void. It may be enforced through the medium of a bill in equity for a specific performance of it (i) as well as through the medium of an action at law.

A husband sought to obtain possession of the person of his wife through the medium of a habeas corpus, and the return to the writ stated that the husband, having used the wife very ill, the latter desired a separation, and that the husband, in consideration of a great sum which the wife gave him out of her separate estate, consented to her living alone, and covenanted under a large penalty never to disturb her or any person with whom she should live," that the wife then went to live with her mother, and was residing with her at her own anxious desire, and that the writ had been sued out by the husband with a view of seizing the wife by force, and the court held that the contract made by the husband under such circumstances amounted to a formal renunciation by him of his marital rights over the person of his wife; that he had no right to seize her, or force her back to live with him, and they dismissed the wife with an assurance that she was at free liberty to go home and live where, and with whom she pleased, and that her husband had no coercive power at all over her. (k)

But so long as there has been no such misconduct on the husband's part, as amounts to a forfeiture of his marital rights, a covenant to discontinue cohabitation would be nugatory and of no effect. The ecclesiastical courts will pay no attention to it; the courts of equity will not enforce it, (7) and no proceeding could be maintained against the husband for a breach of it in any court of common law. (m)

But whatever may be the circumstances under which a separation takes place, a deed, so far as it is made to provide alimony or a competent maintenance to the wife during the continuance of the separation, and to protect the husband from the wife's debts, will be recognized as valid, and the mutual covenants for the attainment of those objects may be enforced either by a bill in equity for a specific performance of them, (n) or through the medium of an action at law. The husband, being by law bound to support and maintain his wife, may covenant with any third party to pay a sum of money for her separate use, either for a term of years or during her natural life, provided the covenant is absolute

(i) Angier v. Angier, Gilb. Eq. Cas. 153; Pre. Ch. 499, s. c.

(k) Rex v. Read, 1 Burr. 542; 2 Ken. 279. (1) Wilkes v. Wilkes, 2 Dick. 791; 11 Ves. 530. Legard v. Johnson, 3 Ves. 352. Durand v. Durand, 2 Cox, 207. Worrall, v. Jacob, 3

Mer. 268.

(m) Rex v. Lord Vane, 1 W. Bl. 18.

(n) Ros v. Willoughby, 10 Pr. 2. Logan v. Birket, 1 Mylne & K. 225. Elworthy v. Bird, 2 Sim. & Stu. 281. Turner v. Boteler, Finch, 73.

and unqualified, and the performance of it is not made to depend upon the contingency of a future separation, or made conditional upon the wife's consent to live separate. (o) If the covenant is entered into as an inducement to either the husband or the wife to separate, it is absolutely void as offering a direct premium for the breach of the marriage vow. And, therefore, if it appears by a deed, entered into between the husband and the wife's trustee, that the separation is not a present, immediate, and actually accomplished separation, but is subsequently to be carried into effect, the covenants between the husband and the trustee for the payment of money to the wife, and for the indemnification of the husband from the wife's debts, will be void as being contrary to the public policy of the law.

Thus, where a deed recited that various differences and animosities existed between the husband and wife-that they had nearly led to a separation, but that the parties, by the intervention of their mutual friends, had consented to live together, upon condition that if at any future period those differences and disputes should again revive in the manner expressed in the deed, they should separate; and the deed then contained mutual covenants on the part of the husband, and a trustee appointed by the wife and her friends for the provision of a separate maintenance for the wife by the husband, and for the protection of the husband against the wife's debts, in case of the renewal of such differences and disputes, and consequent separation, it was held that the deed was void as being contrary to public policy. (p) So, "when parties execute a deed by which they agree to separate from each other, but at the same time it is stipulated between them verbally that they shall continue to live together, and they do in fact continue to live together after that deed has been executed, residing in the same house, although they may not cohabit together as husband and wife, such a deed cannot, under such circumstances, in point of law, be sustained," (q) and the husband cannot subsequently be sued upon any covenant therein contained for the provision of a separate maintenance for the wife.

A covenant by the trustee to indemnify the husband against debts. and expenses contracted by him and his wife, during the time they were cohabiting and living together, as well as against debts that may subsequently be contracted by her, is not, in contemplation of law, a covenant

(0) Clough v. Lambert, 10 Sim. 178. Bostock v. Hume, 7 M. & Gr. 893. Duffield v. Scott, 3 T. R. 376.

(p) Westmeath v. Salisbury, 5 Bl. N. s. 393.

Durant v. Titley, 7 Pr. 577.

(q) The Ld. Chancellor, ib. 395. Hindley v. Westmeath, 6 B. & C. 200.

or engagement to pay money as an inducement for a separation, and is not consequently void. (r)

If the husband and wife separate, and the husband covenants generally with a trustee to pay an annuity to the wife, the covenant is avoided, and the husband's liability thereon is discharged, by a subsequent reconciliation and cohabitation between the parties. (s) But if the annuity is covenanted to be paid to her during the term of her life, and it is provided that a subsequent cohabitation shall in no wise alter or affect the husband's liability upon the covenant, the wife's right to the annuity will not be affected by her consenting to live with her husband again. (t)

If the covenant is a covenant to pay the annuity during the continuance of a separation by mutual consent, and the husband has not forfeited his marital rights by his own misconduct, he may discharge himself from his liability thereon by offering to receive back the wife, and requiring her to cohabit with him; (u) but if he covenants absolutely and unconditionally with the trustee to pay the annuity during the life of the wife, an offer to continue the cohabitation (x) is no answer to an action upon the covenant. But the husband, if he desires, and has a right to require a continuance of the cohabitation, must resort to the ecclesiastical court and obtain a decree ordering her to return. And when the husband and wife have separated, and the husband has entered into such a covenant with a trustee on her behalf, his liability to pay the annuity is not discharged either by the subsequent commission of adultery by the wife, (y) or by a decree of divorce a mensá et thoro pronounced by the ecclesiastical court in consequence of such adultery. "If the husband wished to make the commission of adultery a condition of paying the annuity to his wife, he should have covenanted to pay it quamdiu casta vixerit." (2)

When a separation has taken place, and property has been settled upon the wife and children of the marriage, for their support, the settlement will be upheld against the future creditors of the husband, (a) unless it appears that the separation was illusory and without adequate cause.

DIVORCE a mensâ et thoro.-" The distinction between divorce from

(x) Seeling v. Crawley, 2 Vern. 386.

(y) Baynon v. Batley, 1 M. & Sc. 339; 8 Bing. 256, s. c.

(2) Abbott, J. C., Jee v. Thurlow, 2 B. & C. 551; 4 D. & R. 11. Seagrave v. Seagrave, 13 Ves. 439.

(a) Hobbs v. Hull, 1 Cox, 445. Nunn v. Vilsmore, 8 T. R. 529. Stephens v. Olive, 2 Br. C. C. 90.

bed and board, and from the bond of matrimony, is not mentioned in scripture, and was unknown to the ancient church. It was devised by the canonists and schoolmen, and first established by the decrees of the Council of Trent." (b) Cruelty on the part of either the husband or the wife is a sufficient ground for a divorce a mensâ et thoro. If a husband refuses his wife the common necessaries of life, or treats her with gross insult and indignity-if he spits in her face, attempts to debauch her maid servants, (c), or puts her unnecessarily into confinement, or under personal restraint; or strikes her, or threatens her with personal violence unjustifiably and without adequate provocation, (d) and conducts himself so as to give her a reasonable apprehension of bodily harm, if she continues to reside with him, he is guilty of cruelty, and entitles her to separation from bed and board." (e) Everything is, in legal construction, cruelty, which tends to bodily harm, and in that manner renders cohabitation unsafe; whenever there is a tendency only to bodily mischief, it is a peril from which the wife must be protected. It is not necessary to inquire from what motive the treatment proceeds. (f) It may be from turbulent passion, or sometimes from causes not inconsistent with affection. If bitter waters are flowing it is not necessary to inquire from what source they spring. If the passions of the husband are so much out of his own control, as that it is inconsistent with the personal safety of the wife to continue in his society, it is immaterial from what provocation such violence originated. The court has an indisposition to interfere on account of one act, particularly between persons who have been under long cohabitation, because it may be hoped and presumed that it will not be repeated. But if one act should be of that description which should induce the court to think that it is likely to occur again, and to occur with real suffering, there is no rule that should restrain it from considering that to be fully sufficient to authorize its interference. Nor is it necessary that the conduct of the wife should be entirely without blame, for the imputation of blame to the wife will not justify the ferocity of the husband." (g) But there must be a reasonable and well-founded apprehension of personal injury. "Mere turbulence of temper, petulance of manners, infirmity of body or mind, are not sufficient. When they occur, their effects are to be subdued by management, if possible, or submitted to with patience, for the engagement is "to take

(b) Shelford on Marriage and Divorce, 365.
(c) 1 Hag. Eccles. 776; Hetley, 149.
(d) Waring v. Waring, 2 Phill. 132, 133.
(e) Gregory's case, 4 Burr. 1991.

But if a wife resists sexual intercourse she has no ground to complain of accidental injuries she received in the struggle. (g) Sir Wm. Scott, 1 Hag. Consist. 458.

for better, for worse," and painful as the performance of this duty may be, painful as it certainly is in many instances, which exhibit a great deal of the misery that clouds human life, it must be attempted to be sweetened by the consciousness of its being a duty."

The assistance of the court will not be afforded to a wife "who has taken upon herself to avenge her own wrongs, and to maintain a contest of retaliation." (h)

A DIVORCE a mensâ et thoro does not dissolve the marriage tie, or invest the wife with any of the attributes of a feme sole; it does not enable her to contract, so as to render herself responsible, or effect any alteration in her civil rights and responsibilities, except to justify her in living separate from her husband, and entitle her to alimony and a separate maintenance upon the terms of the decree. (i)

LIABILITY of the HUSBAND upon the wife's contracts after SEPARATION or DIVORCE a mensâ et thoro.

Separation by reason of the adultery of the wife. The husband, by the marriage contract, takes upon himself the duty of supporting and maintaining his wife so long only as she remains faithful to her marriage vow "to forsake all others and keep only unto him. Wanton women who violate their marriage vow, have no longer any claim on the husband (unless he has previously settled property upon them to their separate use, or has entered into a special contract with a trustee to pay them an annuity.) Such women are to be fed with the bread of affliction and satisfied with the waters of adversity." If the husband detects the wife in the commission of adultery, he may forthwith put her away from him, and refuse any longer to maintain her, and third parties who furnish the wife with the means of subsistence after a separation on such a ground, have no claim against the husband in respect thereof, whether they have notice of the adultery or not, at the time they furnished their goods, or whether they had or had not received an express prohibition from the husband directing them not to supply the wife." (k)

The previous adultery and misconduct of the husband form no excuse in point of law for the adultery of the wife. Thus, where a husband having committed adultery with a woman whom he had brought to his house, quarrelled with his wife, treated her with great cruelty, and at last turned

(h) Sir Wm. Scott. 1 Hag. Consist. 119,364,365. (i) Clayton v. Adams, 6 T. R. 605.

(*) Co. Litt. 32 b. Morris v. Martin, 1 Str.

647. Mainwaring v. Sands, 2 ib. 706. Child v. Hardyman, ib. 874. Hardie v. Grant, 8 C. & P. 512. Cragy v. Bowman, 6 Mod. 147.