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Decisions of the Superior Courts of New South Wales, 1788-1899

Mills v. Rowe (1828) Sel Cas (Dowling) 500; [1828] NSWSupC 78

family law, warrant of attorney, separation deed between spouses, adultery, contract, equity setting aside, Supreme Court, merger of equity and common law jurisdictions, equitable jurisdiction, contract, consideration, reception of English law, Wardell, personal life

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 13 September 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 52]

[Deed of separation between husband and wife held valid by this Court although no substantial covenants on the part of trustees.  The Court will entertain a summary application at common law, to set aside judgment entered upon a warrant of Attorney given to secure payment of an annuity granted to wife by deed of seperation between her and husband.]

Saturday 13th Sept 1828


Forbes CJ

Stephen J

Dowling J

Mills v Rowe

Foster moved for a rule to show cause why the Judgment entered upon the Warrant of Attorney in this case should not be set aside and in the meantime all subsequent proceedings stayed with costs to be paid by the Plaintiff under the following circumstances:- the Defendant and his wife having agreed to part a deed of seperation was accordingly executed and Trustees appointed for the payment of an annuity of 150£ per annum.  At the same time the Defendant executed a warrant of Attorney should be void and the annuity cease and determine [p. 53] on breach of any of the following contingent happening.

1st  That if any sum of money should be recovered against the husband.

2nd  That if the wife or any or her servants should disturb or annoy the husband and or his household.

3rd  That if the wife should become pregnant during the separation.

The affidavit in support of the motion stated that the husband had paid a debt recovered against him in the Court of Requests, contracted by the wife and her servants since the seperation that his household had been annoyed by the wife and her servants since the seperation and that the wife was living in adultery with Dr Wardell.

The Court under the circumstances states granted a Rule Nisi.

[p. 54] Wentworth shewed cause against the rule obtained in this case on a former day for setting aside the execution on the warrant of Attorney and staying subsequent proceedings thereon which had been given for securing the payment of an annuity granted by the Defendant.  He produced affidavits:-

which denied 1st  The anticipation of the annuity.  2nd.  Molestation on the part of the Defendants wife towards him or his household.  3rd  that the husband had been obliged to pay a debt contracted by the wife without his authority; for the debt alluded to had been disputed as a just one, and had been paid by the wife out of the annuity.  The affidavits further alleged that the annuity had been frequently in arrear and unpaid, which rendered it, necessary for the wife to raise money by collateral means.  With respect to the [p. 55] allegation of adultery he insisted that supposing it to be true it was no breach of the proviso in the annuity deed for the only stipulation upon this point was That she should not become pregnant or have a child born of her body during the separation.  As to the validity of the deed he cited Worrall v Jacob [3 Merival 268].[1 ]  If the Defendant was entitled to any relief it was in equity, but not at law.  He cited several cases to this point.

Foster contra.  After the case of Worrall v Jacob and the current of authorities which preceded it, it is now too late to contend that a deed of seperation between a man and wife, where the trustees are interposed, cannot be supported in equity.  But this case is distinguishable from all authorities in support of that doctrine   in all the cases reported there have been absolute covenants on the part of the Trustees to indemnify the husband or do some other thing for the breach of which they would be personally liable   they are only valid because founded on what the law considers a good consideration; "for as" [p. 56] Holroyd J said in Ice v Thurlow [2 B.&C 553. 4.D and R.11.] there is a covenant by the Trustees to indemnify the husband against the wifes debts and that she should release all claims of jointure, dower or thirds."  Here there is no substantial trustees the plaintiffs are mere names.  They are not real parties, for there is no covenant in their part and behalf; and therefore this deed is void in its original formation, even if it did not become void by the circumstances alleged in the affidavits.  In all the cases on this point there have been real substantial trustees; Durant v Titley [7 Price 577] Ld Rodney v Chambers [2 East. 283] Scholey v Goodman [8 Moore 350] Ice v Thurlow [4 D & R 11] & &.  It is admitted that adultery is no defence to an action upon an annuity deed to the wife during seperation, but that is only where there is a substantial and not a nominal Trustee as in this case.  The Court is not [p. 57] called upon in this case to vacate the annuity deed, but merely that the Judgment and execution on the Warrant of Attorney may be set aside.  This may be done by a consideration of the matter alleged in the affidavits.  It is clear from the affidavits that there has been a violation of the conditions of the annuity deed.  1st. In the fact of the Defendant being called upon to pay a debt contracted by the wife without his authority.  2nd. In anticipating the annuity without notice that it was in arrear.  3rd. Molesting the Defendants household; And 4th. in Living in Adultery, which must be taken as a breach by implication respecting pregnancy or child birth during separation.

It is a Rule that provisoes in a deed are to be construed most strictly.  Lord Dormer v Knight[1. Taunt. 418].


Cur ad vult[2 ]


[p. 58]

Monday 13. Oct. 1828


This case having been argued on a former day and the Court having taken time to consider of the case, judgment was delivered by me[3 ] this morning in the name of the whole court.  Forbes CJ. was obliged to leave to attend an Executive council.

Judgment [Drawn up by Forbes CJ.]

Dissentions between a man and his wife are at all times much to be deplored; and they impose upon Courts, when they become the subject of discussion a very unpleasant duty.  This duty in the particular case before the Court becomes the more painful as the points of law which have been raised, are not so clear in themselves as to exclude, in the opinion of counsel at least all doubt of the authority of the Court to interfere with these difficulties pressing upon us, we shall confine ourselves to those particular facts which [p. 59] are necessary to raise the several points which have been submitted to our Judgment.

The deed of seperation, between Mrs Rowe and her husband, the Defendant, and the contract of the husband to pay a certain annual allowance to his wife, upon the performance of certain conditions on her part are admitted.  The questions for the consideration of the Court, are whether the Court will permit the Defendant to go into the transactions upon which the Warrant of Attorney in this case was given and supposing it will permit this, whether the articles of separation, which were the consideration for the judgment were void in their exception as against public policy or have become so by matter ex post facto[4 ] between the parties.

Upon the first point, the power of this Court to enquire into the consideration there can be no doubt that it has such power; and as the guardian of its process it is bound to enquire into the grounds on [p. 60] which such process is issued and to see that it is not applied to improper purposes.  in the case of Haynes v Hare [1.H. Bl. 662] this power is fully recognized, as necessary to every Court, whose records are made matters of security.  In that case there had been two applications to a Court of equity to be relieved against a warrant of Attorney, first in the form of a petition, and afterwards by a bill and they both failed but at the suggestion ofBuller J who sat for the Chancellor, an application in the summary form of a motion to set aside the judgment was afterwards made to the Court in which the Judgment had been obtained; and the Court held that circumstances which a Court of Equity[5 ] might deem insufficient to call for its interposition, might deem insufficient to call for [p. 61] its interposition[6 ] might however, by the Court in which the Judgment was had, be considered quite sufficient to call for the exercise of its summary interference were [sic] such judgment was made a matter of security and proceeded on the assumption of a suit which in fact was never brought   that case arose out of the annuity act; which expressly points out the mode of proceeding to set aside judgments obtained against the policy of the act.  But the general power of the Court now contended for, was admitted before the passing of the annuity act, and has been held in Thurkill v Wallace [4 T.R. 695] to be settled independently of its provision.

The cases cited afford sufficient precedents for this Court, conforming it [sic] proceedings strictly to those of the common law Courts at Westminster; but they acquire an additional force when it is considered that this Court is invested [p. 62] with an equitable jurisdiction; and whenever it can, without breaking in upon any rule of law, enlarge a particular course of proceeding, so as to afford an easier and less expensive, and at the same time, an equally beneficial remedy to the parties concerned, it is in the spirit of the constitution of the Court that it should do so.

Upon the second point, the validity of the consideration upon which the warrant of Attorney is founded, a wide field has been laid open to the Court.   It is nothing less than to examine and compare the numerous and in some degree conflicting dicta, or decisions which have been made upon the legal effect of a deed of seperation between a man and his Wife, and to form our conclusion as to what may be considered the better opinion upon the [p. 63] question.  It has been truly said in argument, that although the earlier decisions would seem to consider the point as settled, that such a deed would be enforced so far as to compel the payment of any stipulated annuity or allowance, yet that serious doubts have been raised in later years, as to the policy, and indeed the legality of the practice that. [sic] That the practice indeed has arisen out of particular cases of domestic unhappiness pressing upon the humane considerations of Judges, and is opposed to the policy of the law with respect to the union and legal Identity of husband and wife, is conceded,  It is not for this Court to venture upon any speculations of its own upon the moral evils which may have ensued, in consequence of this departure from the strictness of the common law or the inconveniences which Courts may feel from the double relation in which it places those, whom the policy of the law has been to consider as one.  We must be [p. 64] guided by the light of authority, and our decision must be governed by what may appear to us to be the balance of positive adjudication or settled practice in Westminster Hall.

We have noticed what the learned Counsel for the defendant served in arguing the case, that the Lord Chancellor in St John & St John [11 Vis.532] is reported to have said that "the question had never been put upon the contract of the husband and wife the Court had always put it upon the contract between the husband and the Trustee, from the Covenant of the Trustee to indemnify the husband against her debts".  Something of the same kind but in less definite terms, was said by Lord Rosslyn in Segard v Johnson [3 Atkins 295] in which his lordship observes upon the cases referred to in the case of Head v Head [3 Atk.395], that where the Court had acted at all, the [p. 65] cases stood under three heads, where a third party had intervened, and it was not only between the husband and wife a third party binding himself to indemnify the husband against the debts of the wife and the interest of that party raising a consideration"  But we cannot find that these Dicta are borne out by referring to the reports.  On the contrary there are cases, and those too of a date when the authority of the Chancery Reports is acknowledged which shew that contracts of seperation between husband and wife only without the interposition of any trustee had been held valid by the Courts and other cases in which the Courts enforced the performance of articles of seperation where there was a trustee, but without any covenant on his part to protect the husband.  In Moore v Ellis [Bunk 205] the contract was between the husband and wife alone.  In that case the husband and wife were seperated and in consideration [p. 66] of an annuity to be allowed by the wife to live apart from him.  The agreement was decided to be valid in the Court of Exchequer and the decision was confirmed after argument upon appeal to the house of Lords [Bro P.C. 237].  In the case of Fibzer v Fibzer [2 Atk. 511] there was a Trustee, but there was no covenant to indemnify; and there Lord Hardwicke expressly says "This case stands quite abstracted and naked from any cases where there maybe a covenant to indemnify the husband against the debts of the wife"; and his Lordship decreed the trusts to be performed as against the husband   the case of Fletcher v Fletcher [2 Cox 207] is to the same point.  These cases occurred before the case ofGuth v Guth [3 Bro. C.C. 614] and they have received the sanction of a great name, although the authority of that case has been doubted as before stated by Lord Eldon & Ld Rosslyn.  It is unnecessary to refer to similar cases which have come before the Courts of Common law, they are collected in the case of Ld Rodney v Chambers [2 East.258]   they fully establish the fact that it [p. 67] had long become an established practice in the Courts both of Law and Equity to give effect to articles of seperation between a man and his wife, without any covenant on the part of her friends to protect the husband from her debts. It is the less necessary to pursue this point any further, as in the case of St John v St John the Ld Chancellor considers the practice as no [sic] too well settled to be disturbed, and the latter cases of Seagrave v Seagreave [13 Vez. 439] & Ice v Thurlow [2 B&C. 551] follow and confirm the same doctrine   from the review of these cases then it appears, that the practice of upholding contracts of the kind under consideration, whatever may be the objections to it, in principle has now become too inveterate for this Court to question and that we should not be justified in holding a deed of seperation between the Defendant and his wife to be void as against the policy of the law.

Assuming that the Court would not set aside the judgment upon the general proposition of the deed of seperation being void as against the policy of the law; it is contended that [p. 68] the contract has been broken by the Plaintiffs and there have been several breaks assigned and among others it is sworn that there has been adultery committed on the part of the wife; and that the requisite notice of 14 days, before the bond with the warrant of Attorney, could be put in suit has, not been given.  With respect to adultery, this in itself is not sufficient to vacate the deed; we do not find by the deed of seperation, that there is any direct stipulation against adultery in the wife wether it is applied, in our opinion, in the covenant against her having a child.  Placing the moral sense out of the question there maybe reasons for the husband's exacting a stipulation against the one, which would not apply to the other and the case cited by the Counsel for the Defendant points out this very good reason, that during coverture, although there may be a seperation of the parties, the law would impute to the husband any child that may be born, and would render him liable for its [p. 69] charge.  It was probably to provide against this consequence only that the covenant was made against child bearing.  The other breach goes, to the want of due notice   this appears to be fatal.  It is expressly provided that the trustees hold the bond in trust, and not proceed to enter upon judgment on it until the arrears of annuity shall become due, and fourteen days notice shall first be given of such arrearage.  It is positively sworn by the defendant, that he has never been served with such notice.  It was a condition precedent to any legal stipulation to enforce payment and as the affidavit of the Defendant in this important particular, has not been met or contradicted in any manner we must set aside the Judgment as having been entered up contrary to the express provisions of the deed of seperation upon which the bond was given.

After having delivered the above judgment, Foster for the Defendant interposed and said that it had been agreed between him and Mr Wentworth that the objection as to want of notice should be waived, and that the affidavit on that point should be taken off the file.  NB. whether under such [p. 70] circumstances are issued should not be directed to determine the facts.

Issue directed 20th May 1829.

Whether any and which of the conditions on which the warrant of attorney mentioned in the said affidavits was given by the Defendants to the Plaintiff for securing the payment of the annuity therein mentioned had or had not failed before and at the time of entering up judgment on the said warrant of Attorney.



[1 ] These references are marginal notes in the manuscript.

[2 ] Curia advisari vult: the court wishes to be advised, or the court wishes to consider its decision.  This means that the judgment was not delivered immediately.

[3 ] I.e. Dowling J, the author of the notebooks.

[4 ] From a subsequent event.

[5 ] The following is written in the manuscript here, but crossed out: " to be relieved a warrant of Attorney".

[6 ] This phrase appears twice in the manuscript.

Published by the Division of Law, Macquarie University