her benefit; and we do also order, that when the husband and wife shall obligate themselves jointly in one contract, or severally, the wife shall not be bound in anything, unless it shall be proved that the debt was converted to her benefit, and then she shall be bound in proportion to what shall have been so applied." 7 Martin, 489; Novissima Recopilacion, 10, 11, 3. By the laws of Spain, the wife could bind herself jointly and severally with her husband, provided she renounced this law, in which case [of renunciation], to render her liable, it was not necessary to prove that the debt inured to her benefit. Banks v. Trudeau, 2 Martin, N. S. 40. Wives were not bound by agreements entered into jointly, or jointly and severally, with their husbands, unless it be shown that they have renounced those laws made for their protection, or that the contract has been profitable to them. Perry v. Grebeau et ux. 5 Martin, N. S. 19. In the case of Darnford v. Gros and Wife, cited 7 Martin, 489, the court held that this law of Toro was not repealed by the Civil Code of 1809, which contained no repealing clause, and no provision incompatible with this law. But the Civil Code of 1825, which is now in force, contained a general repealing clause art. 235*] 3521, which abrogated the *Spanish laws, and among the rest this law of Toro. A subsequent statute destroyed every vestige of the Spanish laws, that is, the laws as contradistinguished from the jurisprudence. The Civil Code, which repealed this provision of the law of Toro, re-enacted it, but without the exception concerning the burden of proof; thus, in article 2412, it is provided, that the wife, whether separated in property from her husband or not, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage. That is, in other words, the wife cannot be the surety of the husband. The effect of the repeal of the law of Toro would undoubtedly leave the wife entirely at liberty to charge her separate estate, except as prohibited in the article 2412, and in all cases the proof would rest upon the general principles of the law of evidence. The Supreme Court of Louisiana have never considered or adjudicated on this subject of the repeal of the law of Toro; it was never presented by counsel in the different cases cited by the defendant's counsel. The cases antecedent to and including that of Brandegee v. Kerr and Wife, 7 Martin, N. If we look back to the reason and origin of these laws which prohibit women from contracting, it will be found that they were made for the purpose of preventing the weakness and good faith of women from being surprised, but were never held to reach a case where any indirection or equivocation of conduct should be apparent; still less, one in which the exemption of the woman from responsibility would produce the grossest injustice. Such was the sense of the Roman laws on this subject, and such has been their interpretation, in modern times, in those countries in which the Roman jurisprudence is adopted. Merlin says expressly, that if the wife make use of any deceit or fraud, the privilege of the senatus velleianum is denied to her, which is intended to protect good faith, and can never be made to cover any obliquity of conduct. Merlin, Rep. de Jurisprudence, Vol. XXX. p. 349; verbo, senatus consultum Vellein. The decisions relied upon by the complainants are believed to turn upon the question of fact, whether the debt was or not that of the husband. If it was the husband's debt, the wife *could not bind herself to pay it. [*236 The article of the Code is positive. But if the debt was hers, there is a valid obligation on her part to pay it out of her separate estate. In Louisiana, the law considers marriage, so far as relates to property, as a civil contract only. Civil Code, tit. 4, art. 87. Parties may regulate their rights as to property, during marriage, as they please, provided certain rules of public policy are not violated thereby. Civil Code, art. 2305. 'The wife is under no disability of contracting with the consent of her husband. Civil Code, art. 124. The matrimonial conventions of the parties must be made before marriage; but the husband, during marriage, may convey to the wife property to replace that which may have been alienated by him, as was done in this case. Record, pp. 43, 44. By the Roman law, no effect was produced by marriage on the property of the parties which they possessed at the time of marriage, unless the contrary was provided by an express stipulation. Institutes of the Roman Law, by Mackeldey, sec. 516. There was no fictitious confusion of persons produced by marriage; it was an institution which raised the wife to the rank of the husband, and rendered her children legitimate. Ibid. 515. The dotal property was transferred to the husband, but that which was not so transferred remained under her absolute and unlimited control. Ibid. 517, 529. Here, then, we have a party, laboring under no disability whatever, who has made a contract. Is this contract within the prohibition of article 2412? Did she bind herself for her husband's debt, or for her own? Like every other question of fact, this must be solved by the evidence. So far as the complainant is concerned, it is obvious that she and her agent |