Paterson v McNaghten [1905] HCA 21

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

fe - Sepriration deed - Restraint on anticipation - Eifect of clause 'on revoeability of contract - Waiver of condition precedent - Eyuitable plea - Accord and satisfaction,

the Supreme Court, brought an action to recover from the appellant arrears staat

alleged to be due under a covenant in a deed of separation by which the | - -

The respondent, as trustee of a chose in action vested in him by an order of

appellant covenanted to pay to a trustee a certain sum perannum by quarterly Grtith C.J.

instalments, upon trust for his wife for her separate use without power of Connor JJ. suticipation. 'The appellant pleaded inter alia, an equitable plea alleging that by 4 clause of the deed it was provided that under certain cireumstances, upon the performance by the appellant of certain conditions as to giving notice, the deed The plea alleged

should be considered as at an end and its covenants voi further that the circumstances contemplated in the said clause had arisen, that the wife had waived the performance of the condition as to notice, and that the deed was therefore at an end, and its covenants void ; and that the 'appellant, before any of the moneys claimed became due, ceased to pay the sum covenanted to be paid, and paid other sums to the wife and entered into other arrangements with her from time to time, and that these moneys were opal and arrangements entered into by the appellant on the faith and under- Sanding that the arrangement in the deed was at an end and the covenants 'oid, and his wife accepted these moneys and entereil into these arrangements on the same faith and understanding, and by her conduct both she and the Fespoudent were estopped from setting up and suing upon the deed, Issue Was joined upon the pleas.

Trappeared at the trial that at the date of the alleged notice, one quarterly instalment was due and unpaid. 'The jury found specially that the wife had

waived the performance of the condition as to notice, and als ta, accepted the moneys paid and the other arrangements made after te of the waiver, as alleged in the plea. ' Held, that the plea must be construed not as merely setting upa ys by the wife of the condition as to notice, but as further alleging that on occasion when a payment was made under the substituted arrangement ty wife accepted the payment and the fresh arrangement as a antsiatio of

instalments then due, and agreed not to insist upon the stipulation gx notice or to set up the deed as creating a subs

: { ion op wife with respect to income actually accrued due, the plea disclosed a gol defence in Equity as to all the instalments sued for except the first; and

'That, upon the findings of the jury, the defence had been substan proved. k;

Hood Barrs v. Heriot, (1896) A.C., 174, followed. "

Semble, that but for the equitable nature of the interests involved, thi would also have been a good defence at common laws, by way of accord satisfaction.

An executory contract to which a married woman is. party, and whith does not amount to a complete gift of property, is not made irrevocable by the mere fact that it contains a clause in restraint of anticipation with rein to her rights under the contract. 7

Semble, therefore, that in a separation deed by which no property isassguel such a clause would not prevent the wife from rescinding or releasing the deel, or waiving her rights under it.

Decision of the Supreme Court, MeNaghten v. Paterson, (1905) 5 8B. (N.S.1.), 90, reversed, and judgment of Darley C.J. restored.

Appeat from a decision of the Supreme Court of New South Wales.

The following statement of the facts is taken from the judgment of Grifith CJ. : -

This action was brought by the respondent as trustee ofa chase in action which had been vested in him by an order of the Supreme Court under the Trustee Act (N.S.W.) 1898, to recover arrears of money covenanted to be paid by the appellant under deed of separation, dated 2nd April, 1894, and made between the appellant of the first part, M. S. Paterson, his wife, of the second part, and J.8, Gill, who resided out of New South Wales, of the third part 'The respondent, as assignee of the chose in action, took it, of course, with all its equities, 'The deed, after stipulations that i

should be lawful for the wife to live apart from her husband and H. C. oF A. tochoose her residence wherever she might think fit, provided 19%. fiat sueh residence did not prevent her compliance with elause 6 pasyaaox of the deed, and that neither should molest the other or take any y4.5,"" suey, "eps to compel a return to cohabitation, contained in clause 3. a = -

• covenant by the appellant to pay to Gill during the joint lives of

himself and his wife, subject to clause 4, the sum of £400, payable quarterly on the first days of January, April, July, and October,

jn each year, "upon trust for the said M. S. Paterson for her

pirate use and she shall not have power to anticipate the same."

Clause 4 of the deed is as follows : - " In the event of the said

H Paterson," (the appellant) "at any time after the expiration of

twelve months from the date hereof considering that the said amount in the third clause mentioned should by reason of the diminution of his income or otherwise be reduced, he shall give

totice thereof to the said J. S. Gill and in the event of no agree-

ment being arrived at between all the parties as to the amount to

be thereafter paid by the said H. Paterson to the said J. S.

Gill within one month after notice of his intention to pay such

~ reduced amount has been received by the said J. S. Gill from the

stil H. Paterson then the arrangement herein contained shall

be considered as at an end and the covenants and agreement

lerein contained shall become void and not hereafter binding

Clauses 6 and 7 stipulated that the wife should have sole

ustody and control of the child of the marriage, and of his aducation and bringing up till he attained 21, without any inter-

ference on the part of the husband, with a proviso that the child

• should spend every alternate Sunday with his father in Sydney

extept on two occasions in the year, when his mother was to be atliberty to take the child away from Sydney for periods not txceeding six weeks. By clause 8 Gill eovenanted to indemnify

the appellant against any claims for his wife's debts

'The instalment of £100 payable on Ist April, 1895, was not

• Paid by the appellant. On 26th March his solicitors had written

toa Mr. Hamilton, a solicitor who had acted as Gill's agent to

tesive the money payable under the deed of separation, to ask

ithe was prepared to accept service of a notice in terms of clause

4 of the deed and to waive the necessity of a notice being sent t Gill, On 3rd April an interview took place between Ha and the appellant's solicitor, at which Hamilton, acting, asi deposed, on the authority of Mrs. Paterson, agreed to waive th question of notice to the trustee. Negotiations then took ply between them as to the reduced amount to be paid to her, b they failed to come to an agreement. 'These negotiations had of course, no effect upon the claim for the £100 which had al accrued due. Mrs. Paterson then instituted a suit for ju separation and obtained an order for alimony pendente lite, suit was dismissed on the merits in November, 1895, In January, 1896, she applied for an order for maintenane under the Deserted Wives and Children's Act, but her complain was dismissed. Further negotiations then took place betwes the husband and wife through their respective solicitors, with th result that fresh arrangements were made from time to time ss to the allowance to be paid to her by the appellant, and as to custody of the child, and the moneys payable under the fresh arrangements were from time to time paid to and accepted the wife. On 5th March, 1897, an order was made by the Supreme Cou by consent, upon an application by the appellant for a writ o habeas corpus against the wife in respect of the child, by wl the conditions of the deed as to the access of the appellant to child were materially varied, and it was ordered that the appellast should pay the wife £15 a month by way of maintenance for the wife and child (subject to diminution in certain events), nl should also pay the child's school fees at a rate to be agree upon between the parties' solicitors. 'This order was to be it foree for two years from its date. On 3rd May, 1899, another order was made by Cohen J. al upon an application for a writ of habeas corpus by the appellanh whereby the eustody of the child was given to the appellant full directions as to his future edueation at the appellants expe The child was to spend the first half of his vacations with father, and the second half with his mother. No limit assigned to the duration of this order, and it is still in foree The plaintiff's declaration in the action alleged that the aP

by deed of 2nd April, 1894, covenanted to pay Gill the sum of H. ©. o A. 4400 per annum by quarterly instalments, but did not do so, that pete 'he balance of £1879 9s. 4d. remained due, and that the right to pasos 'ae for and recover that sum had been vested in the plaintiff "Qndit was given for the sums actually paid by the appellant.

The appellant pleaded denying the existence of the alleged 'bbt, and also pleaded an equitable plea, alleging that the deed sel upon was a deed of separation, Gill being a trustee as therein entioned. 'The plea then set out the fourth clause of the deed snd proceeded : -

_ "And the appellant says that, after the expiration of the said twelve months from the date of the said deed, and before any 'portion of the said sum of £1879 9s, 4d., herein sued for beeame 'ue under the said covenant of the said deed, the defendant considered that the said amount in the said third clause of the said deed mentioned, should, by reason of the diminution of his income and otherwise, be reduced, and the defendant says that the said J. S. Gill was a trustee under the said deed for the sid M.S, Paterson, and was by the said deed to receive the said moneys for her the said M. S. Paterson, and the said M. S. Pater- son was and is solely entitled to the said moneys to be paid under the covenant in the said deed in the declaration mentioned and svel upon, and this action is now brought by the plaintiff as trustee for and for the sole benefit of the said M.S, Paterson ; and thedefendant says that he gave notice of the fact that he con- sidered that the said amount in the said third clause of the said deed mentioned should for the reason aforesaid be reduced to the 'olistor acting for the said M. S. Paterson and for the said J. 8. Gill; and the said M. S. Paterson accepted the said notice in liew stand as a good and valid notice under the said clause of the 'sid deed, and exonerated and discharged the defendant from fiving such notice to the said J. S. Gill; and the defendant says

• that no agreement was arrived at between the said parties the itfendant and the said J. S. Gill and the said M.S. Paterson as 'othe amount to be thereafter paid by the defendant to the said

S.Gill within one month aiter such notice had been given to the said solicitor or at all, and thereupon the said arrangement in thestid deed contained was considered as at an end, and the

covenants and agreements therein contained, including the ai covenant in the declaration mentioned, beeame void andy thereafter binding on the defendant, and the said J. 8 Gill the said M. S. Paterson ; and the defendant thereupon and befon any of the said moneys in the declaration claimed became dy ceased to pay the said moneys by the said deed covenanted fo paid, whieh is the alleged breach ; and the defendant paid othy moneys to the said M. S. Paterson, and entered into other ara

was at an end, and the said covenant void; and the said M Paterson accepted the said moneys and entered into the said oth arrangements upon the same faith and understanding, and

by her conduct from now setting up and suing upon the s deed."

On these pleas issue was joined. It did not appear on the pleadings that the money was to be paid to Gill for the s use of the wife without power of anticipation.

At the trial the jury, in answer to questions left to them by the learned Chief Justice, found that Mrs. Paterson had notice to Hamilton as a good notice under clause 4, and hal exonerated the appellant from giving notice to Gill. They found that she "accepted the moneys paid and other arrang ments made since April, 1895, on the faith and understandi that the arrangement in the deed was at an end and the covennt therein contained void."

On these findings the learned Chief Justice directed a verdi for the plaintiff for £100, reserving leave to the plaintiff to mo to increase the verdict to £1879 9s. 4d. A rule to increase th verdict accordingly was afterwards made absolute by the Bull Court: MeNughten v. Paterson (1). 'The appeal was from this

Gordon KC. and Rolin, for the appellant. The orders at Supreme Court under which the respondent was appol!

ive the moneys and to sue for them are invalid, and he is not H.C. or A. proper party to sue. Sec. 38, sub-secs. (c) and (/) of the 105 1 Act 1898 applies only to the case of a bare trustee. Gill pantaoy not a bare trustee, but was bound to indemnify, MeNaghten 4.4." yy 'd not be sued upon the covenant by Gill to indemnify. =a {Gnrrira C.J - As the pleadings stand, if the orders could be leat all, they must be taken to be good. The section seems toapply to this case.] 'The principle of Jorden v. Money (1) upon which the Supreme Court relied, does not apply. Here a waiver is alleged. The ife had power to waive the notice. Even rights given by Act Parliament may be waived. The deed here contains no pro- vison as to any particular form of notice, and the notice neces- under clause 4 was waived. If the notice had been given as yuired by that clause, the deed would have been at anend. The of the wife amounted to a representation that the deed was anend. She treated notice to herself as notice to Gill. The jury have found both waiver and estoppel against the wife. All ihe allegations in the equitable plea have been found in the sypellant's favour. 'The evidence shows that arrangements were made and proceedings taken by both parties inconsistent with their rights under the deed. It is not open to the wife or the respondent to contend now that the rights of the wife under the eed remain unchanged. [He referred to Chadwick v. Manning Q); Earl Beauchamp v. Wynn (3); Selwyn v. Garfit (4); In re Thompson and Holt (5); Watts v. Hyde (6) ; Caincross v. Lorimer ); Agra and Masterman's Bank v. Leighton (8); Cochrane v. Green (9); Encyclopedia of the Laws of England, sub. Waiver and Acquiescence.] 'The doctrine of restraint on anticipation cannot be applied to such a deed as this. The authority of Bateman v. Fuber (10), is tut disputed, but it applies only to separate property settled on a ied woman. 'The sepatation deed constitutes the wife a dome sole as regards the benefits under it: Cahill v. Cahill (11) (7) 3 Macq. HL. CG ). (8) L.R., 56. (9) 9C.B. 448.

Macqueen on Husband and Wife, 8rd ed, p. 838, 'The dent's argument must go so far as to contend that the p

voeable, and ineapable of modification in any particular agreement on the wife's part. 'That is to say that, even 4 in the wif

directions as to custody of the child. Nicholl v. Jones (I) was relied upon by A. H. Simpson J., does not apply, b there is here no settled fund of personalty. 'The words in deed have no meaning to which effect can be given, [Here

does not disélose facts upon whieh a Court of Equity would an unconditional and perpetual injunction. Justice eould not h done without bringing before the Court a third party. Paterson, the person responsible for the alleged waiver, is nob: party. é

A restraint on anticipation prevents a married woman from affecting the property settled upon her, whether by fraud, estoy

Hobhouse (4); Stanley v. Stanley (5); Thomas . Price (6). rule applies to rents, which are analogous to the right to incom

sums: Birmingham Excelsior Money Society v. Lane (7) Married Women's Property Act 1901, includes a chose in acti under the term " property," see. 28. Nothing that the wife entll do, even for her advantage, could put an end to the deed : Robit: son v. Wheelright (8). An agreement under seal made by all the parties would be ineffective to remove the restraint: Bateman v. Faber (9); Clive v. Carew (10). The restraint cannot be evaded

(1) LR. 3 Eq., 696. (7) (1904) 1 K.B. : (2) (igs) aC, 98. (8) 25 Tad. Ch., 335, 2L Bea (3) (1896) A.C., 174, . & G:

any document however formal: Shafto v.'Butler (1); Inre #.0. or A. Hannill; Bllis v. Johnson (2); Stogdon v. Lee (3), 1905, [Guu CJ. - Then do you contend that by means of the Seed wnds*without restraint on anticipation" a married woman's yon, stay, 'ontract may be made unalterable 7] = Yes, so far as the contract is executory, and relates to future

ments; relief can only be obtained through the Court of

[GuirrrrH C.J. - The law as you state it, is not disputed. 'The

qation is whether it applies to rights under an executory con-

Some meaning must be given to the words. They are of a

'ehnical character, and have always been given a definite

naning. This is an instance of the very case which the doctrine

s intended to meet, viz., to protect the wife against the influ-

mee of her husband: In re Ridley; Buckton v. Hay (5); In re

Tardon's Trusts (6). Heath v. Wickham (7)is a direct authority

tothe ability of a wife to vary a separation deed containing

'sha clause, The doctrine has been applied to a debt ona bond :

Iv we Bretile; Jollands v. Burdett (8); to a mortgage debt in

Tillett v. Finlay (9). The facts of the present ease may be

wy, but there is nothing in them to take the ease out of the

(He referred to Bolitho & Co. Ltd. v. Gidley (10).]

Assuming that the wife could release the appellant, the equitable laisbad, 'There is no sufficient allegation of authority, and no oppel shown which will prevent the trustee from setting up

Juy's finding must be referred only to that set out in the plea. There can be no estoppel by representation except by representa 'i of an existing fact. A mere promise will not estop : Jorden v. y(11). There was here a bare promise without consideration,

tee 7) [r., Ch., 376; 5 LR. P)a1ch. De Sgo at p. alg BT Cho 378 Wns abe (9) 29 L. pack 3, (10) (1 . (11) 5 HLA

(GrivermH C.J. - Was not the appellant induced by the sentation to refrain from giving formal notice? 4; Armstrong (1)]

The wife had no authority to waive notice, or to make representation binding the trustee: George Whitechurdh Zi v. Cavanagh (2). 'The provision as to reducing the amount for the husband's benefit and must be strictly performed : Brun Maxims, 7th ed., p. 531; Williams v. Stern (3). The trustee is; a mere dry trustee without rights under the deed. He is ent to insist that notice be given to him in accordance with the d

to the deed without making him a party to the arrangement, deed could not be altered or rescinded except in the way

writing: Randle v. Gould (4). The Court will look jed upon any transaction between the cestwi que trust and the pi who is liable under the deed : Doe d. Rowlandson v. Wainwright (5). No case has been cited in which the rights of a cestwi gu trust have been deemed to be waived by statements made by him to the person liable without the sanction of the trustee. Itis prevent such abandonment of rights that the trustee is appointel

Gordon K.C,,in reply. The dictum of Lord Camplell C1. Randle v. Gould (4) was questioned in Nicol v. Nieol (0 Cotton LJ. and Bowen LJ. In the latter ease it was held th

'As to waiver, the contention of the respondent would do a with the law of waiver altogether. The authority of orden y Money (7) is not disputed, but in this case the waiver was 0 a mere representation of intention but a definite contract consideration.

(1) 10C.B, (2) (1902) A.C (3) 5 Q.B.D., 409 @) SE EB,

(He was stopped on this point.} H.C. or A. 'The restraint on anticipation does not prevent a married woman Lal

jou rescinding a contract. It only applies to money payable to Patensox weunder it, She cannot forestall it, but she may re-contract. Me NAcnres. Tere is no case in which the restraint has been applied to any- - - 'ting which was not in the nature of property. It is to protect

le property of the separate estate. But it does not apply to a contract, like a separation deed, which the wife has clearly

to break in one way, i.e., by re-cohabitation. Birmingham

Fuelsion Money Society v. Lane (1), only applies where the deed siuittedly subsists, it is no authority for the contention that the

del is irrevocable. Heath v. Wickhum (2) is fatal to the sspondent's contention on this point. He is not enforeing the "venant, but is suing as trustee for past income already due to

fiewife. The restraint ceases immediately the moneys become

pyible: Hood Burrs v. Heriot (3). For these sums, as they

'frame due, there has been an accord and satisfaction from time

fotime. 'The wife agreed on each occasion in return for further wiventages to forego the amounts not paid, and the provisions

"ofthe deed, and accepted the smaller sum. Different arrange-

'ments were made on many matters, altogether inconsistent with

tiedeed, and both parties accepted them as part of the considera-

• (GurrrrH C.J. referred to Goddard v. O'Brien (4)}

That is the gist of the plea, and the third finding of the jury is slstantially a finding that the plea has been made out. The 'tie, having allowed the appellant all these years to pay moneys tul to alter his position on the footing that the deed was at 'mend, is now debarred by her laches and acquiescence from siting it up. 'There were, therefore, faets alleged and proved Thich amount to an absolute discharge of the liability under the 'el. Even if the plea is informal, any defects would be cured 'Wamendment, which the Court would be bound to allow after 'Sha finding of the jury. A new trial would be futile, as all tie material facts have already been found in the appellant's

(3) (1896) A.C. 5 LR. Ir. Ch., 285. (4) 9 Q.B.D., 37.

H.C. or A. favour, Under such circumstances a new trial will note

Delohery, on the question of accord and satisfaction third finding of the jury must be looked at in conned the question left to them, the plea and the directions

the jury was directed solely to the time when the nots given. The question of accord and satisfaction as now ra never presented to them. 'They found, not that the newan ments were accepted from time to time in place of the under a then existing deed, but on the faith and unders that the deed was at an end in 1895, That contradies

1895 there could not bean accord with respect to future bre No evidence was given by the plaintiff to controvert the ple this aspect. It was treated as applying only to what took pln in 1895, 4 [Grirrirn CJ. referred to Hobson v. Couley (2)] That was a case of substituted agreement, not of accord aul satisfaction. A defence of accord before breach would be met | the restraint on anticipation. If the Court decides in favour of the appellant on this

GrireirH C.J. [His Honor, haying stated the facts as al set out, continued]: Owen J. in his judgment referred to the known rule laid down in Jorden v. Money (5); and Chad Manning (6), that in order to create an estoppel a represent

tbe of an existing fact and not of a mere intention; and he H.C. or A. wught that the waiver of notiee set up by the appellant 5 unted to no more than an expression of intention by the wife pyrsesox to avail herself of the failure to give notice and not to set Up sey," ypu, ihe deed as valid. If this were the true effect of a waiver this - - ing would be conclusive. But, as I will presently show, the ine of waiver rests on other grounds. The learned Judge dealt with the power of the wife to waive the notice, and wht that she had no such power by reason of the restraint on ticipation, referring to the case of Bateman vy. Fuber (1) in which Lindley MLR. said: "A married woman cannot by hook or ly erook - by any device, even by her own fraud (the eases go that length) - deprive herself of the protection which the restraint 'ay anticipation throws around her." If the doctrine of restraint 'manticipation applies to this case, this reasoning is also unanswer- th, The learned Judge also thought that the wife's waiver could not in any case bind the trustee. A. H. Simpson J. came to the same conclusion, but with reluct- * 'mee. He rested his judgment entirely on the doctrine of restraint 'mm anticipation. Pring J. thought that the trustee himself could not have "waived the notice. Iwill deal first with the question of restraint on anticipation. In In ve Ridley, Buckton v. Hay (2) the doctrine was considered amd expounded by Jessel M.R. He said: " Now, it is necessary toconsider what the meaning of a restraint on anticipation is, for with the exception of a single observation in one of the authori- tiesto which I will refer presently, the point does not seem to lave been discussed at all. "In the first place, the law of this country says that all property stall be alienable; but there has been one exception to that gueral law, for restraint on anticipation or alienation was allowed inthe case of a married woman. That was purely an equity tketrine, the invention of the Chancellors, and is, as I have said, mexeeption to the general law which says that property shall wt be inalienable. That exception was justified on the ground that it was the only way, or at least the best way, of giving (Y/(1898) 1. Ch,, 144, at p. 149.

La ied A. property to a married woman. Tt was considered that to gi

J. her without such a restraint would be, practically, to give j Parmmsos her husband, and therefore, to prevent this, a condition yy allowed to be imposed restraining her from anticipating her ings, and thus fettering the free alienation of her property,

"That ground I must assume to be correct. The result, then fore, was that the exception to the general law was in favour of married women, to enable them to enjoy their property,

"Then there was another rule, also inyented by the Chaneslan, in analogy to the common law. That was an invention of different kind from the other, and was this time in favour alienation and not against it. The law does not recognize positions which would practically make property inalienable fr ever. Contingent remainders were introduced, which had th effect of rendering property inalienable. The doctrine of em tingent remainders was discussed by the Chancellors, who held that a remainder depending upon what was called a possibility on a possibility was contrary to the common law. 'That was wholesome rule, only it was considered that it did not go fr enough. 'The result was that the Chancellors established this rule in favour of alienation, that property could not be tied up longer than for a life in being and twenty-one years after. is called the rule against perpetuities. This rule, therefore, ws established directly in favour of alienation ; it merely carried ont the principle of law that property is alienable. Similarly inthe case of executory interests, the law put a limit or fetter upon the testamentary power. The theory of both rules is, however, th same, namely, that property is alienable, though it may be male inalienable to a certain extent and in a peculiar way '

"The question is, whether the restraint on alienation should nt be allowed within certain limits under the one rule aswell under the other. The first exception is a clear and manifest exception to the general law, which says that property shall be alienable ; the question is, whether there should not be a similar exception to that branch of the general law which says that property shall not be inalienable beyond a life in being aol twenty-one years after. But this question does not appest tome to have been well weighed or considered." 'The learned Masi

inst perpetuities must prevail against the rule of restraint on jcipation.

iuris may rescind or release an exeeutory contract comes in 'confict with the rule of restraint on anticipation. It is clear that 'the doctrine by which the separate estate of a married woman 'ould be made inalienable was, when first invented by Lord Thurlow [See note to Pybus v. Smith (1)], a rule attaching an incident to property, i.c., to property of a specific kind, namely, gparate estate already existing. It could not, at that time, have 'tended to make an executory contract by a married woman not 'hating to existing separate estate irrevocable, because at that time shecould not make any such contract at all. The proposal, there- for, to apply the doctrine to the case of an executory contract ofa married woman not relating to existing property, and not lating to property at all, except so far as the chose in action qeated by the contract itself is property, is an extension of the signal doctrine to a ease which it was not originally intended toever. Now, itis, in general, as much an incident of a contract between persons swi juris that it may be rescinded or released as 'tisan incident of property that it may be alienated, and under 'the Married Women's Property Act married women are persons ui juris for all purposes' except as to separate estate subject to 'straint on anticipation. 'I'wo cases were cited to us in which, 'against judgment creditors, moneys payable under a deed of "aration to a trustee for the benefit of the wife with restraint 'M™ anticipation were assumed to be within the doctrine. The 'Joint was not raised in either case, But it does not follow 'that, beeause the doctrine should be held to apply to such a case, th: power of a married woman to rescind an existing contract: ty be destroyed by a stipulation in the contract that it shall 'efor her benefit without power of anticipation. The distine- tim between a completed gift of property and a gift which is 'aly complete by way of contract was adverted to by Cotton LJ. in Nicol v. Nicol (2). No authority was cited to us to show that

(1) 3 Bro, C.C., 340 ; and see 1 Ves., 189. (2) 31 Ch. D., 624, at p. 527.

{ the Rolls then gave his reasons for holding that the rule H.C. or A.

imi] msiderations arise when the rule thi i 3 Sinilar co at a person si ox Seay,

H.C. or A. an executory contract to which a married woman is pay,

"contract. Very singular consequences would follow from y

which does not amount to a complete gift of existing pup can be made irrevocable by the use of the magie formula yi

holding. The suggested doctrine is clearly not partof theo doctrine as laid down by Lord Thurlow and as expounded i Tullett v. Armstrong (1) and Hood Barrs y. Heriot (2). No of it is to be found in any book with which I am acquainted, ani I should hesitate a long time before laying down such a rule

But, even supposing the existence of such a rule in g regard must be had in every case to the terms of the i under which the claim is set up. The words " with restraint anticipation" or analogous words have, it is true, a definite m ing as applied to property assigned or created as separate but, if the words are used with reference to a different subj

not think that we are necessarily bound to give them the 1 meaning. The deed now in question is a deed of separatin Now, it is, in general, an incident of such a deed that it may put an end to by resumption of cohabitation, Bowen Li, is Nicol vy. Nicol (3), stated the rule thus - "I think that the

ing circumstances, shows that its provisions were only intents! to take effect whilst the separation lasted," adding that Eldon in Bateman v. Countess of Ross (4) had suggested there is a presumption that the separation deed is intended toa! on a reconciliation. ;

In the present case it is expressly provided that the deeds end in that event, But, I cannot think that in the absene

on reconciliation. The separate use is a necessary ear, such a deed. If this is the correct view, a stipulation ™ yi
deed as to restraint on anticipation would not preven!

(1) 1 Beav., 134 My. & C, 390. (2) (1896) A.C., 174.

ied woman from rescinding the deed in one manner, namely H.C. or A. retuming to cohabitation. It is further provided by the deed 1905. ow under consideration that the husband may at any time put pynos amend to it of his own motion, unless his wife and the trustee son

ws . [cNaGutes. 'oj he mutually agree to modify it. I have great difficulty in fhinking that the words "she shall not have power to anticipate °***°¥ fhesame" in such a context were intended to make the deed inevocable by any action on the part of the wife short of recon- ciiation. Tcappears to me, as at present advised, that the question of the rvoeability of a contract is an entirely different question from "that of the incidents attaching to the rights arising from it while 'it subsists in full foree, and that the latter question does not 'gvern the former. I know of no reason why under a power

uthorizing a married woman to make an appointment with "power of revocation she should not make a revocable appoint- "ment in her own favour for her separate use without power of anticipation. in principle. Ii therefore, it were necessary to decide the case on this ground, Ishould be strongly disposed to hold that the wife had power to ind or release this deed at any time, before as well as after "the times appointed for payment. It was suggested that the 'ovenant by the trustee to indemnify the husband would prevent thewife from releasing or otherwise putting an end to the deed "vithout his consent. But what I have already said is a sufficient auswer to this argument. It is obvious that the incidental bility of the trustee under his covenant would come to an end withthe rest of the deed. Moreover a cestui que trust if sui juris, _ Guordinarily bind the trustee by his contract as to the trust.

_ Itisnot, however, in the view which I take of the pleadings -tudfindings of the jury, necessary to rest my deeision on this found. If, indeed, the equitable plea is regarded merely as a _ ties of waiver of a condition precedent, the difficulty, if it be me, arising from the inability of the wife to reseind the contract Would be fatal. For, as Sir W. Grant MLR. said in Stackhouse v. Barnsion (1): - « A waiver is nothing; unless it amount to a

H.C. or A. release. It is by a release, or something equivalent, only, that 195. equitable demand can be given away. A mere waiver Parexsoy nothing more than an expression of intention not to insist

the right; which in equity will not without consideration re right any more than at law accord without satisfaction youl a plea." But, if there is consideration, the waiver is gol equity as well as at law. In every ease of waiver of a eon precedent there is consideration. When the party entitled tp right upon the performance of condition refrains from pe forming it at the request of the other party, he would alter position for the worse unless the request were held to imps promise not to take advantage of his inaction, 'The considem is that at the request of the other party he refrained from diag the act which would have been a performance of the eontitin and would have perfected his right. In Selwyn v. Garfit Bowen LJ. said: - " What is a waiver? . . . . . . Waive is consent to dispense with the notice. If it could be shewn th the mortgagor had power to waive the notice, and that he kne

Thompson and Holt (2), Kekewich J. gave effect to this doctrine and held that a mortgagor had waived the notice required by the Conveyancing Act to be given before the sale by the mortg and could not take advantage of its absence. A good illus is afforded by the case of Wing v. Harvey (3) in which it ws held that the receipt by an insurance company of premiums upoa a policy of insurance with knowledge of the failure of the insu to comply with a condition, non-performance of which ren the policy void, prevented the company from setting up the condition.

In the present case, however, it is not necessary to havere to this principle. For there is no doubt that a restraint! on anticl pation imposes no restriction upon a married woman with respet to income already accrued due: Hood Barrs wv. Heriat() se concluding averments of the equitable plea seb out that BS

(1) 38 Ch. D., 273, at p. 284, (3) 5 De G. M. & 6. (2) 44.Ch. Dy 499" P (4) (1896) A.C., 174

lant paid other moneys to his wife and entered into other 'arrangements with her "from time to time," that the said moneys ore so paid and the said arrangements entered into by him "on tie fnith and understanding that the arrangement in the deed wasat an end and the covenant void," and that she "accepted the 'gid moneys and entered into the said other arrangements on the 'ame faith and understanding." I read this as an allegation that ach payment, including the last, was made and accepted on these tams This amounts, in effect, to a statement that Mrs, Paterson (on whose behalf the plaintiff is suing), on every occasion on "which a payment was made to her under the substituted arrange- agreed to accept the payment on the terms of those alstituted arrangements, including those set out in the orders of the Court, in satisfaction of all instalments then due, and further "agreed not to set up the failure to give notice under clause 4 of the deed, and not to set up the deed as creating a subsisting shligation. This is clearly a good discharge in equity of all "instalments then accrued due, and in my opinion would also be a guod discharge at common law by way of accord and satisfaction, lutfor the equitable considerations involved by reason of the ture of the plaintiff's claim, and the fact that Mrs. Paterson's tight to the chose in action vested in the plaintiff is equitable aly

"Tf accord is a question of agreement, there must be either two ainds agreeing, or one of the two persons acting in such a way 'to induce the other to think that the money is taken in satis- fiction of the claim, and to cause him to act upon this view": pr Bowen L.J., in Day v. MeLea(1). The defence in the present tae isnot open to the objection founded on the doctrine that use payment of a smaller sum cannot be a satisfaction of a 'ger sum already due, for the altered arrangements as to the wstody of the child and the appellant's altered responsibility as 'ohim were an additional consideration sufficient to exclude the 'ipleation of that rule.

Tread the finding of the jury as a finding that this part of the Hea was substantially proved, and, having regard to the declara- tim, I think that this defence extends to all the instalments sued

HIGH CouRT | for exeept the first. 'The date of the last ereit is appang September, 1903, while the last instalment under have fallen due on Ist July.

the deed m T am, therefore, of opinion quite irrespective of the doctrine of restraint on antieinat

appellant has established his defence, except as to the £10) dy on Ist April, 1895. 'The decision of the learned Chief Justi the trial was therefore right, and the rule to inerease the ws should have been discharged.

Bartow J. Thave had the opportunity of reading the ju ment which the learned Chief Justice has just delivered, anf | entirely concur in it.

O'Conor J. It having been admitted by Mr. Gordon that th verdict was properly entered for the plaintiff for £100, thequs for our consideration is whether the plaintiff is entitled to h

specially by the jury in reference to it. The plaintiff has upon several grounds that neither the plea in itself nor the fads found with regard to it afford any defence to the action. As to the ground that the clause in restraint of anticipation makesit impossible even for Mrs. Paterson herself to consent to the ed coming to an end, either by express act on her part or by wai re of any of its conditions, I entirely concur in the view of my learned colleague the Chief Justice. His reasoning, which T altogether adopt, would justify the conclusion that the dod of restraint against anticipation cannot be so applied as to prev a wife from exercising her right of agreeing to modify or

provision restraining anticipation of the moneys payable to during separation. But, in the view that I take of the boee''* is not necessary to decide that question. I do not wish, wi necessity, to express a final conclusion upon a new point of 9 much importance in the law of married women's property Prefer to base my decision upon a ground whieh is entirely from that difficulty. '

Equitable pleas are allowed by sec. 95 of the New South Wal

Common Law Procedure Act 1899, which repeats the words "of tie earlier Statute first authorizing equitable pleas. The ition provides that "the defendant in any action in which sfjudgment were obtained he would be entitled to relief against "ch judgment on equitable grounds may plead the facts which intitle him to such relief by way of defence." It has been held "hat the facts alleged in the plea must be such as would entitle the defendant to a perpetual and unconditional injunction against " fhedefendant in a Court of Equity. The test to be applied to "the plea is therefore this - does it set out facts which would jmify a Court of Equity in granting a perpetual and uncon- titional injunction against the plaintiff proceeding upon a judg- nent for her claim ? It is plain from the form of the plea that it was intended to put forward as the ground of defence an qquitable rescission of the deed. For the purposes of this judg- nent, [assume that such a rescission would be contrary to the law of restraint against anticipation, and that, if the plea rested upon that ground only, it would be no answer to the action. But atthe end of the plea, no doubt, as showing a consideration for the waiver alleged, and a change of the defendant's position on "the faith thereof, there occurs the following statement of facts : -

• "And the defendant paid other moneys " (meaning moneys other thn those covenanted to be paid) "to the said Mary Stewart Paterson, and entered into other arrangements with her from time to time, and the said moneys were so paid, and the said "amangements entered into by the defendant on the faith and idertaking that the arrangement in the said deed was at an end,
• and the said covenant void, and the said Mary Stewart Paterson _ 'teepted the said moneys and entered into the said other arrrange- tents on the same faith and undertaking, and is now estopped tyher conduct, and the plaintiff is estopped by her conduct from wow setting up and suing upon the said deed." The allegation sto estoppel i is merely a statement of an inference in law. The ity specially found in substance that these facts had been | Woved by the plaintiff. It is immaterial that some of the other _ ficis alleged in the plea, and found by the jury, are no answer to theaction, 'The defendant is entitled to hold the decision of the Chief Justice in the Court below in his favour if he ean show

that, taking the pleadings and all the facts found, sufficient ground for a perpetual unconditional injunction the plaintiff: It is clear that the Court of Equity would the suit as if Mrs. Paterson were plaintiff, and would alors against MeNaghten all the equities available against her jt also plain that the moneys claimed by her were at the time action was brought, all free from the restraint against anti tion. Hood Barrs v. Heriot (1) is a distinct authority restraint on anticipation does not apply to income accrued due As each monthly payment became due it was free to be del with by Mrs. Paterson in any manner she thought fit adjudicating, therefore, upon Mrs. Paterson's rights to th moneys a Court of Equity would not be in any way hampetd by the clause in the deed restraining anticipation. It was u that clause 8 of the deed of separation imposing an obl

could not in Equity be held to have consented to the rescission of the deed, and that the Court of Equity would, on the applicatin for an injunction, treat it as subsisting. It is also said that he waiver cannot bind Gill. It is not necessary that Gill should le bound for the purpose of an injunction on the facts then underem sideration. The jurisdiction of an Equity Court is over the pena and it will sometimes restrain a party from inequitably taki advantage of a provision in a deed which for all other purposes,aul in respect of other parties, is treated as being in full fore. Mrs. Paterson or her trustee were inequitably seeking to en the deed, the Court would restrain her or her trustee from pr ceeding. :

The principle upon which the Court of Equity will res the inequitable use of a provision in a deed is well Mustratel by Wing v. Harvey (2). That was a suit against an insurance society for payment of money on a life policy taken out iy i assured at the instance of his ereditor and assigned to the latter One eondition of the policy was that, if the assured shold & beyond the limits of Europe without the licence of the dieears

'be poliey should be void, and all money' paid thereunder should "joe forfeited. 'The assured, without he licence of the directors, "fid.g> beyond the Timits of Europe, to Canada, lived there for = years, and.died there. 'The society set up this breach of eon-

'jition as a defence. Tt was proved by the plaintiff that the repre- eatative of the society, who had been in the habit of receiving 'the premiums while the assured was in England, was informed of

"the breach of condition by the agent of the assured, and, in answer 'jo the question whether it would be safe to continue paying premiums under the circumstances, stated that the policy would ie perfectly good, if the premiums were regularly paid. On this ssiranee, made at the time of each payment, the premiums were rgnlarly paid until the death of the assured. The Court, Knight Bruce LJ. and Turner LJ., holding that the society was bound 'yy the acts of their representative, decided that the defence was inefectual, as there had been a waiver of the forfeiture. Knight Bruce Li, in the course of the argument, states the principle of the decision (1): "The party pays and the agent receives the premiums upon the faith and condition that the policies are to be sidered as valid and subsisting; and the argument is, that although the money was paid on those express conditions, the peson paying it is to be in the same position as if he had paid it w0onditionally. How can he be now reinstated in his position ? Ithe had been informed in 1835," (the date of the breach of con- dition) "that the forfeiture would be insisted on, he might have fusured the life at another office: not so now, the life having topped." The principle of that decision may well be applied in thisease. 'The jury have found that Mrs. Paterson accepted the ttice to her solicitor, instead of to Gill, as a good notice to "termine the deed; that she exonerated the defendant from giving notice to Gill; that she accepted the moneys paid as -tlieplea alleges from time to time, and the other arrangements tale since April, 1895, on the faith and understanding that thearangement in the deed was at an end, and the covenant lor payment therein void. A waiver, a statement, a promise 'tay be inferred from conduct as well as from words, The series anangements and proceedings that took place after the notice

to Mrs, Paterson's solicitor were absolutely inconsistent ith respective rights of Mrs. Paterson and her husband under g deed, and it must be taken that the payments from time to ag,

made by the defendant to his wife from that time on for gue eight years were made upon the express condition under

was at an end. Upon the faith of that condition he altered 4 position, omitted to give the notice to Gill, which he othe would have given, entered into arrangements, and made payment solely on the faith of the deed being at an end. That al position and those benetits are the consideration for the waiverdf. her rights by Mrs. Paterson. She has received the benefit of the consideration, the defendant cannot be reinstated in the posit of advantage as to the notice which he gave up, and, in so farasa_ Court of Equity could interfere, it would not permit the p who has received these benefits as a consideration for waivi rights, to still insist upon their enforcement. Assuming that Court of Equity would not, upon the facts, allow the deed by reason of the restraint against anticipation to be treated as at an end for all purposes, I have no doubt that it would granta perpetual and unconditional injunction against Mrs, Patersmls assertion of any rights under the deed in respect of the mon accrued due at the commencement of the action on the gro that she had, for valuable consideration, waived those rights Holding these views, I am of opinion that the facts stated in the equitable plea, and found by the jury in the defendant's favour are a complete answer to the plaintiff's claim, except in respet the £100 for which the verdict has been entered. I agree wi my learned brother the Chief Justice that the plaintiff is mt entitled to have the verdict increased, as ordered by the Suprem Court, and that the appeal must be upheld.

Appeal allowed with costs, Order of t Supreme Court appealed from charged and rule wisi for inorens i) verdict discharged with code. Bah parties undertaking that the costs and other moneys due from either party