Morning journal and courier., 1884-04-04
tiff at the trial strenuously contended that il

tiff at the trial strenuously contended that it
would not be SO available. It seemed to his
lordship after careful consideration of the
very able arguments which were addressed to
him by counsel on both sides, and of the su-
thorities which were cited by them, that the
question whether the breach of a covenant
under deed of separation might or might
not be an answer to an action for payment of
an annuity was not substantially affected by
any judicial decision. From no case cited
did It appear that in this respect the question
OF moiestation generally as breach of cove-
nant had ever been raised or its effect Judi
cially determined. He was therefore left to
ascertain by recourse to general principles
whether the covenant to pay an annuity cons
tanned in this deed was to be considered as
Independent ct any covenant not to molest,
which was usually contained in such a deed.
II it was to be considered as independent,
then breach of the covenant not to molest
would not be defense to the action for the
payment of the annuity. The covenant in
the deed to pay an annuity was in form abso-
Lutte, but that was not by any means conclu-
sive. In order to ascertain the independence
or otherwise of the covenant, one must look
carefully to the existence, the objects of the
deed, and to the nature of the several cove
nants contained in it. The defendant made
this settlement upon his wife at the time
when, after certain misconduct, she was liv-
4D& 1PdGb AKOM ulu-Dub uOL, hS u1S AUECou1D
understood, in.any known adultery-and
when she was, it might be presumed, in need
of some provision for her maintenance. The
defendant made that provision for her at a
time when it was known that their marriage
could never be dissolved, and that no chill
dren she might bear would prima facie be
entitled to rank as his children. The deed
contemplated their living apart, reasonable
provision for the wife's maintenance security
for the husband against molestation, and, as
a matter of form, security also against liza
bility for debts which would be incurred by the
wife, las matter of form," because the
husband under the circumstances existing in
this case could not we'll have been made
responsible for any such debts. The wife
contracted not to seek to enforce restitution
of conjugsl rights, which was also under the
circumstances the merest form, and could
entail no serious consequences. Ihe deed
might be summarized as having for its basis
the living apart of Lord and Lady Aylesford,
the husband agreeing to pay the wife an an
nnity, and she agreeing not to molest him
The Intervention of the trustee did not af-
feet the substance of the transaction. It
seemed to him (the learned judge) that the
covenant not to molest was really the whole
consideration for the covenant to pay the
annuity. Nor could this covenant not to
modest be apportioned in damages. Nor
could it be assumed to be the intention of
He thought all these questions must be an
swered in the negative, and he could not,
therefore, treat the covenant to pay the an
nuity as otherwise than dependent on free
dom from molestRtion. It was the one con-
sideration benefiting the husband, and for the
sake of which he undertook the burden of
the covenant He was further of opinion,
having regard to the relation of the parties
and to the nature of the covenant, that any
molestation amounting to substantial injury
would amount to an abandonment of all
right to further benefit under the deed, just
as he would consider the trustee relieved at
law under his covenant by substantial de-
fault of the husband in the payment of the
annuity. Although these were the only mat
ters to be determined by his lordship, some
argument had been advanced by counsel for
the plaintiff to the effect that he was wrong
in holding that there was evidence of moles-
tation to go to the jury. He declined to re-
consider his ruling in the course of the trial
He had directed the jury, and they had acted
on that direction and if he had erred his er-
ror could only be corrected by some other
court. Ee would repeat in his judgment
that the misconduct charged against Lady
Aylesford of entering into adulterous inter
course with the Duke of Marlborough, of
accepting the annuity from him, of giving
birth to a bastard child begotten by him, and
putting that child forth as Lord Guernsey
anu enllied 70 succeeu 'o LILO ESTATES onu
title of the defendant, was consistent with
molestation within the meaning of the cove
nant, and might be SO found by the jury if
they considered that it amounted to substan
tial molestation, using the word mole station
in the sense of injury inflicted by one person
upon another, on his person. character, So
cial position OR property. His lordship
came to the conclusion, therefore, that the
jury having found that Lady Aylesford did
moIest the defendant he had succeeded in
his deseHse to- the claim, and
was entitled to Judgment upon it; further,
that the defendant, having succeeded on the
issue raised By his counter claim, he was en-
titled to judgment upon that also, but in the
"Reminiscences without DAMAGES