Hunt v Hunt
| Jurisdiction | England & Wales |
| Judgment Date | 11 January 1862 |
| Date | 11 January 1862 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 1168
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 31 Beav. 89; 8 Jur. (N. S.), 45, 85; 10 W. R. 161, 215; 31 L. J. Ch. 161; 5 L. T. 778. Followed, Brown v. Brown, 1868, L. R. 7 Eq. 190; Marshall v. Marshall, 1879, 5 P. D. 23. Besant v. Wood, 1879, 12 Ch. D. 623. Commented on, Cahill v. Cahill, 1883, 8 App. Cas. 420. Followed, Clarke v. Clarke, 1885, 10 P. D. 194; M'Gregor v. M'Gregor, 1888, 20 Q. B. D. 533. Distinguished, In re Hope-Johnstone [1904], 1 Ch. 478.
[221] hunt v. hunt. Before the Lord Chancellor Lord Westbury. ).a-C.L-zf. Dec. 17, 18, 1861; Jan. 11, 1862. - au -c 2.0 [S,C. 31 Beav. 89; 8 Jur. (N. S.), 45, 85; 10 W. E. 161, 215; 31 L. J. Ch. 161; 5 L. T. 778. Followed, Brown v. Ilrmv-n, 1868, L. R. 7 Eq. 190; Marshall v. Marshall, 1879, 5 P. D. 23. Eesantv. Wood, 1879, 12 Ch. D. 623. Commented on, Oahill v. Cahill, 1883, 8 App. Gas. 420. Followed, Clarke v. Clarke, 1885, 10 P. D. 194; M'Gregor v. M'G-reyor, 1888, 20 Q. B. D. 533. Distinguished, In re Hope-Johmtme [1904], 1 Ch. 478.] A covenant on the part of a husband in a separation deed, that it should be lawful for the wife to live separate and apart from him, and that he would not compel her to cohabit with him by any legal proceedings : Held, enforceable in equity by an injunction against proceedings in the Divorce Court for the restitution of conjugal rights. This was au appeal from the refusal of the Master of the Rolls to grant an injunction to restrain proceedings on the part of the Defendant for the restitution of conjugal rights, which proceedings were in violation of a. covenant entered into by the Defendant in a separation deed. The Plaintiffs were Emily Mary Hunt, the wife of the Defendant, by a next òiDEQ. F. aj.Mt HUNT V. HUNT 1169 friend, and George Westrup and Robert John Westrup, the trustees of the separation òdeed. That deed was dated the 30th of April 1860, and made between the Defendant Richard Hunt of the first part, the Plaintiff Emily Mary Hunt of the second part, and the Plaintiffs George Westrup and Robert John Westrup of the third part. It recited that unhappy differences had arisen and subsisted between the Defendant Richard Hunt and the female Plaintiff Emily Mary Hunt, by reason whereof they had agreed at her request to live separately and apart from each other for the future, and to enter into the arrangement intended to be effected by the deed. The deed witnessed that in pursuance of the said agreement on the part of the Defendant, and in consideration of the covenants thereinafter contained on the part of the male Plaintiffs, the Defendant for himself, his heirs, executors and administrators, covenanted with the male Plaintiffs, their executors, administrators and assigns, that it should be lawful for the female Plaintiff from time to time and at [222] all times thereafter to live separate and apart from the Defendant in such sort and manner as if she were sole and unmarried, and that the Defendant would not compel nor endeavour to compel her to cohabit or live with him by any legal proceeding or otherwise howsoever, and that she the female Plaintiff should be absolutely and to all intents and purposes whatsoever freed and discharged from the power, command, will, restraint, authority and government of the Defendant, and that he would not at any time thereafter, under any pretence whatsoever, sue or prosecute any person or persons for receiving, harbouring, protecting or assisting the female Plaintiff, or ill-treat or use or offer any violence or restraint to her person, or molest, annoy, harass, interrupt or disturb her in her way of living or in her liberty or freedom of going to or staying in or returning from such place or places as she should think fit or otherwise howsoever; arid also that it should be lawful for the female Plaintiff from; thenceforth to have, take and enjoy to her own separate and absolute use, notwithstanding her coverture, all such jewels, plate, furniture, clothes, linen, wearing apparel, ornaments, articles and things whatsoever as had been or at any time or times thereafter should be bequeathed or given to her or which she might derive as of kin to any person or persons, or might purchase, or which were or should be in any manner hers or reputed hers, or which she should save for her separate use from the provision made by the separation deed, or which she might derive from any settlement, will or other instrument either already made or thereafter to be made or otherwise, and from^time to time by deed or will, or from hand to hand to sell, give away or dispose-of the same; and that the Defendant would forthwith deliver to the female Plaintiff such of the said articles and things as were then in his custody, and that if she should depart this life in the lifetime of the De-[223]-fendant the Defendant would permit her will or any writing in the nature of or purporting to be her will, or a codicil or codicils thereto, to be proved in the proper Court by the person or persons to be therein named and appointed the executor or executors thereof ; and that if she should not name an executor or executors of her will, or such executor or executors should die in her lifetime or refuse to prove her said will or to act in the executorship thereof, or if she should die intestate as to all or any part of the estate and effects by the deed directed to lie to or for her separate use or disposal, the Defendant would permit administration to be taken out by the person or persons who would be entitled thereto if the Defendant were then dead leaving her him surviving, and would permit her said estate and effects or any part thereof of which she should die intestate to be distributed as the same would be if the Defendant were then dead leaving her him surviving. There were other covenants for the enjoyment by the wife of future property coming to her by will, descent or otherwise, and for securing to her the care and management of the education of the child or children with whom she might be then enceinte until such child or children .should have attained the age of seven years (subject to limited access to such child or children on the Defendant's part on the footing thecein detailed) and for the subsequent residence of such child or children, with a proviso that in case of the breach of any of the covenants thereinbefore contained the Defendant, his heirs, executors or administrators, would or should for every such breach pay or cause to be paid to the covenantees the sum of £100 as and by way of liquidated damages; and further, that the Defendant, his heirs, 1170 HUNT V. HUNT 4DE O. P. to J. tu. executors, administrators or assigns would or should pay or cause to be paid to the trustees the annual sum of £300. [2241 The deed contained a covenant on the part of trustees with the Defendant, in consideration of the sum of £100 paid by him to them and of the covenants thereinbefore contained on the part of the Defendant, that the female Plaintiff would not at any time thereafter molest or disturb the Defendant and should not nor would compel nor endeavour to compel him to cohabit or live with her by any legal proceeding or proceedings or otherwise howsoever, and that they would from time to time and at all times thereafter indemnify the Defendant, his heirs, executors, administrators and his and their estates and effects of, from and against all and every the debts and liabilities of the female Plaintiff. On the 6th of April 1861 the Defendant commenced a suit against the Plaintiff Mrs. Hunt in the Divorce Court for the restitution of conjugal rights, by a petition stating that on the 19th of March 1860 Mrs. Hunt, without any reasonable or lawful excuse, left the Defendant's house, and had ever since refused and still refused to return to cohabitation with him, or to treat him with conjugal affection, and praying that Mrs. Hunt might be ordered to return to the Defendant's home and treat him with conjugal affection. Mrs. Hunt, by her answer in the suit for restitution, stated the covenant entered into by the Defendant riot to compel or endeavour to compel her to cohabit or live with him. On the 22d of May 1861, on the motion of Mr. Hunt, the Divorce Court ordered that Mrs. Hunt's answer should be reformed by striking out the paragraph which stated the above covenant. The bill prayed that the Defendant might be restrained [225] by injunction from prosecuting the suit in the Divorce Court, and from commencing or prosecuting any other suit or legal proceeding for the purpose of compelling the Plaintiff Mrs. Hunt to cohabit or live with him and from otherwise compelling or endeavouring to compel the last-named Plaintiff to cohabit or live with him ; and that, if necessary or proper, the trusts of the deed of the 30th of April 1860 might be carried into execution and the covenants performed by and under the decree and direction of the Court, and for general relief. Mr. Lloyd and Mr. Wickens supported the appeal. the solicitor-general (Sir R. Palmer) and Mr. Waller were for the Respondent. The following authorities were referred to :-Sanders v. Rodiuay (16 Beav. 207); Wilson v. Wilson (14 Sim. 405; S. C. 1 H. of L. Gas. 538; S. C. 5 H. of L. Gas. 40); Mortimer v. Mortimer (2 Hagg. Consist. E. 310); Batemanv. Lady Ross (1 Dow. 235); Warrender v. Warrmder (2 01. & Fin. 527) ; Leganl v, Johnson (3 Ves. 352); Westmeath v. Westmeath (Jac. 126); St. John v. St. John (11 Ves. 532); Hope, v. Hope (4 De G. M. & G. 328); Vamsittart v. Fansittari (2 De G. & J. 249; S. C. 4 Jur. (N. S.) 519); Worrall v. Jacob (3 Mer. 268); Frampton v. Fmmpton (4 Beav. 287, 293); Fletcher v. Fletcher (2 Cox, 99); and 20 & 21 Viet. c. 85 (sects. 7, 17). the lord chancellor. I do not mean on the present occasion finally to dispose of this application; but as I regard it as one of the [226] most important motions, if not the most important, that has yet come before me judicially, I...
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