aration against the husband's creditors, although Lord Eldon, if not bound by positive decisions, thought that it was impossible to show that it ought originally to have made any difference whether there was or was not such a covenant.(k) In Stephens v. Olive(l) the husband was entitled to certain real estates for his life, subject to a mortgage for 5007., and he and his wife agreed to live apart; he therefore conveyed his life estate to trustees; first, to keep down the interest of the mortgage, then to pay taxes, &c.; and finally, an annuity of 351. to the wife for separate maintenance. The trustees covenanted to indemnify the husband against the debts which the wife might contract after the separation. The trustee entered into possession of the premises, and afterwards a judgment was obtained against the husband. The creditor instituted a suit to set aside the settlement as being voluntary; but Lord Kenyon, M. R., was of opinion that the settlement was good, and that the covenant by the trustees to indemnify the husband against the wife's debts, was a valuable consideration, and therefore that the settlement, though made after the debt to the plaintiff was contracted, was good against him. *A deed containing such a covenant has been held [ *620 ] good against the assignees of the husband who had become a bankrupt. By a settlement executed on marriage, an estate, which was originally the property of the wife, was limited, in default of issue of the bodies of the husband and wife, to the survivor of them in fee. On a separation afterwards taking place between them, the husband covenanted with a trustee to pay his wife an annuity of 701., and to convey his contingent estate in fee to such person as the wife should by deed or will appoint. The trustee covenanted on his part to indemnify the husband against the wife's debts and against any demand for alimony which she might at any time make. She executed an appointment in favour of the plaintiffs by a deed properly attested. The husband having survived his wife, became a bankrupt and died, when the bill was filed by the plaintiffs as appointees, for a conveyance of the estate agreeably to the husband's covenant, and for an account of the rents and profits since his death. On the part of the assignees it was objected that the covenant was void as against creditors, for want of a sufficient consideration to support it, the husband having been a trader when the deed of separation was executed. But Sir William Grant decreed a specific performance of the covenant as it was grounded on a valuable consideration.(m) A settlement of part of the husband's property in favour of the wife on the occasion of their separation, was sustained against a subsequent purchaser for a valuable consideration. By deed of three parts between husband, wife, and trustees, reciting that differences existed between the husband and wife, and that they had agreed to live separate; that the husband had agreed to allow the wife 1007. a year out of certain lands, (for which the ejectment was brought) for her support and maintenance; and that he had agreed to pay certain debts mentioned in a schedule, and also to pay the costs of a suit instituted (k) Westmeath v. Westmeath, Jac. 138. (1) 2 Br. C. C. 90. (m) Worrall v. Jacob, 3 Mer. Rep. 267, 268. against him in the ecclesiastical court,-it was witnessed that in pursuance of the aforesaid agreement and of five shillings the husband [ *621 ] conveyed the lands to the trustee, (*the lessor of the plaintiff) in trust to pay the annuity. The deed then contained a covenant by the husband, that the wife might live separate from him, and a covenant by the trustee that the husband might live separate from the wife, and that she would not sue him for living apart from her or for any alimony; but there was no express covenant on the part of the trustee to indemnify the husband against the future debts of his wife. The deed then provided that in consideration of the annuity of 1007. thereby made payable to the wife, it was agreed between the parties thereto that the wife should accept the same in full satisfaction for her support and maintenance, and clothing, and all alimony or other demands whatsoever, during their coverture. The trustee covenanted that it should be lawful for the husband to deduct out of the annuity the amount of any debts which the wife might thereafter contract, and which he might be obliged to pay. The deed concluded with an agreement between the parties that, the trustee performing the trusts reposed in him, nothing therein contained should at any time thereafter affect the person or property of the trustee, his executors, &c., but that the trustee, his heirs, &c. should be indemnified against all suits or actions at law or in equity on account of any act which he should lawfully do in the premises, or against any claim, covenant, or condition therein contained, the said trustee being merely a trustee and having no interest or concern in the premises save as aforesaid. The defendant claimed as purchaser for valuable consideration under a deed subsequently executed, and his counsel contended that the deed of separation was void upon two grounds; first, as being a conveyance without consideration, and therefore voluntary and void against the defendant, who was a purchaser for valuable consideration; secondly, as being executed under circumstances which the policy of the law did not justify. There having been a verdict for the lessor of the plaintiff, subject to these objections, it was held by Bushe, C. J. that the deed of separation was not voluntary, and, secondly, that it was legal and binding. First, it was not voluntary, for the covenant that the wife should accept and take the annuity in full satisfaction for her support, main[ *622 ] tenance, &c., and all alimony, &c. was in *substance a covenant to indemnify the husband against the debts of the wife, which is a valuable consideration; but that even if it was not in substance such a covenant, yet that the deed contained a covenant by the trustees that the wife should not sue the husband for any. alimony, which is a sufficient consideration to support the deed under the Irish stat. 10 Car, 1, st. 2, c. 3, against purchasers for valuable consideration; and that such covenant was not rendered nugatory or released by the concluding covenant in the deed, the true construction of which was, that the trustee should be indemnified from all suits on account of any act that he should lawfully do in the premises, and also against any claim, covenant, or condition, relating to such act. Secondly, it was legal and binding; separation deeds, such as in the present case, whatever might be suggested against them, if the ques tion were res integra, being inveterate in the law, and not to be questioned.(n) Where a trustee undertakes in general terms to indemnify the husband against his wife's debts, and it is the intention of the parties that the trustees should have notice of each demand before an action is commenced against him, the deed should require notice, otherwise it cannot be insisted on.(0) Although a husband living apart from his wife, and allowing her a separate maintenance, is not liable to pay her debts, yet a covenant of indemnity against the wife's debts is not considered a mere nullity. The covenant may afford an important protection to the husband, because the sufficiency of the maintenance according to the condition and fortune of the parties is held to be a question for the consideration of the jury.(p) A deed of separation not containing any covenant to indemnify was held void against creditors. In Fitzer v. Fitzer(q) the husband had covenanted to pay a separate maintenance to his wife and daughter upon a separation, he afterwards became insolvent, and the bill was filed by the wife and daughter against the husband and his assignee, to whom the insolvent's effects had been assigned under the Insolvent *Debtor's Act, to have the trust of the deed for separate maintenance performed. There was no cove- [ *623 ] nant by a trustee to indemnify the husband against the wife's debts; and Lord Hardwicke held the deed to be fraudulent against the creditors, saying," this case stands quite naked and abstracted from any cases where there may be a covenant by relations of the wife to indemnify the husband against debts of the wife; but I will not now determine what the construction of even such a deed would be with regard to the husband's creditors." Justifiable cause for Separation.]-Although the validity of deeds of separation has been considered to depend upon the covenant by a third party to indemnify the husband against the wife's debts, yet such deeds have been sustained even against creditors on the ground of facts connected with the separation between husband and wife which justified the separation. The right of the wife in consequence of the husband's ill usage to apply to the spiritual court for alimony, was held a sufficient consideration to support a deed against the husband's creditors, making a provision for her, which was executed in order to prevent his ill-using her in future, and to prevent her instituting a suit in the ecclesiastical court, although such deed contained no covenant on the part of the trustees to indemnify the husband against the future debts of the wife.(r) The same principle was acted on in Hobbs v. Hull,(s) where the creditors of the husband filed a bill to set aside a settlement made by him of part of his real estate upon his wife and children on the occasion of a separation between him and his wife; and they insisted that it was void, he being indebted at the time of making it. The defence set up by the answer was (which (n) Lessee M'Donnel v. Murphy, Fox & Smith Rep. 279. (0) Duffield v. Scott, 3 T. R. 375. (q) 2 Atk. 511. (r) Nunn v. Wilmore, 8 T. R.521. (p) Worrall v. Jacob, 3 Mer. 269; see Gilb. Eq. R. 152. post, 642. was fully proved in the cause,) that the husband had before the time of separation lived in a state of adultery, which the defendants contended gave the wife a right to a divorce and alimony, and that the provision by the settlement was only in lieu of the remedy which would be obtained by such proceedings. The master of the rolls said, that if the husband behaved so ill as to entitle the wife to obtain a divorce [ *624 ] *in a spiritual court a mensa et thoro, and to have a proper allowance from him; and if the wife, instead of strictly prosecuting that right, meets the husband in the threshold, and says she will accept the maintenance proposed by him without litigation, that it was not such a voluntary act as to be fraudulent against creditors, for that it never could be said to be without consideration. And accordingly his honour dismissed the bill with costs as to all parties, except the husband, and as to him without costs. Lord Eldon, after referring to the above decisions, where deeds had been sustained on the ground of such cruelty as would entitle the wife to a divorce, said, "the difficulty which I feel in acting upon that principle is, that I doubt, under the circumstances, whether we have a right to try the question whether there has or has not been cruelty, or to decide that without the final sentence of the ecclesiastical court.(t) Sir L. Shadwell, V. C. appears to have acted on the same principle in the following case. By a deed of separation between husband and wife, which recited" that divers unhappy differences had arisen," the husband covenanted with a trustee to pay to his wife during her life a certain annuity, and a proviso was inserted that the husband might deduct expenses for any action brought against him to recover any debts contracted by the wife. The husband and wife lived separate until the death of the husband, when his executors refused to pay the annuity, alleging that all deeds of separation were prima facie void, and that there were no circumstances to take this case out of the general rule. The vice chancellor said that he was called upon in fact to decide whether as against the executors the wife could sustain an action at law for the arrears of the annuity. Now, it appeared to him that no circumstances had been stated to induce him to think that the foundation of the deed was such as the court could not enforce. The court could not presume it to be invalid, for it might happen, for aught he knew, that there were circumstances alluded to under the recital that divers unhappy differences and disputes had subsisted and continued to subsist, sufficient to obtain from [ *625 ] *the ecclesiastical court a divorce a mensa et thoro. It was impossible for the court to know, what those unhappy differences were; it was enough for it to know that that was a deed not requiring any consideration to support it, and it laid on those who asserted that the policy of the law was against it, to show that the circumstances were such as not to warrant an application to the ecclesiastical court for a separation. He should be sorry to increase the number of cases in which these deeds of separation had been upheld; but it was not for him on that sort of wild statement, without evidence of the real nature of the unhappy differences, to assume that the deed (t) 5 Bligh, N. S. 379. was bad in law. In his opinion, therefore, the wife might prima facie support her claim under this deed as against mere volunteers. (u) A bond of submission to arbitration between the trustee of a wife and her husband recited that a suit for separation had been instituted between the husband and wife in Doctors' Commons, and that in order to put an end to the contest about the terms of the separation it had been agreed that all matters should be referred to a third party, and that either of the parties should be at liberty to apply to the court to make the award a rule of court; it was held that such submission might be made a rule of the Court of Common Pleas, under the stat. 9 & 10 Will. 3, c. 15, although it was contended that the matter in dispute between the parties being only the subject of a suit in the ecclesiastical court was not within that statute.(v) The husband in not barred of his right to a divorce by reason of his having executed a deed of settlement, after knowledge of his wife's adultery, allowing her a separate income.(w) Effect of Covenant not to sue for Restitution of Conjugal Rights.]— A covenant is usually inserted in deeds of separation on the part of the husband," that he will not require, or by any means whatever, either by ecclesiastical censure or by taking out citation, or by commencing or instituting any suit whatever, seek or endeavour to compel the wife to live with him, or to compel any restitution of conjugal rights." We have already seen that such a covenant is regarded as nugatory in the ecclesiastical courts; (2) [ *626 ] which determines whether there has been cruelty or adultery, and if the judge of that court is of opinion that there has not been either, he is compelled by law to oblige them by sentence to live together.(y) How far such a covenant will be enforced in courts of law or equity by prohibition or injunction has been sometimes treated as a matter of doubt.(z) In Guth v. Guth,(a) a case of Booth v. Booth was stated to have come before Lord Hardwicke upon motion to restrain proceedings of this description by the husband in the spiritual court, but that it was unknown what his lordship had done upon it. In Fletcher v. Fletcher, (b) Buller J., who sat for the lord chancellor, said, "that he knew of no instance of the court of chancery interfering by way of injunction to prevent a suit for restitution of conjugal rights in the ecclesiastical court. Whenever this court has interfered it has been in aid of the ecclesiastical courts, and not to restrain its jurisdiction." In Westmeath v. Westmeath, (c) where the husband covenanted that his wife might live separate, and that he would not require, or by any manner or means whatever, either by ecclesiastical censures, or by taking out any process, or by commencing or instituting any suit whatever, compel the wife to cohabit or live with him, Lord Eldon said, "one question is, whether such a covenant will bind; and if I should send this case to a court of law, that will be one of the ques (u) Clough v. Lambert, 3 Jurist, 672, 673. (v) Soilleux v. Herbst, 2 Bos. & P. 444. (w) Coode v. Coode, 1 Curteis, 757. 762, 763. (x) Ante, pp. 417. 419. 580, 581. (y 11 Ves. 532. SEPTEMBER, 1841.-2 G (z) 8 T. R. 546; 2 Cox, 107; 3 Br. C. C. 620; 11 Vesey, 533; see Butler's case, 1 Freem. 282. (a) 3 Br. C. C. 620. |