5 Day 47 | Conn. | 1811
The plaintiff in error, coni ends for lhc«-versal of the judgment, on the following grounds, viz.
1. That the declaration is sufficient.
R. That no answer is given to the issue joined by the parties;;
As ¡he second point was admitted in the argument, ant! :he third is a question of practice merely ; the sufficiency of the declaration, demands our particular attention.
it is objected to the declaration, that it exhibits a contract, depending lor its basis, on an agreement between husband and wife to part and liye separate. It is contended, that such an agreement cannot be recognized as of any validity, because sound principles of policy forbid it, as contra bonos mores ; and that of course, all contracts engrafted upon such a stock, must also be void. I admit, that contracts between husband and wife simply, cannot be enforced; yet when such agreements are executed by the intervention of a trustee, I contend, that the contract with the trustee, is not necessarily void.
The doctrine of separate maintenance, by the aid of a trustee, is found in the earliest records of English jurisprudence. Such contracts have, for ages, been protected and enforced in their courts of chancery : and when collaterally brought to view in courts of law, have been recognized as I he basis of legal adjudications. So far have been the courts ■ n England from questioning the efficacy of such agreements to support a contract for maintenance, that a very different question has agitated them in modern timei, vis. the capacity of ¡he wife during such separation. When we thus find a practice of this sort, long used, and universally recognized in the courts of that country, from whence we derive the principles of our common law, we ought to be clearly satisfied, that it is opposed to principle, before we reject it.
This question has not, till lately, become the subject of judicial decision in this state. Cases of the kind have, indeed, occurred, and passed in silence ; but are rare, because the reasons which would otherwise induce a separation, generally, here lead to a dissolution of the marriage, by divorce. And the legal provision in our law for divorces, is
I admit, however, that there may be cases of separation
In my view of this case, there is no necessity of considering the third ground of error ; yet, as the question is of some importance in practice, and the different branches of the Superior Court have adopted different rules, it is advisable to decide it, for the sake of uniformity.
The power of the court to try issues in fact, is of recent date. By the statute giving the power, the court, when the parties so agree, are substituted in lieu of the jury, to try such issues: and although the court, without a special motion for that purpose, have ultimately the power of deciding, and are, indeed, bound to decide, on the sufficiency of the declaration, and for the sufficiency in that, and for oth-. er defects in the record, to arrest the judgment, which would otherwise follow their finding ; yet, I apprehend, it would introduce much confusion, uncertainty and irregularity in the proceedings, if the practice in question were sanctioned. The parties have submitted a particular question of fact. This the court were bound to answer, as much as a jury. Whether the issue is material, or whether the declaration is sufficient to support a judgment, is a subsequent question, as distinct from the fact in issue, as though that were still tried by a jury.. In this way, that desirable distinction, which ought always to be made, between matters of fact, and questions of law, is preserved. The court, In trials to the jury, cannot stop the proceedings, on discovering cause of arrest; nor can they discharge the jury from finding the fact. In the case of Sanford v. Sanford, 2 Day, 559. judgment was reversed, because the Superior Court directed the jury to find for the defendant, on the ground that the decla
If it shall be established, that the court must find the issue before they arrest the judgment, we cannot presume, as has been suggested, that they will not do their duty : — or that they will deckle with prejudice, because they may think the finding of no avail; for if their judgment on the declara-fion should be reversed, their finding will be important It may be, on the principle of Gleason v. Chester, 1 Day, 27. 152. the basis of an eventual judgment.
I am, therefore, of opinion there ⅛ error on both points ; hr,:! that judgment ought to be reversed,
This bond is opposed to no positive law, no, is it repugnant to any principle of morality : Before we declare it void, therefore, we ought to discover some imperious considerations resulting from principles of policy. I have not been able to discover any such considerations. It is the first dictate of sound policy, to allow of perfect liberty in our citizens, to make such contracts as their necessities or convenience may require ; provided the public interest is not essentially endangered : and it is not enough that ingenious and speculative men can foresee a possible injury to the public ; but to destroy a solemn contract, entered into by the parties, on a valuable consideration, made for their own convenience, of which they are at all times the best judges, and which is neither opposed to positive law, nor principles of morality, the public injury should be immediate, palpable and manifest. There is great danger of ensnaring the public, by adopting new principles, and applying them to contracts already made. Every person is supposed to knov/, when he is contracting to violate a positive law, or any principles of morality ; but a person cannot be supposed to foresee ali the remote consequences of ⅛ arts, in a refined political view.
The question then,' is, whether this agreement between husband and wife, to live separate, destroys the bond ?
It will not be insisted, I presume, that a man cannot live separate from his wife, for months or years, where their mutual necessities require it; and that, during such period, he may contract with a friend for the support of his wife, will not be denied. There is not even a violation of civil rights in the case, since the husband is still performing the duties enjoined by the marriage covenant, by supporting his wife in such way as suits their mutual convenience. And if they may live separate for one year, or ten years, under particular circumstances, why not for life — where circumstances require it ? Indeed, people of sixty or seventy years old, separating to live with their particular friends the remainder of their lives, do not, upon ordinary calculation, separate but a short period ; and people in middle life cannot calculation but a few years for their mutual lives.
Instances frequently occur, where, to compel the parties to live together, would be of no use to the public, and very injurious to those concerned. They may be old persons, each w ith children of their own, with whom they may be desirous to live. The husband may be in habits of intoxication, which renders miserable and wretched an amiable and virtuous wife. One of the parties may discover bodily defects
In all these cases, the husband may have property, and his sense of justice induce him to make provision for the support of his wife: And I can really see no reason why he should not be allowed to do what justice dictates, and what the comfort and happiness of an injured party requires. If any contract for total separation can be supported, the present may ; and in adjudging this valid, it is not necessarily implied, that all agreements between husband and wife for separate maintenance, are so: there may be circumstances which would render them otherwise.
Contracts between the husband and some third person, for the separate maintenance of the wife, have the uniform sanction of the courts, in England, from the earliest period of their jurisprudence, and is a part of the ancient common law.
In this country, it is believed, that our ancestors have been in the habit of making similar arrangements, from the first settlement of the country; and many exist at this time, in various parts of the state, which have' been made in pursuance of this usage. Such being the common law of England, at the time our ancestors emigrated from that country, and such having been the usage in this cou'dry ever since, it ought now to be binding on our courls, as the common law of the land. If any evil is apprehended in suffering such arrangements to be made in future, the legislature may interpose, and make such regulations as they think proper, which, by a regular promulgation of the Jaw. will apprise our citizens of what they are to expect. Í am so far, however, from believing, that legislative interposition will be necessary on this subject, that I confidently believe, no evil has yet been experienced, and that none is to be apprehended.
While I would admit the common law of England in its full extent, so far as it regañís the pou-rr of the husband in contract with a third person for the «opanMo ot
It follows from these principles, that the wife will have no separate interest in the property put into the hands of a trustee for her support, and that she can have no remedy in a const of chancery to call the trustee to account; but if the trustee is guilty of a breach of trust, he must be liable to the husband for a violation of bis contract, and to him, or his representatives, only. It will follow also, that the wife may return to her husband whenever she chooses, and he will be as much obliged to afford her protection and support, as though no such agreement had been made ; and her right of dower, in case she survives her husband, will remain altogether unimpaired.
If these arrangements for separate maintenance, can be kepi within this boundary, they will not become more common than what is absolutely necessary, and probably not more so than* they have been in this state, from the first settlement of the country.
It is the giving a wife separate property to manage, independent of her husband, which induces so many people of
This is the first ease, in which the question, whether a contract for a separate maintenance, by husband and wife, is valid — has come before this court, and ought to be decided oa genera! principles. There ivas another point in the case of Goodwin v. Goodwin, 4 Day's Rep. 343. on which a part of the court grounded their opinion, so that this question was not then settled.
Contracts of this description have been long sanctioned in England, owing, probably, to the circumstance that absolute divorces are not permitted for causes arising subsequent to the marriage. But in this state, such liberal provision is made by law, for divorces, that necessity does not require, and policy does not admit, a separation by private agreement-
Although (he inarriage contract, is, in our law, considered to be of a civil nature only, yet there is a certain sanctity attached to it, which forbids us to degrade it to a level with ordinary contracts, and to permit the parties to dissolve it ad libitum. As the legislature has made provision for divorces,;
It appears to me, -that there are strong objections to contracts of this nature. Where the law' requires, that the dissolution of the marriage contract, must be effected by the intervention of a com t of justice, or the legislature, the proceedings wilt not only give tile parties that time for deliberation, which lit prevent hasty separations ; but will lead to the investigation of facts, in that public manner, which they would be unwitting to submit to, unless there were real grounds for a separation. At the same time, courts would have the power of preventing one party from taking that undue advantage of the other, which would often be taken, where the separation was made by private agreement. But if a separation can be made by the contract of the parties, without any public investigation of the grounds of it, what will be the consequence ? Instances wilt frequently occur, where married persons, io the heat of some petty quarrel, or in the coldness of temporary disgust, will agree to live sepa¡ate, when, if they only had the time for consideration, necessary for an application to a court of justice, for a divorce, they would get over the misunderstanding, and be able to live together in tolerable harmony and happiness. How often would private separations take place for such frivolous causes as they would blush to avow in a court ofjusti.ee ? How much would the disposition for mutual forbearance be lessened, when they knew they could separate at pleasure ?
Although good policy does not require the marriage contract to be indissoluble, yet, it requires that the terms by which separations can be effected, should be so strict as not io encourage them on slight grounds. I think it to be bad
It is true, it has been said, that such separation should be admitted only in cases of the most urgent necessity, and for the strongest, reasons ; but r.o line of discrimination can b-' drawn. This decision proclaims to all who are married, that they havr the right to separate by mutual consent, as whim, fancy or passions ¡nay dictate. This is to foster that unfortunate propensity to change, which is productive of misery in society, beyond the power of description. This will heighten the advantage which one sex can take of the other. A man who has formed an attachment for another woman, and wishes to be rid of his wife, can, without difficulty, ¡¡sake her situation so miserable, that she will be induced to consent to a separation. While she is doomed to a state worse than perpetual widowhood, he may console himself ⅛ the loss of a wife he hates, in the arms of a mistress he loves; and such is the depraved state of manners, while he will, be able to retain his rank in the fashionable world, the unhappy wife, if she attempts to indemnify herself in the same maimer, will become an object of reproach and insuit, and be banished from all decent and respectable society.
I regret, that a principle so unfavourable to the morals and manners of the community, ⅛ about to be incorporated into the system of our jurisprudence : And I think the judgment of the Superior Court was correct, and that the .declaration was insufficient.
In ílús case, my opinion is, that the form .:f the judgment is net right. But upon no other ground, could l wish to reverse it.
Ttic contract set up in the declaration, is, as I think, an illegal one, being contra boms mores. The marriage contract canuot, ad libitum, he dissolved by the parties. Nay, I presume, in every case, application must be made to a forum,, appointed iiy law for the purpose, to effect a dissolution. It follows, then, of course, that every agreement, the consideration of which is the dissolution, or the intended dissolution, of the marriage contract, is void, and cannot be enforced in a court of justice. What, then, is a dissolution of it ? 1 should suppose, an agreement to live separately, and to perform none of the duties to each other, which they solemnly promised to perform when the marriage took place, is a dissolution of the contract, so far as the parties can dissolve it. If this be a just position, every agreement to carry into effect such separation, must be against law. The agreement in question, being made to carry into effect such separation, by fair logical deduction, is against law, and void. I say nothing about the doctrine of separate maintenance, in Oreat-Britain ; I take it, that doctrine is exploded in this state.
But suppose, for argument’s sake, a case may be stated, which would be a good and legal cause for the husband and wife to separate from each other, and to live so during their lives ; and that a contract founded on such separation would be good. I lay it down as a principle, that in every such case, the consideration of the contract, must appear in the contract itself. It is not a valid contract, unless it so appear. The general rule of law being, that such contracts are void— if there be one out of the general rule, it must appear by the record to be such a contract. It is a general principle, that a promissory note, appearing on the face of it, to be for value received, is, prima facie, good against the promissor. So, al • so, a bond, under hand and seal, is, in like manner good, against the obligor. But both these instruments may be avoided, on the ground of insanity, infancy, duress, illegality, as well as upon various other grounds: But It is incumbent on the
Let us, then, apply these principles to the case under eon-: «¡deration. I think it must be conceded, that generally speaking, it is not competent for man and wife to separate, from whim or fancy, or because they are not quite so well agreed, and do not live so happily together as they themselves contemplated, or as their friends could wish. This point being conceded, it follows, that all contracts for a separate maintenance, grounded On such considerations, are void. I think, further, it will be conceded, that it must be a very extraordinary case to justify the separation. If so, the consideration of the contract ought to appear on the face of the contract itoclf, as well as in the declaration : For this plain reason, suen contracts are, prima facie, bad, as much as a note, purporting to be for valuable consideration, is, prima, facie, good.
Again, if in any written agreement, instead of being stated, that it was executed for a valuable consideration, generally, the real consideration be stated, and if it appears to be illegal, such agreement will not bind the party executing it. What, then, is the consideration in the present case, or the condition of the trend given by Noyes Palmer to the plaintiff ? The condition is expressed thus : “ the condition of this obligation is such, that whereas, some unhappy differences have arisen, and now exist, between the said John Nt<'hols and Sarah Nichols, his wife ; and they the said John and Sarah having finally concluded and determined to separate, to live ever hereafter, in.a complete state of separation,” <fcc. It seems, then, that unhappy differences, are the only grounds of separation; and a contract, grounded on this separation, for unhappy differences, is to be carried into effecC If this be a good canse for ⅛ separation of man and wile. 1 know
In ihe present case, it may be said, that though Unhappy diffei races, may not, in every case, and perhaps but in few cases, be a ground for a separation of husband and wife, yet if, in some cases, they are so, the consideration of the bond, ,s no! clearly bad. It may, under certain circumstances, be good, and under other circumstances, it may be bad. The court, then, are to pronounce the consideration good, d" íí i-- not clearly bad. The court, in the case above alluded to, so consider the law. They went on the ground, that the consideration of the agreement, must btj absolutely gond, without having recourse to any presumptions, or inference; whatever. They could make no inference, either from the contract itself, or from the verdict of the jury, that the defendant engaged to marry the plaintiff. They could make no inference, either from the contract itself, or from her acceptance of it, that there was any mutuality in it; that she ever engaged to marry him. It might have been argued, perhaps, upon pretty good ground, that if it had appeared by the contract, that she had engaged to
No more can be said, in the care under consideration, than that unhappy differences may, under certain circumstances, be a ground of separation; and that they may be. a good consideration of a contract, grounded on such sepa ration; not that they are uniformly so. lint as I have before observed, if the consideration of the contract be sc) forth, it must appear to be conclusively good.
Upon the whole, I would not reverse the judgment in this case, because the court adjudged the declaration to be insufficient. I think, it is clearly insufficient ; in the first place, because the law of this state does not authorize a voluntary separation of man and wife for life, nor ¡my contract grounded on such separation; but in all cases, application must be made to the proper forum, to dissolve the marriage covenant.
Secondly, if there be an extraordinary case, which will warrant such voluntary separation, and a contract grounded thereon, the consideration of such contract, must be set out.
But, thirdly, if an attempt is made to set out Use consideration, though the party be not bound to do so, it must be clearly and conclusively good ; not so by inference, proh-
.Judgment reversed,