Page images
PDF
EPUB

has pleaded over, that is an admission that the expression is to be taken in that sense which will support the previous pleading." [Littledale J. referred to Lord Ellenborough's language in Ord v. Fenwick. (a)] It is argued

that, even assuming the deed to be legal in its terms, it would be illegal to promise to pay this money as a consideration for executing it. That might or might not be so, according to the situation of the parties. Supposing them already separated, this money might be paid merely to facilitate arrangements for the support of the wife, the distribution of the property of the two, and many other purposes which, under such circumstances, would not contravene the policy of the law. If in any state of things not inconsistent with the record, the transaction would be legal, the Court will assume that to be the actual state of things. Besides, the language of the record shews that the parties were separate; at any rate it negatives the supposition made on the other side, that the separation originated in the agreement; for a deed of separation appears to have been prepared containing terms to be mutually agreed on between the parties: and the agreeing for money, to be applied to the past expenses of the parties, as an inducement for executing the deed, is very different from agreeing to live separate. Even had the agreement been to live separate, it does not follow that the contract would be void. Elworthy v. Bird (b) may not be an authority of much weight; for the circumstances there were very peculiar. But the Courts have considered the legality of separation deeds to be too firmly established to be now questioned. It is assumed on the other side, that this is simply the case of money paid to the husband. But it is money paid towards the by-gone expenses of the husband and wife. Why should not an arrangement as to this be made a part of the terms even of the separ(b) 2 Sim. & Stu. 372.

(a) 3 East, 104.

1839.

JONES

ย.

WAITE.

1839.

JONES

V.

WAITE.

ation itself, as well as a contract by trustees to indemnify the husband against the wife's future debts, to which, it is admitted, there is no objection?

However, supposing this part of the consideration void, the agreement may be supported on the residue of the consideration. A party by agreeing to make a payment alters his situation; it cannot be said that, after the agreement is executed, he lies only under the antecedent liability.

T. F. Ellis in reply. The Plaintiff in error contends that the declaration shews a substantive illegality, by treating the promise to pay money as the inducement to execute the deed. It is argued that the money is to be applied to bygone household expenses; but it is admitted on the record, that the husband was at the time of the agreement solely liable for these expenses. It is, therefore, like a promise to pay his debts for him, or a promise to pay him monies numbered. Besides, there is nothing on the record connecting these expenses with the wife. Then, it is said that the nature of the deed does not expressly appear. If the plea

had run thus, "The Defendant says that the said deed was a deed of separation between the Plaintiff and his wife," it would have been a mere repetition of the words of the declaration, that is to say, "a certain deed, &c." Had issue been taken on the allegation of its execution, the Defendant in error could have supported his issue only by shewing a deed of separation. There is no ambiguity in the words "Deed of separation between husband and wife." Such a head of deeds, in a stamp act, for instance, would be unequivocal. The attempt on the other side is to confound the question, whether the deed per se, and in its terms, must be supposed legal (which the Plaintiff in error admits), with the question whether the execution by a

husband of a deed of separation, legal or illegal, can be a good consideration for a promise by a third party to pay money to the husband. As to the suggestion that the Court will import the fact of an antecedent separation or agreement to separate, no answer has been offered to the authorities cited against such a construction of the record. The Plaintiff in error admits that every allegation in the declaration shall be construed most favourably for the Plaintiff below, and that is all that can be required, according to Hobson v. Middleton (a) and Ord v. Fenwick (b). But here, there is no allegation of separation.

Cur. adv. vult.

PATTESON J. The objection to the Plaintiff's recovering in this action, a sum of 110l. which the Defendant had promised to pay him at Michaelmas 1834, arises from the consideration for that promise. From the declaration and plea, it appears that the consideration consisted of two parts: first, the Plaintiff's executing a deed of separation between himself and his wife, which had been already prepared; and, secondly, the Plaintiff's taking upon himself certain payments to Messrs. Horne and Gates, and certain household expenses and debts, and agreeing to pay the same in full; but for which payments, expenses, and debts, the Plaintiff was already solely liable. The second part of this consideration may be treated as be treated as wholly nugatory, as being merely an engagement by a man to pay his own debts, and the question turns entirely upon the first part: If that be illegal, the action must fail, because illegality of part of the consideration doubtless vitiates the whole

contract.

Now it is conceded that a separation of husband and
(b) 3 East, 104.

(a) 6 B. & C. 295. 303.

1839.

JONES

v.

WAITE.

1 Hof & Cas 559

1839.

JONES

V.

wife may be in itself a legal act, and that any deed or agreement for carrying it into effect may be legal, provided it be for an actual and immediate, and not for a WAITE. Contingent or future separation. The terms of the deed of separation in the present case are not stated upon the record; but as illegality is not to be presumed, we must take it that the deed is in its provisions legal. It is however said, that it is illegal to give the husband money as an inducement to consent to such actual and immediate separation, and that an engagement to pay him part of certain debts for which he is solely liable, is tantamount to giving him money. The illegality of so doing is sought to be established by reference to the cases of Hartley v. Rice (a), Allen v. Hearn (b), and Card v. Hope. (c) Those cases are perhaps distinguishable. In Hartley v. Rice, the agreement not to marry was held illegal in itself, quite independently of money being the inducement. Allen v. Hearn was a case of wager as to the election of members of parliament, a matter which was held to be incapable of being the subject of any binding contract. Card v. Hope turned upon the contract being a fraud upon the bye laws of the East India Company. But admitting that the consent of the husband to a separation cannot legally be purchased, it by no means follows that part of the arrangement, carrying into full effect a separation previously agreed upon, may not legally be that the husband should be indemnified in the whole or in part against certain debts contracted during the time that he and his wife were living together, and for which he is solely liable in point of law, in the same manner as it is unquestionably a legal part of such arrangements, that he should be indemnified against debts to be contracted afterwards, for which he might also become liable in point of law. On (c) 2 B. & C. 661.

(a) 10 East, 22.
(b) 1 T. R. 56.

in

the contrary, I am of opinion that such indemnity is legal, and that the husband might legally make it the condition of his executing the deed of separation which had been prepared.

The question, therefore, as it seems to me, is reduced to this: whether, upon the face of this record, it appears that the Defendant promised to pay the Plaintiff money in consideration of separating or agreeing to separate from his wife; in which case I think that the contract would be illegal: or that the Defendant promised to pay the Plaintiff money towards certain expenses already incurred whilst the Plaintiff and his wife were living together, in consideration that the Plaintiff would execute a deed of separation which had been already prepared. I think that the record shews the latter state of facts.

I agree with the learned counsel for the Defendant, (Plaintiff in error,) that the Court cannot conjecture any thing respecting the contents of the deed of separation, or import into the case any supposed facts for the purpose of shewing the legality or illegality of the contract. I take the facts only as they appear on the record, and they are these: that by a deed of separation between the Plaintiff and his wife, not yet executed by the Plaintiff, he was to quit a house at Holloway on a certain day, and that some annuity was mentioned in that deed; that afterwards, by the written memorandum of agreement on which the Plaintiff in this action declares, the time for quitting the house at Holloway was extended; that the Plaintiff agreed to pay Messrs. Horne and Gates, the household expenses at Holloway, and the Rickmansworth debts in full; and that, in consideration of his so agreeing, and of his executing the deed of separation, the Defendant promised to pay 1607. by eight half yearly payments towards the debt due to Horne and Gates, 20l. towards the Rickmans

[blocks in formation]

him

1839.

JONES

บ.

WAITE.

« PreviousContinue »