Lissexting Opinions.
Egan, J.I can not give my assent to the view expressed in the opinion of the court that, a married woman whose husband has once had a domicile in the State,,but has abandoned her and left the S:ate, may be authorized to act by any judge of any parish or jurisdiction in the State. The provisions of the law giving power to the judge having jurisdiction of a cause to authorize a married' woman to become a party to prosecute *256or defend and stand in judgment are express, and, e.v necesítate, as incident to jurisdiction of the cause, and have no application or force in the case at bar.
The incapacity of married women is classed with that of insane persons, interdicts, and minors. C. C. 1782. It is removed by the authorization of the husband, or in cases provided bylaw by that oljhe judge. C. C. 1786. ' If the husband refuses, the wife may cause him to be cited to appear before the judge (i. e., the judge of the domicile), who may authorize her. C. C. 125. If the husband be under interdiction or absent, the judge may authorize her. C. C., article 182. She may borrow money or contract debts with the authorization of her husband and of the “judge of the district or parish in which she resides.” C. C. 126, 127.
In these articles the definite article is always used to indicate what judge is meant. It is not any judge, but the judge, of the, domicile or residence. Such was the view taken in the case of Fowler vs. Boyd, 12 La. 70. It is immaterial to inquire whether, under existing laws'regulating jurisdiction, the judge is, as held by Judge Martin in that case, “ the parish judge.” It is the judge of the domicile, whether district or parish -judge, who is alone empowered or competent to give the authorization. The analogies of the law are all in favor of this view, and so, also, has been the uniform practice and general interpretation. In other ►States incapable persons are the wards of the law and of the courts of domicile, and we think are not less so hero.
It would .be a dangerous practice to permit a married woman to be authorized anywhere and by anj' judge So long as the law requires authorization at all, it should bo by the judge who knows her and her circumstances and needs, and the motives which prompt her, and those who deal with her. I can not g-ivo my assent to the idea that a married woman who once had a domicile in this State loses it for such purposes, and has none by the more fact of her husband’s abandonment or absence. I do not think article 89 of the Civil Code has the effect argued for, or can be held to apply to, a case like the present. The presumption of the law is that the last domicile of the husband in the State continues to bo that cf the wife, unless she is shown to have changed it after his aoandonment of her. In this case the fact accords with the legal presumption. The wife continued to reside at the marriage domicile, where she had also separate paraphernal real estate. The provisions of the law making it the duty of the wife to follow the husband wherever he may choose to reside have no relation to a case of this kind, where the husband has left the State, and the mere authority to contract is in question. But while I can not give my assent to the contrary doctrine, and therefore do not believe the authorization given by the district judge in New Orleans in this case good, I do not consider that question *257material to tlie determination of the case at bar. The plaintiff got the benefit of the price of tlie land sued for. She has not returned, nor offered to return it, to tlie purchaser. To enable her to recover without doing so would bo to enable her to perpetrate a fraud and an injustice to innocent persons. Slio can not keep the price and recover the land, whether authorized to alienate it or not. 2 An. 1; 6 An. 56; 10 An. 433.
I therefore concur in the decree.
DeBl.yxc,;!.' I concur in the views-of Mr. Justice Egan.