iliary agreement should be enforced, while the principal agreement is held to be contrary to the spirit and the policy of the law. *It has, however, been held that engagements entered [ *634 ] into between the husband and a third party shall be held valid and binding, although they originate out of and relate to that unauthorized state of separation, in which the husband and wife have endeavoured to place themselves. His honour therefore only repeated what had been said by Lord Eldon, (c) "if this were res integra, untouched by dictum or decision, I would not have permitted such a covenant to be the foundation of an action or a suit in this court. But if dicta have followed dicta, or decision has followed decision, to the extent of settling the law, I cannot upon any doubt of mine as to what ought originally to have been the decision, shake what is the settled law upon the subject."(d)

The court exercises its discretion in enforcing deeds of separation very cautiously, and will not give its assistance until it has seen whether from the circumstances of the case there is or is not a probability of the parties being reconciled. A sentence in the ecclesiastical court for the restitution of conjugal rights is a reason for the court refusing to give its assistance in such a case; and in general if such an agreement is not fit to be enforced, the court will on a cross bill order it to be delivered up, though there may be cases in which no relief will be given to either party.(e)

Specific performance of an agreement for separation between husband and wife has been decreed, although the agreement was made on a compromise of indictments preferred by the wife against the husband and others for assaults on her; two grounds of demurrer were taken, first that the court will not carry into execution articles of separation between husband and wife; 2dly, that the agreement sought to be executed was illegal, because it provided that a nominal fine only should be imposed on the husband, who had been convicted upon an indictment for an assault upon the wife; and because it provided also that indictments, which had been found against workmen and apprentices of the husband for assaults upon the wife, should be discontinued. But the court held as to the first ground, inasmuch as the articles contained an engagement *on the part of the father and brother of the wife, to indemnify the hus[ *635 ] band from the debts of the wife, in consideration of the husband's stipulation to pay the wife an allowance of 50l. a year for her life, there could be no question that the court would enforce that stipulation against the husband. And as to the second point, all the authorities concur that the policy of the law does permit the compromise of indictments for assaults, and such compromises are frequently recommended and approved by the court, and the bill alleged that such was the fact.(f)

An agreement by the wife to waive the further prosecution of an indictment against her husband for an assault, in consideration of his allowing her an annuity by way of separate maintenance, has been

(c) Lord St. John v. Lady St. John, 11 Ves. 537.

(d) Worrall v. Jacob, 3 Mer. 256.
(e) Fletcher v. Fletcher, 2 Cox, 99.

(f) Elworthy v. Bird, 2 Sim. & Stu. 372; see 13 Price, 222; 1 M'Clel. 69. See 1 Russ. on Crimes, 136, 2d ed.

since held to be an illegal contract, though entered into with the sanction of the court in which the indictment is tried; and the wife cannot claim the arrears of the annuity as a debt against her husband, in competition with her husband's creditors. In this case no settlement had been executed by the husband, though he had agreed to do so.(g)

Agreement with Trustee with no Covenant to indemnify.]—The Court has enforced a separate provision in favour of the wife, secured by a contract between the husband and a third person acting for the wife, although it was not supported by a valuable consideration, as the covenant of her trustee to indemnify the husband against her debts. By a deed of separation between husband and wife, lands were demised by the husband to trustees, in trust to apply the rents in payment of an annuity for the wife's maintenance. In a suit by the trustees against the husband and the tenants of the premises, Lord Nottingham, with the consent of the parties, ordered all the arrears to be paid; and further, that the husband should not molest his wife in her person, nor interfere with any goods which she should acquire.(h) In Angier v. Angier, (i) pending a suit by the wife in the ecclesias[ *636 ] tical court for separation and alimony, the husband by articles agreed with a trustee to allow his wife an annuity, and to permit her to live where she thought fit without molestation. The court decreed payment of the arrears of the annuity, although it does not appear that the deed contained any indemnity to the husband against the wife's debts. So where during a separation the husband wrote a letter to the wife's father agreeing to pay to her an annuity quarterly so long as they should continue separate, on the wife's suit to recover the arrears of the allowance, it was decreed accordingly.(k) In a case in the exchequer it was held that the husband's covenant to pay to the wife's trustees an annuity for her maintenance is binding on the husband, and may be enforced in equity, although there be no covenant on the part of the trustee to indemnify the husband. general demurrer to a bill for an account of assets and payment of the arrears of the annuity was overruled, the court being of opinion that the case involved a grave question of too great importance to be disposed of on demurrer. Richards, C. B. said, "it was urged that this claim could not be enforced because there was no indemnity given to the husband by the trustee, I cannot consider that circumstance as affecting this question; because if the contract were integrally bad, such an indemnity would not make it good."()

A

In Westmeath v. Westmeath,(m) where the husband sought to restrain proceedings at law against him for recovering an annuity, secured to the wife by a deed of separation not containing any covenant to indemnify the husband from her debts, the injunction was refused. Lord Eldon said, "it is impossible to deny that a covenant of this sort is made by parties who are capable of contracting, and it is considered to be sufficient to support the deed against creditors; but if I am asked, how it is possible that objections on grounds of public policy can be removed by these covenants, the only answer is, that if not bound by decisions I should say it was impossible to show

(g) Garth v. Earnshaw, 3 Y. & Coll. 584. (h) Turner v. Boteler, Finch, Ch. Cas. 73. (i) Pre. Ch. 496.

(k) Head v. Head, 3 Atk. 547. 551.
(1) Ross v. Willoughby, 10 Price, 7.
(m) Jacob, 126. 138.

that it ought originally to have made any difference *whether there was or was not such a covenant. But I cannot say [ *637 ] that it will not, for if those who have gone before me have thought that it would, I must give to it the same effect which it had upon their judgments, and from what I have heard them say in conversations that I recollect, I think it would have made a material difference with both Lord Kenyon and Lord Thurlow. I remember too conversing on the subject with Lord C. B. Eyre, he said he never would have decided as he had, but for the covenant by the trustees."

The wife however has the same right as any other cestui que trust to require her trustee to act in enforcing payment of her separate provision; the trustee cannot determine whether or not the instrument shall be enforced. Where a trustee refused without an indemnity to enforce a bond for an annuity given by a husband upon separation, the court, upon a bill of the wife by her next friend, made a decree for the arrears and growing payments.(n) So where the trus tee had burnt a bond, given to him by the husband for securing a weekly sum to the wife, and the bill was filed by the wife by her next friend for an account of the arrears of the weekly payment, it was decreed, upon the admission in the answer that the bond had been burnt, that the plaintiff should be at liberty to bring an action on it at law in the name of the trustee.(o)

Wife's Rights when affected by Deeds of Separation.]—In a deed executed upon a separation between husband and wife by them and the trustees of their marriage settlement, the wife charged her separate property comprised in the settlement, with the payment of an annuity to the husband, and the husband covenanted to permit the wife, notwithstanding and during the coverture, to receive and enjoy to her own sole and separate use, all the property, estate, and effects to which the wife, or the husband in her right, was or might at any time be entitled. On a bill filed after the wife's decease for payment of the arrears of the annuity, the court held, that the release by the husband of his marital right in the future *acquired property of the wife, was a good consideration from the husband to support the claim to the annuity.(p)

[ *638 ]

The court of chancery permits a father or a guardian of a female infant to contract before marriage on her part with her intended husband as to her personal estate, because otherwise it would become his property; and as to her jointure, because her benefit and the convenience of families require it. But there is no principle or authority for stating that after marriage a parent or guardian can bind the interest of an infant feme covert by contract with her husband. Therefore where a wife, an infant, being entitled to a present interest in certain personal property, and also to certain other contingent interests, a deed of separation was entered into between herself, her father, and her husband, by which she was to retain her present interest in the property; and it was agreed that the husband should have a certain share in the contingent property, if it should fall into possession; the husband having died before the wife, it was held that the

(n) Cooke v. Wiggins, 10 Ves. 191.
(0) Seagrave v. Seagrave, 13 Ves. 439.

(p) Logan v. Birkitt, 1 My. & Keen, 220.

deed was a nullity as to the wife, on account not only of her infancy but her coverture; and that the contingent interest falling into possession she was entitled by survivorship.(q)

Husband and wife having agreed to live apart from each other, a sum of stock was invested in the name of trustees, and by a separation deed, containing the usual provisions, the husband agreed to pay to his wife for her maintenance an annuity of 1801., and it was declared that the stock was intended as a security for the payment of that annuity. The deed contained a proviso that the husband should be indemnified out of the annuity against the debts and contracts of his wife, and all dower and thirds at common law or by custom, which she, at any time thereafter, might claim, challenge, or demand from, out of, or against her husband or his present or future estate, real or personal, and an agreement that the wife should make and execute all such acts, deeds and matters as should be requisite for the purpose of releasing, barring, or extinguishing all dower or thirds at [ *639 ] the common law, or by custom, which she could or might claim or demand into or out of any real or personal estate of her husband. The husband having afterwards died intestate, it was held that the deed did not deprive the wife of her share of her husband's personal estate under the statute of distributions. (r) A proviso in a deed of separation that the wife surviving shall be entitled to her dower and thirds, and of all real and personal estates whereof the husband shall die seised or possessed, was construed not as a covenant to leave her such a portion of the personal estate as she would be entitled to under the statute, had he died intestate, but that she would be in the same situation as if not separate as to dower and thirds, i. e. the actual share by law or custom, not interfering therefore with his testamentary disposition.(s)

SECT. III.—OF THE HUSBAND'S LIABILITY TO DEBTS CONTRACTED BY THE WIFE.

In respect of Contracts made by the Wife before Coverture.]-The husband is liable to the debts of his wife, contracted by her before the coverture, and the husband and wife may be jointly sued for such debts during the coverture.() But if these debts are not recovered against the husband and wife in her lifetime, the husband cannot be charged for them either at law or in equity (u) after the death of the wife. The husband during the coverture, is liable for all his wife's debts, though he had nothing with her; and on the other hand, though he had a considerable personal estate with her, yet unless he be sued during the coverture, he is not afterwards liable even in equity.(x) But if the wife survive the husband, an action may be

(q) Stamper v. Barker, 5 Madd. 157.

(r) Slatter v. Slatter, 1 Y. & Coll. 28; see 1 Scott, 82; Onslow v. Onslow, 1 Sim. 18.

(8) Cockran v. Graham, 19 Vcs. 63.
(t) Fitz. N. B. 120, F.; 7 T. R. 348.

(u) F. N. B. 121, C.; 1 Rol. Abr. 351 (G), pl. 2.

(x) Earl of Thomond v. Earl of Suffolk, 1 P. Wms. 469; Heard v. Stamford, 3 P. Wms. 409; Cas. temp. Talbot, 173.

maintained against her for the recovery of such debts.(y) In an action against husband and wife for a debt contracted by her before coverture, they may plead her discharge [ *640 ] while a feme sole under the Insolvent Debtor's Act.(s) To a declaration against the husband and wife for a debt due from the wife before coverture the husband's discharge under the insolvent act is a good plea. But it seems that the 72d section of 7 Geo. 4, c. 57,(t) was intended to operate so as to make the separate property of a married woman available to her creditors, and therefore that a replication to the above plea, that the wife had separate property, would be good.(u) A married woman taken in execution together with her husband for a debt due from her before marriage, is not entitled to be discharged, unless it appears that she has no separate property, even although the husband has been discharged under the insolvent act.(v)

In Respect of Contracts made by the Wife during Cohabitation.]— In general a wife cannot by law bind her husband by a contract, but during their cohabitation a presumption arises from such fact of the husband's assent to contracts made by the wife for necessaries suitable to his degree and estate.(x) And it is said that in cases where husband and wife are living together, and there is no reason to suppose any difference between them, the law presumes an authority for her to order proper things for her husband's house and her own clothing, and generally such other things as are fairly within her superintendence.(y) Cohabitation is presumptive evidence of the assent of the husband to the contracts of his wife, but it may be rebutted by contrary evidence; and when such assent is proved, the wife is the agent of the husband duly authorised. But no assent will be implied where a tradesman trusts a married woman to an extent beyond what her station in life requires; in such a case the burden of proving the assent of the husband lies on the party who supplied the goods.(z) Evidence that the articles were *consumed in the family [ *641 ] of the husband is only presumptive, and not conclusive evidence of the husband's assent.(a)

If goods are furnished to a married woman, who is living with her husband, it must be taken prima facie that such goods are supplied to her by his authority, and it lies on the husband to show that the goods were supplied under such circumstances as to make him not liable to pay for them.(b) Where the husband and wife are living together, the husband is only liable for his wife's debts on an implied contract, and it does not lie on him to prove having given notice to the plaintiff not to supply the goods to his wife, but for the plaintiff to satisfy the jury that the wife contracted the debt by the authority of her husband.(c) Whenever the husband and wife are living together, and

(y) Woodman v. Chapman, 1 Camp. 189. (8) Storr v. Lee, 1 Perry & Dav. 633. (t) See 1 & 2 Vict. c. 110, s. 101. (u) Lockwood v. Salter, 5 B. & Ad. 313. See Miles v. Williams, 1 P. Wms. 257; In re M Williams, 1 Sch & Lef. 169.

(v) Sparkes v. Bell, 8 B. & C. 1. See Ex parte Deacon, 5 B. & Ald. 753; 1 & 2 Vict. c. 110, s. 101.

(x) Etherington v. Parrott, 1 Salk. 118; Ld. Raym. 1006.

(y) Hardie v. Grant, 8 Carr. & P. 516. (z) Montague v. Benedict, 3 B. & C. 631. (a) Manby v. Scott, I Sid. 121. 126. (b) Clifford v. Laton, 3 Carr, & P. 15. (c) Spreadbury v. Chapman, 8 Carr. & P. 371. See Atkins v. Curwood, 7 id. 756.