between husband and wife. The court did not recognise 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, as a trustee, for instance, though originating out of, and relating to a separation, were valid, and might be enforced in equity. It was, indeed, strange, that such an auxiliary agreement should be enforced, while the principal agreement between the husband and wife to separ ate, and settle a maintenance on her, should be deemed to be contrary to the spirit and the policy of the law. If the 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.

I have thus given, for the benefit of the student, a sketch of the leading principles and distinctions (for to them I have confined myself) respecting marriage settlements, and the trusts created by them, and how far the wife is considered in equity as capable of acquiring, holding, and disposing of separate property in herself. The subject occupies an important and voluminous title in the code of English equity jurisprudence; and so extensive have become the trusts growing out of marriage settlements, that a lawyer of every great experience considered, that half the property of England was vested in nominal owners, and it had become difficult to ascertain whether third person were · safe in dealing for fiduciary property with its trustees, without the concurrence of the beneficial owner.b

a Mr. Butler.

b In addition to the general abridgments, there are several professed treatises recently published on this head, as Atherley's Trea tise on the Law of Marriage, and other Family Settlements, publish

The law respecting marriage settlements is, as I apprehend, essentially the same in Pennsylvania, Virginia, North Carolina, South Carolina, Kentucky, and probably, in other states, as in England, and in this state." 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. 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. But 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 recognised as binding.

V. Other rights and disabilities incident to the marriage

union.

The husband and wife cannot be witnesses for or against each other. This is a settled principle of law, and it is founded as well on the interest of the parties being the same, as on public policy. Nor can either of them be permitted to give any testimony either in a civil or criminal case, which may have the least tendency to criminate the other; and this rule is so inviolable, that no consent will authorize the breach of it. Lord Thurlow said, in Sedg

ed in 1813; Keating's Treatise on Family Settlements and Devises, published in 1815; Bingham on the Law of Infancy and Coverlure, published in 1816; 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 Dallas, 304. 307. Scott v. Lorraine, 6 Munf. 117. Bray v. Dudgeon, ibid. 132. Tyson v. Tyson, 2 Hawks. 472. Crostwaight v. Hutkinson, 2 Bibb. 407. Browning v. Coppage, 3 Bibb. 37. South Carolina Eq. Rep. passim.

b Dibble v. Hutton, 1 Day, 221.

a 5 Day, 47.

d Davis v. Dinwoody, 4 Term Rẹp. 678.

wick. Walkins," that for security of the peace ex necessiwick tate 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.

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. 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. In the case, likewise, of Fenner v. Lewis,d 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 made for her maintenance and enjoyment of separate property, it was held, that the declarations and confessions of the wife were admissible in favour 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. The policy of the rule excluding the husband and wife from being witnesses for or against each other, whether founded, according to Lord Kenyon, on the supposed bias arising from the marriage, or, according to Lord Hardwicke,g in

a1 Vesey, jun. 49.

b Anon. 1 Str. 527. Emerson v. Blanden, 1 Esp. N. P. Rep. 142. Palethorp v. Furnish, 2 ibid. 511. note.

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

d 10 Johns. Rep. 38.

e Baker v. Barney, 8 Johns. Rep. 72.

f4 Term Rep. 678.

g Baker v. Dixie, Cases temp. Hardw. 252.

the necessity of preserving the peace and happiness of families, was no longer deemed applicable to that case. In Aveson v. Lord Kinnaird,a 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. Trevannion, in Skin. 402. where, in an action by husband and wife, for wounding the wife, Lord Holt allowed what the wife said immediately upon the hurt received, and before she had time to devise any thing to her own advantage, to be given in evidence as part of the res gesta.

These cases may be considered as exceptions to the general rule of law, and which, as a general rule, ought to be steadily and firmly adhered to, for it has a solid foundation in public policy.

In civil suits, where the wife cannot have the property demanded, either solely to herself, or jointly with her husband, or where the wife cannot maintain an action for the same cause if she survive her husband, the husband must sue alone. In all other cases in which this rule does not apply, they must be joined in the suit; and where the husband is sued for the debts of the wife before coverture, the action must be joint against husband and wife, and. she may be charged in execution with her husband; though if she be in custody on mesne process only, she will be discharged from custody on motion. The husband may, also, be bound to keep the peace as against his wife; and for any unreasonable and improper confinement by him, she may be entitled to relief upon habeas corpus. If a woman marries, pending a suit against her, the plaintiff may proceed to judgment and execution against her alone

a 6 East, 188.

b Anon, 3 Wils. 124.

without joining the husband ; but for any cause of action, either on contract or for tort, arising during coverture, the husband only can be taken in execution. These provisions in favour of the wife are becoming of less consequence with us every year, inasmuch as imprisonment for debt is undergoing constant relaxation; and by an act of the le gislature of New-York, in 1824, no female can be imprisoned upon any execution issued in a suit before a justice of the peace.

I trust I need not apologize for having dwelt so long upon the consideration of this most interesting of the domestic relations. The law concerning husband and wife, has always made a very prominent and extensive article in the codes of civilized nations. There are no regulations on any other branch of the law, which affect so many minute interests, and interfere so deeply with the prosperity, the honour, and happiness of private life. As evidence oft he immense importance which in every age has been attached to this subject, we may refer to the Roman law, where this title occupies two entire books of the Pandects, and the better part of the fifth book of the code. Among the modern civilians, Dr. Taylor devotes upwards of one sixth part of his whole work on the Elements of the Civil Law, to the article of marriage; and Heineccius, in his voluminous works, pours a flood of various and profound learning on the subject of the conjugal relations. Pothier, who has examined, in thirty-one volumes, the whole immense subject of the municipal law of France, which has its foundations principally laid upon the civil law, devotes six en

a Doyley v. White, Cro. Jac. 323. Cooper v. Hunchin, 4 East, 52L. · b Anon. Cro. C. 513. 3 Blacks. Com. 414.

c Sess. 47. ch. 238, sec. 42.

d Lib. 23. and 24.

e Vide Opera Heinec. tom. 2. De marito Tutore et Curatore Uxoris legitimo, and tom. 7. Commentarius ad legem Juliam et Papiam Poppaam.