« ForrigeFortsett »
*The law respecting marriagesettl ements is essentially the same in Pennsylvania, Virginia, North Carolina,
band 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 husband's house, destroys the deed. 1 Jacob, 140. Pidgin v. Cram, 8 N. Hamp. Rep. 350. The wise aster 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 wise to an ambiguous celibacy, and facilitate the means of breaking up families. In Picquet v. Swan, 4 Masons's Rep. 443, the doctrine of postnuptial 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 wise, and be exercised by her toties quoties. It was deemed a necessary consequence of the validity of a postnuptial 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. Bur. ger, 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 eslate 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 aceount, and the articles gave her authority to dispose of the property by will, and is not so disposed of to go to her heirs. The Ass. 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 postnuptial 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 settle. ment 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;
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 cannot be witnesses for or against each other in a civil suit. This is a settled principle of law and equity, and it is *founded as *179 well on the interest of the parties being the same, as on public policy. The foundations of society would be shakened, 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
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. Reove's work on the Domestic Relations. In thoso essays the subject can be studied and pursued through all its complicated details.
* Rundle v. Murgatroyd, 4 Dall. Rep. 304. 307. Magniac v. Thompson, 1 Baldwin's C. C. U. S. Rep. 344. Scott v. Lorraine, 6 Munf. Rep. 117. Bray v. Dudgeon, ibid. 132. Tyson v. Tyson, 2 Hawks. Rep. 472. Crostwaight v. Hutchinson, 2 Bibb. Rep. 407. Browning v. Coppage, 3 Bibb. Rep. 37. South Carolina Eq. Rep. passim.
Dibble v. Hutton, 1 Day. Rep. 221. e 5 Day. Rep. 47.
d Davis v. Dinwoody, 4 Term. Rep. 678. Winsmore v. Greenbank, Willes' Rep. 577. Vowles v. Young, 13 Vesey, 140. City Bank v. Bangs, 3 Paige's Rep. 36. Copous v. Kauffman, 8 Id. 583.
case which goes to criminate the other; and this rule is so inviolable, that no consent will authorize the breach of it.a Lord Thurlow said, in Sedgwick v. Watkins, 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.c
• The King v. Cliviger, 2 Term Rep. 26 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 bo used against him. The King v. Inhabitants of All-Saints, 4 Petersdorff's Abr. 157. On a question of legitimacy, neither husband nor wife can be admitted to prove non-access, This is an old and well settled rule.
b1 Vesey, jun. 49.
c 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 cases of particular necessity, as where the wife would otherwise be exposed without remedy, to personal injury. There are ex. ceptions 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 ber 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 statate 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' Rep. 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. M'Guire v. Malony, 1 B. Monroe's Rep. 221. May v. Little, Iredell': N. C. Rep. vol. 3. 27.
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 or character. Monroe v. Twisleton, Peaks' Add. Cases, 219. Doker v. Hasler, Ryan. of M. 198. Ratcliff v. Wales, 1 Hills N. Y. Rep. 63. Babcock v. Booth, 2 Hill,
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. 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.b 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 *180 declarations of the wife relative to her acts as agent, 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,f on the supposed bias arising from the
* Anon. 1 Stra. Rep. 527. Emerson v. Blanden, 1 Esp. N. P. Rep. 142. Palethorp v. Furnish, 2 ibid. 511. note. Clifford v. Burton, 8 Moore's Rep. 16. 1 Bing. Rep. 199. S. C. Dacy v. Chemical Bank, 2 Hall's N. Y. Rep. 550. Plummer v. Sells, 3 Neville & Manning, 422.
b Freestone v. Butcher, 9 Carr. f. Payne, 643. Lane v. Ironmonger, 13 Meeson f. W. 368.
• 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.
a 10 Johns. Rep. 38.
marriage, or, according to Lord Hardwicke,a in the necessity of preserving the peace and happiness of families, was no longer deemed applicable to that case. In Aveson v. Lord Kinnaird,b 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. Rep. 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 anything 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.c
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.d In all other cases in which this rule
does not apply, they must be joined in the suit ; *181 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
a Baker v.
Dixie, Cases temp. Hardw. 252. 0 6 East's Rep. 188.
c The policy of the rule of the English law, that husband and wife cannot be witnesses for or against each other, is much questioned in Am. Jur. No. 30, p. 374. I remain, however, decidedly against the abolition of the rule.
If a note be given to the husband and wife, on a sale of her property, and she survive him, she, and not his administrator, must endorse it ; for the interest being joint, it went, of course, to the survivor. Draper v. Jackson, 16 Mass. Rep. 480. Executors of Schermerhorn v. Elmendorf, 10 Johns. Rep. 49. Richardson v. Dagget, 4 Vermont Rep. 336.