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Ohio river as the southern boundary of the proposed states of Ohio, Indiana and Illinois, in accordance with the deed of cession to the United States, and Ohio and Illinois, have never claimed jurisdiction beyond this boundary for any purpose, nor did Indiana for thirty-five years after she became a state. The compact between Virginia and Kentucky, creates no claim for Indiana as shown by Garner's case, above cited. "There must be accurate and express treaty stipulation between the contracting parties to confer extra territorial jurisdiction."'16

Conclusion. In my humble judgment the states of Ohio, Indiana and Illinois, have no

cencurrent jurisdiction, over the main body

of the Ohio river, with the states of West Virginia, Virginia and Kentucky for the foregoing reasons. Louisville, Ky.

HARDIN H. HERR.

16 Vattel, Law of Nations, 120 (6th Amer. Ed.) "Sovereignty united with domain establishes jurisdiction." Vattel, p. 165.

Since the above article was written the Kentucky Court of Appeals has decided the question discussed in it. The court holds that Indiana has not concurrent jurisdiction with Kentucky over the Ohio river. Meyler v. Wedding, 53 S. W. Rep. 808, 60 S. W. Rep. 20. The opinion was delivered by Judge White; Judge Du Relle delivered a separate and concurring opinion; Judge Hobson (Judge Burnam concurring with him), delivered a dissenting opinion. Judge Hobson argues strenuously, that by section 11 of the compact between Kentucky and Virginia, that it was meant to confer concurrent jurisdiction over the main body with the proposed states (Illinois, Indiana and Ohio). The learned judge, in his dissenting opinion, presents the view opposite to my conclusion. If any one desires to further examine the question, and read the other side of the controversy, it will be well to read the dissenting opinion. H. HI. II.

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Supreme Court of New Hampshire, Merrimack, March 15, 1901.

1. A contract between husband and wife, in which they agree to live separately, is void.

2. A contract between a husband and wife, which provides that they shall live separately, and which releases their claims on the property of each other both before and after death, is an entire contract, and being void as to the separation, does not bar the interest of the husband in the estate of the wife.

3. Pub. St. ch. 195, § 18, providing that the willful desertion of a wife by a husband, and a continued absence and failure to support the wife for the term of three years preceding her death, shall defeat all claims of the husband in her estate, does not apply to

a separation and continued absence and failure to support in pursuance of an agreement between the parties.

4. Pub. St. ch. 176, § 8, authorizing a married woman living separate from a non resident husband to manage, sell and convey her property as if unmarried, does not defeat the interest of the husband in the es tate of the wife on the death of the latter, so as to render the will of the wife disinheriting the husband valid.

The defendant, Stephen D. Nickerson, and the plaintiff's testatrix, Martha J. Nickerson, were married in Maine in 1891, and lived together there until April, 1892, when the testatrix informed her husband that she intended to leave him. Thereupon they agreed to separate, and he executed a writing as follows: "This is to certify that I, Stephen D. Nickerson, husband of Martha J. Nickerson, do mutually agree to separate on

friendly terms, and to make no demand (neither

me nor my heirs) on her, nor her property, after this date." At the same time she executed a similar writing, left him, and came to Bow, in this county, where she resided until her decease in 1897. Each party had some property. There was no legal cause for divorce or separation. He continued to reside in Maine, and in no way aided in her support. By the will the testatrix provided as follows: "I will give and bequeath unto my husband, Stephen D. Nickerson, of Orrington, Maine, the sum of one dollar. I make this small bequest because of his agreement to live separate from me, and to make no claim upon my estate in any way." The defendant seasonably waived this provision, and upon his petition the executor was ordered to file an inventory and give bonds. From this decree the executor appealed, for the reasons that the defendant had no such interest in the estate as to entitle him to maintain his petition, and that he was estopped by the writing above set out to claim his distributive share in her estate.

PEASLEE, J.: One question presented for decision is, whether the relation of husband and wife is one that the parties can dissolve or modify; whether the married status is so far within the control of the parties that its alteration is a result they can themselves effect, provided they agree upon the terms. It may fairly be said that the question is not settled by the decisions in this state. It has been touched upon incidentally, but in no case has it been directly involved. It therefore becomes necessary to examine the law on the subject elsewhere. Turning to other jurisdictions it will be found that the question has been the subject of much litigation, and with varied results. Not only do the cases in one state conflict with those in other states, but in the same jurisdiction the views of one generation have often been held to be erroneous in later times. There is disagreement not only as to what the law is and what the policy on this subject should be, but also as to the history of the law, and how it was held to be in former times. In order, then, to reach a satisfactory solution of

the question, it is essential to examine with some minuteness the historical aspect of the law applicable in this case.

The English cases decided before the Revolutionary War are conflicting, and many of them apparently imperfectly reported. The precise question here involved did not then come directly before the so-cailed "law courts." All causes concerning marriage and the marital status were tried in the ecclesiastical courts, which also had jurisdiction of the probate of wills and the administration of estates. 2 Bl. Comm. 496. While, in a narrow sense, these were not common-law courts, they administered the unwritten law of the realm upon these subjects. Although the inferior judges were appointed by the ecclesiastics, the bishops themselves were nominated by the king. 1 Bl. Comm. 280. In all causes an appeal might be taken to the king, who was represented by the court of delegates, appointed by him for that purpose. "This commission is frequently filled with lords, spiritual and temporal, and always with judges of the courts at Westminster and doctors of the civil law." 3 Bl. Comm. 66. The law thus administered is a part of the common law of England. Reg. v. Millis, 10 Clark & F. 534, 671. To ascertain the state of the English common law as to divorce, suits for nullity, and other matters directly concerning the marital relation, recourse must be had to the decisions of those courts. The doctrine of either total or partial divorce, by agreement of the parties, found no favor there. They were not permitted "to release themselves by any private act of their own, or for causes which the law itself has not pronounced to be sufficient and sufficiently proved." Mortimer v. Mortimer, 2 Hagg. Consist. 310, 318; 2 Rop. Husb. & Wife, 267. The rule that separation agreements are wholly void, seems to have been adhered to from the earliest times until the court was abolished, in 1857, by the statute of 20 & 21 Vict. ch. 85. Smith v. Smith, 2 Hagg. Ecc. Supp. 44, note; Westmeath v. Westmeath, Id. 1; Id., 4 Eng. Ecc. R. 258; Barlee v. Barlee 1 Addams, Ecc. 301. 305; Nash v. Nash, 1 Hagg. Consist. 140.

The English common law relating to this sub. ject (which became the common law of this state, so far as applicable to conditions here) was that as to the settlement of estates, suits of nullity of marriage, and such limited¡divorce as was then granted, a separation agreement was wholly void. It was refused recognition in chancery, and even in the law courts its efficacy was denied by the later cases. The only case actually deciding that such an agreement was a valid modification of the marriage contract was Rex v. Mead, 1 Burrows, 542, and this was not followed in the cases in 2 W. Bl. Contemporary judges and text writers understood this to be the state of the law. It was so laid down by Lord Mansfield, who had been chief justice of the king's bench since 1756, and who, shortly after the decision of these cases, thought that the law should be held

otherwise, because of changed conditions. Ringsted v. Butler, 3 Doug. 197, 203; Barwell v. Brooks, Id. 371, 373: Corbett v. Poelnitz, 1 Term R. 5. The modern English doctrine differs widely from this, and an examination of its origin and development shows that it is a departure from the old law, and not merely an adaptation of recognized principles to changed conditions. It was immediately after the rendition of the decisions reported by Blackstone that changes in the law began to be made. In 1783, Lord Mansfield, while admitting that the common law was otherwise, held that an agreement for separation bound (both parties as though they were sole. The point at issue was whether the wife could be sued alone. The fact that these agreements had come into use, and by them separate estates had been given to wives, who, for that reason, ought to be liable to suit, was considered to be of controlling importance. The question of the effect of the decision upon the marital status was not discussed. Ringsted v. Butler, 3 Doug. 197. The object of the decision plainly was to accomplish what has been done here by legislation. It gave married women a limited power to contract and sue and be sued. A similar result was reached the following year. Lord Mansfield said: "The fashion of the times has introduced an alteration, and now husband and wife may, for many purposes, be separated and possess separate property, -a practice unknown to the old law." Barwell v. Brooks, 3 Doug. 371, 373. In 1794 the new doctrine was affirmed in the leading case of Corbett v. Poelnitz, 1 Term R. 5. Lord Mansfield again justified the result by reasoning similar to that just quoted. These cases "introduced a new principle into the English law, respecting the relations of husband and wife; but a principle that was familiar to the Roman law, and to the municipal law of most of the nations of Europe." 2 Kent, Comm. 159. It was natural that this principle should appeal to Lord Mansfield, whose work is so distinguished for its up-building of commercial law. So long as he remained upon the bench these cases were followed. Accordingly, in 1788, Mr. Justice Buller said that separation deeds were valid when fairly entered into, and that courts of equity had jurisdiction to enforce them. Fletcher v. Fletcher, 2 Cox, Ch. 99. In another case he said that it had been decided that by agreement the parties could make the wife a feme sole as to everything but the right of remarriage. Compton v. Collinson, 2 Brown, Ch. 377. The case went off upon another point, and the cases upon this question are not cited. Acquiescence in the doctrine of Corbett v. Poelnitz was by no means uniform. The case "gave rise to great scrutiny and criticism. It was considered as a deep and dangerous innovation upon the ancient law." 2 Kent, Comm. 159. Lord Mansfield retired in 1788. His successor, Lord Kenyon, had passed most of his life as a law writer for more successful practitioners, and as a judge of an inferior court in a remote part of the

kingdom. His reverence for the law was as great as Mansfield's devotion to progressive ideas. The effect of the change is plainly traceable in the decisions upon this subject. In 1790 the case of Compton v. Collinson, supra, having been sent out from chancery for the opinion of the court of common pleas upon the law, Lord Loughborough said that the question of a separated wife's liability to suit was still an open one. Compton v. Collinson, 1 H. Bl. 334. In the same year the ecclesiastical court again declared its adherence to the doctrine heretofore noticed. Nash v. Nash, 1 Hagg. Consist. 140. In 1792 the chancery court, following the dictum of Justice Buller in Fletcher v. Fletcher, decreed specific performance of articles of separation, in the face of the husband's offer to return and live with his wife. Guth v. Guth, 3 Brown, Ch. 614. This case was never considered sound. Soon after its decision Lord Loughborough denied equity jurisdiction of suits involving the marital relation. Legard v. Johnson, 3 Ves. 352, decided in 1797. Again in 1792, Justice Buller expressed his adherence to the law as held by Lord Mansfield. A writ of habeas corpus was directed, at the instance of J. Greygoose, to bring up the body of his wife. It was alleged that she was detained by the defendant, and living with him in adultery. One defense set up, but not fully pleaded, was a separation contract, and Rex v. Mead, 1 Burrows, 542, was relied upon. Justice Buller said: "If this case turn out on further examination to be like that in Burrows, I am strongly inclined to think that would be an answer to the writ. But that is not at present made out." Rex. v. Winton, 5 Term R. 89. The chief justice was absent when this decision was rendered. The question was first considered by Lord Kenyon in 1794, when he declared that, if changes in the law were needed, they must be made by the legislature. The authority of Corbett v. Poelnitz was doubted, but the non-liability of the defendant was finally put upon other grounds. Ellah v. Leigh, 5 Term. R. 679. This was after Justice Buller had retired from the king's bench, to accept a seat upon the common bench. Two years later, when speaking of the same subject, Lord Kenyon said: "We must not, by any whimsical conceits, supposed to be adapted to the altering fashions of the times, overturn the established law of the land. It descended to us as a sacred charge, and it is our duty to preserve it." Clayton v. Adams, 6 Term R. 604. A decision of his in 1793 has sometimes been referred to as inconsistent with the views expressed in the cases just cited. In a suit for the seduction of a wife, the defense was set up that before the commission of the acts complained of the husband and wife had voluntarily separated. It was decided that this went to the merits of the action. Weedon v. Timbrell, 5 Term R. 357. The real ground of the decision was that this action is not maintainable by one who has abandoned the right upon which the action is founded. It does not decide that rights had been

acquired under a valid contract. In harmony with this view, the same judge held that the fact that the husband was living in adultery was a bar to his suit. Wyndham v. Wycombe, 4 Esp. 16. While this decision was erroneous (Cross v. Grant, 62 N. H. 675, and cases cited), it is of importance as showing that Weedon v. Timbrell was not based upon the proposition that a separation agreement is a valid contract. In 1800 the question involved in Corbett v. Poelnitz came before Lord Eldon. He refrained from deciding it, because it was then pending in a case which was soon to be argued before all 12 judges; but he reviewed the cases, and manifestly was of the opinion that the decision of Lord Mansfield was unsound, and that Rex v. Mead, 1 Burrows, 542, was not an authority for the validity of separation agreements. Beard v. Webb, 2 Bos. & P. 93. In the case there referred to the question was fairly presented for decision. It was twice argued before all the judges, except Justice Buller, who was incapacitated by the illness of which he died shortly thereafter. All concurred in the opinion of the chief justice, overruling Corbett v. Poelnitz. Lord Kenyon said: "If * the parties were competent to contract at all, it would then become material to consider how far a compact can be valid, which has for its object the contravention of the general policy of the law in settling the relations of domestic life, and which the public is interested to preserve; and which, without dissolving the bond of marriage, would place the parties in some respects in the condition of being single, and leave them in others subject to the consequences of being married, and which would introduce all the confusion and inconvenience which must necessarily result from so anomalous and mixed a character. In the course of the argument some of these difficulties were pointed out, and it was asked whether, after such an agreement as this, the temporal courts could prohibit it if either were to sue in the ecclesiastical court for the restitution of conjugal rights; whether the wife, if she committed a felony in the presence of her husband, would be liable to conviction; whether they could be witnesses for or against each other; whether they could sue and take each other in execution? many other questions will occur to every one, to which it will be impossible to give a satisfactory answer. For instance, it may be asked how it can be in the power of any persons by their private agreement to alter the character and condition which by law results from the state of marriage while it subsists, and from thence to infer rights of action and legal responsibilities, as consequences following from such alteration of character and condition; or how any power, short of that of the legislature can change that which, by the common law of the land, is established as the course of judicial proceedings." Marshall v. Rutton, 8 Term. R. 545. Chief Justice Eyre of the common pleas, who retired shortly after the first argument of the case, also concurred in this opinion.

And

It was thus that the law stood until the death of Lord Kenyon, in 1802. During that year a case arose, involving the validity of an agreement between George Chambers, his wife, and certain trustees. The husband agreed that in case of a future separation the wife might live where she chose, without molestation from him, and that he would make certain payments to the trustees for her. A separation took place. The payments were not made, and the trustees sued on the covenant. The case was argued upon the general invalidity of separation agreements, and especially upon the point that an agreement looking to a future separation is illegal. Lord Ellenborough, C. J., held the contract to be valid, upon the ground that "the question which has been agitated appears to have been laid at rest for a long period by repeated decisions and the uniform practice of the courts." So far as the agreement related to a future separation, he declared it was no worse than others which had been upheld. Rodney v. Chambers. 2 East, 283. The case of Nicholls v. Danvers, 2 Vern. 671, was relied upon as authority for the proposition. It is true that, taking that case as reported by Vernon, such a holding might, perhaps, be inferred. There was such an agreement between the parties, but the court did not enforce it. Proceedings for cruelty had been had in the ecclesiastical court (1 Fonbl. Eq. 97, note), and this was merely an application for alimony, in accordance with the practice in the chancery courts after the Restoration. Thus, in two years' time, at the first term presided over by Lord Ellenborough, the conservative doctrines laid down by Lord Kenyon were disapproved of, and a decision was rendered of so radical a nature that it finds no support in the cases preceding it, and has not since been followed as an authority. A side light upon this case is seen in the reference to the wife as "the Honorable Jane Rodney," and to the husband as "George Chambers." In the following year Lord Eldon expressed a strong disapproval of Rodney v. Chambers, and of the whole doctrine of separation agreements. He suggested, however, that the practice of upholding them to a limited extent (that is, as to property rights might have become too firmly established to be overturned. The case went off upon a question of pleading, and was then settled by the parties. St. John v. St. John, 11 Ves. 526. In 1804 the master of the rolls recognized the validity of an agreement to pay an annuity to a separated wife, without discussion of the question. Cooke v. Wiggins, 10 Ves. 191. In 1806 the common pleas, by a divided court, held that an unfulfilled agreement to pay a separate allowance

court will not carry into execution articles of separation between husband and wife. It recognizes in them no power to vary the rights and duties growing out of the marriage contract, or to affect, at their pleasure, a partial dissolution of that contract. It should seem to follow that the court would not acknowledge the validity of any stipulation that is merely accessory to an agreement for separation. The object of the covenant between the husband and the trustee is to give efficacy to the agreement between the husband and the wife; and it does seem rather strange that the auxiliary agreement should be enforced, while the principal agreement is held to be contrary to the spirit and the policy of the law." He also quotes from Lord Eldon, as follows: "If this were res integra, untouched by dictum or decision, I would not have permitted such a covenant to be the foundation of an action or a suit in this court. But if dicta have followed dicta or decision has followed decision, to the extent of settling the law, I cannot, upon any doubt of mine as to what ought originally to have been the decision, shake what is the se.tled law upon the subject." St. John v. St. John, 11 Ves. 526. Accordingly, effect was given to an appointment by a separated wife of property, deeded by the husband to trustees in consideration of their agreement to save him harmless from his wife's debts, etc. Shortly thereafter the ecclesiastical court again reiterated its adherence to the view that these agreements are void. "These courts, therefore, to which the law has appropriated the right of adjudicating upon the nature of the matrimonial contract, have uniformly rejected such covenants as insignificant in a plea of bar, and leave it to other courts to enforce them, so far as they may deem proper upon a more favorable view (if they entertain it) of their consistency with the principles of the matrimonial contract." Mortimer v. Mortimer, 2 Hagg. Consist. 310, 318. In 1821 a bill in equity was brought for the cancellation of separation deeds upon the ground that they were contrary to the policy of the law and void. The bill was dismissed for the reason that, if the plaintiff's contention was sound, it was as good a defense to the deed at law as in equity. Lord Eldon, again considering the question at some length, said: "I perceive that it seems to have struck every one as extraordinary that such deeds should ever have been supported. *

It has always seemed to me very difficult to hold these deeds legal. It seems to be admitted that a mere agreement to live separate is one that would not be deemed valid; and it seems strange, as Sir William Grant observes, that, if the pri

exchequer, said: "The question is not what the law ought to be, but what it is; and the opinions of judges, however great and learned, are not to be put in competition with decisions determining the point and settling the law." Baron Graham said: "The language of regret is certainly found to be used by many of the judges; but the law is clearly established, and such demands have been constantly enforced." Notwithstanding this declared confidence in the settled state of the law, the chief baron also said that the case involved "a grave question, of too great importance to be disposed of on demurrer." Ros v. Willoughby, 10 Price, 2, decided in 1822. Cases following soon after this held that separation deeds are valid, so far as they relate to an annuity for the wife (Jee v. Thurlow [1824], 2 Barn. & C. 547; Wilson v. Mushett [1832], 3 Barn. & Adol. 743); but invalid if the separation does not take place until a future day. Hindley v. Westmeath (1827), 6 Barn. & C. 200. In 1835 the question first came before the house of lords. A Scotch nobleman had obtained a divorce from his wife in the courts of that country, and one question was whether the wife was within the jurisdiction of the court, and duly served with process. The decision turned upon the fact as to her residence, and, as she was living apart from her husband under a separation agreement, it was argued that she was no longer domiciled where he was. In speaking of the agreement, Lord Brougham said: "What is the legal value or force of this kind of agreement in our law? Absolutely none whatever, in any court whatever, for any purpose whatever, save and except only one,-the obligation contracted by the husband with trustees to pay certain sums to the wife, the cestui que trust. In no other point of view is any effect given by our jurisprudence, either at law or in equity, to such a contract. No damages can be recovered for its breach; no specific performance of its articles can be decreed. No court, civil or consistorial, can take notice of its existence. So far has the legal presumption of cohabitation been carried by the common-law courts that the most formal separation can only be given in mitigation of damages, and not at all as an answer to an action for criminal conversation, the ground of which is the alleged loss of comfort in the wife's society; and all the evidence that can be adduced of the wife's living apart, and all the instruments that can be produced binding the husband to suffer the separate residence of his wife,-nay, even when he has for himself stipulated for her living apart,

488, 527, 561. In the same year the case of Waite v. Jones, 1 Bing. N. C. 656, was decided in the court of common pleas. The plaintiff sued for money agreed to be paid in consideration of his executing a deed of separation from his wife. The defense was that the promise to execute the deed was illegal, and vitiated the whole agreement. The court held that agreements for future separation, or promises of payments to induce the same, are illegal; but that an agreement for a present separation may be valid. It was admitted that a promise to separate, in consideration of a sum of money, was not binding; but this agreement was upheld because it might be inferred that the separation had already taken place, and it did not affirmatively appear that this promise induced such action. Upon appeal to the exchequer chamber, the decision was affirmed by a divided court. Lord Denman, C. J., dissenting, disapproved of separation deeds, and said: "If I could venture to lay down the principle which alone seems to be safely deducible from all these cases, it is this: That when a husband has by his deed acknowledged his wife to have a just cause of separation from him, and has covenanted with her natural friends to allow her a maintenance during separation on being relieved from liability to her debts, he shall not be allowed to impeach the validity of that covenant." Jones v. Waite, 5 Bing. N. C. 341. The judgment was affirmed in the house of lords, and the contract was upheld in a brief opinion. Jones v. Waite (1842), 4 Man. & G. 1104.

From this time on it seems to have been the law of England that such contracts are enforceable except as to the one provision, which is of their essence. Courts accepted the rule, while acknowledging the lack of reason for it. "It is in vain to regret the perplexities in which courts have found themselves involved by enforcing the minor and auxiliary parts of the agreement to separate, while they profess to repudiate the principal and essential part and motive of it." Frampton v. Frampton (1841), 4 Beav. 287, 293. In 1848 the house of lords held unequivocally that a separation agreement is a valid contract, and specific performance of the covenants of the deed was decreed. Wilson v. Wilson, 1 H. L. Cas. 538. The case goes solely upon the ground of recent decisions, admitting that the holding is opposed to earlier precedents. The deed was made to settle the wife's suit for nullity in the ecclesiastical court, and the case might have been distinguished on that ground. Shortly after this Lord Romilly,

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