A bill was filed to have the benefit of a judgment against real estate, devised to the defendant by the will of the judgment debtor. The defendant by her answer, claimed the estate under deeds of conveyance from the testator in his lifetime; and, before filing her answer, commenced an action of ejectment. The plaintiffs then filed a supplemental bill, impeaching the validity of the conveyance to the defendant, and stating the proceedings respecting the action. common injunction obtained in the supplemental bill to restrain the action, was dissolved, the question of the title of the judgment creditors not being raised in the supplemental suit, and the circumstances connected with the conveyance to the defendant being improperly brought before the Court by a supplemental bill, instead of being introduced into the original bill by way of amendment. The This was a motion to discharge an order of the Vice Chancellor, whose judgment upon the case will be found reported in 12 Law J. Rep. (N.S.) Chanc. 480. Mr. Stuart and Mr. Steere appeared in support of the application, and Mr. Bethell and Mr. J. H. Taylor opposed it. Nov. 5, 1845.-The LORD CHANCELLOR. -The bill in this case stated that Richard Constable was indebted to the plaintiffs in the sum of 4871.; that a judgment was obtained against him for that sum in the Court of Queen's Bench; that he was seised of and in the receipt of the rents and profits of real estate, and that he had a disposing power over it, which he might exercise for his own benefit without the assent of any other person. The plaintiffs sued out an elegit on their judgment, and were put into possession by the sheriff. The bill then stated that the rents were of small amount, and could not satisfy their debt in any reasonable time, and that under the statute 1 & 2 Vict. c. 110, they were entitled to be considered as having a charge upon the estate from the date of the judgment. The bill further stated that Richard Constable had devised and bequeathed all his real and personal estate to the defendant and appointed her executrix, and it prayed that the estate might be sold, and the debt paid out of the proceeds, and that, if necessary, the plaintiffs might be declared to have a lien upon it for their debt. The defendant in her answer alleged that before the judgment was entered up, Richard Constable conveyed the estate in question to the use of himself for life, with remainder to her in fee, and therefore, that he had no disposing power over the property in question. Before filing the answer, the defendant had brought an action of ejectment in the Court of Exchequer against the tenant of the plaintiffs to recover possession. The plaintiffs filed a supplemental bill against the defendant, stating the facts in more detail, with much additional matter, and setting out a voluminous correspondence; and alleging that the conveyance was without consideration, and fraudulent and void as against them, by virtue of the statute, and praying a declaration to that effect: it also stated the fact of an ejectment being brought, and prayed an injunction. The common order having been obtained, the Vice Chancellor disallowed the cause shewn, and dissolved the injunction. The object of this motion is to discharge the Vice Chancellor's order. It has been truly said, that most of the new matter, mentioned in the supplemental bill, occurred before the original bill was filed, and therefore ought to have been made by amendment and not by supplemental bill, and that the only material fact which occurred after the filing of the original bill was the bringing of the ejectment. The rule, as I have always understood it to be, is, that nothing can properly be made the subject of a supplemental bill, which might have been introduced by amendment into the original bill-Mitford on Pleading, p. 62. Nothing, therefore, can be more irregular than the state of this record; and as it is most important to adhere to the rules of pleading in this court, I do not think I should be warranted in granting the present application. The motion is made in the supplemental suit, and there is nothing in the supplemental suit which can support it. It was suggested that the bill might be treated as an original bill, disregarding the former bill; but it professes to be a supplemental bill. The original bill is on record, and the defendant has put in her answer to that bill; therefore, the former bill cannot be treated as a nullity, or the second bill treated as otherwise than a supplemental bill, although in its form an irregular supplemental bill. I must refuse the motion with costs. Baron and Feme-Deed of Arrangement -Policy of the Law-Want of Mutuality -Consideration. Twenty years after the marriage of A. and B, and when they had three children living, a deed of arrangement was executed by them respectively, by which B. the wife was to have paid to her annually out of A.'s estate conveyed to trustees, certain pin money, and also a sum of money as the means of maintaining an establishment, which was to be for her separate use, independent of A, and so much thereof as B. should desire to expend was to be applied by her in a particular manner, leaving the remainder of it (if any) for A. The establishment was to be for B. and for the accommodation of her children, enabling her husband to parNEW SERIES, XV.—CHANC. take of it. Previously to the execution of the deed a suit had been instituted by B, for a divorce from A. for cruelty, and the same was pending at the date of the deed. The discontinuance of the suit, the prevention of disputes, and the waiver by B. against A. of other proceedings then in contemplation, for the purpose of obtaining a proper provision for B. and her children, were the considerations for the deed. A. was entitled to estates, yielding an income exceeding the amount of that granted to the trustees in favour of B. :-Held on demurrer, filed by A. to the bill of B, to enforce the trusts of the deed, that the same was not an illegal one, and was capable of being enforced in a court of equity. The bill in this case stated (amongst other things,) that many years previously to the year 1836, the plaintiff intermarried with the defendant, Sir R. P. Jodrell; that, for some time previously to that year, unhappy differences existed between those parties, and that the plaintiff, prior to the execution of the indenture after mentioned, instituted proceedings for procuring a divorce from the defendant, on the ground of cruelty; that shortly afterwards, proposals were made on behalf of the defendant for an arrangement of differences, and ultimately, a deed of arrangement was executed, dated the 28th of May 1836, and made between Sir R. P. Jodrell and Lady Jodrell and the other defendants trustees, whereby, after reciting that Sir R. P. Jodrell was entitled in fee simple or for life to divers freehold estates situate in the counties of Norfolk, Oxford and Derby, and also entitled to a leasehold messuage, being No. 64, Portlandplace, in the county of Middlesex, for a term of years; and that the suit for procuring a divorce was pending, and that Sir R. P. Jodrell was desirous that the same should be discontinued, and that certain other proceedings then in contemplation for the purpose of obtaining a proper provision for the support of the plaintiff and her children might be waived, Sir R. P. Jodrell assigned the leasehold messuage to the trustees, upon trust, to permit the plaintiff during the joint lives of herself and Sir R. P. Jodrell to inhabit, occupy and enjoy the said messuage and furniture and other things then being therein (except plate), and to accom D modate and provide for her children therein, without paying any rent or other remuneration for the same, and without being liable or answerable for any loss, damage, or accident which might happen to the same. By the same deed, Sir R. P. Jodrell assigned to the trustees all the lands, &c. of or to which he was possessed or entitled for life or otherwise, situate in the counties of Norfolk, Oxford or Derby, for the term of ninetynine years, if Sir R. P. Jodrell and the plaintiff should both so long live, upon trust, in the first place, to satisfy, retain and discharge all costs and expenses relating to the trusts thereby created, and in the next place, to pay to the plaintiff, or unto such person or persons as she (notwithstanding her coverture) should direct, the clear yearly sum of 3001. for pin-money, and also the further yearly sum of 3,700l., or so much thereof as the plaintiff should require for her own separate and absolute use, independent of Sir R. P. Jodrell, and not to be subject to his debts, controul or engagements; and it was thereby declared, that the plaintiff should by and out of the sum of 3,7001., maintain, keep up and pay all the expenses of the household establishment in or upon the said messuage and premises in Portland-place, for the benefit of herself and her children, which establishment should be upon such a scale and regulated in such a manner as the plaintiff should think fit, within the limits thereby provided for maintaining the same; and also all expenses which the plaintiff should incur during her residence at any watering-place, and also all such additional expenses as should be incurred at any seat or country residence of Sir R. P. Jodrell during any sojourn of the plaintiff therein; and also all ground-rent, assessed and other taxes, necessary repairs, and other outgoings which should become payable in respect of the said messuage and premises in Portland-place aforesaid, and also all wages of servants, and all salaries of masters and governesses for her daughter, and also clothing for her son Edward; but no further or other expenses for either of her sons. And it was thereby further declared, that if the plaintiff should not require the whole of the said yearly sum of 3,700l. for the purposes aforesaid, the said defendants, the trustees, should pay the surplus thereof, (if any) or permit the same to be received by Sir R. P. Jodrell, for his own benefit; and that it was the intention of the parties to the deed, that, so long as Sir R. P. Jodrell should be desirous to reside in the messuage in Portland-place, and to conform to the spirit and intention of the deed of arrangement, and to partake of the benefit of the establishment to be kept up therein by the plaintiff, he should be at liberty so to do. The bill further stated, that, upon the faith of the deed of arrangement, the plaintiff discontinued the suit instituted by her, for a divorce; and that, at the time of the execution of the deed of arrangement, there was issue of Sir R. P. and Lady Jodrell, two sons, and one daughter only, who were living. In pursuance of the deed of arrangement, the several annual sums of 300l. and 3,700l. were duly paid to or for the plaintiff, by equal quarterly payments in each year, until the 28th of February 1845; that Sir R. P. Jodrell had always, up to the time of filing the bill, partaken of the benefit of the establishment, and had not been called upon to pay, and had not paid any of the expenses or other payments, which, by the deed of arrangement, were provided to be paid by the plaintiff'; that the plaintiff had up to that time kept up the household establishment in the house in Portlandplace, but no portion of either of the sums of 300l. and 3,700l. had been paid to the plaintiff since the 28th of February 1845, although Sir R. P. Jodrell had ever since that period continued to reside in the house, and to have the benefit of the establishment. The bill prayed that the trusts of the deed might be carried into execution by the Court; that Sir R. P. Jodrell might be decreed to pay the arrears due in respect of the two sums of 300l. and 3,7007.; that proper provision might be made for insuring the due payment of those sums in future; that a receiver might be appointed of the rents of the estates comprised in the deed; that all necessary accounts and inquiries might be taken and made, and that Sir R.P. Jodrell might be restrained from preventing the plaintiff from inhabiting, occupying and enjoying the house in Portland-place, according to the provisions of the deed, and from in any manner interfering in the plaintiff's enjoyment and occupation thereof; and also, from receiving, collecting, or de manding the rents and profits of the estates comprised in the deed of arrangement. The defendant, Sir R. P. Jodrell, filed a general demurrer to the discovery and relief sought by the bill. Mr. Kindersley, Mr. Romilly, and Mr. Hardy, for the demurrer, contended that the deed of arrangement was not in its nature a separation deed, but that it involved a transposition of the duties of husband and wife; that the policy of the law was that the husband should be master, but that there were two exceptions to that rule perfectly consistent therewith, viz., first, the case of separate use in the wife, where although the wife had the controul over the funds, the husband was, nevertheless, master; and, secondly, that of deeds of separation, where the status of the husband and wife was abandoned; that still the policy of the law was, that the very existence of the wife was merged in that of the husband; that, in the present case, it lay in the power of the lady to compel a separation, the husband being placed in the power of his wife as to his residence in the house, and the controul of the servants there; that there was an implied agreement that Lady Jodrell should have the exclusive controul of the children; and Sir R. P. Jodrell was thereby precluded from sending the daughter to school, if he desired to do so; that he had no means of enforcing the provisions of the deed, and no remedy to compel payment to him of any surplus of the annuity of 3,7001., in case that sum should appear more than sufficient to answer the expenses of the establishment; that there was nothing to prevent Lady Jodrell proceeding in the suit in the Ecclesiastical Court; that the abandonment of a suit for a separation between husband and wife could not be a consideration for a deed, which did not carry out the separation; that if Sir R. P. Jodrell did not conform to the " spirit and intention" of the deed, there would be a prospective separation; that the estates conveyed to the trustees might be all he possessed; that in the present case, the wife could not be considered strictly entitled to the annuity for her separate use, inasmuch as she had no power to dispose thereof; and that she might elope, and still claim the annuity. The following cases were cited in support of the demurrer : Hindley v. Lord Westmeath, 6 B. & C. Frampton v. Frampton, 4 Beav. 287; s. c. 10 Law J. Rep. (N.s.) Chanc. 247. Beard v. Beard, 3 Atk. 72. Worrall v. Jacob, 3 Meriv. 256; and 2 Roper on Husband and Wife, 137. Mr. G. Turner and Mr. Freeling, in support of the bill, contended, that it must be inferred from the deed that Sir R. P. Jodrell had other estates besides those conveyed to the trustees; that as Lady Jodrell was the agent of her husband, it was impossible to say that the deed, which enabled her to contract debts for the maintenance of the establishment in Portland-place, could be either illegal or against the policy of the law; that in numerous instances courts of equity had allowed the wife to have separate estate against the husband, as, for instance, where she saved money out of housekeeping expenses-Slanning v. Style (1); and the only doubt raised had been, whether such a separate estate would be good against the creditors of the husband, in the absence of an actual settlement of such estate on the wife; and, according to the case of Petre v. Espinasse (2), the husband would not be relieved from the deed, though a voluntary one; that there was nothing in the deed that prevented Sir R. P. Jodrell from residing in the house in Portland-place, still less was there any arrangement for future separation; and if he were to be excluded from the house, he would not be without relief by means of a bill in this court against the trustees; that the law allowed a father to resign his parental power over his children in favour of a stranger, and if such were the case, what was there to prevent his doing so to his wife?--Lyons v. Blenkin (3), Hill v. Gomme (4); that although a mere agreement between the parties, for want of mutuality, might not be enforced by the Court, that objection could not avail the defendant in a case like the present, where a deed had (1) 3 P. Wms. 336, and 2 Eq. Ca. Abr. 156. (4) 1 Beav. 540; s. c. 9 Law J. Rep. (N.S.) Chanc. 54. been executed many years back, and one of the parties came to the Court to enforce the performance of the trusts contained in it; that in the case of mala fides being practised on the part of Lady Jodrell, in respect to the proper expenditure of the annuity, a bill in equity would be sustainable against Lady Jodrell for an account, she being considered a feme sole in the present matter, and the Court would restrain her from making an improper application of the monies, and would also restrain the trustees from paying over to Lady Jodrell monies which she was about to apply in discharge of gambling debts, or to any other improper purpose; that Sir R. P. Jodrell could not be allowed in the present case to insist on Lady Jodrell being for every purpose a feme covert; that with reference to the alleged want of consideration, the present was the case of an executed trust; and even a voluntary deed was binding, where, as in the present case, the legal interest was transferred -Hobbs v. Hull (5). The other authorities cited in support of the bill were Fitzer v. Fitzer, 2 Atk. 511. Cooke v. Wiggins, 10 Ves. 191. The MASTER OF THE ROLLS.-Every deed of arrangement which is entered into between husband and wife, for the purpose of altering in any material degree the relation which the law establishes between them, undoubtedly is a deed which, in the consideration of the Court, is attended with a great deal of difficulty, and the circumstances are of a most serious nature, and tend to sanction innovations on that relation on both sides, where the parties hope to find the greatest degree of comfort and happiness. On those subjects, however, it is not my intention to make any observation. Observations of that nature have already been (5) 1 Cox, 445. made, and have already been reported in such a way as to command the general feeling of all mankind on the subject. But when you talk of the mischief of making such regulations as these, and contrast them with the provisions made by the law in similar cases, it must always be borne in mind that no such arrangement as this (which I have reason to believe is sui generis), providing for separation, is ever thought of or contemplated till the husband and wife are in such a state that the relation as provided by the law does not accomplish its purpose. Already there are dissensions, which in themselves are productive of unhappiness to an amount which cannot, perhaps, be exceeded by any other arrangement which they may endeavour to adopt. In this particular case it is recited in the deed, that the marriage settlement was made in the month of December 1814 ; I may, without error, probably, presume that the marriage took place shortly after the date of that settlement. In the year 1836, being more than twenty years after the marriage, we find a suit instituted in the Ecclesiastical Court by the wife against the husband, for a divorce, on the ground of cruelty. Now, both sides have abstained from making anything like an allegation of fact as to the cause of that, and I know nothing on this occasion except the single fact that there was a suit instituted for the purpose of obtaining a divorce, on the ground of cruelty, and that Sir R. P. Jodrell, with a view (as it is stated here) of preventing publicity, and trying to live in harmony again, and to prevent disputes, made a proposal for an arrangement; and that proposal for an arrangement being made by him, produced discussion which ended in this deed. Now, knowing no more of the circumstances than are stated here, it may possibly be that Sir Richard Jodrell made this proposal for some such reasons as have been suggested by his counsel; and it may have been that all this took place for some such reasons as have been suggested on the other side. This only appears, that a proposal was made, and the present arrangement entered into, after a discussion of that proposal. Now I cannot do otherwise than assume that Sir R. P. Jodrell is a man of consider |