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of agreement between husband and wife. The court did not recognize any power in the married parties to vary the rights and duties growing out of the marriage contract, or to effect at their pleasure a partial dissolution of the contract. But he admitted that engagements between the husband and a third person, of a trustee, for instance, though originating out of, and relating to, separation, were valid, and might be enforced in equity. (6) It was, indeed, strange that such an auxiliary agreement should be enforced, while the principal agreement between the husband and wife to separate, and settle a maintenance on her, should be

deemed to be contrary to the spirit and policy of the law. * 177 If the question was res integra, said * Lord Elden, un

touched by dictum or decision, he would not have permitted such a covenant to be the foundation of a suit in equity. But dicta have followed dicta, and decision has followed decision, to the extent of settling the law on this point too firmly to be now disturbed in chancery. (a)

(b) This is now the settled law in England and in this country. Fitzer v. Fitzer, 2 Atk. 511. Coke v. Wiggins, 10 Vesey, 191. Lord Rodney v. Chambers, 2 East, 283. 2 Raithsby's Vernon, 386, note 1. Ros v. Willoughby, 10 Price, 2. Carson v. Murray, 3 Paige, 483. Reed v. Beasley, 1 Blackf. Ind. 97, S. P. It is an interesting fact to find not only the lex mercatoria of the English common law, but the refinements of the English equity system, adopted and enforced in the state of Indiana, as early as 1820, when we consider how recently that country had then risen from a wilderness into a cultivated and civilized community. The reports in Indiana, here referred to, are replete with extensive and accurate law learning, and the notes of the learned reporter, annexed to the cases, are very valuable. The general principle is established, that the law does not authorize or sanction a voluntary agreement for a separation between husband and wife. The wife cannot make a valid agreement with the husband for a separation, in violation of the marriage contract, except under the sanction of the courts of equity, and except in the cases where the conduct of the husband would have entitled her to a separation. The law merely tolerates such agreements when capable of being enforced by or against a third person acting in behalf of the wife. Rogers v. Rogers, 4 Paige, 516. Champlin v. Champlin, 1 Hoff. Ch. 55. So, in the ecclesiastical courts of England, on the same principle, a deed of separation is no bar to a suit instituted for the restitution of conjugal rights. Westmeath v. Westmeath, 2 Hagg. Eccl. Supp. p. 115. A private separation is an illegal contract, a renunciation of stipulated duties, from which the parties cannot release themselves by any private act of their own. Mortimer v. Mortimer, 2 Hagg. Cons. 318. Legard v. Johnson, 3 Vesey, 352. McKennan v. Phillips, 6 Wharton, 571, 576. Mercein v. The People, 25 Wendell, 77, Bronson, J. Nothing can be clearer or more sound than this conjugal doctrine.

(a) Westmeath v. Westmeath, Jacob, 126. In Todd v. Stoakes, 1 Salk. 116; Nurse

i Calkins v. Long, 22 Barb. (N. Y.) 97. Lippey v. Masonheimer, 9 Md. 310.

* The law respecting marriage settlements is essentially * 178 the same in Pennsylvania, Virginia, North Carolina, South

v. Craig, 5 Bos. & Pull. 148; Hindley v. Westmeath, 6 Barn. & Cress. 200; and in Shelthar r. Gregory, 2 Wendell, 422, the separation of husband and wife by deed, and a stipulation on his part with the wife's trustees, to pay her a certain allowance, were admitted to constitute a valid provision at law, sufficient to exempt the husband from being chargeable with her support. But if the husband fails to pay the stipulated allowance, he then becomes chargeable for necessaries furnished his wife ; and if the deed providing for a separate maintenance be made without any actual and present separation, it is void. A deed, providing for the future separation of husband and wife, is void. Durant v. Titley, 7 Price, 577. Hindley v. Westmeath, supra. So, a subsequent reconciliation and return to the husband's house, destroys the deed. 1 Jacob, 140. Pidgin v. Cram, 8 N. Hamp. 350. The wife after a separation retains the character of a married woman. The husband may recover damages for adultery committed by the wife while living apart from him, though the adultery does not cause any forfeiture of her provision under the deed of settlement. 2 Roper by Jacob, 301, 322. These deeds of separation and settlement are inauspicious, for they condemn the husband and wife to an ambiguous celibacy, and facilitate the means of breaking up families. In Piquet v. Swan, 4 Mason, 443, the doctrine of post-nuptial settlements was clearly and accurately discussed, and it was held, that a power of appointment therein, to create new trusts and make new appointments, might be reserved to the wife, and be exercised by her toties quoties. It was deemed a necessary consequence of the validity of a post-nuptial settlement, that the income of profit arising to the wife thereon, follows the nature of the principal estate, and cannot be taken by the husband or his creditors, but is the separate property of the wife, and subject to her disposition and appointment. In Heyer v. Burger, 1 Hoff. Ch. 1, the husband and wife voluntarily executed articles of separation, and the husband covenanted with a trustee, who was a party to the instrument, that the wife might live separate, and he would not disturb her, and he and his wife assigned over to the trustee all her estate, real and personal, in trust, to apply it to her future maintenance, and the wife was not to apply to the husband for assistance, nor to contract debts on his account, and the articles gave her authority to dispose of the property by will, and if not so disposed of, to go to her heirs. The assistant vice-chancellor held, that the settlement was binding on the husband, though subject to be annulled by a subsequent reconciliation; and that the wife had a valid power to make a will of the personal estate by the post-nuptial settlement. It may be further noticed, on this subject, that the equity of a married woman for a settlement does not survive to her children. They have no independent equity, where there is no contract for a settlement or decree. Lloyd v. Williams, 1 Madd. 450. Story Eq. Jur. $ 1417. Barker v. Woods, 1 Sandf. Ch. 139.

In addition to the general abridgments, there are several professed treatises recently published on this head, as Atherley's Treatise on the Law of Marriage and other Family Settlements and Devises, published in 1813; Keating's Treatise on Family Settlements and Devises, published in 1815; Bingham on the Law of Infancy and Coverture, published in 1816; Roper on the Law of Property arising from the relation between Husband and Wife, republished in New York in 1824; and the title of Baron and Feme, in

1 The Court of Chancery will decree the specific performance of an agreement to execute a deed of separation. Wilson v. Wilson, 31 E. L. & Eq. 29. Florentine v. Wilson, Hill & Denio (N. Y.) 303.

Carolina, Kentucky, and probably in other states, as in England and in New York. (a) But in Connecticut it has been decided, that an agreement between husband and wife, during coverture, was void, and could not be enforced in chancery. (6) The court of appeals in that state would not admit the competency of the husband and wife to contract with each other, nor the competency of the wife to hold personal estate to her separate use.

Afterwards, in Nichols v. Palmer, (c) an agreement between the husband and a third person, as trustee, though originating out of and relating to a separation between husband and wife, was recognized as binding.

V. Other rights and disabilities incident to the marriage union. The husband and wife cannot be witnesses for or against each

other in a civil suit. This is a settled principle of law and * 179 equity, and it is * founded as well on the interest of the

parties being the same, as on public policy. (a) 1 The



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Ch. Reove's work on the Domestic Relations. In those Essays the subject can be studied and pursued through all its complicated details.

(a) Rundle v. Murgatroyd, 4 Dallas, 304, 307. Magniac v. Thompson, 1 Bald. C. C. U. S. 344. Scott v. Loraine, 6 Munf. 117. Bray v. Dudgeon, Ibid. 132. Tyson v. Tyson, 2 Hawks, 472. Crostwaight v. Hutchinson, 2 Bibb, 407. Browning v. Coppage, 3 Bibb, 37. South Carolina Eq. Rep. passim.

(6) Dibble v. Hutton, 1 Day, 221. (c) 5 Day, 47.

(a) Davis v. Dinwoody, 4 Term, 678. Winsmore v. Greenbank, Willes, 577. Vowles v. Young, 13 Vesey, 140. City Bank v. Bangs, 3 Paige, 36. Copous v. Kauffman, 8 Id. 583.

1 Mayrant v. Guignard, 8 Strobh. Eq. 112. Manchester v. Manchester, 24 Vermont, 649. Coburn v. Mellen, 19 N. Hamp. 198. By virtue of a late statute in Connecticut, a woman is now a competent witness in behalf of her husband, (Merriam v. Hartford, &c. R. R. Co. 20 Conn. 354,) except in criminal prosecutions. Lucas v. State, 23 Conn. 18. The New York Code of Procedure, which abolishes incompetency on the grond of interest, except in the case of those for whose immediate benefit an action is brought or defended, and allows parties to be examined by the opposite parties, does not affect the competency of husband and wife, as depending upon the matrimonial relation. Ervin v. Smaller, 2 Sandf. (N. Y.) 340. Has. brouck v. Vandervoot, 5 Seld. (N. Y.)153. See, also, Bird v. Hueston, 10 Ohio, 418. Statutes of the same general purport have been construed not to remove the disqualification of husband or wife to testify for or against each other, in England. Alcock 0. Alcock, 12 Eng. Law & Eq. 354, and Stapleton v. Crofts, 18 Ad. & El. (N. S.) 367; in New Hampshire, Kelley v. Proctor, 41 N. Hamp. 139, and Reed v. Gove, id. 452; in Vermont, Cram v. Cram, 33 Vermont, 15.

When both husband and wife were parties to the record, as co-plaintiffs or co-defendants, they were held to be competent for each other, in Marsh v. Potter, 30 Barb. (N. Y.) 506, and Barton v. Gledhill, 12 Abbott's Pr. Ed. 246, but in Chamberlain v. The People, 23 N. Y. 85, the Court of Appeals declined to pass upon the question.


foundations of society would be shaken, according to the strong language in one of the cases, by permitting it. Nor can either of them be permitted to give any testimony, either in a civil or criminal case which goes to criminate the other; and this rule is so inviolable, that no consent will authorize the breach of it. (6) ? Lord Thurlow said, in Sedgwick v. Watkins, (c) that for security of the peace, ex necessitate, the wife might make an affidavit against her husband, but that he did not know one other case, either at law or in chancery, where the wife was allowed to be a witness against her husband. (d)

(6) The King v. Cliviger, 2 Term Rep. 263. In this case the court of K. B. would not allow any testimony that tended that way; but afterwards the rule was, by the same court somewhat restricted, and confined to testimony that went directly to criminate the husband, or could afterwards be used against him. The King v. Inhabitants of AllSaints, 4 Petersdorff's Abr. 157. On the question of legitimacy, neither husband nor wife can be admitted to prove non-access. This is an old and well-settled rule.

(c) i Vesey Jr., 49.

(d) In Bentley v. Cooke, 3 Doug. 422, Lord Mansfield said that there had never been any instance, in a civil or criminal case, where the husband or wife had been permitted to be a witness for or against each other, except in case of particular necessity, as where the wife would otherwise be exposed, without remedy, to personal injury. There are exceptions to the rule stated in the text, when the necessity of admitting the wife as a witness against her husband is so strong as to overbalance the principle of public policy upon which the rule of exclusion is founded, as when the wife is the injured person, complaining of cruel treatment by her husband. The People v. Mercein, 8 Paige, 47. The exception to the general rule, excluding persons interested from being witnesses in civil and criminal cases, applies in other cases, as where a statute can receive no execution, unless the party interested (as the owner of goods stolen or robbed) be admitted as a witness. U. States v. Murphy, 16 Peters U. S. 203. The law will not permit any disclosure by the wife, even after the husband's death, which implies a violation of the confidence reposed in her as a wife, though she may in other cases testify to his acts or declarations of a public nature and not affecting his character. McGuire v. Maloney, 1 B. Mon. (Ky.) 221. May v. Little, 3 Ired. (N. C.) 27. Walker v. Sanborn, 46 Maine, 470.

The policy and force of the general rule of exclusion also applies to render the wife incompetent, even after a divorce a vinculo, to testify against her husband, as to matters of fact occurring during the coverture, and which affect the husband in his pecuniary interest and character. Monroe v. Twistleton, Peakes's Add. Cases, 219. Doker v. Hasler, Ryan & M. 198. Ratcliff v. Wales, 1 Hill (N. Y.) 63. Babcock v. Booth, 2 Hill (N. Y.) 181. Waddams v. Humphrey, 22 Ill. 661. State v. Phelps, 2 Tyler, 374. In an action of crim. con. brought by the husband, the wife is a competent witness for him, after a divorce a vinculo. Dickerman v. Graves, 6 Cush. 308.

In no form of proceeding, nor between any parties, can husband or wife testify to sexual non-intercourse during marriage. People v. Overseers of Ontario Co. 15 Barb. N. Y. 286 ; Chamberlain v. The People, 23 N. Y. 85, obiter. Page v. Dennison, 5 Casey, 420; Parker v. Way, 15 N. Hamp. 45; Goodright v. Moss, Cowper, 594; Rex v. Sourton, 5 Ad. & Ell. 180.

? Van Cort v. Vai Cort, 4 Edw. Ch. 621. Cornelius v. State, 7 Eng. 782.

But where the wife acts as her husband's agent, her declarations have been admitted in evidence to charge the husband; for if he permits the wife to act for him as his agent in any particular business, he adopts, and is bound by her acts and admissions, and they may be given in evidence against him. (e) The wife cannot bind her husband by her contracts, except as his agent, and this agency may be inferred by a jury in the cases of orders given by her in those departments of her husband's household which she has under her control. (f) So, also, where the husband permitted his wife to deal as a feme sole, her testimony was admitted, where she acted as agent, to charge her husband. (9) In the case, likewise, of Fenner v. Lewis, (h) where the husband and wife had agreed to articles of separation, and a third person became a party

to the agreement as the wife's trustee, and provision was * 180 made for her maintenance and enjoyment of * separate

property, it was held, that the declarations of the wife relative to her acts as agent, were admissible in favor of her husband in a suit against the trustee. In such a case, the law so far regarded the separation as not to hold the husband any longer liable for her support. (a) The policy of the rule excluding the husband and wife from being witnesses for or against each other, whether founded, according to Lord Kenyon, (6) on the supposed bias arising from the marriage, or, according to Lord Hardwicke, (c) in the necessity of preserving the peace and happiness of families, was no longer deemed applicable to that case. In Aveson v. Lord Kinnaird, (d) dying declarations of the wife were admitted in a civil suit against her husband, they being made when no confidence was violated, and nothing extracted from the bosom of the wife which was confided there by the husband. Lord Ellenborough referred to the case of Thompson v. Trevanion, in Skin.

(e) Anon. 1 Str. Rep. 527. Emerson v. Blondell, i Esp. N. P. 142. Palethorp v. Furnish, 2 Id. 511, note. Clifford v. Burton, 8 Moore, 16. i Bing. 199, S. C. Dacy v. Chemical Manuf. Co. 2 Hall (N. Y.) 550. Plummer v. Sells, 3 Nev. & M. 422.

(f) Freestone v. Butcher, Carr. & Pa. 643. Lane v. Ironmonger, 13 Mees. & W. 368.

(g) Rutter v. Baldwin, 1 Eq. Cas. Abr. 226, 227; but Lord Eldon said, in 15 Vesey, 165, that he had great difficulty in acceding to this case to that extent.

(h) 10 Johns. 38.
(a) Baker v. Barney, 8 Id. 72.
(6) 4 Term Rep. 679.
(c) Baker v. Dixie, Cases temp. Hardw. 264.
(d) 6 East, 188.

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