State journal & flag. [volume], October 23, 1846, Image 1

About State journal & flag. [volume] (Tuscaloosa, Ala.) 1843-1846

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L OLD SERIES, VOL XII
“MESS O.Vir.lK»!>
CITY OF TUSCALOOSA, ALA., FRIDAY, OCT. 23, 1846.
♦
NEW SERIES-VOL. 3-NO. 43
JOHN NI’COlinM K, STATE PIIIATEK
FLAG OF THE UNION,
Established July 4, 1833.
STATE JOURNAL U FLAG OF THE UNION,
United November 9,1843.
BY AUTHORITY.
LAWS or THE UNITED STATES, PASSED AT TnE FIRST
SESSION OF THE TWENTY NINTH CONGRESS.
Public.—No. 28.
AN ACT supplemental to an act entitled “An
act providing for the prosecution of the exist
ing war between the United States and the
republic of Mexico,” and for other purposes.
[Sec. 1.] Be it enacted by the Senate
and House of Representatives of the United
States of America in Congress assembled,
That the President of the United States be,
and he hereby is, authorized to appoint, by and
with the advice and consent of the Senate, one
major general, and two brigadier generals, in
addition to the present military establishment:
Provided, That when the war with Mexico
shall be terminated by a definitive treaty ot
peace, duly concluded and ratified, the number
of major generals in the army shall be reduced
to one, and the number of brigadier generals
shall be reduced to two, and the President of
the United Slates is author.zed and directed to
select from the whole number which may then
be in office, without regard to the date of their
commissions, the number to be retained, and
cause the remainder to be discharged from the
service ofthe United States.
Sec. 2. And be it further enacted, That the
President of the United Stales be, and he here,
by is, authorized to call into the service, under
the act approved May thirteen, eighteen Inin
dred and forty-six, such of the general officers
ofthe militia as the service, in Ins opinion, may
require, and lo organize into brigades and divi
sions the forces aulhorized by Bald act, accor-,
ding to his discretion.
oec. o. jina ue 11 junner enaciea, inai me
field and staff of a separate battalion of volun
teers, under the said act, shall be one lieuten
ant colonel or major, one adjutant, with the
rank of lieutenant, one sergeant major, one
quartermaster sergeant, and a chief bugler or
principal musician, according to corps.
Sec. 4. And be it further enacted. That the
President of the United States inay limit the
privates in any volunteer company, according
to his discretion, at from sixty-four to one hun
dred : and that with every volunteer company
an additional second lieutenant may be allowed
and accepted.
S 'O. 5 m.lnd be it Jurther enacted, That when
volunteers or mill ia are called into the service
of the United States in such numbers that the
officers of the quartermaster, commissary, and ;
medical deparnneniB, authorized by law, be not ;
sufficient to provide tor supplying, quartering,
transporting, and furnishing them with the re
quisite medical attendance, it shall be lawful
for the President to appont, with the advice
and consent of the Senate, as many additional
officers of said department as the service may
require, not exceeding one quartermaster and
01 e commissary for each brigade, with the rank !
of major, and one assistant quartermaster, with
the rank of cap'ain, one assistant commissary,
with the rank of captain, one surgeon, and one
assistant surgeon, fur each regiment; the said
quartermasters and commissaries,assistant quar
termasters and assistant commissaries, to give
bonds, with good and sufficient sureties, for the
faithful performance of their duties ; and they
and the said surgeons and assistant surgeons to
perform such duties as the President shall di
rect : Provided, That the said officers slialI be
allowed the same pay and emoluments as are
now allowed to officers of the same descriptions
and grad' a in those departments, respectively ;
that they be subject to the rules and articles of
war, and continue in service only so long as
their services shall be required, in connexion ;
with the miluiaand volunteers.
Sc 6. And be it further enacted, 1 hat the
President of the United States be, and he hereby
is, authorized to appoint as many additional as
sistant adjutant generals, not exceeding four, as
the service may require ; who shall be appoint
ed, by and with the advice and consent of the
Senate, in the same manner, have the same
brevet rank, pay, and emoluments, and be char
ged with the same duties, as th se now author
ized by law : Provided, That these additional
appointments shall continue only so long as
the exigencies of the service may render neces
sary.
Sec. 7. And be it further enacted, That pro
motion in the quartermaster’s department, to
the rank of major, shall hereafter be made from
the captains of the army ; and that appoint,
ments in the line, and in the general staff, which j
confer equal rank in the army, shall not be held
by the same officer at the same time ; and when
any officer of the staff who may have been taken
from the line shall, in virtue of seniority, have
obtained or be entitled to promotion to a grade
in hia regiment equal to the commission he may
hold in the siaff, the said officer shall vacate such
utaff commission, or he may, at hia option, va
cate his commission in the line.
Sec, 8. And be it further enacted. That the
aids-de-camp of the major general commanding
the army in time of war may be taken from l he
liae, without regard to rank ; and the aids-de
camp allowed to other major generals and bri
gadier generals may be taken from the grade of
captain or subaltern ; and that the commanding
or highest general in rank may, while in the
field, appoint a military secretary from the su
balterns of the army, who shall have the pay
and emoluments of a major of cavalry for the
time being.
Sec. 9. rfnd be it further enacted, That the
allowance for clothing to each non-commis
sioned officer, musician, and private of volun
teers shall be three dollars and fifty cents per
month, during the time he shall be in the service
of the United Statss.
Seo. 10. And be it further enacted. That the
non-commi6sion--d officers, musicians, and pri
vates of volunteers and militia, when called into
the service of the United States, shall be entitled
to receive fifty cents, in lieu of subsistence, and
twenlv-five cents in lieu of forage for such as
are mounted, for every twenty miles, by the
most direct route, from the period of leaving
their homes, to the place of general rendezvous,
and from the place of discharge back to their
homes.
Sec. 11. And be it further enacted. That, the
colonel or senior officer of the ordnance depart
ment is authorized to enlist for the service of
that department as many m ister armorers, mss
tor carriage makers, master blacksmiths, artifi..
cers, ai morers, carriage makers, blacksmith-,
and laborers, as the public service, in his judge
ment, under the directions of tfie Secretary for
the Department of War, may require,
Approved, June 18, 1846.
linn, ic —No. 31.
AN ACT making appropriations for the service
of the Post Office Department for the year
ending thirtieth June eighteen hundred and
forty-seven.
[Sec. 1.] Be it enacted by the Senate
and House of Representatives of the United
States of America in Congress asssembled.
That, the following sums of money be, and the
samp are hereby, appropriated for the service ot
the Post Office Department, for the year ending
the thirtieth of June, eighteen hundred and for
ty-seven, out of any moneys in the treasury
arising from the revenues of the said Depart
ment, in conformity to the act of the second
of July, eighteen hundred and thirty-six, name
ly ;
For transportation of the mails, two millions
seven hundred thousand dollars ; and the Post,
master General is hereby authorized to apply
twenty-five thousand dollars of the money ap
propriated for mail transportations for a line of
mail steamers from the United States to Hre.
men ; but no further sum shall be diverted to
any other object than the transportation of the
mail within the United Slates.
For compensation of Postmasters, one million
dollars.
For ship, steamboat, and way letters, twelve
thousand dollars.
For wrapping paper, sixteen thousand dol
lars.
For office furniture, (for post offices,) four
thousand dollars ;
For advertising, thirty thousand dollars ;
For mail bags, twenty thousand dollars ;
For blanks seventeen thousand dollars ;
For mail locks, keys,and stamps, four thousand
dollars.
For mail depredations and special agents,
thirteen thousand dollars;
For clerks for offices, (for offices of Postmas
ters,) two hundred thousand dollars.
For miscellaneous, fifty thousand dollars;
For defraying the expenses of the magnetic
telegraph from the city of Washington to Haiti,
more, four thousand dollars : this appropriation
to be available, if need be, before the commence
ment of the next fiscal year: Provided, That
the Postmaster General be and he is hereby au
thorized to let, for a limited time, the aforesaid
telegraph to auv person who will keep it in op
eration tor its earnings ; or he may, under the
direction of the President of the United States,
sell the same.
For paying an ascertained balance due to
Messrs. Hale and Coleman, under their con
tract of May thirty first, eighteen hundred and
thirty seven, forty doliain and seventy-five
cents ;
For publishing a new edition of eighteen
thousand copies of the table of post offices in
the United Stales, and the same number of the
“Laws and regulations tor the government of
ihe Post Office Department,” eight thousand
five hundred dollars : Provided, the work be
let to contract to the lowest bidder, upon the
terms indicated by the seventeenth section of
the act approved twenty-sixth August, eighteen
hundred and fortv-two, “legalizing and making
appropriations for such necessary objects as have
been usually included in the general appropria
tion bills without authority ot law, &c.”
Sec. 2. And be it further enacted. That in
case the revenues of the Department, referred
to in the first section of this act, shall prove
insufficient to meet the foregoing appropriations,
then any deficiency that may thus arise shall he
paid out of any moneys in the treasury nut
otherwise appropriated.
Approved, June 19, 1846.
Public.—No. 33.
AN ACT to provide for the organization of the
volunteer forces, brought into the service of
tin* United States, into brigades, and divisions,
and for the appoinnneni of the necessary
number of general officers to command the
same.
[Sec. 1.] Be it enacted by the Senate
and House of Representatives of the United
Stales of America in Congress assembled.
That the President of the United Stales be, and
he is hereby, aui horized to organize into brigades
and divisions such of the volunteer forces as have
been or may be called into the service of the
United Stales, under the act approved May
thirteen, eighteen hundred and forty-six, enti
tled “An act providing for the prosecution of
the existing war between the United States
and the Republic af Mexico and that he be,
and he reby is, authorized to appoint, by and wnh
the advice and consent of the Senale, such
number of major generals and brigadier gener
als as the organization nf s ich volunteer forces
into brigades and divisions ma> render necessa
ry . {Provided, Tuat the brigadier generals and
major generals so appointed shall be discharged
from service by the President of the United
States, when the war with Mexico shall be de
termined by a definitive treaty of peace, duly
concluded and ratified ; or, in case the brigades
or division-, of volunteers at any time in the ser
vice shall be reduced in number, the brigadier
generals and major generals herein provided for
shall be discharged in proportion to the reduc
tion in the number oflhe brigades and divisions:
And provided, further, That each brigade of
volunteers shall consist of not less than three
regiments, and each division shall consist of not
less than two brigades.
Approved, June 26,1846.
Public.—No. 35.
AN ACT to retrocede ihe county of Alexan
dria, in the District of Columbia, to the State
of Virginia.
Whereas, no more territory ought to be held
under the exclusive legislat on given to Con
gress over ihe District which is the Seat of
the Generel Government than may be neces
sary and proper for Ihe purposes of such a
seat; and whereas, experience hath shown
that the portion of the Disirict of Columbia
ceded to Ihe United States by the State of
Virginia h -s not been, nor is ever likely to be.
necessary for that purpose ; and whereas, the
State of Virginia, by an act passed oil Ihethird
day of February, eighteen hundred and forty
six, entitled “An act accepting by the State
of Virginia the county of Alexandria, in the
District of Columbia, when the same shall be
receded by the Congress oflhe Uni'edStates,”
hath signified her willingness to take back
the said territory ceded as aforesaid : Tlieie
fore—
[Sec. 1.] Be it enacted by the Senale
and House of Representatives of the United
Stales of America in Congress assembled.
That, with the assent of the people of the coun
ty and town of Alexandria, to be ascertained as
hereinafter prescribed, all of that portion of the
District ofColimibia ceded to the United Stales
by the Slate of Virginia, and all the rights and
jurisdiction therewith ceded over the same, be,
and the same are hereby, ceded and forever re
linquished to the Mate of Virginia, in full and
absolute right and jurisdiction, as well of soil as
of persons residing or to reside thereon.
. Sec. 2 And be it further enacted, Thai noth
ing herein contained shall be ron-trned to vesi
in the State of Virginia any right of property
in the cus'om-house and post office of Ihe Uni
ted States within tho town of Alexandria, or in
the uil of the territory hereby receded, so as to
affect the rights of individuals or corporations
therein, otherwise than as the same shall or may
be transferred by such individuals or corpora
tions to the Slate of Virginia.
Sac. 3. And be it further enacted. That the
jurisdiction and laws now exi-thig in the said
territory, ceded to the United States by the
State of Virginia, as aforesaid, over the persons
and property of individuals therein residing,
shall not cease or determine until the S'ate of
Virginia shall hereafter provide, by law, for the
extension of her jurisdiction and judicial system
over the said territory hereby receded.
Sac. 4 And be it further enacted, That this
act shall not be in force until alter the assent
of the people of tlie county and town of Alexan
dria shall be given to it in the mode hereinafter
provided. Immediately after the close of the
present session of Congress, the President of
the United States shall appoint five commission
ers, (any three of whom may act.) citizens of the
said town or count; of Alexandria, and free
holders within the same, who shall be sworn
before some justice of the peace in and for the
said town or county, to discharge the duties
hereby imposed upon them faithfully, impartial
ly, and to the best of their ability. These
commissioners, or any of them, shall proceed,
within ten days after they are notified of their
appointment, to fix upon the time, place, and
manner of taking the vote within the town or
county of Alexandria, and shall give notice of
the same by advertisement in the newspapers of
the said town. And on the day and at the
place so appointed, every free white male citizen
of the United S ates, who shnll have resided in
said enunty of Alexandria for six months pre
ceding the time when he offers his vote, insane
petsons and paupers excepted, shall vote viva
voce upon the question of accepting or reject
ing the provisions of this act. The said com
missioners shall preside when this vote is taken,
and decide all questions arising in relation to
the right of voting under this act. Within
three days al'er this vote is taken as aforesaid,
the said commissioners shall make out three |
statements of the result of this poll, upon oath,
and under their seals. Of these, one shall be
transmitted to the President of the United
States, one to the Governor of the Common
wealth of Virginia, and one shall be deposited
in the clerk’s office of the county court ot Alex
andria. If a majority of the votes so given shall
be cast against accepting the provisions ot this
act, then it shall be void and of no effect ; but
I it a majority of the said votes should be in fa
vor of accepting the provisions of this act,
then this act shali be in full force, and it shall
be the duty of the President or the United
States to inform the Governor of Virginia that
this act is in full force and effect, and to make
proclamations of the fact.
Sbo. 5. And be it further enacted, That, in
such case, the right of propeity in the half
square in Alexandria on which stands the court
house, bounded by Columbus. Queen, and Prin- I
cess streets, and the halfsquare on which 6tands
the jail, bounded by Princess, St. Asaph, and '
Pitt streets, shall be conveyed to the Governor
of Virginia, and his successors, for the use of |
the county and corpontion of Alexandria for
ever; and the Solicitor of the Treasury of the
United States is hereby authorized and required,
in the name and behalf of the United Siates, to
make all the proper and necessary conveyances
for lhat purpose.
Sxc. 8. And be it further enacted, That Con
gress will in no event assume and pay the debt, I
or any part thereof now due by the corporation ■
of the city of Alexandria.
Approved, July 9, 1846.
Public.—No. 36.
AN ACT lo authorize the President of the
United Stales to sell the resetved mineral
lands in the States of Illinois and Arkansas,
and Territories of Wisconsin and Iowa, sup*
posed to contain lead are.
[Sec. 1.] Be it enacted by the Senate
and House of Representatives of the United
States of America in Congress ass' m'ded.
That the President be, and he hereby is, author- ;
ized, as soon as practicable, to cause the reser
ved lead m'lies and contiguous lands in the
States of lll.nois and Arkansas, and Territo
ries of Wisconsin and Iowa, belonging to the
United States, to be exposed to sale, in the same
manner that other public lands are authorized
by law to be sold, except as hereinafter provN
ded.
Sec. 2. And be it further enacted, That six
months’ notice of the limes and places of said
sales shall be given in such newspapers of gen
eral circulation, in such of the States as the
President may think expedient, with a brief
description of the mineral regions of the States
of Illinois and Arkansas, and Territories of Wis
consin and Iowa, and nf the lands to be offered
for sale; showing the number and localities of
the different mines now known, the probability j
of discovering others, the quality of the ore, the
facilities of working it, the further facilities (if
any) for manufactories 0T shot, sheet lead, and
paints, and the means and expense of transport
ing the whole to the principal market in the \
United Stiles : Provided, That the said lands!
shall not be subject to the rie'ita of pre-emption
until after the same have been offered at public
sale and subject to private entry.
Sec, 3. And be it further enacted, That up
on satisfactory proof made to the register and
receiver of the proper land office, that any tract
or tracts of said lands contain a mine or mines
of lead ore, actually discovered and being work
ed, then, and in that case, the same shall be sold
in such legal subdivision or subdivisions as will
include such mine or mines ; and no bid shall
be received therefor at a less rale than the sum
of two dollars and fifty cents per acre : and if
such tract or tracts shall not be sold at such
public tale, at such price, nor bIisII be entered
at private sale within twelve months thereafter,
■hen the Bame shall be subject to sale as other
lands: Provided, That no legal subdivision of
any of said lands, upon which there mav be an
ouis'anding lease or liases from the (} vern
memo) the United Stales, or their authorized
agent, unexpired and undetermined, shall be
sold until after the determination of such lease
or leases by effluxion of time, voluntary surren
der, or other legal extinguishment thereof.
Approved, July 11,1846.
Public_No. 50.
AN ACT to establish the collection district of
Chiepgo.
[Sue. 1.] Be it enacted by the Senate
and Hovse of Representatives of the United
States of America in Congress assembled.
That a collet ion district be, and hereby is, es.
tablished upon the western shore of lake Michi
gan to be cslled the district of Chicago, within
which the port of Chicago shall be a port of
entry. The said district shall include the ter
ri'ory, harbors, rivets, and Waters on the wes
tern shore of said lake, from the line dividing
the Slates of Indiana and Illinois, northward
to the town and river Sebovgan, and inclusive
of the same, which are within the territory of
Wisconsin. A collector shall le appointed for
said district, who shall receive the same amount
of annual compensation as the collector of the
district of Michillimackinac.
Approved, July 10,1840.
DECISIONS OF JUNE TERM, 1816,
SUPREME COURT OF ALABAMA.
Ur ported for the Journal aud Flag.
ANDREWS 61 BROTHERS,
vs.
ELIZABETH JONES, ET. AL.
From Dallas Chancery.
Saffold and Gayle, far the plaintiffs in
arror.
Campbell, for the defendants.
We publish an extract from the elaborate
opinion of the court by COLLIER, C. J.
The tacts so far as necessary to the under
standing of the extract are substantially
these. The defendant Mrs. Jones is the
widow of Seaborn Jones, esq., who died in
Augusta, Georgia in 1615, and is the moth
er of an only cliild, a duugh'er. The daugh
ter as a legatee of her father wus entitled
to an undivided interest in a large body ol
wild lands lying in Georgia, and her moth
er as horgmirdian received for her thirteen
slaves which were reduced in number by
deaths and elopement to six ; she also re.
ceived for her word, at different times,
sums of money which she invested in stocks
—These stocks were lost by the failure ol
the corporations of which they constituted
a port of the capital.
Mrs. J. had educated her daughter at
great expense &c. of all which she kept no
accoun'. In August 1836, the daughter
being in her twenty-second year, was mar
ried in the city of New York to J. V. F.
Walker of Alubuma. The daughter and
her husband were both well acquaintanted
with the probable valve of the estate of the
latter and the manner in which it had been
managed by the mother. Yet it wus agreed
between all the parties previous to the mar
riage, and in consideration of it that the
mother should not bo required to render an
account of her guardianship, but should re
tain in her absolute right all the properly of
her daughter : Further, that the husband
should convey hy bill of sale, the slaves to
the mother. This he accordingly did in
December succeeding the marriage. The
husband was, and stiil is insolvent, denies
tliut he has ever reduced to possession any
poriion of his wife's estate; and both him
se I and wife declare that they have at all
tunes recognized and nlnded by the agree
ment which they made with Mrs. Junes
previous to their marriage, and that it i-i
their unaltered purpose to adhere to it. The
complainants were creditors of J. V. F.
Walker, by judgment and among other
things sought by their bill to compel Mrs.
Jones to account as the guardian of his
wife’s estate with the view of thus obtain
ing satisfaction of their judgment.
COLLIER, C. J.
We aro now brought to consider the ef
fect of the purol agreement between Mrs.
J. her daughter and son-in-law previous to
the marriage of the two latter. Our stat
ure is explicit in the declaration that “,,0
action shall be brought whereby to charge
any person, upon agreement made upon
consideration of marriage.’* Clay’s Dig.
254. § 1. Under the 29, Car. 2, which
contains an anulogous provision, it has
been held that verbal agreements entered
into before marriage to convey property, or
malte a settlement in consideration of the
marriage, cannot be enforced. Atherley
on Mar. Set. 81, to 92. Settlements after
marriage when made pursuant to contracts
previously entered into.are operative against
creditors and purchasers ; and this doctrine
has been sometimes catried so far us to sus
tain post nuptial settlements, which rest up
on mere verbal agreements made before
marriage. Sec. 1, Ves. Jr. Rep. 190 ; 2,
Lev. Rep. 147 ; Cro. Jac. Rep. 454; 1,
Vent. Rep. 193; 3 John’s Ch. Rep. 491.
But perhaps the weight both of argument
and authority may be unfavorable to the al
lowance ol any influence, loan onte-nup
tial parol agreement ns the basis of a seltle
nient consummated after marriage. 12, Ves.
Rep. 74. So it must be admitted that mar
riage brocage contracts are against public
policy, and therefore void. See 1 Story
Eq. §§ 200, to 204 ; Chitty on Con. 552.
But the agreement in question did not
contemplate any further act to be done by
the daughter and son.in law in order to
complete it^ unless the execution of the
bill of salu for the six slaves was necessa
ry to its consummation. We think it may
wen ue quesuoneu, wneiuer as airs. J.
was in possession of the slaves, any con
veyance by writing was necessary to invest
her with the title, if the parol agreement
wus valid against the creditors of the hus
band—in other words that the agreement if
valid was executed at the time it was made.
In Brown vs. Bellows, 4, Pick. Rep. 179, it
was held tha the statute of frauds had no
application to a contract which has been
performed on both sides. So in Philbrook
vs. Belknap, 6, Verm. Rep. 393, the court
determined that the statute of frauds dors
not render illegal the performance of a pa
rol contract, which it required to be in wri
ting; and a party mny defend under such
contract for an act done under it, or sue
lor compensation fur services performed.
These citations seem to us to lay down the
law correctly, and if the agreement in ques
tion was otherwise unobjectionable, il ex
ecuted, it will not be avoided.
It may be laid down in general terms,
that marriage is not only a meritorious, but
is regarded by the law as a valuable con
uderation. At her ley on Mur. Set. 151 ; 2.
Dess. Rep. 254. To make an ante-nuptial
settlement void as a Iraud upon creditors,
it is necessary that both parties should con
cur in, or have notice of the intended fraud
if the settler alone ‘intend a fraud, and the
other purtyhave no notice of it, but is in
nocent of it, she is not, and cannot, be affec
ted by it. Atherley on Mar. Set. 129 ; 1
Atle. Rep. 159—190; 17. Ves. Rep. 203;
1 Swarsk Rep. 319; 1, Roper on H. and
VV. 298; fl Easts R>p. 257; 8, Wheal.
Rep. 399 ; 10, Id. 213; 4. Rand, Rep. 282;
Roberts on Frauds, 102 ; 7, Pet. Rep. 348;
1 Brock. Rep. 330 ; 2. Id. 132.
Marriage is in legnl effect, a gift to the
husband of all the wife’s chattels in her pos
session, and of her choses in action if he
reduce them into possession. But if the
choses in action arc not reduced into pos
session by the husband during the coverture,
they remain the properly of the wife on the
dissolution of the marriage. 8 Mass. Kcp.
99; 17, Id. 57 ; 9. Porter’s Rep. 030 ; 12,
Pick. Rep. 173; 11, Seight, and R. Ilep.
325.
It has frequently been a mooted question,
what constitutes such a possession by the
husband of the wife’s choses in action ns to
invest him with an absolute title. In Stan,
wood vs. Stunwood, 17, Mass. Rep. 57, it
appeared that the wife previous to her mar
riage owned bank stock, on which the hus
band received tho dividends until the char
ter of the bank expired, at which lime the
stockholders were entitled to tuke half the
amount of their shares, in tho shares of a
new bank, and the balance in money. The
husband subscribed the authorized amount
in the name of his wile, and refused to re
ceive tho other half in money—saying it
was not his, but his wife’s, and it was there
upon passed to his cr< dit: It was held that
he had not reduced the shares to possession,
and that his wife should recover of his exe
cutor the balance and the dividends recei.
ved by him, with interest.
Where a suit is brought in the joint names
of husband and wife, and judgment recov
ered accordingly, for a debt due to the lat
ter before marriage, if the husband dies be
fore it is collected, the right survives to the
wife. So where the husband tnkes a new
security in Itie nnme of his wife lor a debt
due to her ut the time of the marriage, ic is
not such a reducing of the debt into posses -
sion by him as to deprive his wife of the
right to such new security by survivorship,
9, Paige's Rep. 200 ; 2, Bail. Rep. 477.
In the ease of Hind’s Estate, 5, Whar
ton’s Rep. 138, it was decided that the re
duction into possession by a husband, of his
wife’s choses in action, is jn all cases primii
facie evidence of conversion to his use ; but
this presumption may he repelled by proof
that there was no intention toconvert- Ac
cordingly where bank stock was bequeathed
during coverture to the wile, and transfer
red to the husband absolutely, who gave u
refunding bond to the executor, conditioned
that the wile, her heirs, executors or admin
istrators should return the legacy, if requi
red for paymeit of debts, and it appeared in
evidence (hat the husband had spoken of the
stock as the property of the wile, and hud
said that he gave the refunding bond as the
surety of the wife, it was held, Ihnt these
facts were sufficient to support the presump,
tion of a conversion by the husband.
Between the husband and wife, his pos
session of a chose in actioh it is said may
be qualified by his intention, and the own
ership follows his will ; and the law is the
same even against creditors or their trustees
under an insolvent act. 6, Walts and S's
Rep. 290.
In Ijrucl'enback V9. Rose, 4, Walls and
S’s Rep. 546, it »ai adjudged lhat a parol
ante-nuptial settlement by which the hus
band and wife agreed that the wife’s chat,
tels should continue tier’s notwithstanding
the marriage, and during its continuance
were so treated by him, is binding at the de
ceuse of either or both, and the husband
has no right of survivorship, Further, dec
larations by the husband before und ufler
marriage, are evidence to show an ante
nuptial agreement for the wife’s chutteU.
The husband may sell the wife's chases
in action so as to detent her right of sur
vivorship, but cannot give them away freed
from the incidents of the marriage, 1,
Rawle's Rep. 279; 5. Mour. Rep. 343 ; 2,
Vern. Rep. 401; 2, Ves. Rep. 075. Rut
the wife hns an undoubted right to an a de.
quate provision for herself und children, it
any, out of her equitable estute as against
the husband or his assignee 2, Johns, Clt.
Rep. 200 ; 3, Con. Rep. 590. And when
equity is applied to, to assist in the recove
ry of such property, that court will see that
her rights are protected. See 11, Gill and
J. Re >. 15 ; 5, U- Mour. Rep. 29.
In Gasselt vs. Grout, 4. Mete. Rep. 486,
the wife’s distributive share ot her futher’s
estate was in the hands of her former guar
dian, and the court held that an assignment
thereof by the husband in trust for her sep
arate use during her life, and for the use
of her children after her decease, is not
fraudulent as to his creditors, and they can
not reach such assigned property by the
trustee process—a proceeding sitnilur to our
process of garnishment.
*» ncrc me iiusuuiiu was iiiBUivem, so uiui
it required the whole of her interest in cer.
tain slaves (which he had not reduced into
possession) to support her, it was considered
that the wife’s equity was prior and superi
or to the claims of any general creditor ;
that as they could not be subject to the pay.
mtnt of his debts in any tribunal, it was
not a fraud upon creditors for the wife to
sell them with the assent ol the husband
for the purpose of her maintenance and
support. Although the sale or assignment
by the husband of the properly ol the wife
not reduced to possession, is the exercise of
such a dominion over it, as is a construe,
tive reducing to possession, vet it has been
held that the only effect of such a construc
tive reduction to possession is to free the es.
tale from the wife’s legal right ol survivor
ship, and not from her equitable right to
have a provision made out ol it for her
maintenance, whenever a resort to a court
uf equity whs necessary to obtain the ac
tual possession, or the subject was biought
under the control of that court. 4, li.
Moor. Rep, 237 Further; though proper
ty descended to the wife be placed in se
cret trust hy the husband ti provide a main
tenance for the wife, a creditor cannot
reach it, if the wife from the inability of the
husband stand in need of such maintenance.
It was but the performance of a paramount
duty, and what a chancellor would have
done. 5, U. Mour. Rep. 29. To the same
effect is 2. Bailey, Rep. 477.
Gullego vs. Gallego’s Ex’rs. 2, Brock.
Rep. 285, the right of the wife to a legacy
bequeathed to her during the continuance
of the marriage as it respects the creditors
of the husband was most lucidly examined.
!t was there said that a legacy bequeathed
to a married woman, has never been class
ed with conveyances at common law, but
| with cliosts in action and vests on equity in
ftie wile liorselC, in which the husband par
ticipates, so far only as to assert her title in
a court of equity, “The propp.rty does
not become his, nor is it subject to the lia
bilities which attach to that which is his,
until it shall be reduced to possession. Till
then, his creditors have no claim to it.” “It
follows then, not only because mere rights
cannot he taken in execution without the
aid of some speciul legislative provision, but
because, also there is no title in the hus
band to the thing itself, thut a legacy not
reduced to possession, is not liable for his
debis.” The learned chief justice then re
ninrks that the books furnish no case in
which the naked question of the power of a
court of equity to subject a legacy to the
wife to the payment of the husband’s debts,
has been discussed. This '‘says he.” is ol
itself, a strong, we think conclusive argu
ment against the right. That a creditor
has never applied to a court of Chancery
to interpose in his favor, and subject the
choscs in action, or the equitable rights of
the wife, to his claim against the husband,
demonstrates the universality of the opin
ion, that equity affords no aid in such a
case.” It was conceded that the assignees
of a bankrupt could assert this right, upon
the ground that they represent the bankrupt,
as well as his creditors, and that the marital
rights of the husband are transferred to
them. When they come into equity assert
ing a claim on the equitable interests of the
wife, they exercise the marital right to re
duce those interests into possession—not
any preexisting right of the creditors. In
such case, the court grants its aid on terms,
viz: that such provision he made out of
the property for the wife and children, ns on
a view of all the circumstances of the case
mny be deemed equitable. It was also said,
“we can find no case in which a husband
bus been considered n purchaser of the
equitable interests or choscs in action of the
wife wiihout some specific agreement by
which he become so.” Tito question is
asked whether the husbind may relinquish
his rr.nritul rights in the estate of the wife
not reduced into his possession. And it was
said no direct precedent could be found up
■ m the subject, but as a general proposition
it was considered that the relinquishment
wus v did against creditors, unless it he made
in fraud of their rights. It is added, “ in
this case there is reuson to believe, that the
husband is insolvent, and thut he has relin
quisled to the wife that she may receive
and enjoy the legacy bequeathed to her, so.
cuied Irom Ills creditors, in this, there is
no injustice; his creditors trusted to his own
resources for payment of their claims mi,I
had no right to trust to the fortune of the
testator. Creditors, generally, therefore
cannot compel him to reduce the legacy of
I his wife to possession for their benefit.” The
learned and elaborate opinion of Gibson Ch.
.1. in Ihn case of Joidsn’s guardians 4,
Its ale's Rep. 408, strongly sustains the <!e
cistern last cited, in all the principles we
have deduced from it, und affirms that the
actual possession of the husband does not
bar the wile’s title, where it is not intend
ed to have that eflec'. See ulso 12, Ver.
Rep. 497; 16, Id. 413; 20. Pick. Rep.
517 ; 3, Ste.vt. Rep. 172—375 ; 8, Porter’s
Rep. 36; Chancy on R glils, &c. 2—3—
1UU—110—111 -112—120 —121—122—
123—124; 7, II. and Johns Rep. 247; 9,
Porter’s Rep. 39; 8, Ala. Rip. 140; 2,
Ash mead’s Rep. 455.
We might fortify the principles which we
have shown to have been recognized upon
: the point we are considering, by other ci.
! lotions, but this is deemed wholly unneces
sary. This opinion has been already druwn
to a length which we did not anticipate ;
our apology will be found in the value of
the interests involved, in the diffusiveness (if
the expression be alluwuble) of the cause,
and the novelty of some of the questions
discussed, at least us it respects this court.
The statute of frauds cannot impair the
] effect of the agreement between Mrs. Jones,
her duughterand son in-luw. If it cun be
| considered in tbe light of u contract which
pmjjust u iu vifiu up io who. j. uy nit? iwu
latter, their interest in the daughter’s es
tate, then we have seen it would be con
sidered us executed, unless, perhaps, it be
as to the six slaves, and would not be un
done, because the agreement was not evi
denced by writing.
Conceding that the posssssion ol the guar
dian is the possession of his ward, so us to
invest the husband of a female ward by ope
ration of luw, eu instnnti upon his murriagc,
with a title to the estate of his wife, uttd
yet it will avail nothing iu the case at bur
It does not appear that Mrs. Jones was in
the uctunl possession of any other personul
{ property of her daughter than the slaves;
J arid in respect to her entile estate, the daugh
ter and her husband in view of their mar
riage, which wus soon to take place, relin
quished it to the mother. To this relin
quishment the parties have adhured ever
since it was made, and by it they still ma
nifest a determination to abide. This de
claimer of title and interest, if it does not
operate as a releuse in favor of Mrs. Jones,
will prevent the luw from transferring by
construction, her possession to the daugh
ter and son-in-luw. We have seen that
although the husband possesses himself ol
the wife's chnses iu action, it is allowable to
show that the possession was us a trustee.
and not with the view of exercising Ins
marital rights; aud that Ills own declara
tions are admissuble to prove that he re.
notineed all claim tothein, recognized them
as Ills wife's, and look no steps towards re
ducing them into possession.
We think it perfectly clear then, that the
| possession of Mrs. Jones of her daughter’s,
estate was undistributed by the marriage, or
by any act subsequently done, and if the
relinquishment be void, the husband’s riglit
to reduc.e into’possession the cltoses in ac
tion or equitable interests of the wife, is a
mere right which he may or may not ex
ercise ; and if he forgoes it, a general cred
itor cannot by any judicial puireeding in
stituted at his own instance muke it avail
able for the payment of his debt. The
equity of the wife is certainly paramount to
any claim of her husband's creditor, who
should not hHVe trusted lor payment in pro
perty to which the debtor was in possession ,
and of which he might never become i s
proprietor, even if t,e elected to attempt its
recovety. But it is enough if the wife hnve
an equal equity ; for that coupled with the
legal title will give her the superior right in
any tribunal. 1, R ,wle's Rep. 452.
In the relinqiiL-hment made hv ihe daugh*
ter and her husband there is nothing on*
natural, or that should cause it to he looked
on with suspicion. Mrs. Jones had doubt
less watched over her daughter with a moth
er’s care and solicitude, and bestowed upon
her eduention, and training for the duties of
life, all Ihe attention which he.dthnnd con
sequent leisure permitted the parent of an
only child to bestow. For all this she had
kept no account of her expenditure*,—the
estate of the mother and daughter hud been
commingled: besides heavy losses had
been sustained by unlortunnte (perhaps un
authorized) invc-tmerits of the daughter's
funds. Here was ample room for prlrnc
ted, expensive and uncertain litigation. Was
it unreasonable that the mother should un
der such circumstances, desiie her appre.
hensions to be quieted ? And why should
Ihe daughter and son-in-law have refused
to yield up the estute of the former? The
dsugh'ur knew that in her mother she could
repose all confidence—doubtless expected
to bo one of the same household during life,
and if she survived her, might nuterally
calculate thul she would he made the ben
eficiary of her mother’s bounty. The hus
band could not have been indifferent to the
in'luence of these considerations, and hav
ing no estate, independently of them, could
not have objected to any reasonable dis
position the wife desired In make of her own.
It cannot bu assumed in (lie aspect of which
this case is presented, that the inducement
to relinquish was the mother’s ussent to the
marriage—tho daughter had atiained her
majority and was nut subject to a mother’s
restraint. The fair inference is that the re
linquishment was made in view of the mar
riage, and in consideration llmt it was about
to lake place—its purpose was not only to
quiet the feurs of the mother, hut to provide
fur the daughter.
We must decline Ihe consideration ol (ho
other points made in this cause ; lor how
ever-decided, they cannot change the result.
Our conclusion is that the decree of the
court ol chancery must by affirmed.
(ini. licrnt'y.
The Washington Union has the following
brief notice ol the career of Gen. Kearney,
whose recent achievement hus made him a
mark for admiration :
‘•He is a native of New York, (as we are
informed,) and marr e l the step daughter of
the celebrated Clark, of St. Louis, who pen
etrated with Meriwether Lewis, to the Co
lumbia river. He is between 50 and 55
yeurs of age. The general entered the ar
my during the war of 181‘d, and at the close
of it be was regarded as a gallant, intelli
gent, and energetic officer, who gave prom
ise of rising to distinction, it uny opportunity
should offer itself. He has continued in the
army ever since ; amt for the last fifteen or
twenty years he has been stationed in the
far west—at til. Louis, and generally at Fort
Leavenworth on the Missouri—in the dra
goon service, lie Inis made fiequent recoil,
noissances, in military expeditions, in that
region, .thus acquiring such a knowledge of
its physical features, of the Indian habits, of
lire resources of a western life, as would
qualify him to act the pioneer and comman
ding officer of the expedition, which he has
so successfully conducted to Sunta Fe. Ha
ranks very high as a bold, indomitable,
energeiic, and accomplished officer—who
has the head to contrive, the hand to exe
cute, and the heart to brave every difficulty.
Such is the man who seems rapidly rising to
high distinction ; and whose services already
. entitle him to die applause and gratitude of
his country.
Indian Coun.— In November Inst ship
ments began to tie made trom this port to
England, and for the la.st months of the
year, they amounted to 2(10,uOO bushels.
1 Prom the 1st January to the 22d Septem
ber, 1646, we shinped 612,000 bushels.
During the whole of 1645. the exports from
this port were 6110.000 bushels, and this
year it seems likely they will reuch nearly
n million. The English duty, under the
new Corn Law, upon this grain is about
three cents a bushel. The increase in the
trade is shown also by the exports Irani
New Ot leans in successive years. They
were in 1844. 209.000 sacks ; 1845,220,
000 ; 1640 041,569 sacks. The supply
of corn, reaching lide-wuter through our
canals for the year ending 7th June, 184G,
was 281,000 bushels, against a merely nom
inal quantity for former years,—N. Y. Sun.
The returns of Santa Anna to Mexico
created quite a surprise in England, but
from impressions that the United States fa
vored tliut change, a speedy peace was
inferred.—When the delays proposed bv
Santa Anna are received, which would lend
to a continuance of hostilities. Santa Anna's
English fiiends will be decidedly againt
him. The Loudon Times and the Chronicle
evince an earnest desire that H. 13. M. gov
eminent might be permitted to interfere in
ihisdspuie, which is inflicting great injury
upon BiDtsli commerce and capital. But
ns France and the rest of the European gov
ernment will not aid Englund in her beuev
olent designs, she will uo> attempt to take her
Mexican chesnuts out of the tire with her
own hands.
When the news of the ceoeut victory of
Gen. Taylob, at Monlersv. reached this
place, men, women and children felt emo
tidtis ol joy. that cannot be described—win
lions that told ou all liices, and were like
living epistles, there evident. In the after
noon, an extra, containing the news, was
issued irotn ihisolBce, which enabled all mu
citizens to read the glorious deeds of our
aallunt army. Id the evening, the town »u
illuminated in honor of Gen. Tailor and Lis
brave army.—Selina llcyurtcr.