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1824.

marital rights. Upon these grounds it is clear that this action is maintainable, and that the plaintiff is entitled to judgment.

JEE

Thurlow.

Patteson contra. This plea is an answer to the action. It

appears upon the face of the deed that the husband is restrained from suing for restitution of conjugal rights, and surely that must have been intended to be a mutual restraint. There is indeed no covenant by the trustee, that the wife shall not sue for restitution, but there is a covenant by the wife to receive 80l.-a year as a separate maintenance, and to suffer the children to be in the entire control and management of the husband; which in substance amounts to a covenant not to sue for restitution. But how does she act? Her first step is to violate the deed by suing for restitution, and her second is to put the deed in force by suing for the arrear of the annuity; for she is in fact, the plaintiff in this action. Then if she has, by adultery, committed since the separation, forfeited her right to return to her husband, she has also forfeited her right to the annuity, and therefore the present plea is a good answer to the action. Non constat that the adultery was committed before the deed was made; indeed the inference is strongly the other way, because not that but another cause is assigned in the deed for the separation, namely, the unhappy differences which had subsisted between them. What ground then had she to sue for restitution? If she had succeeded in that suit, there must have been an end of the deed. It is said that by law that result would not follow, because the covenant on the part of the husband is absolute; but what do the cases decide upon this point? That if a reconciliation takes place between the parties, and they abandon the separation and live together again, the separation deed is avoided, and becomes a nullity. For this Fletcher v. Fletcher (a), St. John v. St. John (b), and Bateman v. Ross (c), are authorities. The only case at all

(6) 11 Ves. jun. 529.

(a) 2 Cox's, 99. 3 Bro. C. C. 619, note S. C.

(c) 1 Dow's P. C. 245.

1824.

JEE

v. Thurlow.

opposed to this principle is Gawden v. Druper (a), but
as the question there turned entirely upon the pleadings,
and not upon the merits of the case, that decision does
not shake the position contended for. Now, here, a re-
conciliation was attempted, and was prevented solely by
the wrongful act of the wife, which ought not to operate
to her benefit. Had the reconciliation been effected, the
deed would clearly have been void; and to hold that the
deed remains good because the reconciliation has been
prevented by the wife's misconduct, will be to give her a
benefit arising from her own wrong, and to hold out a pre-
mium for adultery. It is no answer to this argument to
say, that the deed contains no covenant or condition for the
chastity of the wife. [Bayley, J. Non constat that she has
been unchaste during the separation; there is no allegation of
the fact, and we cannot assume it. The ecclesiastical
court acts upon evidence, which could not be received in
a court of law.] The act of adultery is not averred cer-
tainly, but it is impossible to doubt the fact; and granting
that fact, her claim upon her husband is at an end : for, as
Blackstone observes,(6)“ no alimony will be assigned in
case of a divorce for adultery on her part; for as that
amounts to a forfeiture of her dower after his death, it is
also a sufficient reason why she should not be partaker of
his estate when living.” [Best, J. But in cases of divorce
for the adultery of the wife, the legislature always interferes
to make her an allowance out of the husband's estate, and
for this most just, humane, and moral reason, that she may
not be driven by want, to continue in a course of vice.]
Consistently with the present case it may be admitted that.
the fact of adultery, merely, is not a good plea to such an
action; but why is it not a good plea? Because the hus-
band may thus be induced to become a party to the crime,
and to connive at it from mercenary motives. That was
the principle laid down in Field v. Serres (c), and that is
the only ground upon which such a rule has ever been
(a) 2 Ventr. 217. (b) 3 Comm. 94. (c) 1 New Rep. 121.

C

VOL, IV.

1894. adopted. But the plea here goes farther; it does not

merely aver the act of adultery, but it states the decree of JEE

a court of competent jurisdiction, as the result of that act; Thurlow. and so doing, it exculpates the husband from all participa

tion in the guilt of his wife, removes the only objection to the validity of the plea, and brings back the case within the rule laid down by Blackstone (a). [Abbott, C. J. The defendant might have averred specifically when the adultery was committed.] But whether the plea be insufficient or not, the declaration in this case cannot be supported, because the deed upon which it rests is void in law. It has been conceded that a covenant for a wife to live separate from her husband in future, is bad, and this is a covenant of that nature. There is nothing to shew that the parties were living separate when the deed was executed, and the contrary may be inferred from the language, which is throughout prospective, the agreement being that they shall “ from henceforth” live separate and apart. In that view, Titley v. Durand (b) is an express authority. Assuming however that this case is distinguishable from that, still the question is, whether a deed for the separation of man and wife can, under any circumstances, be legal. This is a deed made by the husband with the trustee on the part of the wife; who covenants to protect the husband against the debts of the wife; and that the wife shall release her claim to jointure avd dower. Then can such a deed be recognized by the common law? It must be admitted that no instance can be cited in which such a deed has been held void, but that question has never yet been solemnly discussed, and whenever it shall be, it must appear that the spirit and policy of the law are in direct opposition to the validity of such instruments. The dicta against them are numerous and weighty; some of them have already been mentioned, and others might be adduced; and not one of the instances brought forward can be deemed a solemn and direct decision that a deed of separation is a legal instru

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ment. [Best, J. In Rex v. Listor (a), it was decided 1824. that where there are articles of separation between hus

JEE band and wife, if the husband afterwards confine the wife, she may have a habeas corpus, and be set at liberty. THURLOW. Surely that is a recognition of the legality of a separation, and the separation can be legal only by mutual agreement. Abbott, C. J. The legality of these instruments has been recognized in a series of cases spread over an interval of more than a century; can we now,

for the first time, presume to shake a principle so established ?] It has been shaken already by the decision in Titley v. Durand (b). [Abbott, C. J. No, not the general principle; that was a case by itself, and distinguishable from all that preceded it. The ground of the opinion given by my Lord Chief Justice Dallas and myself there, was, that the agreement was for a future separation to be adopted at the sole pleasure of the wife, the parties being, at the time of making the ageement, living together and in amity. We shall not interfere with that decision by supporting the deed now in question, and how can we do otherwise than support it? We must be governed by the decisions of upwards of a century; we cannot presume at one sweep to overturn them all; no power but that of the legislature can be equal to such an act.] If an agreement for a future separation is void, a present or retrospective agreement ought to be void also; they are all equally offensive to public morality, and to public policy, and should all be placed upon the same footing.

Chitty, in reply, was stopt by the court.

Abbott, C.J.-For the reasons already intimated by the court, and which I think it unnecessary to repeat, we cannot now hold this deed to be void in law; it only remains to

(a) 8 G. 1. 1 Stra. 477. 13 East, 173, in notis. See also 1 Burr. 542; 5 T. R.91; and Rep. temp. Hardw. 152, in notis, and 1 Vern. 53. (b) 7 Price, 577.

0.

1824. consider whether the plea pleaded by this defendant is an

answer to the action. I am of opinion that it is not. It has JEE

been decided, that the plea of adultery is no answer to an Taurlow. action of this kind, Sidney v. Sidney (a), and we must act

upon that decision. The covenant here is absolute and unqualified, and the covenantor must be bound by it. He might have qualified his liability by imposing the condition of chastity ; but he has not done so. I am of opinion, therefore, that the plaintiff is entitled to judgment on the demurrer.

BAYLEY, J.-A system of jurisprudence so long acted upon as that which has held deeds of separation, made with the approbation of trustees, and not prospective in their nature, as valid and binding instruments, cannot be overturned upon à vague notion that it is inconsistent with public policy. This Court, after the numerous authorities which have declared such deeds legal, is not competent even to inquire whether they are so or not; the House of Lords is the proper tribunal for such an inquiry, and thither this case may be carried for further discussion on that point. It appears to me, however, that the argument respecting public policy is not so universal in its operation as has been suggested.. I can imagine cases where it may, unhappily, be beneficial to the interests of society that a mother should be separated from her children, and maintained apart by her husband; and I cannot but think that where the wife has been guilty of gross misconduct, public policy is best proinoted by allowing her a separate maintenance, for two reasons; first, that the children may be rescued from the danger of an evil example; and second, that the mother may not by necessity be driven to a repetition of crime. But the question is not res integra; we have no power to decide it; it has been decided for us by competent authorities, and to their decision we must bow. Upon the other point, I am clearly of opinion that the plea in this case is,

(a) 3 P. Wms. 269; 1 Atk. 276. S. C. on appeal.

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