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![handle is hein.slavery/ssactsengr0682 and id is 1 raw text is: COLMAN V. SARREL
of Lady Strathmore v. Bowes was mentioned for it; and 2 Vent. 343; where in a bill
by a wife it was alledged, that the husband intended to go abroad in order to avoid the
effect of a judgment ; and the writ of ne exeat regno was granted.
Lord Chancellor [Thurlow]. No doubt she may make application for it: but the
question is, by what evidence she can support it, and whether her affidavit can be read
to affect her husband. For security of the peace indeed ex necessitate rei she may make
an affidavit against him ; but cannot sustain an indictment. (Ileyn's case, 2 Ves. &
Bea. 182. Dobbyn's case, 3 Ves. cf Bea. 1.83.) .[ do not know one case, either at law
or in this Court, where the policy of the law allows it in any other instance. It was once
done in the time of Queen Elizabeth by Serjeant Puckering, and refused immediately
after by Lord Ellesmere, when he came to the seals ; and has not been done since. I
have always taken it to be a rule, that a wife can never be evidence against her husband,
except in the case I have alluded to (See 10 Ves. 55, 6, in De Manneville v. De Manne-
ville, and Percy v. Powell, in Mr. Beames's Brief View of the Writ of Ne Ex. Reg.
35, 40, 2nd edit.)
[50] COLIHAN V. SARREL.. Nov. 10th, 13th, and 16th, 1789.
[See Meek v. Kettlewell, 1842, 1 Hare, 469.]
Bill to have a voluntary deed delivered up, dismissed. Cross bill to execute it, retained
for a year, with liberty to sue upon a covenant in the deed.-S. C. 3 Bro. C. C. 12.
George Davy, 11th June 1767, assigned by deed to trustees £1000 3 per cent. Bank
annuities in trust for Joan Sarrel for life, in case she should survive him ; and after
her death for such child or children of her, and in such proportions, as she should appoint;
with a proviso, if she should live in any other place, than that, in which the grantor
should reside, to be void, but not otherwise. The deed contained a covenant by him,
that if he should survive her, he would pay the interest and dividends to such of her
children, and in such proportions, as she should appoint the principal. At the time
of the deed his wife and her husband were living. The consideration expressed in the
deed was for some satisfaction for the injuries, the grantee had received from the wife
of the grantor. No actual transfer of the stock ever took place. Joan Sarrel, having
survived the grantor, appointed by will £600 of this fund to one child, and £200 each to
two others. Colman, as executor of the grantor, filed a bill to have the deed delivered
up, as being voluntary. The children filed a cross bill to have the deed carried into
execution by a decree upon the executor to transfer the stock to their trustees. By the
evidence of Plaintiff in the original bill it appeared, that the witness had gone into a room,
in which he found Davy, his wife, and Mrs. Sarrel; that Mrs. Davy had her hand to
her head, as if she had received a blow, and complained to the witness, that her husband
had beaten her. That at the time of the execution of the deed Mrs. Sarrel had threatened
to kill him, had pursued him through the town with a knife, and had said, she had
purchased a shroud for him. In 1770 he applied for a supplicavit against her, and she
was bound accordingly. He resisted this deed in his life, when threatened with a suit
upon it.
Solicitor General [Scott] and Mr. Cooke, for Plaintiff in the original bill.
Upon the face of this deed it appears to be pro turpi causa (Note: The security must
be for future cohabitation, in order to affect it as given pro turpi causa. Amb. 643.
Cray v. Mathies, 5 Ves. 286) ; and therefore they can have no assistance in this Court.
The [51] only consideration expressed in the deed proves it fraudulent; for by the evidence
it is false. As to the relief prayed, if there was nothing more in the case, than that.the
deed is not available, that would have a tendency to dismiss the bill ; because if it is
not a complete conveyance of the stock, which will not pass without an actual transfer,
what occasion has the Plaintiff to come into Equity, when nothing can be made out
against him at law; according to your Lordship's determination the other day in
another case ; that where an instrument cannot be proceeded upon at law, there is no
ground to come into this Court for relief against it. But there is a ground for relief in
this case ; because upon the covenant in the deed an action would certainly lie ; there-
fore it falls within the class of cases upon deeds obtained through improper influence ;
yet not being withinreach of the law, they would prevail there; to prevent which a
Court of Equity will interpose. The grantor'appears either from the influence of an
0. x.-8
2,25
1 VES. JUN. 50.](ViewImageLocal?handle=hein.slavery/ssactsengr0682&div=1&collection=&method=preview&ext=.png&size=3)