Common Pleas. BOYD V. NETHERY. H. T. 1860. defence filed, to enable him to mark the judgment, as for want of a defence. Therefore we must hold that the judgment was not marked too soon in the present case. When this case was formerly before us, we expressed our opinion, to which we adhere, that the notice served by the defendant's attorney, requiring a copy of the agreement and the notice of motion for that purpose, did not operate as a stay of proceedings, so as to render plaintiff's judgment irregular. But still, as I have already stated, we were and are of opinion that the defendant should be at liberty to defend the action, and we have already made a rule to that effect. The result of what we have done in this case will be that, for the future, the time of pleading in this Court will be the same as in each of the others; and the officers of this Court will do everything in their power to give publicity to the change in our practice. JACKSON v. CRIDLAND. Jan. 24, 31. A separation deed contain THE summons and plaint stated that by a deed, dated the 9th of July ed the follow- 1846, and made between the defendant of the first part, Henrietta ing proviso, "that neither Cridland (the wife of defendant) of the second part, and plaintiff the said wife nor husband shall not nor will, at any time hereafter, institute or commence, &c., any suit, &c., in any Ecclesiastical or other Court, or apply for any Act of Parliament, with a view of obtaining a divorce, upon any ground, or for any cause whatever either now existing, or which may afterwards arise or be conceived to exist; provided always, that in case any suit, &c., shall be instituted, &c., by said H. C. (the wife), then and from thenceforth the said yearly sum or sums hereinbefore covenanted to be paid, &c., shall absolutely cease and determine." The deed also provided, that in the event of the husband taking such proceedings, the wife's annuity should be increased. By the same deed, an annuity was granted to the wife, which was expressed to be in consideration of the agreement and understanding that she should not, at any time thereafter, molest or disturb the said husband in his person or in his manner of living, nor at any time or times hereafter require, or by any means whatever, by ecclesiastical censures, or by taking out any citation or process, or commencing or instituting any suit whatever, or otherwise howsoever, endeavour to compel him to cohabit or live with her, or to enforce any restitution of conjugal rights, nor require, nor by any means whatsoever endeavour to compel him to allow her, any further or other alimony or maintenance than is allowed by these presents.' The wife afterwards brought an action to enforce the arrears of said annuity.-Held, that, assuming the proviso in question to be void, on the ground of public policy, as tending to encourage immorality, it did not form any portion of the consideration for the grant of the annuity, and that the action was maintainable. Common Pleas, JACKSON v. of the third part, the defendant, for the considerations therein men- H. T. 1860. tioned, covenanted with the plaintiff, that he, the said defendant, should and would pay to the plaintiff, his executors, &c., during the joint natural lives of the said defendant and his said wife, the yearly CRIDLAND. sum of £100 sterling, subject to be increased as therein mentioned, on the death of Annie Blanche Cridland, who is still living; the said yearly sum to be payable by equal half-yearly payments, on the first day of January and the 1st day of July in every year, &c. Averment, that plaintiff was trustee for Mrs. Cridland, and that ten years' arrears were due, amounting to £784. 4s. 10d. Second count, on a further covenant, that in case, for any cause whatever, other than the act or deed of the said Henry Cridland, a certain annuity of £300, in said deed mentioned, should cease to be payable, or should be in arrear for two calendar months, so that a certain proviso in said deed contained, whereby time was to be allowed to the said defendant for payment of the annuity of £100, in said first paragraph, until the arrears of the said annuity of £300 should be paid and satisfied, should take effect, then the said defendant would pay to the plaintiff, for the maintenance of his said wife, the yearly sum of £30, by equal quarterly payments; the first payment thereof, in case the same should become payable, or of a proportionate part thereof, in respect of so much of the quarter of a year as should have elapsed from the day of the said annuity of £300 ceasing to be payable, or from the day when the same annuity should have been in arrear two calendar months, to be made on such of said quarterly days of payment as should follow next after such events, or either of them. Averment, that said annuity of £300 did not cease to be payable, yet the same was several times in arrear for the space of two calendar months, so that the said defendant had the benefit of the said proviso, and was not required to make payment of said annual sum of £100, while said annuity of £300 became payable, by virtue of said last recited covenant; that, on the first day of June 1859, the sum of £300 of the said yearly sums of £30 for ten years then elapsed became due. The defendant, in his defence, set out the deed in hæc verba. 48 L VOL. 10 JACKSON v. H. T. 1860. It purported to be made between Henry Cridland, Esq., the deCommon Pleas. fendant, of the first part, Henrietta Cridland, the wife of said Henry, of the second part, and William Oliver Jackson, of the third part. CRIDLAND. It recited two several marriage settlements, dated 19th of February and 3rd of March 1845, whereby an annuity of £300 per annum was limited to a trustee in trust for Henry Cridland, during the joint lives, until the happening of certain events therein specified, and then in trust for Mrs. Cridland, during her life, to her sole or separate use. It then recited a deed of even date, whereby the plaintiff was appointed in place of the former trustee; that differences had arisen between the husband and wife; that there was issue of the marriage one child only, now of the age of five months; that upon the treaty for the separation, it was agreed between said defendant and his wife, that the said infant should remain in the custody of her father, and be maintained and provided for by him, and that the defendant should, in consideration of the premises, and other the considerations thereinafter mentioned, pay the annuity thereinafter granted. It then witnessed that, in pursuance of the thereinbefore recited agreement, and in consideration of the agreement and understanding, that she, the said Henrietta Cridland, should not, at any time thereafter, molest or disturb the said Henry Cridland, in his person or in his manner of living, nor at any time or times hereafter require, or by any means whatever, either by ecclesiastical censures, or by taking out any citation or process, or commencing or instituting any suit whatsoever, or otherwise howsoever, endeavour to compel him, the said Henry Cridland, to cohabit or live with her, or to enforce any restitution of conjugal rights, nor require, nor by any means whatsoever endeavour to compel, the said Henry Cridland to allow her any further or other alimony or maintenance than is secured by these presents, the defendant then covenanted that the plaintiff might live separate and apart from him, &c. (using the common form of separation deeds). Then followed the covenant for the payment of the annuity, "for the considerations aforesaid." The deed contained the following proviso; that neither the said Henry Cridland, Henrietta Cridland nor the defendant shall not, nor will, at any time hereafter, institute or commence, &c., any suit, &c., in any Ecclesiastical or other Court, or apply for any Act of Parliament, with a view of obtaining a divorce, upon any ground, or for any cause whatever, either now existing, or which may afterwards arise, or be conceived to exist. Provided always, that in case any suit, &c., shall be instituted, &c., by said Henrietta Cridland, then and from thenceforth the said yearly sum or sums hereinbefore covenanted to be paid shall absolutely cease and determine; and, in case any such suit, &c., shall be instituted or commenced by the defendant, then and from thenceforth he shall abandon, quit claim and release one moiety of said annuity of £300, in favour of said Henrietta Cridland, and which, in such case, shall be paid to her in addition to the payments of £100 and £30 agreed to be paid, &c. Demurrer, on the ground that the defence does not allege any matter of excuse. H. T. 1860. JACKSON v. CRIDLAND. Bond Coxe (with whom was J. E. Walsh), in support of the demurrer, contended, first, that the proviso was not invalid, as neither being in contemplation of, nor calculated to encourage, immorality. Secondly, that, if void upon the above grounds, it did not vitiate the grant of the annuity, being a condition subsequent, and forming no part of the consideration. He cited Wilson v. Wilson (a); Gaskell v. King (b); Hall v. Palmer (c) ; Cartwright v. Cartwright (d); Byrne v. Lord Carew (e); Jodrell v. Jodrell (f); Brown v. Peek (g); Jones v. Waite (h). Law and J. T. Ball, contra, contended that the proviso was illegal per se, and being part of the consideration for the grant of the annuity rendered it void. They cited St. John v. St. John (i); 2 Bright on Husband and Wife, by Jacob, App., No. 12; (a) 1 H. L. Cas. 538; S. C., 5 H. L. Cas. 40. (6) 11 East, 165. (c) 3 Hare, 537. (e) 13 Ir. Eq. Rep. 1. (g) 1 Eden, 140. (f) 9 Beav. 45. (h) 5 B. & C. 363. (i) 11 Ves. 526. Common Pleas. H. T. 1860. Rogers v. Rogers (a); Crewe v. Crewe (b); Gilpin v. Gilpin (c) ; Barker v. Barker (d); Sullivan v. Sullivan (e); Walrond v. Walrond (f); Scott v. Gilmore (g); Featherston v. Hutchinson (h); JACKSON t. CRIDLAND. Bridge v. Cage (i); Macqueen's Practice of the House of Lords, p. 473. [MONAHAN, C. J., referred to Adams (in Error) v. Reade (k)]. J. E. Walsh replied. Jan. 31. Cur. ad. vult. CHRISTIAN, J., delivered the judgment of the Court. This is an action upon a covenant contained in a deed, bearing date the 9th of July 1846, by which the defendant covenanted with the plaintiff for payment to him, during the joint lives of the defendant and of Henrietta Cridland his wife, of certain annuities, upon trust, for her separate use, and which annuities, it is averred, are in arrear. To this action a defence has been filed, which is somewhat peculiar in its form. It avers that the deed in the plaint mentioned is in the words and figures following. It then sets out the deed, in his verbis, from the first word to the last, and then merely adds this, "and, therefore, he defends the action." To this defence the plaintiff has demurred. Upon these pleadings, though the case is, in form, before us on a demurrer to the defence, yet in substance it is before us on a demurrer to the deed, or, to speak more technically, to the plaint. Under the old form of pleading, the defendant, wishing to defend himself in the way he does here, would have craved oyer of the deed. When it was set out on the record, in pursuance of that prayer, it would have been considered as a part of the declaration; and the defendant would have demurred to the declaration; and, upon the (a) 3 Hagg. 57. (e) 2 Adams, 303. (g) 3 Taun. 226. (i) Cro. Jac. 103. (b) 3 Hagg. 131. (f) 1 John, 18. (h) Cro. Eliz. 199. (k) 2 Ir. Jur., N. S., 197. |