2d, That the decrease or increase of dote valued, caused after and not before the wedding, appertains to the husband, L. 18. tit. 11. P. 4. [L. 18. tit. 11. P. 4.] 3d, That the fruits or produce enjoyed before the wedding are considered an increase of dote, although equity directs that the husband who maintains and watches over the wife during the time that he is waiting, by reason of her imperfect age, to marry her, is not bound to consider or reckon as an increase of dote the fruits which he may have received before marriage, L. 28. tit. 11. P. 4. [L. 28. tit. 11. P. 4.] 4th, That the increase or decrease also of all the dotal property which has been counted, weighed, and measured, appertains to the husband, L. 21. tit. 11. P. 4. [L. 21. tit. 11. P. 4.] 5th, But of that not valued, which is received as equivalent in kind, as cattle, &c., the loss or the increase appertains to the wife; although the husband is obliged to supply the number of those that may die from those that shall be born, Ll. 18. and 21. tit. 11. P. 4. [Ll. 18. and 21. tit. 11. P. 4.] 6th, That if the election be given. to the husband of returning the dote, or its value, the injury or improvement shall be the wife's, if the husband shall elect to return the thing; and the same if the election be left to the wife, L. 18. tit. 11. P. 4. [L. 18. tit. 11. P. 4.] 7th, That the increase of a quarry, not valued, is excepted, which appertains to the husband, L. 27. tit. 11. P. 4. [L. 27. tit. 11. P. 4.] 8th, That if dotal property, not valued, were lost by judgment at law, and the wife hath bound herself to warranty (salio á eviccion), she ought to be responsible for the loss; but if she gave it in good faith, without making herself responsible for it, the loss or injury will appertain to the husband:16 and in regard to dote that is valued, the wife must give him another thing equal in value, L. 22. tit. 11. P. 4. [L. 22. tit. 11. P. 4.] 9th, That it is the

referred to in the text, which law qualifies, in regard to the produce or increase of slaves, the position laid down in the text. Palacios adds to the requisite already mentioned, that the marriage must have been celebrated, and that the husband must sustain the burthens of the marriage, as laid down in L. 25. tit. 11. P. 4. He observes, that this must be understood without prejudice to what will be afterwards said in this title, and with attention to Ll. 4. and 5. tit. 9. lib. 5. Rec. (Ll. 3. and 5. tit. 4. lib. 10. Nov. Rec.), which enact, that the fruits (frutos) received during marriage, whether arising from property belonging to the husband, or to the wife, are divided, or appertain, in equal portions, to both.

14 The law (L. 21. tit. 11. P. 4.) referred to in the text, says, that the husband shall enjoy the fruits or increase of the cattle, subject to the condition of supplying the num bers which may die, from those which may be born. Palacios, on this part of the text, observes, that the increase or decrease, improvement or deterioration of dotal property appertains to the husband when it has been delivered to him valued, or when it is delivered in any of those things which consist in weight, number, or measure; and that the same appertains to the wife, when such property hath not been delivered to the husband valued, or under appraisement. The learned professor adds the substance of what is stated in the first part of this note.

15 Ex. gr. a house. Unless, says Palacios, referring to L. 18. tit. 11. P. 4. it should be proved that the loss had arisen by the fault of the husband.

16 The loss or risk, according to L. 22. tit. 11. P. 4., would belong to the wife; because, although she may not be bound, in this case, to the warranty of the dote, the injury which she suffers in its loss, is greater than that which the husband suffers; and what is more, without this explanation, it would, perhaps, be supposed, that the husband was bound to the warranty (saneamiento) of the dote; Palacios (5).

duty of the husband to recover the dote," L. 15. tit. 11. P. 4. [L. 15. tit. 11. P. 4.] 10th, Except that it be a debt due by the wife's father, grandfather, or great grandfather;18 in which case the husband is not responsible for the risk which might ensue, if any of them should arrive at a state of poverty, on account of his not being able to enforce the recovery of it from them,19 L. 15. tit. 11. P. 4. [L. 15. tit. 11. P. 4.] 11th, But if it were the debt of a stranger, and the [ 52 ] husband were able to compel the payment of it in time, he will be responsible, although the stranger should be reduced to poverty; and the wife shall be entitled to her action against the husband for it, if he should not recover it, L. 15. tit. 11. P. 4. [L. 15. tit. 11. P. 4.] 12th, This is understood if the debt due by the stranger were an onerous debt (de apremia); because, if it arose from mere voluntary obligation; as, for instance, if any one should have promised the wife to give her any certain thing, and the husband neglected to ask for it at a time when the stranger was able to pay it, then the prejudice or injury shall belong to the husband; and if it is a thing not certain or specific, the husband is not obliged to recover it; and, consequently, is not responsible for the damage which may result, L. 15. tit. 11. P. 4. ad fin. [L. 15. tit. 11. P. 4. ad fin.]

From the fourth axiom it follows, 1st, That the husband cannot alienate, sell,20 nor mispend the dote, L. 7. tit. 11. P. 4. [L. 7. tit. 11. P. 4.] 2d, But if he should, and the wife fear that he may be reduced to poverty, she will have a right to require security from him, and an allowance of aliment,21 L. 29. tit. 11. P. 4. [L. 29. tit. 11. P. 4.] § 6. The restitution of dote takes place in three cases. 1st, By the death of the wife. 2d, By reason of the existence of an impediment, which may dissolve the marriage. 3d, By divorce. In the first case, if the wife dies without children, the dote called profecticia

17 That is, dote which consists of the assignment of a debt that was due to the wife. See L. 15. tit. 11. P. 4. quoted in the text.

Palacios states, that in this case, also, it is competent to the husband to recover the dote, although it is true, that if he does not recover it, he is not responsible, for the reason assigned by the text. He refers to L. 15. tit. 11. P.

19 On account of the relationship of such persons.

He can dispose of dote in money, &c., but the amount must be returned out of his property, after the dissolution of the marriage. See L. 7. tit. 11. Part 4.; and also L. 21. ibid. Palacios has a note (1) here to the above effect. He says, that when the dote is comprised of things consisting of weight, number, or measure, and when it is valued under an appraisement which produces sale or transfer, the husband may aliene it; for in such cases, an irrevocable dominion in the dote is transferred to him, with the obligation of restoring its value, or the quantity, if they are things which consist of weight, number, or measure, after the dissolution of the marriage. He refers to Ll. 7–18. and 21. tit. 11. P. 4.

21 This Law (29. tit. 11. P. 4.) goes further, and says, that if the husband badly administers the dotal property, or be a gamester, &c., and the wife fears he will dissipate it, she may judicially require that he be compelled to deliver it up to her, or to give security that he will not dispose of it; or to deliver it into the possession of a third person, to take care of, and to apply the profits to their support or maintenance; but it seems she cannot demand the dote, being thus taken out of the possession of her husband, if his poverty or distress were occasioned by mere misfortune, and not by culpability or improper conduct. See the law referred to.

is restored to the father; and if it is dote called adventicia, to the - heirs of the wife; observing, in this case, the covenants of the deed of dote, or marriage articles, (escritura de dote,) L. 30. tit. 11. P. 4.; [L. 30. tit. 11. P. 4.;] but if she leaves children, the husband22 remains in the enjoyment of the usufruct, and the dominion (la propriedad) passes to them. If the wife dies without making a testament, and without father or relation who may inherit from her, the dote escheats to the crown, (a la real camara,) L. 12. tit. 8. lib. 5. Rec. [L. 1. tit. 22. lib. 10. Nov. Rec.,] which annuls or alters L. 23. tit. 11. P. 4. [L. 23. tit. 11. P. 4.] In the second case, if the dote is "profecticia," it is delivered to the father; and if adventicia," to both:25 and if the father be dead, to the daughter, whether she has children or not, L. 30. tit. 11. P. 4. [L. 30. tit. 11. P. 4.] In the third case, if the dote is adventicia, it is given to the daughter, and not to her father, although he may be living, L. 30. tit. 11. P. 4. [L. 30. tit. 11. P. 4.]

Dole consisting of real property is restored immediately on the dissolution of marriage; and if it consists of personal property (meubles) restitution shall be made of it within a year, unless there be minor children,26 when the surviving consort is not obliged to deliver up the dote until the children arrive at the age of majority; but he or she shall be bound to maintain and educate them, and not to alienate nor mispend the dote, L. 31. tit. 11. P. 4. [L. 31. tit. 11. P. 4.]

[53] At the time of this restitution, the husband may require to be reimbursed the expenses which he has laid out on the dotal property which have proved beneficial; but not those which shall serve

22 Or the wife, as to donatio propter nuptias and arras, if she is the survivor. See L. 23. tit. 11. P. 4. Palacios observes in respect to this enjoyment by the husband of the usufruct of dotal property after the death of the wife, leaving issue, or this species of tenancy by the curtesy, that it only lasts while the children are under the paternal power, L. 5. tit. 17. P. 4; for that by going, or being absolved, from it, they acquire the property and the usufruct of adventitious property, L. 9. tit. 1. lib. 5. Rec. [L. 3. tit. 5. lib. 10. Nov. Rec. Greg. Lopez gl. 6. L. 15. tit. 18. P. 4.; but that if the release be by emancipation, the father may retain the half of the usufruct, L. 15. tit. 18. P. 4.

23 Only in this last respect, L. 23. tit. 11. P. 4., having in the case of husband or wife dying intestate, and without heirs, given the survivor of them the dotal, &c, property of the other. Palacios says, some authors are of opinion that L. 12. tit. 8. lib. 5. Rec., [L. 1. tit. 22. lib. 10. Nov. Rec.,] does not repeal or alter L. 23. tit. 11. P. 4., and that, there fore, in default of relations, the wife and the husband ought to inherit from each other according to the survivorship respectively. The learned Professor adds, that he dares not go this length, but he will remark, that L. 23. tit. 11. P. 4., directly, positively, and expressly calls the surviving consort to the inheritance of the property of the one deceased, in default of heirs or relations; and that neither L. 12. tit. 8. lib. 5. Rec., nor the royal order (Reglamento) of 1788, in regard to escheats, excludes husband and wife from this benefit of reciprocal inheritance. Among those authors who entertain the foregoing opinion, the learned Professor might have mentioned the respectable authority of Azevedo. Vide his Com. on the Law of the Rec. under consideration.

24 i. e. to the father of the wife.

25 i. e. to the wife and to her father. Palacios says, if adventitious, it is delivered to the daughter alone; if profectitious, to the father and daughter jointly. He reters to L 30. tit. 11. P. 4.

26 Of the marriage.

for mere ornament, L. 32. tit. 11. P. 4. [L. 32. tit. 11. P. 4.] which is understood to regard dote not valued; for with respect to that which is valued, restitution is made by the return of its value, L. 26. tit. 11. P. 4. [L. 26. tit. 11. P. 4.] And if the dote was of things numbered, weighed, and measured, the same quantity ought to be returned, L. 25. tit. 11. P. 4. [L. 25. tit. 11. P. 4.]

In this restitution is also discounted, in favor of the husband, the part of the fruits or produce collected, or to be gathered of the dotal property on the last year of the dissolution of marriage in proportion to the months and days that it continued, L. 26. tit. 11. P. 4. [L. 26. tit. 11. P. 4.] and never shall the husband or his heirs be compelled to restore this dote, but in as far as they are able, and they shall not be deprived of aliment thereby;28 although the judge ought to secure its restitution at stipulated periods of payment, or by some other way, L. 32. tit. 11. P. 4. [L. 32. tit. 11. P. 4.] But in no case shall the action to recover the dote be extinguished or destroyed, although the capital of it be lost and the property and estate of the husband, as observed by Ayora de Partitionibus, part 1. cap. 7. n. 5.

30

The husband is not bound to restore the dote if he shall gain it by any of those three modes, viz.:-by covenant or compact, by adultery, or by custom of the place where the marriage took place, L. 23. tit. 11. P. 4. [L. 23. tit. 11. P. 4.]; and this custom shall be of such force and effect, that although the married couple may go to live in another country where it does not prevail, it shall be, nevertheless, observed. This is understood, provided there be no children, L. 24. tit. 11. P. 4. [L. 24. tit. 11. P. 4.].

31

Cap. 2. The woman is accustomed to bring, beside her portion (dote) other property which is called paraphernalia,32 and which is or are,

Emblements.

28 This, observes Palacios, is not understood in respect to all the heirs of the husband, but only in regard to the children when they have to deliver the dote to their mother on account of their father. le refers to L. 32. tit. 11. P. 4.

29 This conjunction is introduced to make the sense complete, although it is not found in the text.

30 This covenant must be reciprocal as to its effects on husband and wife, with respect to dote and arras, or donation of the husband.

31 And L. 23. tit. 11. P. 4. Palacios adds, that if there be children of the marriage, they, in the cases mentioned in the text, will have the property; and the father or the mother, who shall survive, &c., will have the usufruct of it för life.

32 The meaning attached to this word, which is of Greek origin, apa præter, and peva, dos: i. e. all things which a woman brings to her husband besides her dowry or portion, by English law is much more limited. See the observation on this word, as regards the laws of England, in Wood's Inst. Civ. Law. b. 1. ch. 2. p. 123., fol. edit. 1730. The Translator from the fear of making his notes too extended, has refrained from more frequent quotations from the learned Civilian in the progress of this translation: he here begs to make a general reference to this excellent elementary work on the civil law, and, without presuming to pronounce a judgment on the comparative merits of the seve ral learned works of this kind, he may venture to state, that the English student of the laws of Spain, will find his course of study of those laws, at least of those which form the compilation called Las siete Partidas, facilitated by a previous attentive perusal of Wood's Institutes of the Civil Law. The Analysis of the Roman Civil Law, by Dr. Halifax, and a Compendious View of the Civil Law, by Dr. Browne, may be also read with advantage.

the property and things whether personal (muebles) or real (raices) which wives retain for their separate use, and which are not accounted part of the portion or dote, L. 17. tit. 11. P. 4. [L. 17. tit. 11. P 4. From this definition it follows, 1st, That if the wife gives to the husband this property, with the intention that he may have the dominion (señorio) of it, he shall possess it during marriage; and if she should not do this expressly in writing,33 the dominion of such property will be always in the wife, L. 17. tit. 11. P. 4. [L. 17. tit. [54] 11. P. 4.] 2d, That if this property should be sold with the approbation of the wife, its price or value shall not be deducted at the time of separation; but otherwise when it hath been converted to the particular benefit of the husband, although the wife should consent, unless the husband be so poor, that it be necessary to sell it to maintain himself. Ayora, part. 1. cap. 8. nn. 2, 3, and 4. 3d, That if it be sold without the assent of the wife, she will have her action or remedy against the purchaser, and if not, she shall take the value from the fund of property (cuerpo de los bienes) before partition be made. Ayora, part. 1. cap. S. n. 5. 4th, That the property of the husband is always bound or liable for the prejudices and injury which he shall cause to the paraphernalia3 of the wife, L. 17. tit. 11. P. 4. [L. 17. tit. 11. P. 4.]

Cap. 3. By jointure35 (arrus) is understood the donation which the

33 Palacios observes, that L. 17. tit. 11. P. 4. (cited in the text), does not say, that a written instrument is necessary to transfer the dominion, or fee simple, of property called paraphernalia, during marriage. That in whatever way, therefore, it duly appears the gift was made by the wife, with this intention, the transfer would be complete; and that this is what is inferred from the law cited.

34 Equally with respect to dote; bienes parafernales being entitled to the same privilege as dote: and the tacit obligation or lien which the law gives the wife on the property of her husband, for her dote and parafernales, attached the moment of their receipt by the husband. See L. 17. tit. 11. P. 4.

36 This word seems more nearly to express the meaning of arras, than any other that can be substituted. Lord Coke, 1st Inst. 36, defines jointure, "a competent livelihood of freehold, for the wife, of lands and tenements, to take effect in profit and possession, presently after the death of the husband, for the life of the wife at least." Arras, may be defined, "a dowry assigned to or settled upon a wife, by her husband, for her maintenance after his death, which cannot exceed, in value or amount, the tenth part of his fortune or property. Jointure before marriage, in England, is in lieu and conclusion of dower at common law; and arras, excepting in so far as its promise or settlement seems optional or voluntary with the husband, more resembles the English dower than any other description of right appertaining to the wife, in regard of the property of her husband, under the laws of Spain; even more so than does her right in regard of that species of property called ganancial, which will be explained, in course, in the text; to one-half of which last mentioned property, subject to the payment of one moiety of the debts contracted during marriage by the husband and wife, the wife is entitled, independently, however, of her arras, at the death of the husband, if she survives him: the ganancial property may, nevertheless, be disposed of by sale, or other onerous transfer, by the husband, during marriage, without the consent of the wife; except, indeed, it be done con malicia y en fraude of her ganancial rights. Such rights, it is to be observed, only attach on property acquired by husband and wife during marriage, by purchase, in the vulgar acceptation of the word, or by other onerous title; but not on property brought into marriage by either party, nor on that acquired, by either consort, by inheritance or succession, devise or gift. On reference to the laws of the 11th Title, 4th Partida (Ll. 1-7-23, &c.), which treat of the subject, the reader would suppose, that donatio propter