HELMS ». FRANCISCUS.—2 BLAND. 537

It is now universally admitted, that a husband and wife are
utterly incompetent, of themselves, by any agreement of their
own, to effect even a partial dissolution of the marriage contract;
but they are allowed to agree to live apart; and as auxiliary to
that agreement, if the husband stipulate, through the instrumen-
tality of a third person, to allow and pay to his wife a separate
maintenance, such a stipulation is legal; and may be enforced
against the husband, either in a Court of law, or of equity; al-
though it has originated out of and relates to that unauthorized
state of separation in which the husband and wife have endea-
vored to place themselves. A separate maintenance of this kind
and pin-money are alike in this respect, that they are founded on
a special contract, and only payable during the marriage. Pin-
money is given gratuitously for her personal and private expen-
diture; it is an allowance always payable during co-habitation;
whereas a separate maintenauce is that provision which a husband
contracts to pay to his wife where they have agreed to live apart
and is payable only during the period of separation; and in this
respect differs from pin-money. The examination of a few of
the decisions in relation to a separate maintenance of this descrip-
tion will be sufficient to shew what is considered to be its general
character in the Courts of common law as well as in equity.
Raynes v. Lewes., Nelson, 88; Whorewood v. Whorewood, 1 Cha. Co,.
250; Head v. Head, 3 Aik. 295; 8. Q. A Atk. 547; Gutli v. Guilt, 3
Bro. C. C. 614: Legard v. Johmon, 3 Ves. 352; St. John v. St.
John, 11 Ves. 526: Worrall v. Jacob, 3 Meriv. 256: Wattmeath v.
Westmeath, 4 Cond. Cha. Rep. 5C; Rodney v. Chambers, 2 East, 283;
Wallingsford v. Wallingsford 6 H. d- J. 485.

* But in the case under consideration, there is nothing
which can be construed as a contract on the. part of the hus- 565
band to pay to his wife anything as a separate maintenance. It is
true, that they have, by an instrument of writing, agreed to live
separate, and that he has released to her all claim to property,
which he might have recovered as her husband; but he has not, in
any manner, stipulated to provide for her a separate maintenauce,
and therefore, no adjudication in relation to the contract of a hus-
band, for the separate maintenance of his wife, can be applied to,
or need be considered in this case.

A mere agreement of a husband and wife to live apart, does not
of itself, and without any contract to that effect, afford any ground
upon which she can sustain a claim for separate maintenance. But
if, by the cruel or immoral conduct of the husband, the wife can-
not with safety and in decency consort with him, then she may,
upon the ground of such ill-treatment, come into a Court of equity,
and have a separate maintenauce assigned to her by the Court out
of her husband's estate, of an amount proportioned to his means
and circumstances.