will not be paid to husband on wife's consent. with clause and her husband, the Court refused to take the consent of against anticipation, the wife, on her examination, to give up her interest in this fund to her husband, the bill by husband and wife praying that the money should become the property of the husband, freed from the trust of the settlement. The Lord Chief Baron said, "The Court cannot interfere. It was the express intention of the parties that the fund should be secured for the wife's benefit for her life; to make this decree would be anticipating it." And his Lordship said, that he was not sure he should have followed the example of the Master of the Rolls in Gullan v. Trimbey, which had been cited before to his Lordship. In this last case, a testator had bequeathed a sum of 1000l. to each of his two daughters, to be laid out by his trustees in the purchase of an annuity, for their lives respectively, and their respective receipts alone to be discharges, independent of their husbands, and to be for their own separate use and disposal. On the petition of one of the daughters, and her husband, that her share of this money should be paid to her husband, it was ordered, her consent being taken. 2 Jac. & Walk. 456. k Ibid. in a note, 549 CHAP. IX. OF THE EQUITY OF A MARRIED WOMAN TO AN ALLOWANCE ance when ill treated by husband, served out THE wife's equity, as it is administered to her against her husband, or his particular assignees, secures a provision for her, to commence from his death. When the same equity is administered against the husband's general assignees, the provision supplied to the wife is a present one, because the general assignment of his property renders him incapable of supporting her; and this equity is in all cases served out of the wife's property, which is in the power of the Court. On the very same principle, if a woman have Equity to been abandoned by her husband, or, in other respects, so ill treated by him that she cannot cohabit with him, it is now the settled practice of our courts of equity, to secure a present provision for her separate support out of any equitable property in which she may happen to have interest. But then these courts have no jurisdiction to decree such a provision to a wife, merely because her husband has deserted her, or because she finds it necessary for her safety to remove herself from his power, unless she has also property over which they have control. Such a jurisdiction belongs to the spiritual court only; and even its the spiritauthority arises but incidentally from the power it has of decreeing separation à mensâ et thoro, when the wife libels her husband on account of desertion or cruelty, and secks the consequent relief. And, whether the sentence of that court be for a restitution of conjugal rights, grounded on the charge and proof of desertion, or be for a separation an of wife's property. Jurisdic tion to decree proviserted wife, belongs ex sion to de clusively to ual court. During Cromwell's usurpa tion, Chan cery had jurisdiction to de cree ali mony. on the ground of cruelty, alimony, proportioned to the fortune of the husband, will necessarily be decreed to her. Indeed, at one time the Court of Chancery had this jurisdiction exclusively; for, during the usurpation of Oliver Cromwell, there was a suspension of all ecclesiastical authorities, and they were conferred on the commissioners of the great seal, who, however, were to be guided by the ecclesiastical laws in their decisions on matters which had theretofore been of spiritual cognizance. And, accordingly, we find two occasions, during the commonwealth, on which the great seal exercised this power, viz. Russel v. Bodvil, and Whorewood v. Whorewood. However, the exercise of this branch of the jurisdiction of the ecclesiasvision tical court does not depend upon the fortune to which the granted by Chancery wife, or the husband, in her right, may be in any way entiand spirit- tled; for alimony will be granted to her, quite independently when wife of any such consideration. And it is this circumstance ill treated which forms the strong and marked distinction between ali Distinction be tween pro ual court, by hus band. mony adjudged by the Spiritual Court to a wife, in consideration of the desertion or cruelty of her husband, and the separate maintenance which a court of equity decrees to her on the same account. In the former instance, the allowance is always enforced against the husband personally, while, in the latter, the decree binds only the fortune of the wife, which is within the power of the Court; and, if she have no fund so circumstanced, she can have no provision from the Court on the ground of the cruelty or desertion of her husband. And the principle on which such a provision is given out of property of this description against the husband, when he deserts his wife, as well as against his general assignees, in case of his bankruptcy or insolvency, is, that the law, when it gave the wife's property to the husband, imposed on him the obligation of maintaining her; and, if he failed in that obligation, either by the desertion of his wife, or by his inability to assist in her support, this Court would fasten that obligation upon the property itself. a 1 Chan. Rep. 186. b 1 Chan. Cas. 250. Finch's C. C. 152. 1 Chan. Rep. 223. It is no easy matter to ascertain at what time courts of equity first lent their aid to secure to married women a subsistence out of their own fortunes, when they had been deserted or abused by their husbands; for it cannot be collected from the early cases in which separate allowances were decreed, whether the decrees were made against the husbands with respect to their wives' fortunes in the power of the Court on the ground of cruelty or desertion, or against themselves personally, in the enforcement of an agreement between husband and wife for a separate maintenance. In Lasbrook v. Tyler, all that is stated is, that "the plaintiff, on the beltalf of the other plaintiff, Margaret, his sister, sought to be relieved against the defendant, Tyler, her husband, for an allowance to be given to her for maintenance, for all the time she departed from him, which was a year and a half, which this Court decreed, and also the benefit of a bond given before marriage." This is the entire of the report, from which all that can be inferred with certainty is, that, at that period, the Court of Chancery would decree, at the suit of the wife, the arrears of a separate maintenance against a husband; but we are left to guess under what circumstances the separate allowance was created. For, although the wife sought for an allowance for all the time she departed from him;" yet it remains in doubt, whether that was a departure in pursuance of an agreement for separation and separate maintenance, or a departure occasioned by the harsh treatment of the husband. The next case is Ashton v. Ashton," which is as short and as unsatisfactory as that which preceded it. It is thus reported: "The plaintiff's suit is to be relieved against the defendant, her husband, for alimony, which, upon several long hearings, and all consideration imaginable taken in this cause, being a case of great consequence, and between persons of quality, the defendant refusing to comply with the Court's mediation, this Court decreed the defendant to pay to the plaintiff 300l. per annum, so long Provision decreed to a wife, illtreated by her hus band, out of her money vested in as they lived apart." Now, as this case was decided during the commonwealth, while the ecclesiastical authorities were suspended, it is rendered doubtful whether it was merely a case of alimony, which before and since the usurpation legitimately belonged to the spiritual jurisdiction, or whether it was a case of equitable cognizance, arising from the husband's misconduct and the wife's equitable portion, or from an agreement between them that they should live apart. So that these cases throw but little light upon the subject of this inquiry. The first case in which the Court of Chancery distinctly decided that a wife who had been ill treated by her husband should be relieved by an allowance out of her own equitable fortune, was that of Oxenden v. Oxenden. There the bill was filed by Lady Oxenden, by her next friend, against Sir James, her husband, praying to have their marriage agreement performed, certain leases filled up and renewed, and in regard of ill usage, to have an allowance for maintenance. It appeared, that upon the marriage of the defendant with the plaintiff, who was and which the sister of Lord Rockingham, 6000l., part of her porarticles tion, was paid to Sir James, and a settlement made upon have been her of 1000l. per annum for a jointure; the other 6000/. was by the articles to be invested in lands and settled on Sir James for life, then to the plaintiff for increase of her jointure, remainder as a provision for younger children, remainder to Sir James, his heirs and assigns, and, until a purchase made, to be placed at interest with the consent of the plaintiff and defendant and her trustees. The marriage was had; and there being no issue, and the money lying dead, and some leasehold estates, which, by the marriage. articles, were to be kept up, not being renewed, as they ought to have been, and Sir James, by his cruel usage, having forced the plaintiff, his wife, to separate from him, the bill above mentioned was filed. There was a cross bill by Sir James, to have the 6000l., which, by the default or obstinacy of the trustees, lay dead, invested in a purchase, trustees, was to laid out in land. e 2 Vern. 493. Prec. Chan, 239. |