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of the deed is to incapacitate the wife from charging her husband; and it will be his own fault if that object be not attained. Suppose the wife, while living apart, to grant a bill of exchange or promissory note to some tradesman for goods supplied to her. This, of course, would not bind her husband. And even supposing it to bind herself, the worst result that could happen would be this, namely, that the holder might apply to the Court of Chancery for an injunction to restrain the husband from paying her allowance till the bill or note should be satisfied (x).

However, I am far from meaning to recommend the omission of the indemnity clause. It has the sanction of experience. It gives additional strength to the deed. It constitutes a valuable consideration (y). But the wife's friends are often deterred, by the fear of responsibility, from becoming bound for her; and in this way a desirable arrangement is frustrated. The practical point, therefore, of my remarks on the indemnity clause, is to show that the risk incurred is not formidable, provided proper steps. are taken to secure the husband's punctuality in paying the stipulated allowance.

USUAL PRO-
VISIONS IN

DEEDS OF
SEPARATION.

that on renewal

the deed shall be

The last clause usually found in a deed of separation, Clause providing is one which provides that its provisions shall wholly of cohabitation cease in the event of the husband and wife resuming cohabitation (z). The terms of this clause are as follow :—

Provided always, &c., that in case the said A. B. and C. D. shall at any time hereafter, with their mutual consent, come together and cohabit as man and wife, then and in such case and from thenceforth

(x) As in Vandergucht v. De Blaquiere, 5 Myl. & Cr. 229.

(y) Stevens v. Olive, 2 Bro. C. C. 90; Worrall v. Jacob, 3 Mer. 256.

(2) According to some forms this clause is omitted on the ground that a renewal of cohabitation will of itself vacate the deed. See Durant

v. Titley, 7 Price, 577; Fletcher v.
Fletcher, 2 Cox, 99; Hindley v. Mar-
quis of Westmeath, 2 Barn. & Cress.
200; Marquis of Westmeath v. Mar-
chioness of Westmeath, 1 Dow &
Clark, 519; Jee v. Thurlow, 2 Barn.
& Cress. 547.

void.

USUAL PRO-
VISIONS IN
DEEDS OF
SEPARATION.

Cohabitation without reconciliation.

the said yearly annuity or yearly sum of £

hereinbefore covenanted and agreed to be paid, shall cease and be no longer payable, and from thenceforth all the covenants and agreements hereinbefore contained on the part of the said E. F. and G. H., shall become absolutely null and void to all intents and purposes whatsoever, any thing herein before contained to the contrary thereof in anywise notwithstanding.

What shall constitute a renewal of cohabitation, so as to come within the terms and meaning of this clause, may be a question. Casual meetings in society, I presume, will not have this effect (a); and, I apprehend, it is doubtful whether forgiveness, or even the interchange of expressions of conjugal affection and tenderness, by letter, or otherwise, will put an end to the deed; because the physical separation may still continue, and be kept up advisedly (b). It is nowhere said that actual animosity must be maintained. The rule, in short, does not appear to be the same as that which, I presume, governs in cases of divorce a mensâ et thoro; for the ecclesiastical sentence expressly declares, that it continues only till the parties "shall be reconciled to each other."

But although forgiveness does not necessarily, of itself, put an end to the deed,-it seems so far important that in those cases where a renewal of cohabitation takes place, and where it is held that the deed is thereby superseded-the Court invariably supposes that the parties are in fact reconciled. Therefore, a mere living together under the same roof, under circumstances which showed continued hostility and animosity, was held, by the House of Lords, in Bateman v. Ross (c) not sufficient to terminate the state of separation.

(a) See Wilson v. Muschett, 3 Barn. & Adol. 743; and Slatter v. Slatter, 1 You. & Coll. C. C. 28.

(b) I am informed that a great conveyancer, now retired from practice, introduced into deeds of separation a clause, which he called the "five

minutes clause," whereby he pro-
vided, that if the husband and wife
should at any time be together for
five minutes, after either of them
had requested the other to depart, the
deed should instantly become void!
(c) 1 Dow, 245.

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IN Lord Hardwicke's time it would rather appear that prospective arrangements for the separation of husband and wife were not deemed necessarily void. That great Judge himself did not expressly condemn them (a). And in Rodney v. Chambers (b), Mr. Justice Le Blanc said there was no satisfactory reason why an agreement to separate de futuro should be bad, if an agreement de præsenti for the same purpose, should be good. However, the distinction has been taken, and is still maintained on grounds of policy. Accordingly, in Westmeath v. Westmeath (c), the House of Lords expressed a clear opinion that a deed providing for a contemplated separation, could not be supported. The same conclusion seems derivable from Vandergucht v. De Blaquiere (d), before Lord Chancellor

(a) Moore v. Moore, 1 Atk. 277; West, 43. See also Lord Vane's case, 13 East, 171; and Hoare v. Hoare, 2 Ridg. P. C. 268.

(b) 2 East, 297.

(c) 1 Dow & Clark, 519.
(d) 5 Myl. & Cr. 229.

Prospective arseparation.

rangements for

MISCELLANEOUS Cottenham, although the precise point was not raised in

POINTS.

Whether by antenuptial contract

made for the husband's miscon

duct.

that case.

In Cocksedge v. Cocksedge (e) this question was judicially provision may be discussed; namely, whether by ante-nuptial contract, a provision might be secured for an innocent wife in the event of the parties ceasing to cohabit. There was no decision (f); but of such a case it may be said that the stipulation under certain circumstances may not be an unreasonable one for parents or guardians to propose. On the other hand, the objection arises that, by an arrangement of this nature, a strong incentive to cultivate the husband's affection is taken away; and a wife, having such a resource to fall back upon, may be apt to take offence on slight occasions.

Domestic forum,

to decide when

take place.

In Rodney v. Chambers (g), the Court of King's Bench separation should held that the husband's covenant to allow his wife a separate maintenance in case a separation should take place with the approbation of the trustees, was a legal and valid covenant. The principle of this decision, which, so far as I know, has not been repudiated by any subsequent authority, was explained by Mr. Justice Lawrence in the following terms :

Proviso that the trusts shall continue though cohabitation be renewed.

We thought that there was nothing illegal in the parties agreeing to refer the question as to what was a good cause of separation to a domestic forum, instead of applying to the Ecclesiastical Court for a divorce and alimony. We, therefore, only decided that a covenant for separation with the consent of the trustees was good. Not that a covenant was good generally that a wife might separate from her husband whenever she pleased; for that would be to make the husband tenant at will to the wife, of his marital rights.

There seems to be nothing to prevent the insertion of a clause declaring that the trusts and covenants for payment

(e) 5 Hare, 397. See 14 Sim. 244.

(f) Vice-Chancellor Wigram sent

a case to law upon this and other questions in the cause.

(g) 2 East, 283.

POINTS.

shall continue, notwithstanding the renewal of cohabitation. MISCELLANEOUS Thus, in Wilson v. Muschett (h) Mr. Justice Littledale said, "The proviso that the trusts shall continue though the parties live together again, only means that the husband intends to secure to the wife, for her separate use, the property settled by the deed, as he might have done originally on their marriage."

A deed of separation may make a permanent settlement of the husband's property; giving the wife a future interest, and containing provisions for the benefit of children (¿).

If once a well-contrived deed of separation has been prepared and executed, it may often be a subject of regret that all its provisions should fall to the ground on the simple re-union of the parties, who may, perhaps, separate again in a few weeks or days. Without recommending a continuing set of trusts and covenants for all cases, I may venture to say that experience has shown their adaptation to occasional states of circumstances. As to the question of morality, there seems to be as good a show of arguments on the one side as on the other.

In Jones v. Waite (j) it was held that a promise to pay money, upon condition that the promisee would execute a deed of separation, was a promise not void for illegality of consideration. A deed of separation had been drawn up, but not executed by the husband. To induce him to execute the deed, a third party undertook to pay his debts. It was held by the House of Lords, that the consequent execution of the instrument by the husband formed a good consideration for the agreement, and entitled him to enforce it (k).

Separation a good

consideration for

a

promise to pay.

A deed of separation primâ facie is held valid. The Deed presumed Court does not presume illegality (1).

(h) 3 Barn. & Adol. 743.
(i) Worrall v. Jacob, 3 Mer. 255.
(j) 4 Man. & Gr. 1104.

(k) 9 Cl. & Fin. 101. See also Clough v. Lambert, 10 Sim. 174.

(1) Jones v. Waite, 9 Cl. & Fin. 101.

valid.

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