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band by the intended wife would make a settlement by him on her valid as against her creditors, this appears to be contrary to the English doctrine, and perhaps it is contrary to the true doctrine everywhere. Perhaps a woman may lawfully give her hand in marriage for money which she knows the party cannot pay without withholding from them to whom he had, for a valuable consideration, previously promised it. 1 Bishop on the Laws of Married Women.

Whether this be or not the true rule, it is certainly well established that the fact of the husband's being indebted at the time, and that the woman knew him to be so, will not invalidate the transaction in favor of creditors. 2 Lomax's Digest, 434. If, therefore, it appeared in this case that Mrs. Wickham was aware at the time of her intended husband's indebtedness, that would not of itself be sufficient to invalidate the settlement, unless she was aware of it to an extent to justify the belief of a design on his part to avoid the payment of his debts.

Assuming, then, that she acted bona fide, is the settlement valid against creditors? This inquiry involves several important propositions now to be considered.

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In the first place, that marriage is a valuable consideration, sufficient to support a conveyance of property even against creditors, is firmly established by a long train of decisions, English and American. The wife in such case is deemed to be a purchaser of the property settled on her in consideration of the marriage, and she is entitled to hold it against all the world. Lord COKE gives a forcible illustration of the rule. It being the general doctrine that the word "heirs" is necessary in a deed to pass a fee, if (he says) a man had given land to a man with his daughter in frank marriage, generally a fee simple had passed without this word 'heirs,' for there is no consideration so much respected in law as the consideration of marriage in respect of alliance and posterity." 1 Bishop on the Law of Married Women, § 775. In Barrow v. Barrow, 2 Dickens, 504, the Lord Chancellor said "he never knew an instance where a settlement in consideration of marriage had been set aside, and he would not make a precedent." In Campion v. Cotton, 17 Ves. 264, 267, Sir Samuel Romilly and William Bell, counsel for the defendants, said: "There is no decision to be found in which a settlement previous to and in contemplation of marriage has been considered as fraudulent against creditors. That a case strong

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enough for that purpose might exist cannot be denied, as if the wife was clearly a party and the marriage a more secure mode of defrauding creditors; but no such decision has yet been made. See, also, Nairn v. Prowse, 6 Ves. 752; Tunno v. Trezevant, 2 Des. 264. There are modern English decisions which have pronounced such settlements void as to creditors; not, however, because they included all the husband's property, or because he was utterly insolvent, but on the ground that the wife appeared to be a party to the fraud of the husband. Ex parte McBurnie's Trustees, 1 DeG., M. & G. 441; Fraser v. Thompson, 4 DeG. & Jones, 659. The learned counsel quotes an observation of Mr. Justice NOTT, of South Carolina, that the English decisions on this subject ought to be received with great caution; that there marriage settlements are usually among the higher or wealthier classes of society, with whom the marriage contract is in the nature of a bargain and sale, usually carried on by parents and guardians to promote family pride and influence.

No country in the world can, perhaps, boast of a purer judiciary than that from which we have derived our laws, institutions, and the most valued portions of our jurisprudence. It is not to be supposed that eminent judges there would lend the sanction of their names to mere family schemes in fraud of creditors upon such considerations as those suggested by the learned judge. The decisions respecting marriage and marriage contracts, I imagine, rest upon higher ground. Lord ROBERTSON, a Scotch judge, in the case of Levett, Ferg. 385, 389, 397, uses this language: Marriage is a contract sui generis, and differing in some respects from all other contracts; so that the rules of law which are applicable in expounding and enforcing other contracts may not apply to this. The contract of marriage is the most important of all human transactions; it is the very basis of the whole fabric of civilized society. The status of marriage is juris gentium, and the foundation of it, like that of all other contracts, rests on the consent of the parties; but it differs from other contracts in this, that the rights, obligations or duties arising from it are not left entirely to be regulated by the agreement of the parties, but are to a certain extent matters of municipal regulation over which the parties have no control by any declaration of their will. It confers the status of legitimacy on children born in wedlock, with all the consequen tial rights, duties and privileges thence arising. It gives rise to VOL. XXVI --52

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the relations of consanguinity and affinity. In short, it pervades the whole system of civil society. Unlike other contracts, it cannot in general, in any civilized country, be dissolved by mutual consent; and it subsists in full force, even though one of the parties should forever be rendered incapable, as in the case of incurable insanity, or the like, from performing his part of the marital contract. No wonder that the rights, duties and obligations arising from so important a contract should not be left to the discretion or caprice of the contracting parties, but should be regulated in many important particulars by the law of every civilized country." See on this subject the various decisions cited in Tyler on Coverture and Infancy, pages 804 to 811.

It is upon some such considerations as these, I take it, and not those suggested in this case, the courts everywhere have based their decisions in respect of marriages and contracts in consideration of marriage. And accordingly the American decisions have followed the English, adopting the language and affirming in the broadest terms the doctrines of the judges. Magniac & Co. v. Thompson, decided by Mr. Justice BALDWIN, and reported in 1 Bald. 344; and again decided upon an appeal to the Supreme Court of the United States, 7 Pet. 367, in a familiar case much relied on in the argument here. Mr. Justice STORY delivering the opinion of the whole court, said: "Nothing can be clearer, both upon principle and authority, than the doctrine, that to make an ante-nuptial settlement void as a fraud upon creditors, it is necessary that both parties should concur in or have cognizance of the intended fraud. If the settler alone intended a fraud, and the other party have no notice of it, she is not and cannot be affected by it. Marriage in contemplation of the law is not only a valuable consideration to support such a settlement, but a consideration of the highest value, and from motives of the soundest policy is upheld with a steady resolution. The husband and wife, parties to such a contract, are therefore deemed, in the highest sense, purchasers for a valuable consideration, and so that it is bona fide without notice of fraud brought home to both sides, it becomes unimpeachable by creditors."

In Sterry v. Arden, 1 Johns. Ch. 260, 271, Chancellor KENT said: "The marriage was a valuable consideration which fixed the interest in the grantee against ali the world, and as much as if she had then paid an adequate pecuniary consideration. It is the

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constant language of the books and of the courts, that a voluntary deed is made good by a subsequent marriage, and a marriage has always been held to be the highest consideration in law." See Verplank v. Sterry, 12 Johns. 536, where this decision was affirmed. The cases of Smith v. Allen, 5 Allen, 454; Jones' Appeal, 62 Penn. St. 324; Bunnel v. Witherow, 29 Ind. 123; Armfield v. Armfield, Freem. Ch. 311; Andrews & Bros. v. Jones, 10 Ala. 400, are to the same effect. See, also, 2 Minor's Inst. 690, 708; 1 Amer. Lead. Cases, 54, 55; Bump on Fraudulent Conveyances.

The Virginia cases are equally emphatic upon this subject, none perhaps more so than Huston's Adm'r v. Cantril, 11 Leigh, 136, 155. It was there held that a voluntary conveyance made by a man, greatly indebted to his daughter, is rendered good and available against creditors of the grantor upon the subsequent marriage of the daughter, who thereupon was to be regarded a purchaser by relation for a valuable consideration. Judge CARR, in speaking of the deeds made to the daughter, observed: "Will it be said that, if at the date of the deeds (Clendenin) the father had sold bona fide and for a valuable consideration, every slave he had, Huston, the creditor, could have disturbed such sale? And what is a settlement of slaves or other property upon a child in consideration of marriage, but a sale for a valuable consideration? Is not marriage the highest consideration, the most favored? I have always seen it so laid down." Upon this question there was no difference of opinion. among the judges. Judge STANDARD did not concur with the majority, but his dissent was based upon other grounds. In Bentley v. Harris' Adm'r, 2 Gratt. 357, the decision in Huston's Adm'r v Cantril, was cited and followed. See, also, Eppes v. Randolph, 2 Call. 103; Welles v. Cole, G Gratt. 645; Fones v. Rice, 9 id. 568.

After these emphatic avowals, it is, I think, too late to caution. us how we follow the English cases. In the principles declared, the American courts have gone quite as far as those of England.

The learned counsel tells us, that marriage, however valuable as a consideration, cannot sustain a settlement by a man of his whole estate who is greatly indebted at the time, and that no case can be found, certainly none in this country, to uphold such a settlement. The learned counsel in all their researches have found but one case which holds that a settlement of that character is per se fraudulent and void as to creditors. I allude to the case of Simpson & Davidson v. Admiral Graves and others, decided by the Court of Appeals

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of South Carolina, then consisting of three judges, the opinion being delivered by Mr. Justice NOTT; Riley's Ch. Appeal Cases, 232. The settlement in that case embraces a landed estate estimated at $400,000, and 300 slaves of the value of $150,000, including not only the entire property of the husband, but that of his father also, amounting in the aggregate to more than a half million of dollarsan estate at that time, as was said by the learned judge, equalled by very few in this country. All this was settled upon the intended wife, who had besides an ample fortune of her own. Mr. Justice NOTT might well say: "Even though marriage may be a part of the consideration, fraud may be mingled with it, and that may as well be inferred from internal evidence as from circumstances aliunde." It will be conceded there may be settlements so manifestly unreasonable, so excessive as to shock the moral sense, and carry on their face conclusive evidence of fraud in all the parties concerned. The South Carolina case is one of them, and no one will find fault with Mr. Justice NOTT's decision in that particular. But when he lays down, as a rule of law, "that when the settlement includes the whole of the settler's property, that fact shall be considered of itself as conclusive evidence of fraud upon creditors,” he affirms what is not supported by authority and is unsound in principle. I can imagine a case in which such a settlement would not necessarily be fraudulently designed by the husband. But conceding that it is so, does it follow that the intended wife is a particeps delicti? Suppose she knows nothing, as is generally the case, of the indebtedness of the man she is about to marry-suppose that the deed, as in the present case, does not show that it includes all the settler's estate, and that she has no reason to suppose it is all-how is her title affected? She is a purchaser for valuable consideration, the very highest in law, and by the express terms of the statute and by the common law, she is protected, unless it appear that she had notice of the fraud of the grantor.

A man possessed of a small patrimony, in contemplation of a marriage with a lady accustomed to the luxuries and refinements of life, may settle his entire estate upon her and the issue of the marriage. This might be very unjust to his creditors, and yet no more than a just and reasonable provision for her, such as she would have the right to expect, and her friends to require. What principle of law, what decision, except that of Mr. Justice NOTT, pronounces such a settlement per se fraudulent? In some cases the