adultery, a court of equity will lend her no aid for obtaining a separate maintenance. (e) So the court refused to decree maintenance where the husband and wife lived separate by mutual consent, and there was no evidence of any cruelty on the part of the husband, and who had before marriage settled part of her property upon her.(ƒ) (e) Bullock v. Menzies, 4 Ves. 798; ante, p. 421. (f) Duncan v. Duncan, Coop. C. C. 254; 19 Ves. 394. *CHAPTER VI. [ *608 ] OF VOLUNTARY SEPARATION BETWEEN HUSBAND AND WIFE, AND MATTERS INCIDENT THERETO. SECT. 1. Of Deeds of Separation 608 2. Of the Interference of Courts of Equity in enforcing Agreement for Separation 631 3. Of the Husband's Liability to Debts contracted by the Wife 4. Of the Liability of the Wife's separate Maintenance to Debts contracted by her ration 6. Of the Right to the Custody of Children 7. Of the Legitimacy of Children born during a Separation SECT. I.-OF DEEDS OF SEPARATION. 639 657 667 677 706 Validity of Deeds of Separation established.]-For some time a doctrine prevailed in the courts of law that a man and his wife might by agreement make themselves separate persons to all intents and purposes, (a) but it is now settled that a husband and wife cannot by agreement between themselves change their legal capacities and characters resulting from the state of marriage while it subsists.(b) There are many cases in which by agreement a married woman is, for some purposes, placed in the situation of a feme sole; as where she has pin-money, or a separate provision, either secured at marriage, or arising from the bounty of a friend or relation. There is no doubt that a woman before marriage may contract for those rights, though it may be considered doubtful whether it be likely to promote domestic happiness.(c) A bequest of an allowance to a feme covert upon condi[ *609 ] tion *that she lived apart from her husband was held void, as being contra bonos mores. (d) And Lord Eldon is reported to have said, it may be a question if a relation or stranger gives a married woman an annuity on condition of her living separate from her husband, whether it would be good; and if not, the question arises whether the husband and wife can make a contract, the effect of which is the same.(e) (a) Corbet v. Poelnitz, 1 T. R. 5; see 1 Dow & Clark, 543. (b) Marshall v. Rutton, 8 T. R. 545. SEPTEMBER, 1841.—2 F (c) Jac. 137. (d) Brown v. Peck, 1 Eden, 140. In Watkyns v. Watkyns,(s) where the husband was gone abroad, and left his wife unprovided for, the court laid hands on the fund which was in the power of the *court, and directed payment of [ *606 ] the interest to the wife until the husband returned, and maintained her as he ought. And where the husband had, after a sentence for alimony in the ecclesiastical court, made over his whole estate to trustees, and then went to the West Indies, the court, upon a bill brought by the wife against the trustees, directed them to pay her a considerable maintenance out of the trust estate, whilst the husband resided abroad.(t) Notwithstanding the wife's equity to have her own life interest applied for her benefit, where it has not been reduced into possession by the husband, the wife will not be entitled to the whole dividends as against an assignment by the husband; but the sum will be ordered to be paid to her during the absence of her husband. If there be no evidence of the wife being left unprovided for, an inquiry will be directed whether the husband lives abroad, and has made no provision for his wife. (u) So advances to a married woman for her maintenance, who was deserted by her husband, on the credit of her fund in court, which exceeded the income of the fund, were ordered to be reimbursed out of the capital.(x) There are instances in bankruptcy of allowing the whole of the wife's life-interest to her;(y) but in subsequent cases it has been held that the assignees of the bankrupt husband were entitled to the lifeinterest of the wife, subject only to the equity, requiring some provision for her out of that interest.(z) A divorce obtained by a wife against her husband on the ground of adultery and ill-treatment, after his bankruptcy, does not entitle her in equity to the whole of a fund bequeathed to her, which came into possession after the bankruptcy, although no settlement was made upon her at her marriage, and her husband at that time received 1500l. stock in her right; but a reference was made for approving a proper settlement on the wife. (a) *The situation of an insolvent is very different from that [ *607 ] of a bankrupt, as the whole of his after-acquired property will go to his creditors; therefore the court ordered the whole of the money in court belonging to a married woman, whose husband had taken advantage of the insolvent act, to be applied for the benefit of her and her children. (b) But money in court belonging to a married woman, if less than 2007. (which is the lowest sum for which the court gives the wife the benefit of an equity for a settlement,) will be ordered to be paid to the husband, though she has been deserted by him, and opposes the petition. (c) Equitable relief will not be granted to the wife, who has other sufficient means of support secured to her.(d) But where a woman leaves her husband without any justifiable cause, and he is willing to support her; or where she elopes, and lives in (8) 2 Atk. 96. 98; Sleech v. Thorington, 2 Vcs. sen. 560. (t) Head v. Head, 3 Atk. 295. 550. (z) Prior v. Hill, 4 Br. C. C. 139; Oswell ib. 607; Brown v. Clark, 3 Ves. 166; Lamb v. Milnes, 5 Ves. 517; Wright v. Morley, 11 Ves. 21. (a) Green v. Otte, 1 Sim. & Stu. 250. (b) Brett v. Greenwell, 3 Y. & Coll. 230. (c) Foden v. Finney, 4 Russ. 428; 1 Jac. & W. 69. (d) Aguilar v. Aguilar, 5 Madd. 414. adultery, a court of equity will lend her no aid for obtaining a separate maintenance.(e) So the court refused to decree maintenance where the husband and wife lived separate by mutual consent, and there was no evidence of any cruelty on the part of the husband, and who had before marriage settled part of her property upon her.(ƒ) (e) Bullock v. Menzies, 4 Ves. 798; ante, p. 421. (f) Duncan v. Duncan, Coop. C. C. 254 ; 19 Ves. 394. *CHAPTER VI. [ *608 ] OF VOLUNTARY SEPARATION BETWEEN HUSBAND AND WIFE, AND MATTERS INCIDENT THERETO. SECT. 1. Of Deeds of Separation 2. Of the Interference of Courts of Equity in enforcing Agreement for Separation ration 6. Of the Right to the Custody of Children 7. Of the Legitimacy of Children born during a Separation SECT. I.-OF DEEDS OF SEPARATION. 608 631 639 657 667 677 706 Validity of Deeds of Separation established.]-For some time a doctrine prevailed in the courts of law that a man and his wife might by agreement make themselves separate persons to all intents and purposes, (a) but it is now settled that a husband and wife cannot by agreement between themselves change their legal capacities and characters resulting from the state of marriage while it subsists.(b) There are many cases in which by agreement a married woman is, for some purposes, placed in the situation of a feme sole; as where she has pin-money, or a separate provision, either secured at marriage, or arising from the bounty of a friend or relation. There is no doubt that a woman before marriage may contract for those rights, though it may be considered doubtful whether it be likely to promote domestic happiness.(c) A bequest of an allowance to a feme covert upon condi[ *609 ] tion *that she lived apart from her husband was held void, as being contra bonos mores. (d) And Lord Eldon is reported to have said, it may be a question if a relation or stranger gives a married woman an annuity on condition of her living separate from her husband, whether it would be good; and if not, the question arises whether the husband and wife can make a contract, the effect of which is the same.(e) (a) Corbet v. Poelnitz, 1 T. R. 5; see 1 Dow & Clark, 543. (b) Marshall v. Rutton, 8 T. R. 545. SEPTEMBER, 1841.—2 F (c) Jac. 137. (d) Brown v. Peck, 1 Eden, 140. Deeds of separation have been regarded in an unfavourable light both in courts of law and equity, and questions frequently arise with respect to the validity and effect of such deeds. Many decisions have established that deeds for the separation of married persons may be valid and effectual for some purposes, both at law(f) and in equity.(g) Provided their object be an actual and immediate, and not a contingent or future separation. The highest authorities have frequently asserted that deeds of separation are at variance with the policy of the law. Many of the judges who have given effect to such deeds for any purpose have expressly declared that they adopted them to that extent with reluctance, and would have paused if the question had been new. Lord Eldon expressed himself to that effect in several cases,(h) and on the last occasion when the subject was discussed by his lordship, he said, "according to the law of this country marriage is an indissoluble contract. It can only be dissolved a vinculo matrimonii by the legislature; and that contract once entered into imposes upon the husband and wife, both, with respect to themselves and with respect to their offspring, most important and sacred duties; so important and so sacred, that it does seem a little astonishing that it ever should have happened that it should be thought they could, by a mutual agreement between themselves, destroy all the duties they owe to each other, and all the duties they owe to their offspring. I do not go through what has been stated in a great variety of cases upon the [ *610 ] *subject, nor do I refer to them for any other purpose than that of stating that which I think can admit of no contradiction, that it is impossible for any person to read the judgments I have had the honour to pronounce upon the subject, without seeing that I never could originally have been a party to any such doctrine. But when decision followed decision; when men whose professional knowledge, whose talents and whose abilities I was bound not only to respect but to revere, had so often, in courts of law, stated doctrines to which I could not agree, it seemed to me a most improper thing that I should take upon myself to say that those doctrines were wrong without putting the matter into the most solemn course of inquiry; and I believe it will be found, if your lordships look at the judgments to which I am referring, that I was always exceedingly anxious that a case of this important nature should be brought before the house of lords."(i) Bayley, J. said,(k) as to the general question with respect to the validity of such deeds, that he was of opinion, that as it has for so long a period of time been the system of jurisprudence to hold such deeds valid, it is not for this court to entertain the question that has been proposed. If any alteration is to be made in the law as now understood, it must be by a decision of the house of lords, or by an act of the legislature. (f) Lister's case, 8 Mod. 22; Rex v. Mead, 1 Burr. 542. (g) Ozenden v. Oxenden, 2 Vern. 493; Nicholls v. Danvers, ib. 671; Williams v. Callow, ib. 752. h) Beard v. Webb, 2 Bos. & P. 93; St. John v. St. John, 11 Ves. 526; Westmeath v. (i) Westmeath v. Salisbury, 5 Bligh, N. S. 339; 1 Dow & Clark, 544. (k) Jee v. Thurlow, 2 B. & C. 552. From the incapacity of a married woman to contract or to possess personal property which may be the subject of contract, men and their wives desirous of living separate have found it necessary to have recourse to the intervention of trustees, in whom the property, of which it is intended she shall have the disposition, may vest uncontrolled by the rights of the husband, and with whom he may contract for her benefit.(7) Deeds providing for future Separation are void.]-A deed made for the future separation of the husband and wife is void. In Durant v. Titley (m) by a deed between the husband and wife of the one part, and a trustee of the other *part, after reciting the marriage [ *611 ] and subsisting differences, the husband covenanted with the trustee to pay an annuity during the joint lives of the husband and wife in case she should live separate and apart from her husband, and should take one of her children by her said husband to live with her, and it was further agreed that it should be lawful for her, whenever she should live apart from her husband, to take any one of her children by her husband which she should fix upon, to reside and live with her, except the eldest. The husband and wife lived together for seven years after the execution of the deed, and at the end of that time the wife, without the consent and against the will of her husband, left him, and continued to live apart. In an action of covenant by the trustee against the husband the deed was held to be void, on the ground that it was made in contemplation of a future separation at the pleasure of the wife, and therefore contrary to the policy of marriage. The grounds of the decision are not given by the reporter, but the objections taken to the action were, first, that the deed being made in contemplation of a future separation at the pleasure of the wife, it was contrary to the policy of marriage and void in law; secondly, that as the deed contemplated a separation in the state in which the family then was, and provided a maintenance for the wife and one of the then existing children, it did not therefore apply to the event which had happened, of the wife leaving her husband and taking with her an after-born child. Lord Tenterden said(n), "the judges who decided the case of Durant v. Titley did not intend to shake any former decision. They thought it different from all the former cases, inasmuch as the deed provided for the future separation of the husband and wife, who at the time of making the deed were living together." Where parties execute a deed by which they agree to separate from each other, but at the same time it is stipulated between them verbally that they shall continue to live together, and they do in fact continue to live together after that *deed has been exe[ *612 ] cuted, in pursuance of that agreement residing in the same house, although they may not cohabit together as husband and wife, under such circumstances such a deed cannot in point of law be sustained.(o) (2) 8 T. R. 547. (m) 7 Price, 577. (n) Jee v. Thurlow, 2 B. & C. 551. (0) Hindley v. Westmeath, 6 B. & C. 200; Westmeath v. Salisbury, 5 Bligh, N. S. 395. |