568 CHAP. X. vision on WHEN THE EQUITY OF A MARRIED WOMAN TO A SEPARATE BUT though a husband is bound to maintain his wife, and though equity will exact the performance of that duty, in the manner, and under the circumstances which have been detailed in the preceding chapter, still there are limits to this favour of the Court beyond which it will not proceed. For occasions do often arise, where, although the wife have received such treatment, she cannot have this relief, or if she have already obtained it, it will be discontinued; and these are, when, by her own misconduct, she shows herself Wife seek- undeserving of the protection of the Court. Thus, if a ing a pro- wife, claiming a separate maintenance out of her own foraccount of tune, on the ground that her husband has deserted or ill used her, be proved guilty of elopement or adultery, the Court will consider such conduct as a complete bar to the relief she seeks, and will dismiss her bill. In Watkins v. Watkins, Lord Hardwicke laid it down, that the Court would not allow any thing for maintenance to the wife upon elopement full proof of elopement and adultery. But, it must be observed, that where a bill has been filed by her for a maintenance on the ground of cruelty or desertion, the husband will not be allowed to read any deposition to prove her sue by the guilty of criminal conversation, unless it has been expressly ill treat ment of her husband, will be refused, if she be proved guilty of or adul tery. Wife's adultery must be put in is a 2 Atk. 96. otherwise received by the hus band as an answer to the charge ment, and to the of ill-treat claim of a provision. charged and put in issue by the answer, and made part of pleadings, his defence and excuse for his ill treatment of her. And proof of it so Lord Hardwicke held in the same case. A similar rule cannot be was laid down with respect to the proof of the wife's adultery in the case of Lady Doneraile v. Lord Doneraile. There the bill was filed by the wife against her husband for a separate maintenance, (it does not appear upon what ground, whether of desertion or cruelty,) and the defendant insisted by his answer, in bar of the equity claimed by the bill, that she did not behave with that duty and affection as became a virtuous woman, much less the defendant's wife, and in order to support this suggestion, he entered into proof of particular acts of adultery. These depositions were allowed to be read in the Court of Chancery of Ireland; but on an appeal to the English House of Lords, they were not admitted. This case proves also that adultery, if put in issue and proved, would be a bar to a separate maintenance to a wife, who sought that relief against her husband's unkindness. any share wife's portion, is living in adultery, it will be re fused: and if she But though the adultery of the wife would be an insur- If husband mountable impediment to her obtaining a provision under claims his such circumstances, yet if the husband should file a bill, equitable while she is living in that state, for her unsettled property, while she which is vested in trustees, the Court will not let him have it, at the same time that, if she should apply for of it, it would be refused to her also on account of her misconduct. Ball v. Montgomery is a remarkable instance of this neutrality of the Court between husband and wife with respect to her money. In this case, previous to the marriage of Mr. and Mrs. Ball, 5000l. (to the interest and dividends of which she was entitled until she should arrive at the age of twenty-one, when the principal was to be transferred absolutely to her,) was vested in trustees, in trust, that the husband should receive the interest and dividends after the death of his wife, if he should survive her, during his life, and if there should be no issue, with power to her b Cited by Lord Hardwicke in Clarke v. Periam, 2 Atk. 337. c 2 Ves. jun. 191. 4 Br. C. C. 338. claim a provision account of treatment, it also will out of it on his ill be refused. to appoint as she should think fit, and in default of appointment, to her next of kin, according to the statute of distributions. The interest and dividends during the joint lives of husband and wife were not disposed of by the settlement. When she came of age after her marriage, she appointed the whole sum to her husband, in case there should be no issue. In some years afterwards she eloped from him, and from the time of the separation had lived in adultery. The bill was filed by the husband against his wife and her trustees, praying to have the dividends during the joint lives of himself and of his wife, and to have the fund secured on account of his contingent interest, viz. in the event of there being no issue of the marriage. There was an attempt on both sides to alter the settlement by parol evidence, the husband alleging that the intent was that he should have the interest and dividends during his life; and, on the other hand, the wife and her trustees claiming them for her separate use. However, the Court would not suffer any evidence to be given of the intention of the parties as to the settlement. The wife, by her answer, swore, that she had been cruelly treated by the plaintiff, and that his personal violence had forced her to leave his house, from which time he had never offered her any maintenance; that she was quite destitute of the means of support; and that she hoped, that as she had been compelled by his cruelty to separate from him, and not in consequence of any crime of her own, the Court would not interfere to put him into the possession of her property. However, Lord Loughborough considered the interest and dividends during the joint lives of husband and wife as a sum of money belonging to her, and not specifically given to her husband, which, of course, he must come into equity for, and which must be subject to the usual equity; but that the wife had in the present instance forfeited that assistance of the Court by her delin-. quency, and that the husband could not have this money, it having been intended for their mutual support. His Lordship therefore ordered the future dividends to be brought into Court, first paying the plaintiff the costs he had been put to by a suit, which his wife had instituted against him in the ecclesiastical court, saying, that the delinquency of the woman is a reason for not giving the dividends to her, and that he could not give the whole to him on account of her interest, and that the situation of the case would probably produce some agreement for her future support. His Lordship also stated, that the ground of jurisdiction, on which the Court would not permit the entire of the dividends to be taken by the husband, was, because the fund is intended for the mutual maintenance of both, if they live together, and therefore, if the whole were given to either of them, it would defeat the intent; that to give her the dividends, while she lived in adultery, would be to enable. her to continue in that state. In Carr v. Eastabrooke, the Lord Chancellor, Lord Loughborough, adopted the same line of conduct with respect to a sum of 3501. belonging to a wife, who had separated from her husband, and lived in adultery. She had been divorced á mensâ et thoro, for adultery, and now petitioned that this sum should be settled to her separate use. The husband at the same time petitioned, that it should be paid to him, without obliging him to make a provision for her. It appeared that she had continued to live with the person with whom she had eloped, till his death; and it was alleged, that since that time she had been supported by his mother, and that she had no other provision. His Lordship said, he could make no order upon either petition; that he could not settle this sum to the separate use of the wife, and must leave it where it was. In like manner, if a sum of money should accrue to the wife during the separation caused by her adultery, the husband not having been a purchaser of it, the application of either of them for any part of it would be rejected. And the principle on which the husband would be refused, Lord Loughborough states to be this; that if it happens from the situation of the parties, that they cannot enjoy in common that which should maintain both, it would be very d 4 Ves. 146. • Legard v. Johnson, 3 Ves. 360. If provision be made for a Court on account of cruelty, it will be dis on his un dertaking to treat her kindly. hard that the party from whom it moves should lose, and the other should gain the whole benefit. But if the wife have had a separate provision decreed to her on account of the cruelty or desertion of her husband, wife by the it would seem that such allowance would be discontinued by the Court, if the husband offers to cohabit with her, and husband's undertakes to treat her kindly for the future. In the case of Head v. Head,f Lord Hardwicke said, that there were continued instances where, notwithstanding an absolute decree for a separate maintenance, yet, upon the circumstance of the husband's consenting to cohabit with his wife, and promising to use her kindly, the Court have refused to continue a separate maintenance. This observation having been made by his Lordship in a case where there was an agreement for a separate maintenance, may be said to have been confined to cases of that description; but surely if the Court would, after a decree for a separate maintenance on the ground of an agreement, discontinue that allowance upon the offer of the husband to cohabit in future with his wife, and to treat her well, it would á fortiori discontinue it, where the only cause of granting it, namely, desertion or ill usage, had been removed. Indeed, in general, the decree is, that the allowance shall be paid to the wife, until the husband returns to his duty, and conducts himself towards his wife as he ought, which goes a great way to prove that it would be withheld from the wife if she refused to return to him upon his offer to cohabit with her. And the Court acted on this very principle in Bullock v. Menzies, where Mrs. Hall, who was declared to be entitled to a life interest in a large sum of money, in this cause, petitioned the Court that a maintenance should be allowed to her out of it, on the ground that her husband, who was a captain in the 38th regiment, was then with his regiment in the West Indies, and had been there for upwards of a year; and 2001. per annum was ordered to be paid to her half yearly. On the return of the husband to England, he petitioned the g 4 Ves. 798. f 3 Atk. 296. |