
    Blaker against Cooper for the use of Rice.
    
      Wednesday, January 7.
    
    In ERROR.
    Ifa husband, on separation agree to pay a trustee for his wife an annuity during her life for execute’s,''a' same time for paying the alimonj for term of'her'le natural fife, a cufomtUab-' sequentmarriage or the ■wife, do not Lustom/from a suit on the bond for the annuity.
    ERROR to the Common Pleas of. Bucks county,- and bill Ot exceptions.
    This was a scire facias on a judgment entered by warrant of attorney on a bond given by John Blaker, the defendant ^elow,t0 J°hn Cooper, the plaintiff below, for the use of Cooper's daughter, Esther Rice, late Esther Blaker, who was formerly the wife of John Blaker. During the existence of the marriaSe of John and Esther Blaker, on the 14th of February, 1814, the said John Blaker made a written agreement with J°¡ln Cooper, the plaintiff, his wife’s father, to the following effect: Blaker and his wife were to live separate : the hus1 7 band was to pay to Cooper in trust for the wife, sixty dollars a year5 by half yearly payments, during her life; to permit her to take all the goods she had brought to him on her mar- . . . , ° riage, and retain them for her separate use ; not to make any claim to her future acquisitions, and to suffer her to live in all respects as a feme sole. On the same day, Blaker gave a bond to Cooper, the condition of which was “ that he should pay to Cooper, for the use of his daughter, as alimony for and during the term of her natural life, the sum of 60 dollars a year, by half yearly payments.” The payments were regularly made up to the 1st of October, 1818. Qn the 30th of September, 1818, Blaker and his wife were divorced from the bonds of matrimony, and on the 14th of October, 1818, the wife' was married to a certain John Rice. The Court below charged the jury, that under these circumstances, the defendant, Blaker, still continued liable to the payment of the annuity, and the jury gave a verdict for the plaintiff. The defendant excepted to the Court’s opinion.
    
      F. A. Browne, for the plaintiff in error,
    contended that the defendant was no longer under any obligation to pay the annuity. The claim arose out of the marriage, and was ereated in consequence of that state between the parties. Here, the marriage was not only dissolved entirely,, with all its consequences and effects, but the wife had contracted a new marriage with another husband. Besides, the condition of the bond on which, this suit is'brought, is to pay the annuity expressly as alimony ; and all claims for alimony cease by a divorce a vinculo. Alimony is treated in our Act of Assembly as a temporary allowance, the right of which is subject to be devested by the reconciliation of the parties, or suspended by the Court on petition. Act of 26th of February, 1817, Purd. Dig. 130. ' It is impossible that these provisions of the law can be applicable after a divorce a vinculo, when a new state of things arises, and all former relations and engagements are done away. He cited 1 Fonb. 106. Bro. Abr. 190. 1 Mod. 124. 1 Keb. 69. 80, 81. 87. 206. 337. .361. 429. 441. 442. 2 Leo. 4. Skinn. 123. Salk. 116. 1 Lord Ray. 444. 4 Burr. 2177. 2 Black. Rep. 1079.
    
      Kittera, contra.
    The object of the bond was to carry the agreement into effect. They were' simultaneous, and must be considered as one act. The agreement makes no mention of alimony, though the bond does; . The consideration of the annuity was, that the plaintiff was to keep the defendant indemnified from all expenses that might accrue on account of his wife, and she was not to have dower out of his estate, which was considerable. He cited 3 Teates, 38. 1 Bac. Ab. 494. 8 Johns. 72.
   The opinion of the Court was delivered by

Tilghmán C. J.

The question is, whether, under these circumstances, John Blaker be liable to the payment of the annuity of sixty dollars. He contends, that he is not liable, because the annuity was in nature of alimony, which, if decreed, on a divorce from bed and board, ceases on a divorce from the bond of marriage. The law is certainly so, in case of a decree of divorce and alimony ; but it does not follow, that it is so, in case of separation and maintenance by voluntary agreement. The parties may make what agreement they please, and the only question is, what is the agreement. In this case, the articles of agreement, and the bond, are to be considered as one transaction. They bear saine date. It is provided by the articles, that the husband shall give security for payment of the annuity, by judgment ar>d mortgage ; and the bond with warrant of attorney confess judgment, was given in performance of the articíes. The express agreement was, that the annuity should be paid during the life of the wife, nor is there any intimation to the contrary, except the implication which is attempted to be drawn from the word alimony in the condition of the bond. To be sure, alimony, technically, signifies a sum of money paid for the maintenance of a married woman, who is separated from her husband. But the articles of agreement have no such word as alimony, nor can I suppose that it was intended to be used technically in the bond. The agreement really was, that the husband should pay sixty dollars a year, for the wife’s support, during her life, in consideration whereof, he was to be indemnified from any further expense, and from any claims of dower. The father was security for this indemnification, so that the husband received a quid pro quo. Blaker, it seems, was a man of landed property, and this exemption from dower was an important consideration. He retains all the benefit of this agreement, notwithstanding the subsequent divorce, and marriage of his wife. It does not appear on the record, at whose instance this divorce was obtained, nor what was the cause of it. It may be, that it was caused by the husband’s misconduct, and if so, il would be a bad reason for getting rid of the annuity. I will not presume that it was occasioned by the misconduct of the wife, because it is not shewn. There is no doubt that a man may agree to pay an annuity to his wife during his life, whether she remains his wife, or obtains a divorce and marries again.’ And it appears to me, that in the present case, there has been such an agreement. I am therefore of opinion, that the Judge of the Court of Common Pleas, was right, in charging the jury that the plaintiff was entitled to recover, and the judgment should be affirmed.

Judgment affirmed.  