case cotton v Luttrell Trinity term though a wife be a defendant and charge  with fraud and malpractice yet the evidence of the husband shall be admit  where the interest of a three person shall be concern see har   Litt b note  the plaintiff counsel object to the evidence of sir John Cheshire as his wife  be charge with fraud and malpractice as his testimony may be suppose to go in  favour of his lady by palliate and excuse her conduct in relation to the  procure her husband to be make a trustee of the whole legal estate under the  late Mr cotton settlement and beside if the court shall be of opinion she have  be guilty of a fraud she will be liable to cost and his evidence will be  favourable to her with respect to cost and will be in some measure against the  rule that a husband shall not be examine for or against his wife atkins Mr  fazakerley for the plaintiff insist that there be no case extant where the  rule lie down here ought more strong to prevail especial where there be such  clear evidence of fraud against lady Cheshire it can be dispute if she be  liable but that the husband where the wife be concern must be likewise liable  and that as every remainder to trustee to preserve contingent remainder be a  vest one or else will be bad sir John Cheshire be concern for if the court  shall determine in favour of the plaintiff he as have the legal estate must be  decree to convey the objection will hold still strong against lady cheshire  evidence because she be concern in interest in the event of the suit as she  may or may not be liable to cost accord as the court shall determine upon the  merit of the case the counsel for the defendant say the principal question be  suppose that sir John Cheshire ought not to be examine where the wife be  concern yet whether the evidence both of he and lady Cheshire shall not be  read as here be a three person who be great interest under the settlement of  Mr cotton and can produce no evidence so material as sir John cheshire who  have the frame and peruse of the whole conveyance the chief case rely upon for  the defendant be Terrel v holt where ware and Wilbraham trustee through the  whole estate sir John Cheshire be only a trustee to preserve contingent  remainder be charge with fraud and yet the court of king bench upon a issue of  fraud direct out of chancery admit they upon solemn debate to be examine Lord  chancellor the reason why person who at law be put into the simulcum be yet  admit as witness be that they may not be make party to a cause only to take  off their evidence but notwithstanding this if there be a strong evidence  against the simulcum man that he be sharing in sin the court will exclude he  from be a witness when this objection be first start I must confess I be very  doubIful whether the deposition of sir John Cheshire and lady Cheshire ought  to be read but upon the matter be full discuss I be of opinion that the  objection go only to their credit and not their competency as to lady Cheshire  the objection depend upon these consideration whether she have be proper make  a defendant now I will not say she have improper be make a defendant because  it be necessary in order to a discovery but it be improper she shall be bring  to a hear for she be no way concern in interest in the event atkins er p of  this suit as she be bare a agent for mrs Luttrel and consequent no decree can  be make against her I will not say but there may be a case where it be  necessary to bring such a person to hear as suppose a shall by fraud obtain a  conveyance for his own benefit where it ought to have be in trust only there  may be a decree against such a person atkins but this be a bill bring mere to  have a reconveyance from the person to who it be allege the estate be  fraudulent and illegal convey but if there be no decree against lady Cheshire  how be it possible that cost shall be give against her for if she be no way  concern in interest there can be no decree the consequence of this be that the  objection go only to her credit and not to her competency the next  consideration be as to sir John Cheshire and as I be of opinion that my lady  cheshire deposition shall be read the read his deposition be a consequence of  if for it will be very strange to reject his testimony when there be not the  least colour to say that the be concern in the fraud I do not know any case in  this court where a feme covert have be guilty of a fraud sole without the  husband and where he have no benefit at all from it that he shall suffer it  will be extreme hard to say that he shall pay cost I know of no precedent nor  do I believe the court will do it the deposition of sir John and lady Cheshire  read accord