
    Benjamin Page versus Colson Trufant & Al.
    A bond from the husband to the father of the wife for her maintenance, after a voluntary separation, is a valid contract.
    This was an action of debt on a bond for £120, dated Feb. 8, 1794, with condition to pay £58 10s. by certain instalments.
    The action was brought against Colson Trufant, the principal, and Joseph Trufant and Another as sureties. Service being made on Joseph only, the action proceeded against him alone.
    Upon oyer of the bond and condition, the defendant pleaded,
    1st. Non est factum,.
    
    2d. Actio non, because that, on the day of the date of the bond, a certain nugatory and void agreement was made between Colson Trufant and Maria 
       his wife, purporting that jealousies and animosities existed between them, and that, for their mutual comfort, they had agreed to separate from bed and board; that, in consideration of a bond for £60, then executed by the husband, the wife released him and his estate from all claims, and covenanted to support and educate a daughter of the parties, and that [*160] she will not contract debts on his account; * which agreement was to remain in the possession of the husband. The plea then avers that the bond declared on by the plaintiff was given for and upon account, of the said agreement, and for no other cause or consideration whatsoever, and that the obligors were not indebted in any other manner to the plaintiff; and concludes that the said writing obligatory is void, and prays judgment, &c.
    3d. Actio non, because he says that, at the time of executing the obligation declared on, it was agreed between the plaintiff and defendant, that the plaintiff should make and enter into a covenant with the said Colson to save him harmless from all claims of his said wife, and from all debts of her contracting, and to maintain the wife and daughter for fifty years; that the plaintiff has refused and wholly neglected to make and enter into such covenant; whereby, said supposed writing obligatory is wholly void; and this he is ready to verify. Whereupon he prays judgment, &c.
    To both these pleas in bar the plaintiff demurs specially, and assigns the following causes of demurrer to the first, viz.: —
    1st. Because the defendant avers the want of consideration for the making said obligation in avoidance thereof.
    2d. Because it is not shown that there was any privity between the said Maria Trufant and the plaintiff, on account whereof the said obligation should be given to the plaintiff, or what connection there is between the said agreement and the said obligation.
    3d. Because the said plea is argumentative, informal, and void.
    The demurrer to the second plea in bar contains a protestando that the plaintiff never made any such agreement as the defendant has alleged, and the following are assigned as causes of demurrer, viz.: —
    1st. Because, in the said plea, the defendant says that the said bond was made and executed because the plaintiff had agreed to execute a certain other instrument to the said Colson in manner as is set forth in said plea, which agreement was a * good consideration; the violation whereof cannot de- [*161 ] feat the bond, which was given in consideration thereof; but the said Colson’s remedy for such violation must be by an ac tian for the breach of such agreement.
    2d. Because said plea is inconsistent in this, that in said plea it is averred that the bond was without sufficient consideration, and yet a sufficient consideration, on which the same was given, is therein set forth.
    3d. Because said plea is argumentative, &c.
    
      Bigelow, in support of the demurrers, was stopped by the Court.
    
      Dana, for the defendant,
    contended that the consideration of a bond may be inquired into, and he instanced the case of bonds conditioned not to exercise a particular trade, &c.; that this is not a mere voluntary bond, but the demurrer confesses it to have been given for the consideration stated in the pleas, and for that only ; and that, being founded on a void and nugatory agreement, and without valid consideration, the Court will not support it. 
    
    
      Bigelow, in reply,
    cited Meredith vs. Chute. 
      
      Impey’s Modern Pleader, 162. Mease, Exx. vs. Mease. 
      
    
    
      
       Daughter of the plaintiff.
    
    
      
      
        Doctor and Student, 158. — Collins vs. Blantern, 2 Wils. 347. — Davis vs. Mason, 5 Term Rep. 118. — Chesman & Ux. vs. Nainby, 2 Str. 739.-2 P. Will 254.
    
    
      
       2 Ld. Raym. 759.
    
    
      
      
        Cowp. 47.
    
   Parker, J.

The question brought before the Court by the pleadings in this case is, whether the consideration of this bond is traversable. A mere voluntary bond, given without any consideration, is good. Bonds obtained by duress, given during infancy, and in certain other specified cases, —as, for instance, in restraint of trade, —are void in law. These cases are all stated and described in the books. The case before the Court comes within none of them.

Perhaps a court of chancery might compel the plaintiff to execute the covenant which it is stated he engaged to execute, but we possess no such power. The pleas appear to me insufficient to bar the plaintiff of his action.

* Sewall J.

The amount of the defendant’s pleas is, that the wife not being bound by her covenants in the articles of separation, and no covenants having been made by the plaintiff pursuant to his engagement, there was therefore no consideration for this bond. But a mere want of consideration is not sufficient to avoid a bond, although an illegal consideration is. Perhaps a court of equity might afford some relief in such a case, but this Court have no powers to that purpose. As to the legal operation of this bond, it appears to me to be valid, and must be supported; and I am consequently of opinion that the pleas in bar are insufficient.

Sedgwick, J.

This bond is stated, in the defendant’s pleas, to be given for securing the separate maintenance of a wife. There are demurrers to these pleas, by which all the facts well pleaded the Court must consider to be true. The question, then, brought before the Court is, whether the consideration for which this bond was given is sufficient to support an action upon it. Every bond, from the solemnity of the instrument, carries with it an internal evidence of a good consideration; and is to be supported in a court of law, except facts are disclosed to the court whereby the consideration appears to be immoral, illegal, or against the policy of the law. These pleadings show neither. Separate maintenance is lawful, and a bond given to secure it to a wife is meritorious, and therefore valid and binding. The defendant’s pleas are insufficient.

Parsons, C. J.

A bond, from the solemnity of its execution, imports a consideration, the want of which the obligor is estopped by law to plead. He may avoid the bond, by showing that it was obtained by fraud or duress, or that the consideration is illegal or against the policy of the law.

In the first plea in bar, it is alleged that the bond was given for a separate maintenance of the wife on mutual stipulations between the husband and wife, which stipulations on her part were void. In the second plea, it is alleged that the bond was given on mutual promises between the parties, and that the * plain- [ * 163 ] tiff hath not performed the promises on his part to be performed. In both these pleas the objection to the bond is substantially the same, viz., a want of consideration, which cannot prevail. It in fact appears upon the record, that the consideration was legal and meritorious, as it was made to secure a separate maintenance for the wife, who separated from her husband for their mutual comfort, to avoid the effect of jealousies and animosities that existed between them.

The judgment of the. Court is, that the pleas in bar are bad and insufficient in law. 
      
      
         Guy vs. M’Lean Dev. 46. — Stevens vs. Judson & Al. Cow. 471.—Balden vs. Davis, 2 Hall, 433.
     
      
       2 Black. Com. 446.
     
      
      
         Sumner vs. Williams, 8 Mass Rep. 200. — Thatcher & Al. vs. Dinsmore, 5 Mass. Rep. 302. — Where there is a bond conditioned for the performance of covenants, the bond and the deed wherein the covenants are contained constitute but one instrument, and if the covenants be void, the bond will have no effect. — Jevons vs. Harridge, 1 Sid. 308. — 2 Keb. 116.— Capenhurst vs. Capenhurst, F. Ray, 27.— S. C. 1 Lev. 45. — 1 Keb. 130, 164, 183. — Hindley vs. Westmeath, 6 B. & Cr. 200. — Shelthar vs. Gregory, 2 Cowen, 422.
     