This point was the subject of much discussion in the following case, in which, by a deed dated in 1817, after reciting that disputes had existed between the earl and his wife, and had arisen to such a height that they were on the point of separating and living apart, but by the intervention of mutual friends the wife had consented to cohabit with the husband after he had executed this deed, making such provision for their issue, and such provisional maintenance for the wife as thereinafter mentioned; it was witnessed that in consideration that the wife had consented to cohabit with the husband, he had covenanted with S. (a trustee) to convey estates to his use for the term of ninety-nine years. The trusts of this term were that in case it should unfortunately happen that the wife should find herself compelled to cease to live and cohabit with her husband, or to live separate and apart from him "that then and in such case the trustee should, during the joint lives of the husband and wife, raise out of the rents, or by sale or mortgage of the term, such clear annual sum as should then by the advice of their mutual friends be agreed upon to be a proper and sufficient sum for the separate maintenance of the wife. The husband also covenanted that on such separation so taking place as aforesaid, he would enter into such articles of separation as are usual in such cases, and necessary for the security and comfort of the wife. The deed contained no covenant by the trustee for indemnifying the husband against the debts of the wife. After the execution of this deed, the husband and wife continued to live together.

By an indenture in 1818, made between the husband and wife and trustees, after reciting that the husband at the desire of the wife had desired to live separate and apart from her, and to allow her a sepa rate maintenance, the husband demised the estate to trustees for a term to raise provisions for the wife and infant daughter; and the husband covenanted that the wife night live separate

[ *613 ] and apart from him and free from his authority and con

trol, &c. this deed contained no indemnity against debts. The parties continued to live in the same house although they slept in separate rooms, and met at board and appeared in the world as man and wife until June, 1819, when they finally separated.

In an action against the husband for goods sold and delivered to the wife whilst she was living apart from her husband against his will and contrary to his entreaties that she would return to his house, the court thought that it was impossible to contend that the first deed was valid, it being in terms like the deed in Durant v. Titley ;(p) and that the second deed, executed in August, 1818, was not intended to be accompanied by an immediate actual separation of the parties at the time it was executed, and that not being accompanied nor intended to be accompanied by such actual separation, it was not valid front the beginning, and that even if it had been valid at first, it had been avoided by what amounted to a subsequent reconciliation of the parties.(9)

In the year 1822, the trustees named in the deed of 1818, having distrained upon the tenants of the land charged with the annuity (p) Ante, p. 611.

(q) Hindley v. Westmeath, 6 B. & C. 200

secured to the wife, the husband filed a bill in the court of chancery in Ireland, praying that the deeds might be set aside and delivered up to be cancelled; it was decreed that the deed of 17th December, 1817, was void, so far as the wife or her trustee sought any benefit under it. As to the remainder of the suit, the bill was ordered to be retained for twelve months, with liberty for the parties to proceed at law as they might be advised. Neither of the parties having availed themselves of this liberty, the husband appealed to the house of lords. The lord chancellor and Lord Eldon were clearly of opinion that the deed of 1817, providing for a future separation, could not be supported. And it was finally declared that the deed of 1818, so far as the marchioness or her trustees sought any benefit under it, was void in law, and with this declaration the cause *was remitted to the court of chancery in Ireland, to do therein [ *614 ] as should be just and consistent with such declaration. (s)

A bill had been filed in the court of chancery in England against the marchioness and her children, and the trustees praying that the deeds might be delivered up to be cancelled, or that so much of them as provided a separate maintenance for the marchioness and for the children might be declared to be void, and an injunction in the mean time, the plaintiff being willing to live with and support his wife and children according to his means and station in life. The common injunction having issued, the order nisi was obtained upon the answers being filed, and no cause being shown, the injunction was dissolved. Lord Eldon, however, on a motion to revive the injunction, refused to do so, but left the parties to try the validity of the deeds at law.(t)

Future Separation, with Approbation of Trustees.]-In one case, a provision for the wife, in the event of a future separation from her husband, was supported, on the ground that the intervention of impartial persons was required to decide whether sufficient cause of separation did or did not exist.

In Lord Rodney v. Chambers,(u) certain annuities, to which the wife was entitled, were assigned to trustees upon certain trusts, and upon further trust, in case any separation should thereafter take place between the husband and wife, with the approbation of the truste's, then upon trust to pay the annuity to the separate use of the wife. The husband covenanted that in case future differences should arise between him and his wife, that she might live separate without his molestation. The husband also covenanted to pay an annuity to the trustees during his wife's life for her benefit, in the event of the determination of the annuity before assigned. A separation took place a few months after the execution of the deed, with the approbation of the trustees. In an action of covenant by the trustees for three quarters of the annuity covenanted to be paid by the husband, it was contended that the deed was void, inasmuch as it made provision for a future separation.

*But Lord Ellenborough, C. J. said, "the question which has been agitated appears to have been laid at rest

[ *615 ]

(8) Westmeath v. Salisbury, 5 Bligh, N. (t) Westmeath v. Westmeath, Jacob, 126.

S. 339; 1 Dow & Clark, 519.

(u) 2 East, 283.

for a long period, by repeated decisions and the uniform practice of the courts. If it were now a new question whether any contract could by law be made, which tended to facilitate the separation of husband and wife, I should have thought that it would have fallen in better with the general policy of the law to have prohibited any such contract; but they are now become inveterate in the law, and we cannot reject the present on that ground, without saying that all contracts which have the same tendency are vicious, which would extend, for aught I see, to provisions for pin money, or any other separate provision for the wife, which tends to render her independent of the support and protection of her husband." The covenant was held to be valid.

66

In Chambers v. Caulfield, (w) where the same deed was set up by the defendant in bar to an action for criminal conversation, Lawrence, J., one of the judges, who concurred in the former decision, observed, in that case there was an averment that the separation was with the consent of trustecs. We thought there was nothing illegal in the parties agreeing to refer the question, what was a good cause of separation, to a domestic forum, instead of applying to the ecclesiastical court for a divorce and alimony. The court therefore only decided in that case that a covenant for separation and separate maintenance, with the consent of the trustees, was good; not that a covenant was good generally that a wife might separate herself from her husband whenever she pleased, for that would be to make the husband tenant at will to the wife of his marital rights."

Bayley, J. said,(x) "In the case of Durant v. Titley the contract provided for the future separation at the will of the wife; it was offering a premium to her for leaving her husband. In Lord Rodney v. Chambers that objection did not apply, for the intervention of impartial persons was then required to decide whether sufficient cause of separation did or did not exist."

Lord Denman said (y) the case of Rodney v. Chambers [ *616 ] had received some severe shocks from the strictures of Lord Eldon in St. John v. St. John.(z) and must be considered as directly overturned by the King's Bench in Hindley v. Lord Westmeath, (a) though it is difficult to explain why a present separation is less contrary to public policy than the agreement to give effect to one, if rendered necessary by circumstances, at future time." It is observable however that in the last case the intervention of trustees was not required, and that the decision turned very much upon the subsequent reconciliation of the parties.

In one instance(b) a stipulation in a settlement made previously to

(w) 6 East, 252; see ante, p. 390.
(x) Jee v. Thurlow, 2 B. & C. 551.
(y) 7 Scott, 337.

(z) 11 Ves. 529.

(a) 6 B. & C. 200, ante, p. 613.

(b) Hoare v. Hoare, 2 Ridgway's P. C. in Ireland, 268. The wife was entitled for life to two annuities, amounting to 400., which before her marriage were vested in trustees, upon trust that if a separation should afterwards take place between her and her future husband at her instance, the

trustees should permit her to take to her sep-arate use a moiety of the annuities of 400l. during such separation, and should permit her husband to receive the other moiety; but that if a separation took place by his means, or at his instance, then that she should re ceive the whole of the 400l. annuities for her separate use during the marriage. It seems that a separation took place in conse. quence of the cruelty and misconduct of the husband; and a bill was filed by the wife in the Court of Chancery in Ireland to enjoin

marriage, making a provision for the wife in the event of a separation between her and her husband, was upheld by the Irish house of lords; but this case must now be considered erroneous,(c) and overruled by subsequent cases.

Consideration for Execution of Deed of Separation.]-An engagement to pay a sum of money as an inducement for a [ *617 ] *future separation of a man from his wife is contrary to law. But the execution of a deed of separation between a husband and his wife, which had previously been drawn up, is a legal consideration for a promise by a third party (a trustee) to pay money for which the husband was solely liable.(d) The facts, as they appeared upon the record, were these; that, by a deed of separation between the plaintiff and his wife, (not executed at the time the agreement in question was made,) he was to 'quit a house on a certain day; and that some annuity was mentioned in that deed, that afterwards by the written agreement, on which the action was brought, the time for quitting the house was extended; that the plaintiff agreed to pay certain household expenses and debts to which he was before liable; and that in consideration of such agreement, and of his executing the deed of separation, the defendant promised to pay certain sums towards the above-mentioned household expenses and debts. It was clear that for some reason (and the court would not presume an illegal one) a separation between the plaintiff and his wife had been determined upon, the terms of which had been reduced into writing; that the plaintiff for some reason or other not apparent, had not executed the deed, and that he was induced to execute it by the defendant's promise, which was in effect a promise to indemnify the plaintiff from, among other things a part of the by-gone household expenses at the house which the plaintiff was to quit. The court assumed the deed of separation to be legal, because no illegality was shown; and the defendant's promise was held to be legal, because it was not that the husband should separate from his wife, but that he should complete the instruments and arrangements of a separation previously determined upon.(e) Lords Abinger and Denman did not concur in the judgment, principally on the ground that prima facie deeds of separation are illegal, where no justifiable cause of separation is shown. And whether the court was at liberty or not to presume, in the

the husband from intermeddling with the annuities, and to restrain the trustees from paying any part of them to him, and praying that the trustees might pay the whole of the annuities to the wife under the above provision in the settlement, and for a receiver. The husband stated in his answer that he had always used his wife with tenderness and affection, and he offered to take her back and treat her as his wife. Upon the evidence and the pleadings, the court ordered a moiety of the annuities to be paid to her until cohabitation or further order, to commence from the time of the separation. The wife being dissatisfied with this decree, appealed from it to the then house of lords in that country, claiming the whole of the annuities under the above settlement. All

objections as to the jurisdiction of ecclesiastical courts, and in relation to the immorality and illegality of the agreement were urged, and moreover that it was an agreement for a divorce instead of a marriage; and it was further contended, that the husband having judicially offered to take his wife back again, had determined the separation. But the house of lords were not moved by these arguments. It varied the decree and ordered the whole of the annuities to be paid to the wife, until she and her husband should cohabit, or till the further order of the court below. (c) See 7 Scott, 338.

(d) Waite v. Jones, 1 Scott, 730; 1 Bing. N. R. 656; 1 Hodges, 166.

(e) Id.; Jones v. Waite, 7 Scott, 317; Bing. N. R. 363.

[ *618 ] absence of all suggestion upon the subject, that there might have been a lawful cause for the husband to separate from his wife, that the promise of money to be paid to him could not have been a lawful inducement, whether it was the exclusive or the partial consideration upon which he agreed to execute a deed of separation. Lord Abinger said "that the proposition that as the law will recognize the legality of deeds of separation, by allowing actions of covenant to be maintained upon them, it cannot be presumed that they are illegal; and that if they be not illegal, of course the execution of such a deed by the husband cannot be illegal, must at least receive this qualification; that the consideration which prevails on the husband to make such a deed be a good consideration in law to justify him in separating from his wife. There are certain. circumstances which will induce the ecclesiastical court to pronounce a decree of divorce a mensa et thoro; and it may not be unlawful for a man under the same circumstances voluntarily to agree to do that which the law, if he refused, would compel him to do. Upon this ground, a deed of separation, made upon due consideration, may well be considered as not unlawful."(e) Lord Denman said, if he could venture to lay down the principle which alone seems to be safely deducible from all the cases, it is this, that when a husband has by his deed acknowledged his wife to have 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.(ƒ)

In an action of assumpsit, founded on an alleged engagement by the defendant to execute a deed of separation from his wife, with a covenant to pay the plaintiffs, her father and brother, a yearly sum of money for her maintenanee, the plaintiffs were nonsuited, on the ground of want of evidence to prove the agreement.(g)

Covenant to Indemnify the Husband against Wife's Debts.]-Deeds [ *619 ] of separation, making provision for the wife, usually *contain a covenant by the trustees with the husband to indemnify him against the debts which the wife may contract during the separation. Such a covenant is a valuable consideration to support the deed against the husband's creditors, (h) and will be a legal foundation for a covenant on the husband's part to provide a specific maintenance for the wife.(i) And if there be a covenant by a third person to indemnify the husband against the wife's debts, the court of chancery will enforce the husband's covenant for the payment of an annuity to the wife.(j)

A covenant by a third party to indemnify the husband against the wife's debts, is a sufficient consideration for supporting a deed of sep

(e) Jones v. Waite, 7 Scott, 332; 5 Bing. N. R. 363. See post, 623.

(f) Jones v. Waite, 7 Scott, 338; 5 Bing. N. R. 363.

(g) Elworthy v. Bird, 13 Price, 222; 1 M'Ciel. 69. See Scholey v. Goodman, 1 Carr. & P. 36; 1 Bing. 349.

(h) Angier v. Angier, Gilb. Eq. R. 152; Stephens v. Olive, 2 Br. C. C. 90; Fitzer v.

Fitzer. 2 Atk. 511; Duffield v. Scott, 3 T. R. 374; Compton v. Collison, 2 Br. C. C. 377; Jee v. Thurlow, 2 B. & C. 553.

(i) Westmeath v. Westmeath, 5 Bligh, N. S. 375; Legard v. Johnson, 3 Ves. 359; Seeling v. Crawley, 2 Vern. 386.

(j) Logan v. Birkett, 1 Mylne & K. 225; Elworthy v. Bird, 2 Sin. & Stu. 281; see post, p. 633-638.