a party to the settlement, a court of equity will not avoid it, though he be an infant at the time it was made. (a) But if the wife was guilty of any fraud upon her husband, as by inducing him to suppose he would become possessed of her property, he may avoid the settlement, whether it be upon herself, her children, or any other person. (b) If the settlement be upon children by a former husband, and there be no imposition practised upon the husband, the settlement would be valid, without notice; (c) and it would seem, from the opinion of the lord chancellor, in King v. Colton, that such a settlement, even in favor of a stranger, might be equally good under the like circumstances. It is a general rule, without any exception, that whenever any agreement is entered into for the purpose of altering the terms of a previous marriage agreement, by some only of the persons who are parties to the marriage agreement, such subsequent agreement is deemed fraudulent and void. The fraud consists in disappointing the hopes and expectations raised by the marriage treaty.

It is a material consideration respecting marriage settlements, whether they are made before or after marriage; and if after marriage, whether upon a voluntary separation, by mutual agreement, between the husband and wife. Lord Eldon, in St. John v. St. John, (d) intimated that a settlement, by way of separate maintenance, on a voluntary separation of husband and wife, was against the policy of the law, and void; and he made

(a) Slocombe v. Glubb, 2 Bro. Rep. 545.

(b) Buller, J., and Lord Ch. Thurlow, in Strathmore v. Bowes, 2 Bro. 345. 1 Vesey, jun., 22, S. C. Goddard v. Snow, 1 Russell's Rep. 485. Howard v. Hooker, 2 Rep. in Ch. 81. St. George v. Wake, 1 Mylne & Keen, 610. Secret and voluntary conveyances by a woman, in contemplation of marriage, are a fraud upon the marital rights, and void. Tucker v. Andrews, 13 Maine Rep. 124, 128. Jordan v. Black, Meig's Tenn. Rep. 142. Ramsay v. Joyce, 1 McMullan's S. C. Eq. Rep. 236. Logan v. Simmons, 3 Iredell's N. C. Eq. R. 487.

(c) King v. Colton, 2 P. Wms. 674. Jones v. Cole, 2 Bailey's S. C. Rep. 330. (d) 11 Vesey, 530. Beach v. Beach, 2 Hill's Rep. 260, S. P.

the one contemplated took place; it was held, that the trusts arose on the vesting of the fund in the trustees; and that they could not, at the request of the settler, allow any part of the fund to be withdrawn.

no distinction between settlements *resting on articles, *176 and a final complete settlement by deed; or between the cases where a trustee indemnified the husband against the wife's debts, and where there was no such indemnity. The ground of his opinion was, that such settlements, creating a separate maintenance by voluntary agreement between husband and wife, were in their consequences destructive to the indissoluble nature and the sanctity of the marriage contract; and he considered the question to be the gravest and most momentous to the public interest that could fall under discussion in a court of justice. Afterwards, in Worrall v. Jacob, (a) Sir William Grant said he apprehended it to be settled, that chancery would not carry into execution articles 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 a separation, were valid, and might be enforced in equity. (b) It was, indeed,

(a) 3 Merivale's Rep. 256, 268.

(b) This is now the settled law in England and in this country. Fitzer v. Fitzer, 2 Atk. Rep. 511. Cooke v. Wiggins, 10 Ves. 191. Lord Rodney v. Chambers, 2 East's Rep. 283. 2 Raithby's Vernon, 386, note 1. Ros v. Willoughby, 10 Price's Rep. 2. Carson v. Murray, 3 Paige's Rep. 483. Reed v. Beazley, 1 Blackf. Ind. Rep. 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's Ch. Rep. 516. Champlin v. Champlin, 1 Hoffman's Ch. Rep. 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. Rep. Supp. p. 115. 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

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. If the 177 question was res integra, said Lord Eldon, untouched

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)

Hagg. Consist. Rep. 318. Legard v. Johnson, 3 Vesey, 352. McKennan v. Phillips, 6 Wharton's Rep. 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's Rep. 126. In Todd v. Stoakes, 1 Salk. Rep. 116. Nurse v. Craig, 5 Bos. & Pull. 148. Hindley v. Westmeath, 6 Barnew. & Cress. 200; and in Shelthar v. Gregory, 2 Wendell's Rep. 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, ut supra. So, a subsequent reconciliation and return to the busband's house, destroys the deed. 1 Jacob, 140. Pidgin v. Gram, 8 N. Hamp. Rep. 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 Picquet v. Swan, 4 Mason's Rep. 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 Hoffman's Ch. Rep. 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

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.

* 178

The law respecting marriage settlements is essentially the same in Pennsylvania, Virginia, North Carolina, South 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. (b) 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 each other in a civil suit.

cannot be witnesses for or against This is a settled principle of

law and equity, and it is *founded as well on the interest *179

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. Rep. 450. Story's Equity, sec. 1417. Barker v. Woods, 1 Sandford's Ch. R. 129.

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 Ch. J. Reeve'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 Dall. Rep. 304, 307. Magniac v. Thompson, 1 Baldwin's C. C. U. S. Rep. 344. Scott v. Loraine, 6 Munf. Rep. 117. Bray v. Dudgeon, ibid. 132. Tyson v. Tyson, 2 Hawks's Rep. 472. Crostwaight v. Hutchinson, 2 Bibb Rep. 407. Browning v. Coppage, 3 Bibb Rep. 37. South Carolina Eq. Rep.

passim.

(b) Dibble v. Hutton, 1 Day Rep. 221.

(c) 5 Day Rep. 47.

of the parties being the same, as on public policy. (a)1 The 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. (b)2 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)

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

(b) 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 All-Saints, 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) 1 Vesey, jun. 49.

(d) In Bentley v. Cooke, 3 Doug. Rep. 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's Rep. 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,

1 Mayrant v. Guignard, 3 Strobh. Eq. 112; Manchester v. Manchester, 24 Verm. 649. Coburn v. Mellen, 19 N. H. 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 ground of interest, except in the case of those for whose immediate benefit an action is brought, 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. (Law) R. 340.

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