without some Agreement between them for that purpose; but Lord Hardwicke seems, though reluctantly, to have thought such an Agreement might be decreed (d); and there are cases to that effect (e);

but the more recent and settled doctrine now appears to be, that this Court will not carry into execution articles of Separation between Husband and Wife. It recognizes 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 (f). In Guth v. Guth, it was determined, after great consideration, that articles of Separation may be specifically enforced, at the suit of the Wife, and this, though the Husband offered, by his Answer, to receive his wife again (g); but that decision has been much discountenanced by subsequent Judges (h); Those marriage cases (cases followed but not approved) (i), in which the Court has acted upon an Agreement to separate, have been, in general, whete a third party has intervened, and the Agreement was not merely between the Husband and Wife (k), as

(f) Worrall v. Jacob, 3 Meriv. 268.

(g) Guth v. Guth, 3 Bro. 614; and see Fitzer v. Fitzer, 2 Atk. 511, and Fletcher v. Fletcher, 2 Cox, 99.

(h) See Legard v. Johnson, 3 Ves. 361, Lord St John v. Lady St. John, 11 Ves. 532, Wilkes v. Wilkes, 2 Dick. 791. This last case, according to a MS. note in my possession, was thus: "Where the Feme had a separate Es ate, and they agreed upon a separation, and that part of the separate Estate standing in Trustees names shall be given up to the Baron; the Court would not decree a performance of this Agreement, the Master of the Rolls saying, the agreement amounted to a Divorce, which this Court has no Jurisdiction to decree, and

therefore, although it was fully consented to by all parties, he refused to make any Decree. He said it had always been a favourite object of this Court to bring a Husband and Wife to a reconciliation to live together, but that he never knew of a decree to establish a separation; but he said that he would not dismiss the Bill; and that if the parties could find any cases to remove his doubts, they might apply again to bring on the cause." No notice is taken of any further proceedings.

(i) See Lord St. John v. Lady St. John, 11 Ves. 537, and what is said in Worrall v. Jacob, 3 Meriv. 268.

(k) Sterling v. Crawley, 2 Vern. 385. Stephens and Olive, 2 Bro. C. C. 90, Compton against Collinson, ibid. 386;

where Trustees have covenanted to indemnify the Husband against the Debts of the Wife, which forms a valuable consideration (1); or where a fortune has accrued to the Wife after separation (m). As against Creditors the Court will never decree an Agreement for a Separation where the Agreement rests between Husband and Wife only (n); but where the Husband was a Trader liable to the Bankrupt Laws at the time of a Deed of Separation, in which he covenants with a Trustee for the Wife, in consideration of being indemnified from all debts and engagements which may be contracted by her during the Separation, to release his Remainder in Fee in certain Estates (of which he was Tenant for Life, with Remainder to the Wife for Life, &c. with Remainder to himself in Fee) to such uses, &c. as the Wife should by Deed or Will appoint, such Agreement was held good, notwithstanding the 1 Jac. I, c. 15. s. 5.(0). The Wife is not bound in any degree by a Deed of Separation; and a specific Performance could not be enforced as against her (p); and it must be observed, that Articles of Separation are put an end to by Reconciliation (q).

A parol Agreement for an equality of partition, entered into between persons who had a right to

and see the observation in Legard v. Johnson, 3 Ves. 359; and in Lord and Lady St. John, 11 Ves. 582. See also Cooke v. Wiggins, 10 Ves. 191.

(1) Stephens v. Olive, 2 Bro. C. C. 90; and King v. Brewer, cited ibid. 93, in note. Compton v. Collinson, 2 Bro. C. C. 386. Worrall v. Jacob, 3 Meriv. 269, 270.

Legard and Johnson, 3 Ves. 359, 360.

(n) See Fitzer v. Fitzer, 2 Atk. 514 Taylor v. Jones, 2 Atk. 602; and the observations and decision in Legard v. Johnson, 3 Ves. 361.

(0) Worrall v. Jacob, 3 Meriv. 256.

(p) See Lord St. John v. Lady St. John, 11 Ves. 533, 537(q) Ibid. 537. Fletcher v Flet(m) See the observations in cher, 2 Cox, 99. S.C.3 Bro. 619.

contract, and accordingly put in execution, will, though of long standing, be established. And if a Joint-tenant upon equality of partition thinks proper to accept of a contingent, uncertain advantage, where one moiety of the Land is of superior value to the other, it will not vacate the Agreement (s); but the Agreement of the Husband will not bind the Inheritance of his Wife (t).

The specific performance of Covenants is frequently sought in Equity. Covenants which are said to run with the Land will be decreed to be specifically performed for, or against, (as the case may be) successive owners of such Land (u).

The Court will not give a specific Performance according to the letter of the Covenant, where there has been a change of circumstances; but, it seems, in such case, it will execute the Covenant according to a conscientious modification of it, to do justice as circumstances will permit (x).

If one agrees to sell Lands he has not, and afterwards acquires them, he will be compelled to perform his Agreement (y); as, where a Purchaser of Crown Lands in the time of the Rebellion (or as the Reporter, Serj. Maynard, terms it, "the late War") sold part to the Plaintiff, and covenanted to make further Assurances; and on the King's Restoration he had a Lease for years made to him under the King's title, he was decreed to assign his Term in the part he had sold (2).

(s) Ireland v. Rittle, 1 Atk. 542.

(t) Ibid. Sed. vid. Co. Litt. 171. a. 8 Edw. 4, 4o.

(u) 1 Eq. Cas. Abr. 473.

(x) Davis v. Hone, 2 Sch. & Lefr. 348

(y) Clayton v. Duke of Newcastle, 2 Cha. Cas. 112.

(2) Taylor v. Dafar, a Ch. Cas. 212.

Where a person seised of Lands agrees by Articles to settle Lands of a certain value, the Articles have been held to be a lien on the Lands, of which such person was then seised, though no particular Lands were mentioned in the Articles (y).

So, where Tenant for Life, with power to make a Jointure of 500 l., in consideration of Marriage, and of 10,000 l., covenants to make such Jointure, but dies without doing it, it has been held that the Articles are a lien on the Estate, and that by the execution of them the Covenantor became a Trustee for the Feme (≈).

Where a Husband is bound by his Covenant, or his Trustees are bound with his consent, and with his Money, to purchase and settle Lands, and he does purchase Lands of less (a), equal (b), or greater (c) value than the Sum he covenanted to lay out, but does not settle them, he is (unless the Land be Copyhold) (d), presumed to have made the Purchase for the purpose of the Settlement (e); for it is a Rule, that where a Man is bound to do an Act, and he does what may enable him to do the Act, it is taken to have been done by him with the view of doing that which he was bound to do (f).

(y) Roundell v. Breary, 2 Vern. 482, confirmed, 3 Atk. 327, 9. Coventry v. Coventry, Gilb. 168.

(z) Lady v. Lord Coventry, 2 Mod. 19.

(a) See 2 Atk. 635. Lechmere and Carlisle, 3 P. Wms. 228.

(b) Wilcox v. Wilcox, 2 Vern. 558, relied on 2 Atk. 634. Deacon v. Smith, 3 Atk. 323.

(c) See Garthshore v. Chalie, 10 Ves. 9,

(d) Attorney-General and Whorewood, 1 Ves 541.

(e) Lench v. Lenck, 10 Ves. 516; see also Wilson and Foreman, imperfectly reported in 2 Dick. 593, but stated from the Register's Book, 10 Ves. 519, 520. Lechmere and Lechmere, For. 80.

(f) Sowden v. Sowden, 1 Bro. C. C. 583, S. C. mentioned in note, 3 P. Wms. 228; and see 1 Cox, 165. Lechmere and Lechmere, Forest. 80, in which Report there is a mistake, see 1 Cox, 166. Weyland v. Weyland, 4 Atk. 634.