Сн. 18. 2 Johns. R. 342, Bird v. Caritat. 2 Johns. R. 437, Sands v. Codwise & al.-4 do. 536 to 606, error. $28. But since held, a writ may be brought in New York, in the name of a foreign bankrupt, and he may be joined with the assignees of a co-partner, who is here a bankrupt according to the forms in this country settled. 29. Practice among nations as to assignees &c. It is a general principle among them, to admit and give effect to the title of foreign assignees, in bankrupt cases. But the mode of proceeding to recover debts due to the bankrupt, whether in his own name or that of his assignees, depends on the form of same case in proceeding in the country, and in the court, in which the suit is instituted. 3. Where a decree in chancery has been made in a suit by a bankrupt's creditors against him, his assignee, and others, and then the assignee is removed, and a new one appointed by a majority of the creditors, and the cause is brought by appeal to the court of errors, that court will not stay the proceedings until the new assignee be made a party by the respondents. Conveyances made to defeat creditors, are void by common law as well as by statute, deeds void ab initio. 1 Caines' R. 30. A certificate is produced under the bankrupt act of 487, Jones v. the United States, granted in a sister state, thereon the deft. will be discharged. Emerson. 2 Caines' R. 25, Hen dricks v. Ju dah. 1 Johns. R. 37, Hatten . Speyer. 31. If a person hire a house for a year before his act of bankruptcy, and he continue in possession after such act, he is not discharged from the subsequent rent by his certificate. 32. A received monies prior to his act of bankruptcy, on a promise to put it out on bond and mortgage security, but neglected to do it. Held, he was not liable in a special action on the case, but that the action was barred by his certificate, as the creditor might clearly have proved his demand under the commission. Whenever the certificate would be a bar to the 4 Dallas 371. debt, it may be so proved. 1 Caines' R. 53S. 4 Day's Ca. 81, Barnes v. Billington. 6 Johns. R. 412, Phoenix . Day & al. 1 Johns. R. al. v. Jack 33. The commissioners have no power to declare the time when one becomes a bankrupt. § 34. A debtor's attempt to conceal himself to his creditors, and being denied to them, is not an act of bankruptcy, unless thereby he actually prevents the service of process. $35. One insolvent may bona fide give a preference to one creditor, and this, though voluntary, is valid, unless done in contemplation of bankruptcy; and if that be contemplated by the debtor, yet if on the application of a creditor he pays him, his payment is good; so is an assignment of property. 36. If C, on the eve of a bankruptcy, prefer W, a credit370, Ogden & or, and without suit &c., and if he sue, then another; this is son, cited by voluntary and void, as decided in trover by Ogden & al., assignees of W. & D. A.Cummings, bankrupts, against Jackson, made 6 D. & E. 84. trustee to the Manhattan Company &c. Nov. 14, 1803, the the court, 2 East 117. 4 D. & E. 212.-Cowp. 122, 632.-3 Wils. 47 -4 Burr. 2240. Cummingses being insolvent, assigned over a bill of lading of goods at sea, to Jackson in trust for said Company, to which they owed bona fide $720; but if it sued them, then the property was to go to Thomas Cummings. December 14, 1803, W. & D. A. Cummings became bankrupts. Held, this assignment was void, as above, being on the eve and in contemplation of bankruptcy. Thomas Cummings was also a bonâ fide creditor, for whose use the property was held by the deft., and no evidence Thomas Cummings had urged the bankrupts for security, or that he even knew of the assignment. See 3 Johns. R. 71; 4 do. 536. Cn. 19. Art. 1. A debtor insolvent may bonâ fide give a preference to one 5 Johns. R. creditor, to the exclusion of others, and it is valid, though 412, 430, voluntary, if not done in contemplation of bankruptcy. 2. If Day & al. asan act of bankruptcy be contemplated by the debtor, yet if he signees. pays a creditor or assigns to him property, such payment or assignment is valid, as against the assignees of such debtor if made at the instance and on the application of the particular creditor. 3. Held, the answer of one deft. is no evidence against his co-deft. 4. Subsequent declarations by a party to a sale, or transfer of property, which go to devest a vested right, are not admissible evidence. 5. A deemed a witness, having been discharged as a bankrupt, and whose estate probably would not pay twenty-five per cent., in a suit brought by the assignees of B, a bankrupt, against whom A had proved a debt under the commission. Decree of the court of chancery reversed; Phoenix, the appellant, was father-in-law to Ingraham, the bankrupt; many authorities were cited. CHAPTER XIX. ASSUMPSIT. BARON AND FEME. ART. 1. General principles. § 1. There is no part of the law in Massachusetts, and in the United States generally, that deserves more attention than this in relation to husband and wife. It is the ground of actions, and especially of assumpsit, in a vast many cases. The connexion between baron & feme involves relative rights, duties, and obligation, that are very nu merous. On no subject, perhaps, in England, has the law been more changed in three centuries than on this. The old maxim, Сн. 19. once so general and unyielding, that the wife's existence Art. 1. was incorporated in that of her husband's, or suspended during the coverture; that she had no will of her own, no volition, no self control, and no power to act but as his servant or agent, seems now almost done away; as now she has numerous rights of property, and is under numerous obligations in relation to it; some of which are now enforced in courts of law, and many more of them in courts of chancery. Some peculiar difficulties attend this part of the law in Massachusetts. Here our statues make many material provisions which are new, and not found in the English law. On these provisions there have been, as yet, but few decisions. Though we have adopted some of the rights and obligations, especially where there is a separation, which are enforced only in chancery, where there is a chancery court, yet we have no chancery court to enforce such as we have adopted. Hence it is a subject of much uncertainty how in this state they are to be carried into effect; and for this reason too, it is very often a question which of these rights and obligations, found in English books, we have, or have not, adopted. 2 Bl. Com. Co. L. 112. 10 Mod. 205. -New on 2 Vern. 64, 67, 217. This case of baron & feme is the only case in the law, in which the law wholly, without the creditor's consent, discharges his debtor, the feme, and substitutes another debtor, the husband. As where, when sole, she has contracted to pay rent for an estate she has hired, he alone by law becomes liable to pay it, and has in return the usufruct of it as absolutely his own, and she by her marriage, is totally discharged of her contract to pay. What marriages are legal, see Ch. 46, Marriages. 2. The maxim, they are one person in law, according to Blackstone, and other eminent law writers in England; the English law considers marriage as a civil contract binding, when the parties are able and do contract in legal form. This principle we have adopted, the effect of which according to the common law to make them one person, so incapable of Con. 21, 30. contracting with each other in any case. This is the old maxim the courts of law adopted as a general one, but which has been almost done away in time and practice; for numerous are the cases in which baron & feme are viewed in courts of law, as well as of equity, as two distinct persons. As where the law holds a deed, or devise of land to her, vests it in her, and not in him, the freehold or inheritance is absolutely hers, and the usufruct, and that only, is absolutely his. And hence as to real estate they are clearly two distinct persons in law. So in equity, and in the civil and French laws, they are Art. 1. generally distinct persons, and may contract with each other CH. 19. in many cases, and especially with the formality of a trustee. If they agree to live separate, this contract between them is recognised in law as well as in equity, and he never can resume the marital rights, he thereby has renounced. covenant is valid in law and equity, they make on the occasion, Vern. 386, and "binds them both, till they both agree to co-habit again." Lister's case. And Mead's case, 1 Burr. 542, to the same effect. Each 8 Mod. 22. In equity she may sue him by her prochein ami, and in our Stra. 478. court in an action of necessity, in certain cases, as for her alimony allowed her to be paid by him, when divorced from bed and board, as a. 12, this chapter, when in fact they continue to be husband and wife. So in cases of crimes, they are two distinct persons. She is as capable of property as a feme sole; and if he re- 7 East 539.nounces his marital rights to the usufruct of her real proper- 1 H. Bl. 334 to 351, ty, she alone can convey it by copyhold-surrender, in the nature of a deed or devise, and after so renouncing he need not Collinson. be joined in the conveyance, and it is good in law. 542. Compton v. 112. So if the husband covenant to pay trustees a certain sum 2 East 283, annually, as separate maintenance for his wife, with the consent Rodney & al. v. Chambers, of them, or of their executors &c., the contract will be enforc- but 2 Ves. jr. ed in a court of law, though providing for a future separation. 526.-2 Vent. In this case many were cited to the same purpose. 1 Burr. 217.-Co. L. She is a distinct person when she executes a mere power, Reeve's Dom. and by it conveys lands; and by such power she may convey Rel. 120, 121. even to her husband. So she may act in auter droit, without him, and convey to him as executrix of her deceased and for- E. 618, Jarmer husband, his lands, as in these the second husband has no man v. interest. If as trustee she has lands, she can convey them Haselinton v. without him. So lands vested in her, to convey on condition, Gill. she can alone convey, as her husband can receive no injury from her act. 6 East 257. So she may have stock in trade exempt from his debts. -W. Jones 137.-3 D. & Woollston & -F. N. B. 63. But some cases are now decided on this maxim, as where a 10 Mod. 205. grant is made to A, and to B and his wife, B and his wife -Co. L. 112 take a moiety only, as one person, and that an entire estate. So he cannot grant any thing to her, or contract with her directly; and generally all contracts made between them before marriage are avoided by it. Paine. And if a feme obligee marry one of the obligors, it is a dis- Cro. El. 551, charge to them all; but a wife may take by her husband's Dennis v. will or be his attorney. There are in the English and our law books scores of such cases relating to this maxim, shewing it is true in some cases, and that it has no foundation in many. A number of these cases will be found in other parts of 7 East 539, CH. 14. this work. Per Lord Kenyon she can do no act to estop her Art. 1. 3 Salk. 65, Woods. 2 P. W. 243. self. §3. His contract to leave her property at his decease is valid. Whatever was the opinion once, there is now no doubt Thompson. on this point in England, or the United States. As where the husband gave a bond conditioned to leave his wife £80 at his -Salk. 327. death, if she survived him, and to her use; on his death an action was brought on this bond against his administrator, and judgment for the plt. Nor can he release any right, that can by no possibility accrue to her during the coverture. 5 D. & E. 381, Milburn v. Ewart & al. exrs. So where January 1782, John Milburn, the plt's. husband, gave a bond to her whom he intended to marry, conditioned for the payment of £3000 to her by his heirs or executors, 1 Vern. 408. her executors &c., at the end of one year after his death, if ---2 Vent. 343. she survived him. Held, this bond was valid and not released by the marriage. And when it was pleaded in bar of the action, the plt. might reply the special purposes for which the bond was made, for they are consistent with the bond and condition, and the case is the same if the man make a promise instead of giving a bond. 12 Mod. 288 v. Acton. Same case, It was In this case, Cage v. Acton, the same point as in Milburn to 295, Cage & al. was decided by a majority of the judges; and all the cases on the subject were considered, and held the contract was valid, and only suspended during the coverture. urged, if a husband owes a thing to his wife, he owes it to himself, and it was asked, how that could be? To which it was answered, that "the law very often made a fiction for the preservation of right, and a suspension of a personal duty is not always an extinguishment of it." 2 Mass. R. Trufant. § 4. Separate maintenance. This principle also has been es159, Page v. tablished in Massachusetts; as where, February 8, 1794, Colson Trufant as principal, and Joseph Trufant as surety, gave a bond to Page, father of the principal's wife, conditioned for her maintenance after a voluntary separation; and held good on argument. And that a husband and wife may well separate to avoid the effects of jealousies and animosities between them, and that a contract for her separate maintenance was valid. It was objected, as the wife was not bound by her covenants in the articles of separation, and the trustee had made none, there was no consideration for the bond; but Parsons C. J. said, a bond imports a consideration, "the want of which the obligor is estopped to plead," though he may avoid it by shewing it was obtained by fraud or duress, or that the consideration is illegal, or against the policy of the law. "The consideration was legal and meritorious, as it was made to secure a separate maintenance for the wife, who separated from the husband for their mutual comfort. This has long |