KENDALL

v.

WEBSTER.

[ *445 ]

of the execution of the said deed, the said Mary Webster, the defendant's wife, was living with the said Alfred Kendall (who was her father), separate and apart from the defendant her then husband without his consent and against his will, as the said Alfred Kendall then well knew; and the said Alfred Kendall without the defendant's consent unlawfully harboured his said wife, and the defendant thereupon repeatedly before the execution of the said deed endeavoured to induce the said Mary Webster, his wife, to return to his, the defendant's, house, and to resume cohabitation with the defendant as his wife, as the said Alfred Kendall then also then well knew; and the said Alfred Kendall by means of such harbouring and by undue influence, threats and persuasions, induced the said Mary Webster, the defendant's said wife, who was willing to return to the defendant's said house and to resume cohabitation as aforesaid, to refuse to and not to return to the defendant's said house and resume such cohabitation as aforesaid, and to insist upon continuing to live apart from the defendant her said husband, and to demand of the defendant the execution of the said deed in the declaration mentioned, in order to enable her so to continue to live separate and apart; and the said Alfred Kendall by such unlawful harbouring of the defendant's said wife, and by so inducing her by undue influence, threats and persuasions to continue to live separate and apart from the defendant her said husband, and to refuse to return to his house and to cohabitation with him as aforesaid, prevailed upon and induced the defendant *and his said. wife to execute the said deed as they otherwise would not have done; and the said Mary Webster was induced to consent to the said deed and to execute the same, and to require the execution thereof by the defendant, by the undue influence, persuasion and threats of the said Alfred Kendall, who so then unlawfully harboured the said Mary Webster and prevented her from returning to the house of the defendant and to cohabitation with him as aforesaid; and the defendant by such refusal of the said Mary Webster to return to his house and to such cohabitation as aforesaid, and by her so requiring the execution by him of the said deed as aforesaid, so unlawfully brought about by the said Alfred Kendall as aforesaid, was induced to execute the said deed, as he otherwise would not have done. And the said Alfred Kendall, by the means aforesaid, unlawfully endeavoured to bring about, and did bring about, the separation of the defendant and his said wife by means of the said deed; and but for the aforesaid unlawful conduct of the said Alfred Kendall the said deed never would have been executed by the defendant or his said wife, nor would they have become separated thereby or there

under, and the defendant's said wife would have returned to his house and to cohabitation with him as aforesaid. And the defendant further saith that, before and at the time of the execution of the said deed by the defendant, the said Mary Webster was pregnant with a child by him the defendant, her said husband, whereof she was afterwards delivered, of which said pregnancy he the defendant at the time of the execution of the said deed was wholly ignorant or he would not have executed the said deed, which said pregnancy was well known to the said Alfred Kendall and to the said Mary Webster, the wife of the defendant, and they also well knew that he, the defendant, was ignorant of the same, and that had he known the same he would not have executed the said deed; and the said Alfred Kendall persuaded and induced the said Mary Webster not to inform the defendant of the said pregnancy lest he, the defendant, should not execute the said deed, and the said Alfred Kendall and the said Mary Webster agreed to keep the defendant in ignorance, and they did keep the defendant in ignorance of the said pregnancy until after the execution of the said deed, in order that the defendant might be induced by such ignorance, and he was induced by such ignorance, to execute the said deed. That at the time that he and his said wife and the said Alfred Kendall executed the said deed, which recited that there was issue of the marriage of the said defendant and Mary his wife one child only, namely, John Webster, an infant of eleven months old, he, the defendant, supposed and believed, and the said Alfred Kendall and Mary Webster knew that he supposed and believed, that the said Mary Webster was not pregnant of any other child, whereas the said Alfred Kendall and Mary Webster then well knew that she, the said Mary Webster, was then pregnant of another child by him, the defendant her said husband; and the defendant was thereby induced to make and execute, and did make and execute the said deed by the means aforesaid, as he would not otherwise have done. And the defendant also says, that during all the time that the said alleged arrears of the annuity were accruing due, and at the time of the making and executing of the said indenture, and at all times thereafter and hitherto, the defendant was and has been ready and willing and offered, and still is ready and willing to receive back his said wife and children to his house, and to maintain them and cohabit with his said wife as her husband, whereof his said wife and the said Alfred Kendall and the plaintiff, during all the time aforesaid, had notice; but the said Alfred Kendall and the plaintiff, during all the times aforesaid, prevented the defendant's *said wife and children from returning to the defen

KENDALL

v.

WEBSTER.

[ *446 ]

[ *447 ]

dant, and they during all those times against the will of the defendant remained living apart from him.

Demurrer, and joinder therein.

Phipson, in support of the demurrer:

The facts alleged in the plea afford no defence to the action, either at law or in equity.

(POLLOCK, C. B.: Is there any authority that under these circumstances a court of equity would set aside the deed ?) None can be found. The authorities relating to deeds of separation are collected in Roper on Husband and Wife, vol. 2, p. 269, 2nd ed., and Bright on Husband and Wife, vol. 2, p. 313. A court of equity, in decreeing specific performance of a deed of separation, does not inquire into the cause of the separation: Wilson v. Wilson (1). Where the separation is for the lives of the parties, the offer of the husband to take back his wife will not determine her separate allowance, since it is founded on an express contract, and therefore requires the same mutual agreement to dissolve it: Roper on Husband and Wife, vol. 2, p. 314, 2nd ed. Where the deed of separation is between the husband and wife and a third party acting for the wife, she has the same right as any other cestui que trust to enforce the execution of a trust created in her favour: Roper on Husband and Wife, vol. 2, p. 296, 2nd ed. It will be said that there was an equitable fraud in the concealment of the wife's pregnancy, but apart from the difficulty of.supposing that the trustee, who has indemnified the husband against his wife's debts, obtained the deed fraudulently, the answer is, that fraud would not render the deed void, but voidable only.

The COURT then called on

Morgan Lloyd, for the defendant:

Agreements for separation of husband and wife have always been considered as against public policy, since they destroy all the duties and obligations of the marriage contract, not only as respects themselves but their children also. The doctrine laid down in Westmeath v. Westmeath (2) still prevails, viz., that a deed between husband and wife for future separation cannot be supported. But upon that doctrine has been engrafted this qualification, that where differences exist between husband and wife, they may covenant for immediate separation, and such a covenant will be enforced at law or in equity, though considered illegal by the Divorce and Matrimonial Court: Mortimer v. Mortimer (3). It is an established rule in equity that family (1) 73 R. R. 158 (1 H. L. C. 538). (2) 35 R. R. 54 (1 Dowl. N. S.

519).

(3) 2 Hagg. C. C. 318.

arrangements cannot be supported unless there has been a full disclosure of all material circumstances: Gordon v. Gordon (1). The defendant, when he entered into the contract, supposed that the issue of his marriage was one child only, and that his wife was not pregnant. That fact was concealed from him, and thereby he was induced to execute the deed.

(POLLOCK, C. B.: The defendant was willing to sign a deed of separation, having an only child eleven months old; why should it be supposed that he would have been unwilling to sign it if he had known that he was likely to have another child?) The deed provides that the defendant shall have access to his child, and that he shall not be liable for its maintenance, but there are no such provisions in respect of the child unborn. The facts disclosed by the plea amount to a conspiracy between the plaintiff and the defendant's wife to keep him in ignorance of her pregnancy, in order that he might be induced to execute the deed.

(MARTIN, B.: If the defendant means to impute *fraud, why not say so?)

The statements in the plea show a fraud in equity, if not at law. At all events, the declaration is bad. By this deed the defendant and his wife are not only compelled to live apart so long as they live, but she may live in such a way as she may think fit, absolutely free from all restraint and authority of her husband. That clause is clearly against public policy, because it enables the wife, if she thinks fit, to live in a state of adultery, or at a house of ill fame.

(POLLOCK, C. B.: If those circumstances had happened, I do not say what would be the consequence, but they have not.

MARTIN, B.: Is not this deed in the ordinary form; and must it not be assumed that the wife will conduct herself properly? CHANNELL, B.: Though the contract may be illegal in some respects, the covenant to pay the money may be good.) Where there are independent covenants, a deed may be good in part and bad in part, but where the covenants are mutual and go to the whole consideration on both sides, if any one is illegal the deed is altogether void.

Phipson, in reply:

A stipulation, in a deed of this kind, though illegal, does not avoid a covenant by the husband with a trustee to pay money for the wife's maintenance. In Worrall v. Jacob (2) Sir W. GRANT,

(1) 19 R. R. 230 (3 Swanst. 400).

R.R.-VOL. CXXX.

(2) 3 Mer. 256, 268.
39

KENDALL

r.

WEBSTER.

[ *450 ]

M. R., said: "The object of the covenants between the husband
and the trustee, is to give efficacy to the agreement between
the husband and the wife; and it does seem rather strange that
the auxiliary agreement should be enforced, while the principal
agreement is held to be contrary to the spirit and the policy of
the law. It has, however, been held that engagements entered
into between the husband and a third party shall be held valid
and binding, although they originate out of and relate to that
unauthorized state of separation in *which the husband and wife
have endeavoured to place themselves." The consideration for
the husband paying money for his wife's maintenance is the
covenant by her trustees to indemnify him against his wife's
debts: Roper on Husband and Wife, vol. 2, p. 296, 2nd ed.;
Wilson v. Wilson (1). A contract induced by fraud is not void,
but voidable at the option of the party defrauded; and where
he has received a benefit under it, so that the parties cannot be
restored to their original condition, he has no right to rescind
it: Clarke v. Dickson (2). "A deed cannot be avoided on the
ground of a fraudulent misrepresentation, unless the matter mis-
represented was a material inducement to the execution of the
deed; in other words, unless the matter was such as, in case
of a simple contract, would be substantially the consideration
for the contract: " per ERLE, J., in Mallalieu v. Hodgson (3). In
Geddes v. Pennington (4) it was held that a false representation as
to the place from which a horse came did not invalidate the sale.
Per CURIAM (5):

We are all of opinion that the plaintiff is entitled to judgment.
Morgan Lloyd then applied for leave to amend, by alleging
fraud, which was refused.
Judgment for the plaintiff.

1862. June 11.

DAVIES v. DAVIES.

(1 H. & C. 451-453.)

[Obsolete pleading.]

1862. June 16.

1862. June 17.

M'CREIGHT v. STEVENS.

(1 H. & C. 454-457; S. C. 31 L. J. Ex. 455; 6 L. T. N. S. 503; 10 W. R.

798.)

[Obsolete practice as to particulars.]

ATTORNEY-GENERAL v. PARTINGTON.

(1 H. & C. 457-477; S. C. 10 Jur. N. S. 617.)

[Affirmed in the Exchequer Chamber, as reported 3 H. & C. 193, and in the House of Lords, sub nom. Partington v. Attorney-General, L. R. 4 H. L.100.]

(1) 73 R. R. 158 (14 Sim. 405).
(2) 113 R. R. 583 (El. Bl. & El. 148).
(3) 83 R. R. 679 (16 Q. B. 689).

(4) 5 Dowl. 159.

(5) POLLOCK, C. B., MARTIN, B., BRAMWELL, B., and CHANNELL, B.