validity of a deed of this sort cannot now *be questioned · *688] Hunt v. Hunt, 31 Law J., Chan. 161, 171. In Evans v. Carrington, 29 Law J., Chan. 330, (a) after the dissolution of a marriage by the Divorce Court, the husband filed a bill for the purpose of setting aside the marriage settlement, and also a deed of separation. It alleged that C., the plaintiff's late wife, had previously to her marriage, unknown to the plaintiff, committed fornication with R.; that the connection was renewed after marriage; that the marriage as well as the settlement was procured by fraud and collusion of C. with R.; and that C. had fraudulently procured the plaintiff to execute the deed of separation for the purpose of more securely carrying on her intercourse with R. Upon demurrer, it was held by Wood, V. C., that the allegation of fraud and collusion, without any more precise statement of facts, was not sufficient to give the Court jurisdiction to set aside the settlement; and also, that, in the absence of any allegation of adultery committed between the date of the marriage and the execution of the deed of *689] *separation, there was nothing in the bill on which relief in respect of that deed could be founded. That decision was affirmed by Lord Campbell, C., on appeal,-30 Law J., Chan. 364,— so far as concerned the marriage settlement, but reversed as to the deed of separation. His lordship there says: "The marriage settlement being valid when executed, the wife, according to our law, did not by adultery lose any benefit which it conferred upon her. This has been the clear understanding of all English lawyers; and, if decisions are wanted, I need only refer to Sidney v. Sidney, 3 P. Wms. 268, Blount v. Winter, 3 P. Wms. 276, n., Buchanan v. Buchanan, 1 Ball & B. 203, and Field v. Serres, 1 N. R. 121. The simple dissolution of the marriage for adultery makes no difference. Till very recently, this could only be effected by a privilegium,-an Act of the legislature, in the form of a divorce bill. Such bills sometimes contained clauses which had full effect, from the omnipotence of Parliament, to vary the provisions of marriage settlements according to what was fit in the circumstances of particular cases. But, in as far as the marriage settlement was not expressly varied by the divorce bill, the marriage settlement stood firm, and might be enforced for the benefit of the divorced wife. Can it be said that there is a difference as to the effect of a dissolution of the marriage, whether this be brought about legislatively, by a privilegium, or judicially under a general law? All the arguments for setting aside the marriage settlement after the divorce à vinculo apply with equal force to both modes of dissolution. No new power has been conferred on the Court of equity to interfere with the settlement." The defendant has, at all events, had part of the consideration which the deed contemplated, in the absence of a claim for alimony, and an indemnity against debts

"7. That the indemnity against molestation of the wife, and against application for alimony and for restitution of conjugal rights, is a sufficient consideration to support the covenant: "8. That the matter set up by the plea merely amounts to a Katement that there is a partial failure of consideration:

"9. That a Court of equity will not set aside a contract entered into by parties knowing their rights, though upon the ground of inadequate consideration, or partial failure of consideration; and that here the defendant had full knowledge:

"10. That equity will not set aside a voluntary deed, not obtained by fraud."

(a) See Evans v. Edmonds, 13 C. B. 777 (E. C. L. R. vol. 76).

[*690

contracted by the wife. The adultery recited in the deed is the very adultery upon which the decree was obtained. This is, in effect, tantamount to a post-nuptial settlement: Randle v. Gould, 8 Ellis & B. 457 (E. C. L. R. vol. 92). In Baynon v. Batley, 8 Bingh. 256 (E. C. L. R. vol. 21), 1 M. & Scott 339 (E. C. L. R. vol. 28), it was held that adultery of the wife after separation is no plea to a covenant to pay a trustee a separate maintenance for the wife. A plea to the same effect was disallowed in Field v. Serres, 1 N. R. 121. Jee v. Thurlow, 2 B. & C. 547 (E. C. L. R. vol. 9), 4 D. & R. 11 (E. C. L. R.; vol. 16), by a deed of three parts, between husband, wife, and trustee, reciting that differences existed, and that the husband and wife had agreed to live separate, the husband covenanted to pay an annuity to the wife during so much of her life as he should live, and the trustee covenanted to indemnify the husband against the wife's debts, and that she should release all claim of jointure, dower, and thirds: it was held that this deed was legal and binding, and that a plea by the husband, that the wife sued in the Ecclesiastical Court for restitution of conjugal rights, and that he put in an allegation and exhibits charging her with adultery, and that a decree of divorce à mensa et thoro was in that cause pronounced, was not a sufficient answer to an action by the trustee for arrears of the annuity. Holroyd, J., there says: "This is a covenant made to provide for a separation which had been determined upon before the execution of the deed, and is for the payment of an annuity during the wife's life, if the husband should so long live. It is founded upon what the law considers a good consideration; for, there is a covenant by the trustee to indemnify the husband against the wife's debts, and that she should release all claim of jointure, dower, or thirds." It is clear, therefore, that a divorce can have no operation against the deed. The case of Fisher v. Fisher, 31 Law J., Mat. 1, shows the limit of the jurisdiction of the Divorce Court to deal with settled property. [KEATING, J.[*691 The covenant in question would not prevent the wife from claiming alimony in the Divorce Court.] But she would lose the annuity.

Macaulay, Q. C. (with whom was Raymond), for the defendant.(a)—— Evans v. Carrington has no bearing upon this case: and there was no final decision as to the validity of the deed. To say that the covenant in this deed prevents the wife from suing for alimony, is begging the whole question. The trustee engages to indemnify the defendant against a suit for alimony, but not against alimony pendente lite. The intention of the deed was, to secure to Ann Elizabeth Clark an annuity of 1007. so long as she should remain the wife (or, possibly,

(a) The points marked for argument on the part of the defendant were as follows:"1. That the plea, being pleaded as an equitable plea, lets in any ground of defence that would have been available in a Court of equity:

"2. That Courts of equity require a valid and continuing consideration to appear, even in the cases of instruments under seal :

"3. That the consideration for the defendant's covenant would in a Court of equity be understood to be founded on the indemnity afforded to the defendant by the covenant for his protection given by the trustee; and that, by the dissolution of the marriage, the trustee's covenant fell to the ground, and with it the covenant of the defendant:

"4. That the annuity mentioned in the deed declared upon was payable only whilst the relation of husband and wife subsisted between the defendant and his late wife; that this is sufficiently shown by the deed; and that the annuity ceased to be payable immediately upon the dissolution of the marriage in the pleadings mentioned."

the widow) of the defendant: and the covenants on the other side are coextensive. The marriage having been dissolved by the decree of the *Divorce Court, the primâ facie liability of the husband *692] to support the wife has ceased, and consequently the whole consideration, the value of the indemnity to him, is gone. [WILLIAMS, J.-Suppose the decree in the Divorce Court had been obtained one day before the expiration of a half-year, would the lady have lost the annuity for the whole of that half-year?] Undoubtedly she would. The whole terms of the deed point to a provision for the support of the wife.

Joyce, in reply. The covenant is, to pay the annuity during the natural life of the wife. If the argument on the other side be tenable, the annuity would cease on the death of the covenantor. Why, then, does he covenant "for himself, his executors and administrators?" It is clear from the whole scope of the deed that the annuity was to be paid during the life of the wife, provided she conducted herself in a chaste and moral manner.

WILLIAMS, J.-I am of opinion that our judgment must be for the plaintiff. The defendant by this deed covenants absolutely that he will pay the annuity to his wife,-of whose adultery he is at the time aware, during her natural life. It is clear, from the circumstance of his covenanting for himself, his executors and administrators, that he did not contemplate that the annuity should only be commensurate with the period during which she was fulfilling the character of his wife, because it was to continue when she should become his widow, when his obligation to support her as his wife would be at an end. The Divorce Act, 20 & 21 Vict. c. 85, not having then passed, the notion of a dissolution of the marriage must have been altogether out of the mind of the defendant. The intention was, that the wife

*693] *should have an annuity of 1001. for the term of her life provided she complied with the condition imposed, and led a chaste and moral life. We cannot allow the husband by his own act to absolve himself from his engagement.

WILLES, J.-I am of the same opinion. It does not appear that the wife has misconducted herself since the execution of the deed. We must assume, therefore, that she has complied with all the conditions upon which the annuity was granted to her. It is now sought, by virtue of an Act of Parliament passed five years after the date of the deed, and by the grantor's own act, to v hich the grantee is not a consenting party, to deprive her of the benefit of the covenant. To hold that the Divorce Act can have the effect contended for by the defendant, would be giving it an ex post facto operation of the worst sort.

KEATING, J.-I am entirely of the same opinion. I think it would be extremely unjust if the husband's own act, with no subsequent default on the wife's part, were allowed to defeat the covenant which he has entered into. Judgment for the plaintiff.

*GUNN v. THE LONDON AND LANCASHIRE FIRE

INSURANCE COMPANY. June 27.

[*694

A contract made between the projector and the directors of a joint stock Company provisionally registered, but not in terms made conditional on the completion of the Company, is not binding upon the subsequently completely registered Company, although ratified and confirmed by the deed of settlement.

THIS was an action commenced by plaint in the Lord Mayor's Court, London, and removed by certiorari to this Court.

The declaration stated, that, before the making of the agreement thereinafter mentioned, the plaintiff had started the project of forming a certain joint stock Company in England for the purposes within the meaning of an Act of Parliament passed in the eighth year of the reign of Her present Majesty, Queen Victoria, intituled, "An Act for the registration, incorporation, and regulation of joint stock companies" (7 & 8 Vict. c. 110), to be incorporated under the name of "The London and Lancashire Fire Insurance Company ;" and the plaintiff had previously registered the said Company pursuant to the said Act, and was the sole registered proprietor thereof, and had incurred various debts, liabilities, and expenses in promoting the said Company: That Francis William Russell, Thomas Dakin, and Joseph Henry Reynell De Castro became and were provisional directors of the said Company; and, in order to further the interests of persons who had applied for and paid deposit-moneys in respect of shares in the said Company, and to enable the said Francis William Russell, Thomas Dakin, and Joseph Henry Reynell De Castro, and their co-directors, to proceed in their endeavours to establish the said Company, the plaintiff had agreed, amongst other things, to relinquish his right as promoter of the said Company: That thereupon articles of agreement were entered into between the plaintiff of the one part and the said Francis William Russell, *Thomas Dakin, and Joseph Henry [*695 Reynell De Castro of the other part, whereby the plaintiff agreed (amongst other things) that he would relinquish his right as a promoter of the said Company, and the said Francis William Russell, Thomas Dakin, and Joseph Henry Reynell De Castro agreed, on behalf of the said Company, that, provided the plaintiff performed his part of the said agreement, the said directors should and would, at the expiration of fourteen days after the Company had been completely registered, pay and otherwise carry out whatever might be requisite for the complete performance on their part of one of the two following alternatives, the option of which it was thereby expressly agreed should remain with the said Francis William Russell, Thomas Dakin, and Joseph Henry Reynell De Castro, and their co-directors, that is to say, whether they should appoint the plaintiff to the office of manager of the agency department of the said Company, on certain terms mentioned in the said articles of agreement, or, as to the other alternative, they should pay to the plaintiff the sum of 5000l., one half thereof in cash, and the other half in 1000 shares of the said Company upon which 27. 10s. should be considered as paid: Averment, that, afterwards, the said Company was completely registered, and the said articles of agreement were by the deed of settlement of the said Com

pany ratified and confirmed, and declared to be valid znd binding upon the Company in the same manner as if the same had been entered into, made, or done by the Company, or by the direction or authority of all the shareholders: Breach, that, although the plaintiff performed his part of the said agreement, and did all things, and all things happened, and all times elapsed, necessary to entitle the plaintiff to the performance by the defendants and the said directors of the said articles of agree*696] ment on their part, yet the defendants and the said directors did not, nor did any or either of them, at or before the expiration of fourteen days after the Company had been completely regis tered, pay or otherwise carry out whatever might be requisite for the complete performance on their part of either of the said alternatives. in the said articles of agreement mentioned, but therein made default: Claim, 50007.

Plea, that the articles of agreement in the declaration mentioned were and are in the words following, that is to say: "Articles of agreement made the 27th of November, 1861, between Alexander Hamilton Gunn, of, &c., of the first part, and Francis William Russell, of, &c., Thomas Dakin, of, &c., and Joseph Henry Reynell De Castro, of, &c., for and on behalf of themselves and the other directors of a certain Company already provisionally registered, and intended to be incorporated under the name of "The London and Lancashire Fire Insurance Company," of the second part, and which said persons parties hereto of the second part are for brevity hereinafter denomi nated the said parties of the second part: Whereas the said Alexander Hamilton Gunn, on or about the 12th of October last past, provisionally registered the said Company pursuant to the Joint Stock Companies Registration Act, 7 & 8 Vict. c. 110, and he thereupon became the sole registered promoter thereof; and the said Alexander Hamilton Gunn has incurred various debts and liabilities and expenses in promoting the said Company: And whereas the said parties of the second part and their co-directors have since become, and have been publicly advertised as, directors of the said Company, and as such have, since the 12th of October last, incurred certain liabilities to advertisers, printers, and other persons: And whereas, in order to further the interests of persons who have applied for and paid *697] *deposit-moneys in respect of shares in the said Company, to enable the said parties of the second part and their co-directors to proceed in their endeavours to establish the said Company, the said Alexander Hamilton Gunn has agreed to relinquish his right as promoter of the said Company, and all official connection with the said Company, and also to indemnify the said parties of the second part and their co-directors, and each and every of them, not only from and against all liability, loss, costs, charges, and expenses whatsoever, of or in any wise relating to the aid Company, and all debts and demands relating thereto incurred by the said Alexander Hamilton Gunn, för which he alone is personally responsible, but also for or in respect of all expenses incurred in advertising the prospectus of the Company and notices closing the list of application for shares, the whole of the printing, stationery, books, salaries, rent, postages, messengers, por terage, and provisional registration fees incurred to the date hereof, on the terms hereinafter mentioned: And whereas, in pursuance of