The instrument declared on, is in the usual form of a promissory note, but, being under seal, and properly delivered, it is, in legal effect, an acknowledgment of indebtedness for the sum for which it was given, with an express covenant to pay it; a covenant being nothing more than a promise under seal. It was given for the benefit of the defendant’s wife ; and, on the trial, he offered to prove, that it was given without any valid consideration ; and that such consideration as there was for it, has failed-which he was not per mitted to do.
The law presumes, that covenants are made upon sufficient consideration, and estops the covenantor from proving the contrary. This is now admitted ; still, the defendant claims, that, in cases where there is a consideration, and the party for whose benefit the covenant was made, deprives the other party of it, this excuses the covenantor from performance on his part.
*353There is no authority for this, where the covenant, like the-one underconsideration,is a single obligation for the payment of money. That it is so, where the covenant is made dependent on performance, on the part of the covenantee, there is no doubt. Hence the cases cited, where landlords have failed to recover for rent reserved. Rent is the compensation reserved for the enjoyment of property; and such enjoyment is the condition on which the payment is made to depend.
It is claimed, that the consideration of this instrument was illegal; or, at least, that it was opposed to public policy; and, therefore, the covenant was void. The note was payable to the plaintiff, for the use and benefit of the defendant’s wife ; and it was given to enable her to visit her friends in Europe. There seems to be nothing improper in this. It has been held, that a bond for the permanent maintenance of a wife, separate from her husband, is not opposed to public policy. Nichols v. Palmer, 5 Day, 47. If such an instrument is valid, it would seem, there can be no objection to this.
But, it is said, the covenant was intended as an inducement to return and live with the defendant; and that she was insincere in her promise to do so. This does not show any fraud in the execution of the instrument, but rather, that it was understandingly made; and the promise of the wife, in this respect, was a mere agreement to perform her marital duty; it imposed no new obligation ; and, therefore, it could not have amounted to a legal consideration for the instrument. Besides, the agreement, as between husband and wife, would have been void, had it professed to bind her to any thing new.
The covenant was, therefore, wholly voluntary, and without consideration ; but, inasmuch as the defendant had a right to make it, and saw fit to do so, it is too late, now, to deny his liability.
We do not advise a new trial.
In this opinion the other Judges concurred.New trial not to be granted.