though the facts which might thereby be brought to light should be supposed important to the interests of others. In general, where the statute law has cut away all barriers to the giving of evidence, and allowed even the party accused of crime to testify in his own behalf, it has not gone so far as to permit either husband or wife to testify against the other, except by mutual consent, deeming it better that justice should sometimes fail for want of evidence, than that the family confidences should be laid bare to the public, or the conscience of the spouse be exposed to the temptation to conceal or prevaricate where the truth might be damaging. Nevertheless, the law does not undertake to enforce the observance of the marital confidence as between the parties themselves, but trusts it to their own sense of what is decent and proper. If this does not in all cases afford protection against the exposure to public gaze and derision of those confidences which should be held sacred, no legal redress is possible that would not introduce greater evils than it could cure.

The common law supposed the wife to be largely under the coercion of the husband; and though this, so far as her property interests are concerned, is no longer a legal presumption, still the existence of some degree of marital influence may always be supposed; and if the husband is inclined to deal unfairly with his wife, this influence, and the confidence begotten of the relation, will give him special facilities for the purpose. This relation is consequently of high importance when fraud or unfair dealing by the husband with the wife's interests is alleged, and may justly call upon the courts to criticise closely their negotiations.' "The law certainly does not prevent persons in this confidential relation from doing, without urgency, of their own accord, and under the natural impulses of kindness and affection, such generous acts as are the results of mutual confidence and good will. But the same principle which encourages confidence protects it by preventing any profit to be gained from abusing it. The law recognizes the fact that a married woman is easily subjected to a species of coercion, very much more effectual than any ordinary operation of fear or fraud from strangers. It has always

1 "They will not be upheld where there is even slight evidence of fraud or undue influence." Reagan's Admr. v. Hollimau, 34 Tex. 403, 410. Same

effect. Hon v. Hon, 70 Ind. 135; Darlington's Appeal 86 Penn. St. 512; Boyd v. De La Montagnie, 73 N. Y. 498.

been *found necessary to examine jealously into all tran- [*510] sactions whereby the husband gets an advantage over his

wife, not plainly spontaneous on her part. Any undue advantage gained by the use of the marital relation is a legal fraud on the wife which courts of equity will not allow to stand to her prejudice." And where the statutes permit the wife to bring suit at law against the husband, she may seek a remedy in that forum when the facts will justify it. But as the remedy in equity would commonly be more complete and suitable, we need say only, what has been said in another connection, that when the wife sues her husband for an injury to her property, she makes out her right of action on the principles which would support one against any other person, and the relation is important only as it has furnished the facilities for accomplishing the wrong complained of. It often happens that the husband, by the acquiescence, rather than by the express employment, of the wife, becomes her agent for the management of her property, and he acquires a knowledge of its condition, circumstances and value greater than she is likely to possess, and which in many cases he might easily use for his own advantage if dishonestly inclined. Such a case is one where he may justly be held under strictest obligation not to abuse the confidence reposed.'

Parties Engaged to Marry. The contract of marriage establishes a confidential relation between the parties but little less intimate than that of marriage itself, and almost equally susceptible of being taken advantage of for the purposes of fraud. The most serious fraud accomplished in this relation is that of seduction. In Morton v. Fenn it was urged, before Lord MANSFIELD, that the woman was entitled to no redress for this wrong, because the parties were in pari delicto; but he very justly said that if the woman's consent was obtained by means of the promise

Witbeck . Witbeck, 25 Mich. 439, 442. In Tapley v. Tapley, 10 Minn. 448, it was held that threats by the husband to separate from his wife, accompanied by general abusive treatment, constitute such duress as will avoid a deed executed by her under an apprehension that they will be carried into effect. On the other

hand a transfer by the husband of all his property to his adulterous wife has been set aside in favor of his heirs, Warlick v. White, 86 N. C. 139.

2 Schoul. Dom Rel. 286; 2 Bishop, Law of Married Women, Ch. 35.

3 In such case gifts by the wife to the husband are closely scrutinized. Farmer v. Farmer, 39 N. J. Eq. 211.

of marriage, which the man did not intend to fulfill, "this was a cheat on the part of the man.” 1 So it was said in an [*511] early *case by Chief Justice PARSONS, that "damages are recoverable for breach of a promise of marriage, and if seduction has been practiced under color of that promise, the jury will undoubtedly consider it as an aggravation of the damages." The same doctrine has since been more authoritatively declared in that State, and also in several others."

Says CAMPBELL, J.: "The seduction which is allowed to be proven in these cases is brought about in reliance upon the contract, and is itself in no very indirect way a breach of its implied conditions. Such an engagement brings the parties necessarily into very intimate and confidential relations, and the advantage taken of those relations by the seducer is as plain a breach of trust in all its essential features as any advantage gained by a trustee or guardian or confidential adviser, who cheats a confiding ward or beneficiary or client into a losing bargain. It only dif fers from ordinary breaches of trust in being more heinons. A subsequent refusal to marry the person whose confidence has been thus deceived cannot fail to be aggravated in fact by the sednetion. The contract is twice broken. The result of an ordinary breach of promise is the loss of the alliance and the mortification and pain consequent on the rejection. But in the case of seduetion there is added to this the loss of character and social position, and not only a deeper shame and sorrow, but a darkened future. All of these spring directly and naturally from the bro

Morton . Fenn, 3 Doug. 211. There was no decision of the case by the court in bank.

2 Paul v. Frazier, 3 Mass. 71, 73. See Boynton v. Kellogg, 3 Mass. 189; Sherman v. Rawson, 102 Mass. 395.

3 Kelly v. Riley, 106 Mass. 339; S. C. 8 Am. Rep. 336; Conn v. Wilson, 2 Overton, 233; Goodall v. Thurman, 1 Head, 209; Williams v. Hollingsworth, 6 Bax. 12; Whalen v. Lay. man, 2 Blackf. 194; King v. Kersey, 2 Ind. 402; Wilds v. Bogan, 57 Ind. 483; Kurtz . Frank, 76 Ind. 594; Green v. Spencer, 3 Mo. 225; Matthews v. Cribbett, 11 Ohio, (N. s.)330;

Wells. Padgett, 8 Barb. 323; Sheahan o. Barry, 27 Mich. 217; Bennett v. Beam, 42 Mich. 346; Giese t. Schultz, 53 Wis. 462. An infant is not liable for breach of promise though the woman is seduced under it. Leichtweiss v. Treskow, 21 Hun. 487. The action will lie, though the defendant, the plaintiff not knowing the fact, was married at the time. Kelly v. Riley, supra. An action for fraud will lie against a married man for engaging himself as unmarried although there is no seduction. Pollock v. Sullivan, 53 Vt. 507.

ken obligation. The contract involves protection and respect, as well as affection, and is violated by the seduction, as it is by the refusal to marry. A subsequent marriage condones the first wrong, but a refusal to marry makes the seduction a very grievons element of injury that cannot be lost sight of in any view of justice." 1

In Kentucky and Pennsylvania this doctrine has not found favor, and the woman's complaint of the seduction is put aside on the ground that she was in pari delicto." "Il- [*512] llicit intercourse," it is said, "is an act of mutual imprudence, and the law makes no distinction between the sexes as to the comparative infirmity of their common nature. A woman is not seduced against her consent, however basely it be obtained, and the maxim volenti non fit injuria is as applicable to her as to a husband, whose consent to his own dishonor bars his action. for criminal conversation." But between the case of a husband consenting to the dishonor of his bed and that of a woman cheated by a deceptive engagement to marry into a surrender of her chastity there does not seem to be any such analogy as to make the legal rules which should govern the one throw light upon the other. The one instinctively excites disgust, and the other compassion. One party assents from motives that can only be low and vile, the other is the victim of perfidy. It is true there is consent, but so there is in other cases of fraud; for it is by obtaining consent that frauds are accomplished.'

1 Sheahan v. Barry, 27 Mich. 217, 220.

* Burks v. Shain, 2 Bibb, 341; Weaver v. Bachert, 2 Penn. St. 80.

GIBSON, Ch. J., in Weaver . Bachert, 2 Penn. St. 80 And, see Baldy . Stratton, 11 Penn. St. 316. If the promise is to marry if the woman yields she cannot recover for seduction. Hanks v. Naglee, 54 Cal. 51.

The bad character of the plaintiff, following the seduction in such a case, is no defense, either total or partial. Boynton . Kellogg, 3 Mass. 189; Conn . Wilson, 2 Overt. 233.

Where the statute gives the woman an action for the seduction, she cannot

give this in evidence in an action for breach of promise to marry, unless it is set up in the declaration. Cates v. McKinney, 48 Ind. 562; Perkins . Hersey, 1 R. I. 493.

If the seduction preceded the promise of marriage instead of following it, it cannot be given in evidence by way of aggravation Espy v. Jones, 37 Ala. 379. If after seducing a woman one fraudulently conveys his property, marries and deserts her, she is entitled in divorce proceedings to have the conveyance set aside as a fraudulent attempt to prevent recovery for the seduction. Bishop . Redmond, 83 Ind. 157.

The confidence of this relation may also be abused through such secret conveyances of one of the parties as would materially diminish the rights in property which the other had reason to expect he or she would acquire by the marriage. While neither of the parties has any claim to have all the business transactions of the other made known, they are both entitled to a fair disclosure of such dealings as are expressly designed to affect their own interests. The rule of law on the subject may be stated as follows: Where either party to the contract of marriage secretly conveys away his or her property, or any considerable portion thereof, with intent to defraud the other of such rights therein as, but for the conveyance, would be acquired by the marriage, this, if not discovered until after the marriage takes place, [*513] will be treated in equity as a fraud upon the other, and such relief will be given as the circumstances of the case will admit of, and as may be found suitable.' The suitable relief will be that which gives to the party defrauded an equivalent for that which is lost; but this must vary as the cases differ. If, however the intended deceit is discovered before the marriage takes place, the party is put to an election, either to withdraw from the engagement because of the fraudulent change in cir cumstances, or to consummate the marriage, thereby waiving the objection. There can, of course, be no fraud if the facts are discovered in season to withdraw from the contemplated relation."

1 England v. Downs, 2 Beav. 522; Strathmore . Bowes, 1 Ves. 22; Linker . Smith, 4 Wash. C. C. 224; Tucker v. Andrews, 13 Me. 124; Logan. Simmons, 3 Ired. Eq. 487; Johnson v. Peterson, 6 Jones' Eq. 12; Poston. Gillespie, 5 Jones' Eq. 258; Spencer v. Spencer, 3 Jones' Eq. 404; Duncan's Appeal, 43 Penn. St. 67; Robinson . Buck, 71 Penn. St. 386; Ramsay v. Joyce, 1 McMul. Eq. 236; Manes. Durant, 2 Rich. Eq. 404; Waller. Armistead, 2 Leigh, 11; Hobbs. Blandford, 7 T. B. Mon. 469; Leach v. Duvall, 8 Bush, 201; Williams. Carle, 2 Stock. Ch. 543; McAfee . Ferguson, 9 B. Mon. 475; Green v. Green, 34 Kan. 740.

See Smith v. Hines 10 Fla. 258. In Stratton. Stratton, 58 N, H. 473, it was held that the wife's grantee could not eject the husband where the arrangement was that the husband was to have a share of the produce for his life and he had improved the farm.

3 St. George v. Wake, 1 Myl. & K. 610.

4 St. George v. Wake, 1 Myl. & K. 610; Fletcher v. Ashley, 6 Grat. 332; Cheshire v. Payne, 16 B. Mon. 618; McClure v. Miller, Bailey Eq. 104; Terry v. Hopkins, Hill Eq. 1; Jordan v. Black, Meigs 142. If the conveyance had been made before the engagement to marry, though then un