1839. JONES V. WAITE. swer all the rest of the consideration; answering part of the rest would not be sufficient; and it follows that there is no duplicity in the plea. If the part of the consideration not pleaded to, be illegal, the question of duplicity does not arise as the declaration is ill. The parts of the consideration pleaded to, are merely void, because a promise by a party to do what he is bound to do is no consideration at all; Harris v. Watson (a), Stilk v. Myrick (b), note (2) to Barber v. Fox. (c) But the part of the consideration not pleaded to, is illegal. It amounts to this: that the Plaintiff, for money to be paid to him, agrees to execute a deed of separation from his wife. Now, first, a husband cannot sell his consent to a separation. [On this point Ellis repeated the arguments urged in the Court below; but the Court intimated that it was unnecessary to discuss the general principle, which was, in effect, admitted by the Court of Common Pleas.] Then the question is, whether, if it be unlawful for a husband to sell his assent to a separation, it is lawful for him to sell his assent to a deed of separation. It is impossible to distinguish the two. The deed is a step in the transaction; if the whole transaction cannot be the subject of a contract, neither can any part. Suppose the deed itself stated what is here alleged, that the consideration for executing it was money paid to the husband; that would vitiate the deed: or suppose an action brought against the husband, on this agreement, for not executing the deed; it is clear that such an action must fail; Worrall v. Jacob (d), Wilkes v. Wilkes. (e) It was said below, that the argument for the Defendant below proceeded upon the assumption that the parties were not already separated; which comes to this, that the original Plain (a) Peake N. P. C. 72. 6 Esp. N. P. C. 129. (c) 2 Wms. Saund. 136. (e) 2 Dick. 791. tiff on this record may assume the fact of an antecedent separation. Now this must rest either upon what the record does shew, or upon the absence of any allegation to the contrary. First, As to what the record does shew, all that appears is, that a deed of separation, unexecuted, existed. No consent by the wife is alleged, nor any knowledge by her that it existed; and, as to the husband's consent, all that appears is, that he would not execute the deed till induced to do so by the agreement to pay him money. An allegation that some one had drawn up a deed of separation which the husband refused to sign till paid for doing so, cannot be considered as an allegation of the previous fact of an agreement by husband and wife to separate. If the record be so construed, and the fact be (as assumed on the part of the Defendant in error) material, then a plea denying an agreement for separation antecedent to the agreement declared on, and concluding to the country, would be good: but clearly such a plea could not be supported. Then, next, can such an agreement to separate be presumed from the absence of a denial of it? Assuming, for this part of the argument, that (on the grounds already insisted upon) the declaration contains no allegation of the fact, did it lie on the Defendant below to deny it? It is said that illegality will not be presumed; and that, therefore, every fact not inconsistent with the record will be assumed which could make the agreement legal. The rule, however, is not so wide. An allegation, capable of a construction which will exclude illegality, will receive such construction: but a fact, not alleged, will not be imported into a record. On the principle suggested, it would be impossible to frame a plea: for the possibilities which might make an agreement lawful, could never be exhausted by negative allegations. If it be urged that the Court will presume a divorce; that 1839. JONES บ. WAITE. 1839. JONES V. WAITE. husband and wife had discovered that they were within the prohibited degrees; or that one of them had a wife or husband living, &c.; the same principle might have been applied in almost every case where the agreement has been disallowed for illegality. Thus, Featherstone v. Hutchinson (a) is relied upon by Tindal C. J. (b) as shewing that if either part of the consideration be illegal, the whole falls to the ground. There, the judgment was arrested because a part of the consideration was, the Plaintiff (a bailiff) allowing the Defendant, whom he had taken, to go at large, contrary to the statute of 23 H. 6. c. 10. But, if the Defendant was already at large, that part of the consideration would be simply void. So, in Hartley v. Rice (c), many presumptions might have been im ported justifying a restraint of the party from marriage. There, Lord Ellenborough said that it was urged "that the restraint is not to operate for an indefinite period, but only for six years, and that there might be reasonable grounds to restrain the party for that period. But no circumstances are stated to us to shew that the restraint was reasonable; and the distinct and immediate tendency of the restraint stamps it as an illegal ingredient in the contract." In Lowe v. Peers (d) the Defendant had covenanted to marry no one but the Plaintiff. The judgment was arrested, though it was urged that the parties had probably agreed to marry each other. Lord Mansfield there said, "Here is not the least ground to say that this man has engaged to marry this woman, much less does any thing appear of her engaging to marry him.” The principle contended for, if true, would apply to presumptions in evidence, à fortiori; but the con (a) Cro. Eliz. 199. (c) 10 East, 22. (d) 4 Burr. 2225. trary was ruled in Holland v. Hall (a), where Abbott J. said, "If there be on the face of the agreement an illegal intention, is it too much to say that the burden lies on the party who uses expressions primâ facie importing an illegal purpose to shew that the intention was legal." Every presumption which can be suggested here, might have been made in Brown v. Peck (b) and Tennant v. Braie. (c) Besides, the legal presumption is, that parties, who are husband and wife, are living together in conformity with the general policy of the law. But, further, no such presumption as is suggested can cure the defect. If the parties had agreed to separate, and had actually separated, it would not have been the less illegal in the husband to sell his consent to a deed recognising or affirming the separation. [Alderson B. You admit that parties may separate legally; why should not the doing what is legal be a good consideration?] If the separation be bought, or any part of the transaction be the result of a sale, it is so far not legal. It is legal to vote for a candidate at an election; a promise to vote for him will be no consideration for a promise to pay money. [Alderson B. That is by statute.] The principle is not confined to statutory illegality. It is lawful for a judge or juryman to decide for a Plaintiff if he be in the right; but a contract to do so for money would be not only void but illegal; and no presumption could cure it. This principle is illustrated by Hartley v. Rice (d), Allen v. Hearn (e), Card v. Hope (g), Key v. Bradshaw. (h) [Patteson J. You admitted, in the argument below, that the contract of trustees to indemnify a husband from his wife's future debts is a good consideration for the husband's contract (a) 1 B. & Ald. 53. (d) 10 East, 22. (e) 1 T. R. 56. (g) 2 B. & Cr. 661.; see p. 673. (h) 2 Vern. 102. 1839. JONES v. WAITE. with them.] That rests on grounds perfectly distinct, which were pointed out in the argument below (a); to which it may be added, that such a contract is free from the objection here made, because it holds out no inducement to separation, but merely gives an indemnity. One of the learned Judges of the Common Pleas is reported to have said, that "Courts of law view separation deeds with more favour than formerly." But for nearly half a century the current of authorities has run strongly in the opposite direction. See 1 New Cases, 659. Elworthy v. Bird (b) is the only case of an opposite aspect. But there, an equity had already arisen from the separation de facto: and that case has not been considered to be in conformity with the acknowledged principles of courts of equity. R. V. Richards, contrà. Perhaps the special grounds of demurrer cannot be supported. But the part of the consideration which is not answered is sufficient to support the promise. Unless there be an absolute illegality, the mere trouble of executing the deed, however trifling, is a good consideration. Pullin v. Stokes. (c) No illegality appears, and none will be presumed. First, it does not distinctly appear that the deed was a deed separating the husband and wife in the sense attributed to it on the other side. The word " separation" has many meanings. But supposing the deed to be a deed suspending the relation of husband and wife, such deed may be legal; and the deed here, not being set out, the Court must assume that it is legal. In Hobson v. Middleton (d) Bayley J. said, "Although in general, in pleading, an equivocal expression is to be construed against the party using it, yet where the opposite party (a) Waite v. Jones, 1 New Ca. 660. (b) 2 Sim. & Stu. 372. (c) 2 H. Bl. 312. (d) 6 B. & C. 295. |