tions. None of the cases, I think, touch that either in decision or in principle. But it does not rest there; for if the covenant be a part of the deed, and if reasons of public policy make void that covenant, and if the whole deed is for the same purpose, it will be difficult to support it. If the purpose be general, and be one that is against public policy, I do not see how it can stand. This I say supposing there to be no decision on the point." His lordship afterwards said,(d) that he believed it will be found there is one case decided by Lord Apsley, [ *627 ] when he was lord chancellor, in which he enjoined the parties from going on in the ecclesiastical court. Husband's Covenant not avoided by Suit for Restitution of conjugal Rights, nor Wife's Adultery.]-A suit instituted by the wife for the restitution of conjugal rights does not destroy the husband's covenant for the payment of an annuity where the covenant is not limited to the period of separation.

By indenture between husband and wife of the first and second parts, and a trustee for the wife, of the third, after reciting that unhappy differences had arisen between the husband and wife, and that they had mutually agreed to live separate, the husband cove. nanted to pay an annuity of 801. during so much of the wife's life as as he should live, in full satisfaction of her support and maintenance, and of all alimony whatsoever, and that he would not at any time thereafter sue her for the restitution of conjugal rights, and the trustee covenanted that the wife should release her husband's real and personal estate from all claims for jointure, dower or thirds, and that he would indemnify the husband from debts incurred by the wife after separation. It was held that such indenture was valid in law, and that a plea by the husband, "that the wife had instituted a suit in the ecclesiastical court for restitution of conjugal rights, in which cause he had put in an allegation, and certain exhibits charging her with adultery, and that a decree of divorce a mensa et thoro, was thereupon pronounced by that court," was no answer to an action by the trustee for arrears of the annuity.

In that case it was said by the court, "It is admitted that a plea alleging the fact of adultery would not be sufficient, neither is the decree of the spiritual court an answer, for it proceeds upon evidence which in this court would not be deemed satisfactory. We cannot therefore even act upon the supposition that adultery has been coinmitted."(e)

It has since been decided that the adultery of the wife after separation is no answer to an action on a covenant to pay a trustee a separate maintenance for the wife. (f)

[ *628 ] *The adultery of the wife subsequent to the agreement for separate maintenance does not preclude her from any relief in a court of equity to which she would be otherwise entitled.(g) Husband not allowed to defeat Stipulation in Deed of Separation.]— Where husband and wife lived separate under a deed, by which he

(d) Westmeath v. Salisbury, 5 Bligh, N. S. 356; see Jacob, 139, 140; 3 Br. C. C. 620; 2 Cox, 107; Wilkes v. Wilkes, 2 Dick. 791.

(e) Jee v. Thurlow, 2 B. & Cress. 547; 4

Dowl. & R. 11.

(f) Baynon v. Batley, 8 Bing. 256; 1 M. & Scott, 339.

(g) Seagrave v. Seagrave, 13 Ves. 439.

stipulated that she should enjoy as her separate property, all effects, &c. which she might acquire, and that he would not do any act to impede the operation of that deed, and the wife having as executrix commenced an action on a promissory note against the defendants, in the names of her husband and herself, and the husband released the debt, which release was pleaded puis darrien continuance; the court ordered such plea to be taken off the record, and the release to be given up to be cancelled: the court holding it contrary both to equity and justice, that the husband who had relinquished his marital rights, should be allowed in direct violation of his contract to execute such a release, and thereby defeat the suit commenced by his wife as executrix. No decision was made as to the right of the husband to receive the money when recovered by the action, although it was intimated that he might perhaps be entitled to intercept the money.(h)

Deed granting an Annuity on Separation, does not require Enrolment.]-A deed of separation, in which, after reciting that differences subsisted between the husband and wife, and that they had agreed to live apart, and that the husband had agreed to give to the trustees, for the benefit of the wife, a life annuity for her separate maintenance, it was witnessed that in consideration of 10s. paid by each of the trus tees to the husband, and of the covenants thereinafter contained, the husband granted to the trustees a life annuity of 2001. for the benefit of the wife, and in which there was (amongst other things) a covenant by the trustees to indemnify the husband from the debts of the wife, need not be enrolled under 53 Geo. 3, c. 141, s. 2.(i) *Deeds of Separation avoided by Reconciliation.]-As [ *629 ] condonation supercedes the ground of complaint for adultery or cruelty, in the ecclesiastical court,(k) so it is clear that reconciliation after separation supercedes special articles of separation in courts of law and equity.(1) Upon grounds of public policy parties are not permitted to make agreements for themselves, to hold good whenever they choose to live separate. So a deed which provides for a present separation, and which prospectively looks to the parties living together again, and then to a future separation, cannot be carried into effect, so far as it provides for such future separation, the reconciliation after the first separation putting an end to the provisions of the deed altogether.(m) It was held that an agreement for separation was determined by the husband's condonation, in receiving back his wife and sleeping with her, but that an action might be maintained upon it, because he had recognized the validity of the agreement to pay a separate maintenance long subsequent to the alleged condonation.(n)

A sentence of divorce in the ecclesiastical court is evidence, though not conclusive, of the non-reconciliation of the parties.(o) Living under the same roof, in a state of the highest animosity, cannot amount to reconciliation.(p)

(h) Innell v. Newman, 4 B. & Ald. 419; Legh v. Legh, 1 Bos. & Pul. 447.

(i) Carter v. Smith, 6 Nev. & M. 480. (k) Ante, pp. 445. 448.

(1) Bateman v. Ross, 1 Dowl. P. C. 245; Fletcher v. Fletcher, 2 Cox, 105; 3 Bro. C.

C. 619, n.; 11 Ves. 532.

(m) Westmeath v. Salisbury, 5 Bligh, N. S. 367. 375.

(n) Scholey v. Goodman, 1 Carr. & P. 36.
(0) Bateman v. Rose, 1 Dow, 235.
(p) Ibid. 245.

If the agreement between husband and wife be for a mere temporary separation, the husband's offer of cohabitation is a bar to her claim of the separate maintenance for the future.(q) But if the agreement be for a permanent separation during the joint lives of the husband and wife, that is, until both of them shall agree to come together again, and that he shall pay her a separate maintenance so long as such separation continues, then no offer on his part to cohabit will prevent her claim to her separate maintenance being enforced by the court.(r) [ *630 ] The separate maintenance provided for the wife will not be determined by their living together again, where it clearly appears by the deed of separation to be the husband's intention to secure the property for the separate use of the wife during her life, in the same manner as he might originally have done on marriage. Defendant gave a bond to A. and B., conditioned for the payment of an annuity to his wife, unless she should at any time molest him on account of her debts while living apart from her. By indenture of the same date, between the above parties and the wife, reciting that the defendant and his wife had agreed to live separate during their lives, and that for the wife's maintenance defendant had agreed to assign certain premises, &c. to A. and B., and had given them the annuity bond as above-mentioned; it was witnessed that the defendant assigned the premises, &c. to them in trust for the wife, and he covenanted with A. and B. to live separate from her, and not molest her or interfere with her property; and power was given to her to dispose of the same by will, and to sell the assigned premises, &c. and buy estates or annuities with the proceeds. The wife covenanted with the defendant to maintain herself during her life out of the above property, unless she and the defendant should afterwards agree to live together again; and that he should be indemnified from her debts. The indenture (except as to the assignment) and also the bond were to become void if the wife should sue the defendant for alimony, or to enforce cohabitation. And it was provided, that if the defendant and his wife should thereafter agree to live together again, such cohabitation should in no way alter the trusts created by the indenture. There was no express covenant on the part of the trustees. The defendant and his wife separated, and afterwards lived together again for a time, and this fact was pleaded to an action by the trustees upon the annuity bond, as avoiding the security. It was held, on demurrer to the plea, that the reconciliation was no bar to an action on this bond, since it did not appear that the bond and the indenture of even date with it were not really executed with a view of an immediate separation; and although there might be parts of the indenture which a court of equity would not enforce under the circumstances, yet there was nothing on the view of the [ *631 ] whole instrument to prevent the Court of King's Bench from giving effect to the clause which provided for a continuance of the trusts, notwithstanding a reconciliation. (s) The court proceeded

(q) Whorewood v. Whorewood, Ch. Cas. 250; 1 Ch. Rep. 223; Finch's C. C. 153; Fletcher v. Fletcher, 2 Cox, R. 102.

(r) Seeling v. Crawley, 2 Vern. 386; An

gier v. Angier, Prec. Ch. 496; Guth v. Guth, 3 Br. C. C. 614.

(8) Wilson v. Mushett, 3 B. & Adol. 740.

on the intention of the parties apparent upon the deed, that it should not become void by subsequent cohabitation, but remain in force for securing to the wife for her separate use the property settled by the deed.

SECT. II.-OF THE JURISDICTION OF COURTS OF EQUITY IN ENFORCING AGREE MENT FOR SEPARATION BETWEEN HUSBAND AND WIFE.

Ir may be considered as a general rule that courts of equity will not infringe upon the jurisdiction of the ecclesiastical court by enforcing the performance of a mere personal contract, entered into between husband and wife to live apart. In Wilkes v. Wilkes (t) the husband by deed agreed that his wife should live separate from him, but the court refused to carry such agreement into execution on the ground that the subject was not within the province of a court of equity. Strong doubts have been expressed upon the validity of deeds of separation entered into between husband and wife alone, and, consequently, of the jurisdiction of the court to enforce that part of it by which the husband engaged to pay her a separate allowance. The husband and wife being in law but one person, are unable to contract with each other, and with some exceptions(u) the deed of a married woman is a nullity.(v) In Guth v. Guth(x) the agreement for separation was effected by a deed poll, by which in consequence of unhappy differences the parties agreed to separate, and the husband agreed to pay to the wife, or her assigns, an annuity for the full maintenance of herself and one of her children during her natural life, and so long as they should keep separate from each other, provided the wife conformed to the conditions *before mentioned, and in case she contracted any debts without the [ *632 ] husband's consent, which he should be compelled to pay, then the agreement to be void. The wife having filed a bill by her next friend, against her husband for compelling payment of the arrears as well as the growing payments of the annuity, Lord Alvanley, after great research and examination of the previous cases, considered that he was bound to enforce the agreement, and said, "this is the contract of the husband to maintain the child as well as the wife, and he must abide by it; and so long as she complies with the conditions and -keeps the child she must receive the annuity, therefore let it be referred to the master to take an account of what is due for the arrears of the annuity from the date of the receipt, and let the same be paid with the growing payments to her, or to such person as she shall appoint, and the defendant to pay the costs." But Lord Rosslyn refused to enforce a contract between the husband and wife only for a separate maintenance. He said the first is a general question; whether, taking it in the largest extent, a suit in equity is competent

78.

(t) 2 Dick. 791.

(v) Litt. s. 168; 8 T. R. 546; 11 Ves.

(u) Sec stat. 3 & 4 Will. 4, c. 74, ss. 77, 530, 531.
(x) 3 Br. C. C. 614.

to give effect by the aid of this court to a deed of separation between husband and wife, assuming such articles of separation to have arisen from discordant tempers, without reproach, either on the one side or the other? Can I, under such circumstances, find a case to entitle the wife to a personal decree against the husband? The common law will not entertain a suit upon contract by a wife against her husband. Such a contract is incapable at law of producing any action. The ecclesiastical court, according to the jurisdiction of this country, has exclusive cognizance of the rights and duties arising from the state of marriage. Therefore I am completely at a loss to discover an equity to control the common law and admit a suit between husband and wife upon a personal contract, and supercede the exclusive jurisdiction of the ecclesiastical court by entering into a consideration of it. His lordship said, that upon the general abstract question he had met with no case, except Guth v. Guth, to entitle the court to hold such a jurisdiction. Before he decided according to that case, he wished for a further account of it, for his opinion inclined against it, but it was unnecessary to decree directly contrary to [ *633 ] that case, for if the court would decree a separation where the only person to be affected was the husband, it would never do it as against creditors.(y) Lord Eldon, without deciding the point, concurred with all the doubts of Lord Rosslyn upon the case of Guth v. Guth, and said that the question had never been put upon the contract of the husband and wife. The court has always put it upon the contract between the husband and the trustee; from the covenant of the trustee to indemnify the husband against her debts; the existence of which covenant ought to have reminded the court, that those who framed these instruments had no idea that the wife herself was bound.(z)

The court refused to interfere in an agreement between a husband and wife, whereby the latter agreed to give up part of her separate property to the husband in consideration of their living separate, although the application came from the wife, who on being examined stated that she wished to give up a portion of her property for the sake of living separate.(a)

Equity will enforce Payment of Separate Maintenance for Wife.]— Although a court of equity will not in direct terms, decree a separation between husband and wife, yet it will compel the husband to perform his agreement to pay a separate maintenance where the deed is founded on sufficient consideration. (b) Sir Wm. Grant, M. R. said, "It is now settled that the court of chancery will not carry into execution articles of separation between husband and wife. It recognises no power in them to vary the rights and duties growing out of the marriage contract, or to effect, at their pleasure, a partial dissolution of that contract." It should seem to follow that the court would not acknowledge the validity of any stipulation that is merely accessary to an agreement for separation. The object of the covenants between the husband and trustee is to give efficacy to the agreement between the husband and wife; and it does seem rather strange that the aux

(y) Legard v. Johnson, 3 Ves. 352.
(z) St. John v. St. John, 11 Ves. 532.

(a) Durand v. Durand, 2 Cox, 207.

(b) See ante, p. 619.