HELMS v. FRANCISCUS. 565

But in the case under consideration, there is nothing which can
be construed as a contract on the part of the husband, to pty to
his wife any thing 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 maintenance; and there-
fore, no adjudication in relation to the contract of a husband, 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
cannot 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 maintenance assigned to her by the
court, out of her husband's estate, of an amount proportioned to
his means and circumstances.

There seems to have been some difficulty in England upon this
subject; because it is said, of this claim's being founded upon the
misconduct of the husband; and of the ecclesiastical courts having
the exclusive cognizance of all matrimonial cases; and as the kind
of separate maintenance called alimony, is never allowed, but as a
consequence of a divorce a mensa et thoro, that therefore, a court
of equity could not take cognizance of a claim for separate main-
tenance, founded only on the misconduct of the husband, until
after a divorce a mensa et thoro, had been granted by the ecclesi-
astical court. The difficulty of the English court of equity, it is
evident, arises from the claim for a separate maintenance of this
kind, involving the question of divorce, of which it has no juris-
diction. But it is admitted on all hands, that under such circum-
stances, the wife ought to be relieved, and should be able to obtain
relief somewhere.

In England, during the short existence of the Republic, after
the decapitation of the first king Charles, the ecclesiastical courts
were abolished; and, in consequence thereof, the entire juris-
diction in all cases of alimony and of separate maintenance, de-
volved, as a matter of course and necessity, upon the Court of
Chancery, as the only tribunal fitted and competent to decide
72 v.2