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tions will occur to every one, to which it will be impossible to give a satisfactory answer. For instance, it may be asked, How it can be in the power of any persons, by their private agreement, to alter the character and condition which by law results from the state of marriage, while it subsists, and from thence infer rights of action, and legal responsibilities, as consequences following from such alteration of character and condition? or how any power short of that of the Legislature, can change that which by the common law of the land is established as the course of judicial proceedings?" In Beard v. Webb (a), on a question whether a woman could be sued in the Courts of Westminster Hall, as a fême sole trader, on the custom of London, Lord Eldon adopted the same line of argument: and that case was decided before the determination of Marshall

v. Rutton. In Wilkes v. Wilkes (b), Sir Thomas Clarke, Master of the Rolls, refused to decree that the husband and wife should live separate, according to articles of separation, though he carried other parts of the deed into execution. In Fletcher v. Fletcher (c), Mr. Justice Buller, sitting for the Chancellor, refused to decree a specific performance of articles of separation, where the wife had returned to her husband, and cohabited with him for some days, and (dismissing the original bill) upon a cross bill, ordered the articles to be delivered up and cancelled. The

(a) 2 Bos. & Pul. 93.
(6) 2 Dick. 791.

(c) 3 Bro. C. C. 619, in notis.

reasoning

reasoning of the Lord Chancellor (Lord Rosslyn), in pronouncing the decree in the case of Legard v. Johnson (a), is in many respects very applicable to this case, and his comments on the various authorities, also tend to shew that, in his opinion, deeds of this nature are not to be encouraged, and that Courts of Equity are not competent to give effect to such deeds, as against the husband.

The doctrine upon which the decree in that case was founded, and all the cases are there brought under consideration, is very material as applying to the present. The Lord Chancellor observes, in delivering his reasons, "The first is a general question, whether, taking it in the largest extent, a suit in Equity is competent to give effect, by the aid of this Court, to a deed of separation between husband and wife? To state the case as a general question fairly, I must suppose articles of separation, 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? I cannot state the transaction to be higher in point of law than a personal contract stante matrimonio between the husband and wife; but I must go farther, and consider that contract a separation by which they exclude and exonerate one another, as far as they can, from the rights and duties arising from matrimony. The common law will not entertain a suit upon contract by a wife against her husband. Such a

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action.

contract is incapable at law of producing any 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 (the case I am now putting) and supersede the exclusive jurisdiction of the Ecclesiastical Court by entering into the consideration of it. In looking through the cases from the time the reports commenced to be tolerably accurate, soon after the Restoration, when the jurisdictions were again established, I find that not an idea of that kind was entertained in that famous case of Whorwood v. Whorwood (a), in any account of it. Soon after the civil war there had been a decree by the Lords Commissioners. There being no Ecclesiastical Court, the jurisdiction by some way or other got here. After the Restoration, when the jurisdictions were established again, the decree of the Commissioners was to be reviewed. Lord Clarendon was assisted; and after great discussion, it ended in throwing the case back for the decision of the competent jurisdiction. The next case is Mildmay v. Mildmay, (b) soon afterwards: Lord Nottingham would not entertain any jurisdiction upon a contract between husband and wife; and in Hincks v. Nelthorpe (c) a demurrer was put in to the discovery, upon

(a) 1 Rep. Ch. 118. 1 Ch. Cas. 250. Rep. Temp. Finch,

the

(b) 1 Vern. 53. 2 Ch. Ca.

402.

153.

(c) 1 Vern. 204.

ground

ground that it was not a matter properly exa-
minable or relievable in this Court: and the de-
murrer was allowed, and the jurisdiction dis-
affirmed. In the opinion Lord Hardwicke gave
in Head v. Head (a), there is the same opinion of
the defect of jurisdiction in the general case in
this Court: and he observed, that where the Court
had interfered, they had very unwillingly acted
at all. Those cases to which he alludes, where the
Court had acted at all, stand under three heads:
where a third party had intervened, and it was
not only between the husband and wife. A third
party binding himself to indemnify the husband
against the debts of the wife, the interest of that
party raises a consideration for that party, be-
tween whom and the husband there might be a
contract, and with regard to whom he might bind
that party to himself.
Seeling v. Crawley (b).
were a little favorable.
ther to the wife. He bound himself to indem-
nify the husband. The next case, Augier v. Au-
gier (c), is governed by the same circumstance;
but other circumstances were also interposed,
which in point of expedience recommended the
case considerably to the attention of the Court.
A suit for separation had proceeded in the Eccle-
siastical Court for bad usage &c. That depend-
ing, an interposition of friends had taken place.
The suit was compromised in the Ecclesiastical
Court; and upon the consideration of that com-

That was the case of
The circumstances there
The third party was fa-

(a) 3 Atk. 295. 547. (b) 2 Vern. 386. (c) Pre. in Ch. 496.

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promise, there being also a third party there, the decree directed the husband to pay conditionally, and a full security was given to the husband. Certainly neither of these cases can be quoted as an authority that this Court, upon the general and simple question between husband and wife, can entertain a suit upon a contract in which the wife only claims a separate maintenance against the husband. The other cases which I do not state, are, where a fortune accrued to the wife after separation, and an application was made to this Court upon a very plain ground, that some provision should be made for her out of a fortune coming under those circumstances. The principle is plain, if it happens from the situation of the parties that they cannot enjoy in common that which would maintain both: it would be very hard that the party from whom it moves should lose, and the other should gain the whole benefit. Another case, in which the Court may take into its consideration the rights and duties arising from the relation of marriage, is where the property is only to be sued in this jurisdiction-where a trust is created, and there is no coming at it by the common law. That was the case in Sidney v. Sidney (a), and the other case quoted in the note upon that case, where, as a ground to give effect to articles made upon marriage, this Court considered the estate vested according to the articles; and the husband having used the estate as he ought not to have done, and as he could not have done in point of law, if the (a) 3 P. Wms. 269.

articles