Anderson v. Anderson

| New York Court of Chancery | Sep 24, 1832

The Vice-Chancellor.

TMs court will not interfere by virtue of its general jurisdiction, to compel a husband and wife to live together, when they have separated; nor force them to live apart when they are cohabiting. But, if they agree to live separate and do separate accordingly, and the husband stipulates to allow the wife a maintenance, equity, acting upon the contract, will enforce such contract against the husband so long as the separation continues: Clancy, ch. 4,p. 397.

But the jurisdiction of the court of chancery and the practice of the English ecclesiastical courts are blended in our equity powers. And these ecclesiastical courts do not consider a voluntary separation between husband and wife as amounting to any thing. This arises- from the indissolubility of marriage. It remains, even though the parties have separated. The duties which it imposes are the same after as well as before such separation: Poynter, 220.240. A deed of separation cannot be pleaded in bar to a suit for a divorce, either previous or subsequent to the act alleged: Beeby v. Beeby, Haggard's Cons. R. 143. n. It -is no acquiescence in her injuries: Durant v. Durant, 1 Hagg. Eccles. R. 760. Nor can it be pleaded in a suit for restitution of conjugal rights, even though the settlement contain a covenant not to bring such a suit: Westmeath v. Westmeath, 2 Hagg. Eccles. R. 115.

The result is, that the complainant is entitled to file the bill, notwithstanding the deed of separation. Its provisions, in regard to maintenance, may be enforced. And the court may, as in ordinary cases, direct an advance to be made for the purposes of the suit. As the deed of separation has not been annulled, I shall order the amount mentioned in it to be paid, and also one hundred dollars to the solicitor for the complainant.