HOLLINGSWORTH MAGNIAC AND OTHERS, PLAINTIFFS IN ERROR V. JOHN R. THOMPSON.

The whole charge of the circuit court was brought up with the record. By the court. This is a practice which this court have uniformly discountenanced, and which the court trusts a rule made at last term will effectually suppress.

This court have nothing to do with comments of the judge of the circuit court upon the evidence. The case of Carver v. Jackson, 4 Peters, 80, 81, cited upon this point.

The question now before the court is, whether the charge to the jury in the circuit court contains any erroneous statement of the law. In examining it for the purpose of ascertaining its correctness, the whole scope and bearing of it must be taken together. It is wholly inadmissible to take up single and detached passages, and to decide upon them without attending to the context, or without incorporating such qualifications and explanations as naturally flow from the language of other parts of the charge. The whole is to be construed as it must have been understood, both by the court and the jury, at the time it was delivered. Upon principle and authority, to make an antenuptial 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 intend a fraud, and the other party have no notice of it, but is innocent 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 is a consideration of the highest value, and from motives of the soundest policy, is upheld with a strong 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, and without notice of fraud, brought home to both sides, it becomes unimpeachable by creditors.

Fraud may be imputed to the parties, either by direct co-operation in the original design, at the time of its concoction, or by constructive co-operation from notice of it, and carrying the design upon such notice into operation.

Among creditors equally meritorious, a debtor may conscientiously prefer one to another; and it can make no difference that the preferred creditor is his own wife.

Marriage articles or settlements are not required by the laws of New Jersey to be recorded, but only conveyances of real estate: and as to conveyances of real estate, the omission to record them avoids them only as to purchasers and creditors, leaving them in full force between the parties.

[Magniac and others v. Thompson.]

ERROR to the circuit court of the United States for the eastern district of Pennsylvania.

In the circuit court of Pennsylvania, at October sessions 1826, a feigned issue was made up between the plaintiffs and the defendant, to try the question of the ability of the defendant to pay a debt acknowledged to be due to the plaintiffs, and for which judgments had been obtained in their favour. The competency of the defendant to satisfy the debt, depended on the validity of a certain marriage settlement, made in contemplation of marriage between the defendant and Miss Annis Stockton, daughter of Richard Stockton, Esq., late of New Jersey, to which instrument Mr Stockton was a party, he being, by its provisions, the trustee of his daughter. The marriage settlement was as follows:

"Articles of agreement and covenant made and executed this nineteenth day of December, in the year of our Lord one thousand eight hundred and twenty-five, by and between John R. Thompson, Esq., late of the city of Philadelphia, of the first part, Annis Stockton, daughter of Richard Stockton, Esq., of the second part, and Richard Stockton, of the county of Somerset and state of New Jersey, father and trustee of the said Annis Stockton, of the third part.

"Whereas a marriage is intended to be shortly had and solemnized between the said John R. Thompson and the said Annis Stockton; and whereas the said Richard Stockton has promised to give unto his said daughter a certain lot or tract of land, belonging to him, situate in the county of Middlesex and state of New Jersey, directly opposite the mansion house of the said 'Richard Stockton, between the old road to Trenton and the turnpike road, which consists of between four and five acres of land, be the same more or less, and is bounded on the north and south by the said roads, on the west by lands of Dr John Vanclave, and the east by a line to be run from the north east corner of the garden now in the possession of Mrs Abigail Field, to the said turnpike road, upon which said lot the said John R. Thompson has begun to build a house. Now, it is hereby agreed between the parties aforesaid, and the said Richard Stockton, for himself and his heirs, doth hereby covenant and agree to and with the parties of the first and second

[Magniac and others v. Thompson.]

parts, their heirs, executors, and administrators, in consideration of the said marriage, and of the love and natural affection he hath for his said daughter, that from the time of, and immediately after, the said marriage shall be solemnized, he, the said Richard Stockton, shall and will stand seised of the said lot and premises, and of all and singular the buildings and improvements which shall be erected and made thereon by the said party of the first part, to uses, trusts, and purposes hereinafter mentioned, and to none other, that is to say: in trust to permit the said John R. Thompson, and Annis his wife, during the time of their joint lives, to possess, live in, and occupy the said lot, house, and premises, with the appurtenances, free and clear of all demands; and in case the said parties of the first and second parts do not think proper to inhabit and reside in the said premises, that he, the said Richard Stockton, will let out upon lease the said premises, and receive the rents, issues and profits thereof, and pay over the same to the said Annis, party of the second, during the joint lives of the parties of the first and second parts. And if the said John R. Thompson should survive the said Annis Stockton and have issue by her, then in trust to permit the said John R. Thompson, during his life, to inhabit and occupy the said premises, if he elect so to do, free and clear as aforesaid, and pay over the said rents and profits, as he shall receive the same, to the said John R. Thompson, for the maintenance and support of him and his family, without he, the said John R. Thompson, being at any time thereafter accountable to any person or persons for the said rents and profits. And after the death of the said John R. Thompson, in trust for the child or children of the said marriage, in equal shares as tenants in common, in fee simple; and if there shall be no child or children of the said marriage, then, upon the death of either of the said parties of the first and second parts, in trust to convey the said premises to the survivor in fee simple. And the said John R. Thompson, for himself, his heirs, executors and administrators, doth covenant and agree to and with the parties of the second and third parts, that if the said marriage shall take effect, and in consideration thereof, he will, with all convenient speed, build and furnish the said house in a suitable manner, as he shall judge fit and

[Magniac and others v. Thompson.]

proper; and that the said erections, improvements and furniture, together with the changes and additions which shall be from time to time made, shall be subject to and included in the said trusts, as far as the same are applicable to each species of property. And further, that he will, in the space of one year from the time the said marriage shall take effect, place out on good security, in stock, or otherwise, the sum of forty thousand dollars, and hand over and assign the evidences thereof to the said party of the third part, who shall hold the same in trust to receive the interest, profits, or dividends thereon, as they shall from time to time arise, to the said party of the second part during the joint lives of the parties of the first and second parts, and that her receipts for the same, and also for what may be produced under the before mentioned trusts, shall be good and valid, notwithstanding her coverture. If the said party of the second part should die before the said party of the first part, and there should be issue of the said marriage, then in trust to receive the said interest, profits and dividends, and pay the same over from time to time to the said party of the first part, during his life, for the support of himself, and the maintenance and education of his children, without his being subject to any account as aforesaid; and after his death, in trust for any child or children of the said marriage in equal shares; and if the said Annis should survive the said John, and there be issue of the said marriage, then to pay over the same to the said Annis, during her life, for her maintenance, and the support and education of the said children, and without her being liable to any account for the same; and after her death, in trust for the child or children of the said marriage in equal shares; and if there shall be no child or children of the said marriage, then upon the death of the said John R. Thompson, or Annis his wife, in trust, to assign and deliver the said securities, and all moneys remaining due, to the one who shall survive, to his or her own uses. And it is further agreed and covenanted by and between the parties aforesaid, that it may be lawful for the said John R. Thompson to act as the agent of the parties aforesaid, in all the måtters aforesaid, by the permission and under the control, if need be, of the said trustee, and to change, and from time to time alter the said

[Magniac and others v. Thompson.]

securities, as occasion may require, and take new securities in their stead, so as that the fund as aforesaid settled shall always be kept good. And it is also hereby further agreed and covenanted by and between all the said parties, that the said trustee shall not be held guity of breach of trust, although he does not act personally in the premises, unless he be expressly desired and requested so to do by one of the other parties hereto, or those claiming under them; and that he shall not in any manner be held liable as trustee, unless for acts of wilful neglect or misconduct."

The plaintiffs and the defendant were merchants residing in Canton, in China, previous to the 25th of March 1825, when the defendant returned to the United States, leaving an agent, Rodney Fisher, in Canton, with full powers to transact his business, and to bind him by commercial contracts, and who was introduced to the plaintiffs as his agent by the defendant. Very large loans were made to the agent of the defendant by the plaintiffs, which were employed in loading the vessels of Edward Thompson; the goods being pledged to pay the loans at Philadelphia, and the shipments so made being for the use of Edward Thompson. Edward Thompson was without credit or friends in Canton, and the credit of his son John R. Thompson was thus employed by his agent to load the ships; the defendant's compensation consisting of the commissions on the transactions.

On the 22d of November 1825, Mr Fisher, as the agent of the defendant, borrowed of the plaintiffs thirty thousand dollars on the pledge of an invoice of goods valued at about fortytwo thousand dollars; and on the 2d of December 1825, thirtythree thousand dollars more were borrowed on the pledge of another invoice valued at upwards of forty-four thousand dollars, together exceeding more than sixty-three thousand dollars on pledges of goods exceeding, in invoice amount, eighty-six thousand dollars.

Besides these loans, the defendant obtained others in China, where he also owed some other debts, inconsiderable in amount, and after his return home, he signed his father's respondentia bonds for two hundred thousand dollars. On all these loans and respondentia, there were large sums lost: the goods pledged