case Elizabeth Sidney plaintiff the Hon Jocelyn Sidney Esq defendant refer to  Fearon v earl of Aylesford Q b d on a appeal from a decree at the roll Lord  chancellor Talbot Eq can ab pl where the wife sue the husband for a specific  performance of her marriagearticle and that he may settle such and such land  on her for her jointure it be no bar to her demand that she have elope with a  adulterer much less if this be not by the husband put in issue in the cause  mrs Sidney the plaintiff bring her bill against the defendant her husband to  have a specific performance of her marriage article date the that of October  whereby the defendant the husband covenant that within eight month after peer  William er p the plaintiff Elizabeth shall come to age he will convey his  estate in Glamorganshire to trustee to the use of himself for life remainder  to the use of trustee to support contingent remainder remainder to the use of  his wife for her life for her jointure remainder to their son successive in  tail male remainder to the daughter in tall remainder to himself in fee also  the plaintiff Elizabeth the wife with the consent of her guardian covenant  that she shall within eight month after she shall come to age convey her  estate m the same county be about pound per and but well stock with timber to  the use and intent that there shall be pay thereout to the plaintiff Elizabeth  pound per and for her separate use during the coverture pound per and to her  mother and pound per and to the plaintiff sister till she shall come to age  and then she to have pound and that her estate thus charge peer William shall  be convey to the use of the defendant for life remainder to the use of the  plaintiff his wife for life remainder to the use of the first c son in tail  male remainder to the daughter in tail remainder to her right heir the timber  upon her estate to be apply to pay off a mortgage of pound on the defendant  the husband estate and the surplus of the money arise by the sale of the  timber to go to raise portion for young child so that the bill be to compel  the defendant the husband to perform his part of the article and that he may  account for the timber he have cut down from off the wife estate the defendant  by his answer set forth that the plaintiff the wife have withdraw herself from  her husband that she have live separate and very much misbehave herself the  proof be very strong that the wife the plaintiff have have criminal  conversation with another man but in the deposition there be some evidence  that the husband be also guilty of the like offence so that the wife may  recriminate the master of the roll decree a performance of the article from  which decree the defendant now appeal to the Lord chancellor and it be insist  on behalf of the husband that consider the encumbrance and annuity on the wife  estate the husband be a very little gainer therefrom the wife in a court of  equity appear with but a ill grace as endeavour to compel a performance of her  husband agreement when she herself have break her own marriage contract in the  most sacred and tender part of it that with regard to article if the court  find any inconvenience will peer William result from compel a performance  thereof they will not decree that these shall be specifical execute but leave  the party to his remedy at law that in the present case the decree a execution  of these article may occasion a disinherison of a lawful heir and settle the  estate upon such issue as though bear in wedlock may yet real and in fact be  illegitimate for suppose that in this case after the separation there have be  a son bear will this court have decree a settlement to have be make whereby  such son shall have be entitle and yet this will plain have be the consequence  since such son be bear in wedlock must have take by virtue of the settlement  that indeed where a separation have be in pursuance of a divorce the court at  law will presume that the husband and wife have live separate in obedience to  the sentence but in the case of a voluntary separation only the husband access  to the wife shall be take for grant and a child bear shall be construe  legitimate and no evidence admit to the contrary accord to the distinction in  salk at the same time it may be notorious to every one that such child be not  beget by the husband that in the principal case it be in proof that the  plaintiff do elope from the defendant her husband and go away with one James  Jenkins to a cottage about three mile from where her husband live since which  there have be no pretence of any reconciliation so that this be a bar of dower  Inst roll Abr and if in a court of law the wife behave in this manner will not  be help to her dower which be suppose to be her bread and subsistence why  shall equity assist such a woman so as to cause any article to be perform in  her favour which be a matter always leave to the discretion of the court that  the wife in the present case have her remedy at law upon a action of covenant  peer William to be bring in name of the trustee but it may well be doubt  whether he have any remedy against the wife in regard at the time of the  marriage she be a infant and her covenant with the trustee will hardly bind  her at law it be admit have there be a actual jointure make upon the wife so  as to peer William er p have vest a fix legal estate in her that can not have  be forfeit by the wife elopement but where the matter rest only upon article  and the wife have no remedy but by bring a bill for the specific performance  thereof here a court of equity may with the great reason and justice refuse to  lend a help hand may well deny that assistance which in a case of common  article and in a fair and honest cause they be ready to afford the party that  it have indeed be say that adultery be no bar of dower see Noy and probable it  be not where the husband and wife continue to cohabit but no book say that  where the wife elope with another man in adultery as in the present case this  be not a bar of dower and sure if it be a bar to a recovery at law it be at  least equal reasonable it shall be so with respect to any aid seek in equity  upon article f or the wife provision further it be say to be material that in  such case of elopement of the wife nothing can restore the wife to her dower  but the reconciliation of the husband that it be peer William not sufficient  so as to entitle her to her dower that she can recriminate or say her husband  be guilty of the like offence for nothing can avail her as to this but the  forgiveness of the injure husband see dyer lady Powyss case where a  reconciliation by the husband after the wife go away with the adulterer be  special plead and the plea allow very observable also be the difference which  the law make where this offence of adultery be commit by the husband and where  by the wife in the former case where the husband go away from the wife and  life with another woman in adultery this be no bar to the husband be tenant by  the courtesy but on the wife leave the husband and elope with a adulterer she  there by forfeit her dower the reason of which maybe for that the consequence  of such crime in the wife be worse to the husband family by make the child  which she may have by the adulterer inheritable to the husband estate to the  prejudice of the next heir whereas the husband child beget on another woman be  incapable of bring that mischief on a family or injure the next legitimate  heir that all this be great aggravate in the principal case by reason of the  near alliance which Mr Sidney have to a peerage to a ancient illustrious  peerage attend with a suitable estate be only brother and presumptive heir to  the earl of Leicester at present a bachelor so that as it be apprehend the  matter of recrimination though the principal ground of his honour decree be  not sufficient to warrant the same object but it have be object below that the  husband have not by his answer put this matter of adultery in issue it be only  say that the wife have withdraw herself from her husband live separate and  very much misbehave peer William herself all which she may do and not be  guilty of adultery since there may be several act of misbehaviour in a wife  beside that of adultery resp the wife can not but be sensible of what nature  her misbehaviour be this must be best know to herself and it be the kindness  and tenderness which the husband have for the character of his wife not to  suffer these great stain upon her reputation to be register upon record to the  perpetual infamy of herself and family and therefore before he shall go so far  the husband may well hope his wife will repent of her fault and put a stop to  this so unseasonable a suit and it be a sad excuse make on behalf of the wife  to say the husband who have just reason to charge her in the plain and most  distinct term with this infamous crime of adultery have in tenderness to her  forbear to do so and now she will take advantage of it thus with equal art and  ingratitude turn the kindness that have be show her against he who show it d  object but suppose this crime to have be ever so sufficient set forth yet this  court can judge of adultery or in any sort punish it which be proper only for  the spiritual court resp where thing of this nature be incidental mix with  other the court of law and much more of equity may take notice of they thus  the court of law where the wife elopement with the adulterer be plead in bar  of dower must try such plea and as they may do it in that case what shall  hinder this court from do the like in peer William the present so the trial of  a marriage which be as much of a spiritual cognizance as anything can be be  determinable at law where it come incidental in question d object if the  defendant insist upon this that the plaintiff the wife ought peer William er p  not to have aid upon these article then on the other hand he himself be not to  expect any aid or assistance in respect thereof resp all this may be admit and  Mr Sidney the husband will be in a better condition without the article than  with they thus independent of the article he will be entitle to the rend and  profit and will have a power to sell all the timber from off his wife estate  to his own use last it be observe that the husband be not plaintiff in this  cause but the wife and where she have think fit to apply in a cause of  turpitude as a court of equity have frequent be resemble to a fountain  distribute its relief through pure and clear stream so it be hope that this be  a cause of a contrary nature and consist of several proof of turpitude  therefore the court will not afford the plaintiff the least favour or  assistance whatever Lord chancellor what have be assert of a child beget and  bear during the time of the voluntary separation of the husband and wife  videlicet that no evidence shall be admit to prove the illegitimacy of such  child be now hold to be otherwise for if a peer William jury find the husband  have no access such child will be a bastard accord to the determination in the  case of Pendrel v Pendrel as in the present case at the hear of the cause the  defendant have insist upon what may have be very penal to the plaintiff his  wife videlicet the forfeiture of her dower the crime for which she may have  incur such a penalty ought to be plain lie to her charge specify and put in  issue that she may know what to rest her defence upon watkyns v watkyns atk  clarke v periam atk clarke v Turton yes Willan v Willan yes black v Marnell ba  be Wheeler v trotter swan n whereas here her accusation be only general and  uncertain amount to little else than that she have withdraw herself from her  husband live separate from he and very much misbehave herself nothing of which  imply that the plaintiff have be guilty of adultery much less that she have  elope from he and go away with a adulterer which alone will bar her of her  dower suppose this be pure a question of dower but the article be that the  husband shall settle such and such land in certainty on his wife the plaintiff  for her jointure this be pretty much in the nature of a actual and vest  jointure in regard what be covenant for a good consideration to be do be  consider in equity in most respect as do consequent this be a jointure and not  forfeitable either by adultery or a elopement the reason of the difference why  a wife in case of a elopement with a adulterer forfeit her dower and yet the  husband leave his wife and live with another woman do not forfeit his tenancy  by the courtesy be because the statute of west cap do by express word under  these peer William circumstance create a forfeiture of dower but there be no  act inflict in the other case the forfeiture of a tenancy by the courtesy as  to the recrimination appear in the proof this do not seem to I so much to  affect the case indeed with regard to the evidence of the crime in the wife  there seem to be sufficient to convince any three person that she be not  innocent but the same not be put in issue in the cause I can judge of it  affirm the decree and let the husband perform his marriage article and account  for the timber which he have cut on the wife estate contrary to the article  the cost to go out of the estate Reg lib b fol and yet it seem that where a  feme infant seize in fee covenant with the consent of her guardian in  consideration of a settlement to convey her inheritance to her husband if this  be do in consideration of a competent settlement equity will execute the  agreement though no action will lie at law to recover damage see vol cannel v  buckle see Goodright v Saul t r king v Luffe east head v head S S turner  Banbury peerage case S S hear before the Lord Talbot February where the  husband and wife by consent live separate and a child be bear a issue be  direct to try whether the child be a bastard and it be find a bastard stram  and so indeed however it happen to be overlook by the defendant counsel it be  say at the bottom of the case cite from Salkeld wherefore this point be now  settle for law in Blount v winter and winter v Blount July the original bill  be file by trustee in marriage article and the child of the marriage against  the peer William er p husband and wife and the cross bill be file by the  husband against the wife and child the original bill pray a performance of the  article and the husband by his answer to the original till and by the cross  bill resist the performance so far as the article make a provision for the  wife allege and prove in the cross cause that she live separate from he in  adultery the court be of opinion that this be not a reason for nonperformance  of the article as to the wife and make a decree accord in the original cause  and dismiss the cross bill without cost Reg lib a fol ball v Montgomery bro c  c S c Ves Jun Seagrave v Seagrave Ves lee v lee dick Buchanan v Buchanan ba be