OPINION OF THE COURT BY
JUDD, C.J.
This action is assumpsit by Madame Edma G. Trousseau, widow of the late George P. Trousseau, against his executors upon a contract in writing made in 1882, signed by plaintiff in Paris, France, on the 10th June, and in Honolulu on the 13th July by G. Trousseau, the decedent. The agreement is in the French language, of which an English translation is furnished as follows:
“It has been agreed and arranged as follows between the [139]*139undersigned, Hr. George Phillipe Trousseau, living at Honolulu, Sandwich. Islands, of the one part, and Madame Edma Genevieve, living at Paris, boulevard Hausmann, Ho. 64, having been married, but now separated from the said George Trousseau, of the other part:—
ARTICLE 1.
Monsieur Trousseau admits as absolutely correct the account of the claims and demands proved by Madame Trousseau, on the 11th of March, 1882, which said account amounts to the sum of one hundred and fifty thousand, eight hundred and sixty-five francs and fifty centimes.
Article 2.
Monsieur Trousseau engages to pay immediately to the Erench Consul at Honolulu, to the credit of Madame Trousseau’s account at Paris, a sum sufficient to form a capital of twenty thousand francs, payable at Paris in Erench money to Madame Trousseau upon her receipt for the same.
Article 3.
Monsieur Trousseau engages to pay henceforth upon the same conditions on the first day of January of each year, and for the first time on the 1st day of January, 1884, to the Erench Consul at Honolulu, a sum sufficient to form a capital of five thousand francs, payable at Paris each year in Erench money to Madame Trousseau upon her receipt for the same.
This sum of five thousand francs is considered and regarded as interest on the capital of one hundred and thirty thousand, eight hundred and sixty-five francs and fifty centimes, which will remain due from Mons. Trousseau to Madame Trousseau after the payment of the sum of twenty thousand francs, of which mention has been made above.
Mons. Trousseau engages, if his circumstances allow him and as soon as they allow him, to discharge the total amount [140]*140of' Ms debt to Madame Trousseau, by paying over to ber tlie capital which will remain due to her.
As soon as this capital is reduced to one hundred thousand francs, the annual sum of five thousand francs settled as above, will decrease in proportion as the total debt is extinguished, this annual sum of five thousand francs commencing from this period being considered as the interest at the legal rate in France, namely, five per cent, of this capital of one hundred thousand francs.
ARTICLE 4.
In case of the death of Madame Trousseau, Monsieur Trousseau undertakes to perform the preceding obligations on behalf of his two sons.
Article 5.
If Monsieur Trousseau should leave Honolulu, he undertakes to notify the French Consul of the place where he proposes to establish his new residence.
Article 6.
Upon these conditions and immediately after the first payment to the French Consul at Honolulu of the sum sufficient to form a capital of twenty thousand francs, payable at Paris in French money, Madame Trousseau undertakes to discontinue forthwith the proceedings instituted by her against Mons. Trousseau at Honolulu, and to withdraw the demand made by her before the Court of Hawaii.
Article 7.
The present articles of agreement should be performed in good faith on the part of both parties, and in the event of nonpayment of any of the sums above mentioned at the date when it falls due, Madame Trousseau will be at liberty to renew the proceedings upon the mere information which shall have [141]*141been given to her by tbe French Consul at Honolulu, that tbe sum of money bas not been paid at tbe elate when it fell due.
Tbis agreement is made in three originals, one for Hons. Trousseau, tbe second for Mme. Trousseau, and tbe third for tbe Bureau of tbe French Consulate at Honolulu.
At Paris, tbe tenth day of June, A. D. 1882, for Mme. Trousseau, and at Honolulu tbe thirteenth day of July, 1882, for Mons. Trousseau.
In approval of the foregoing instrument.
(Signed) E. Trousseau.
nee Vatjnois.
(Signed) G-. TROüssbaü.”
The bill of particulars claims, amount of principal due and . unpaid as per the agreement executed by defendant July 13, 1882 — $26,113 and interest on the said sum from 1st January, 1894, at 5 per cent., $1158.16; total, $21,331.16.
The complaint, after pleading the agreement, sets out inter alia that the decedent, in pursuance thereof, paid the sum of five thousand francs annually to the plaintiff to the end of the year 1893, but paid nothing on the principal sum of one hundred and thirty thousand, eight hundred and sixty-five francs and fifty centimes. That the agreement declared on was made in consideration that the plaintiff would forbear to proceed in a certain action then pending in the Supreme Court of the Hawaiian Islands, brought by her against said Q-eorge P. Trousseau to recover the sum of $31,862.28 then due, owing and payable, by the said George P. Trousseau to plaintiff upon the judgment of a French Court, and that plaintiff, upon the execution and delivery of said agreement, discontinued her said action, and that at the date of the agreement declared on she (plaintiff) was separated from her said husband by decree of a French Court, and said decree was, and until his death remained, in full force and effect, and that by the law of France and also by the law of Hawaii, at the date of said agreement, [142]*142plaintiff liad the right to make contracts and bring suits thereon in her own name as if she were a feme sole.
The defendants, executors, interposed a demurrer, alleging as grounds:
1. The complaint is insufficient in law.
2. The agreement sued on is void for want of a good, sufficient and valuable consideration.
3. The alleged contract sued on is inoperative and of no effect, being an attempted contract between husband and wife.
The demurrer was sustained by Circuit Judge Oooper, on the ground (first) that the agreement does not show any consideration for the promise to pay the principal sum, but only the interest, a forbearance by plaintiff upon lions. Trousseau’s promise to pay interest which he was bound to pay without any new promise and (second) because the parties being separated but not divorced, the statute of 1888, would not authorize a suit by the wife against her husband or his personal representatives.
The law is ivell settled that forbearance to exercise a right is a good consideration. “A valuable consideration, in the sense of the law, may consist in some right, interest, profit or benefit accruing to the one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” Currie v. Misa, 10 L. R. Exch. 162.
“The consideration upon which an assumpsit shall be founded must be for the benefit of the defendant or to the trouble or prejudice of the plaintiff.
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OPINION OF THE COURT BY
JUDD, C.J.
This action is assumpsit by Madame Edma G. Trousseau, widow of the late George P. Trousseau, against his executors upon a contract in writing made in 1882, signed by plaintiff in Paris, France, on the 10th June, and in Honolulu on the 13th July by G. Trousseau, the decedent. The agreement is in the French language, of which an English translation is furnished as follows:
“It has been agreed and arranged as follows between the [139]*139undersigned, Hr. George Phillipe Trousseau, living at Honolulu, Sandwich. Islands, of the one part, and Madame Edma Genevieve, living at Paris, boulevard Hausmann, Ho. 64, having been married, but now separated from the said George Trousseau, of the other part:—
ARTICLE 1.
Monsieur Trousseau admits as absolutely correct the account of the claims and demands proved by Madame Trousseau, on the 11th of March, 1882, which said account amounts to the sum of one hundred and fifty thousand, eight hundred and sixty-five francs and fifty centimes.
Article 2.
Monsieur Trousseau engages to pay immediately to the Erench Consul at Honolulu, to the credit of Madame Trousseau’s account at Paris, a sum sufficient to form a capital of twenty thousand francs, payable at Paris in Erench money to Madame Trousseau upon her receipt for the same.
Article 3.
Monsieur Trousseau engages to pay henceforth upon the same conditions on the first day of January of each year, and for the first time on the 1st day of January, 1884, to the Erench Consul at Honolulu, a sum sufficient to form a capital of five thousand francs, payable at Paris each year in Erench money to Madame Trousseau upon her receipt for the same.
This sum of five thousand francs is considered and regarded as interest on the capital of one hundred and thirty thousand, eight hundred and sixty-five francs and fifty centimes, which will remain due from Mons. Trousseau to Madame Trousseau after the payment of the sum of twenty thousand francs, of which mention has been made above.
Mons. Trousseau engages, if his circumstances allow him and as soon as they allow him, to discharge the total amount [140]*140of' Ms debt to Madame Trousseau, by paying over to ber tlie capital which will remain due to her.
As soon as this capital is reduced to one hundred thousand francs, the annual sum of five thousand francs settled as above, will decrease in proportion as the total debt is extinguished, this annual sum of five thousand francs commencing from this period being considered as the interest at the legal rate in France, namely, five per cent, of this capital of one hundred thousand francs.
ARTICLE 4.
In case of the death of Madame Trousseau, Monsieur Trousseau undertakes to perform the preceding obligations on behalf of his two sons.
Article 5.
If Monsieur Trousseau should leave Honolulu, he undertakes to notify the French Consul of the place where he proposes to establish his new residence.
Article 6.
Upon these conditions and immediately after the first payment to the French Consul at Honolulu of the sum sufficient to form a capital of twenty thousand francs, payable at Paris in French money, Madame Trousseau undertakes to discontinue forthwith the proceedings instituted by her against Mons. Trousseau at Honolulu, and to withdraw the demand made by her before the Court of Hawaii.
Article 7.
The present articles of agreement should be performed in good faith on the part of both parties, and in the event of nonpayment of any of the sums above mentioned at the date when it falls due, Madame Trousseau will be at liberty to renew the proceedings upon the mere information which shall have [141]*141been given to her by tbe French Consul at Honolulu, that tbe sum of money bas not been paid at tbe elate when it fell due.
Tbis agreement is made in three originals, one for Hons. Trousseau, tbe second for Mme. Trousseau, and tbe third for tbe Bureau of tbe French Consulate at Honolulu.
At Paris, tbe tenth day of June, A. D. 1882, for Mme. Trousseau, and at Honolulu tbe thirteenth day of July, 1882, for Mons. Trousseau.
In approval of the foregoing instrument.
(Signed) E. Trousseau.
nee Vatjnois.
(Signed) G-. TROüssbaü.”
The bill of particulars claims, amount of principal due and . unpaid as per the agreement executed by defendant July 13, 1882 — $26,113 and interest on the said sum from 1st January, 1894, at 5 per cent., $1158.16; total, $21,331.16.
The complaint, after pleading the agreement, sets out inter alia that the decedent, in pursuance thereof, paid the sum of five thousand francs annually to the plaintiff to the end of the year 1893, but paid nothing on the principal sum of one hundred and thirty thousand, eight hundred and sixty-five francs and fifty centimes. That the agreement declared on was made in consideration that the plaintiff would forbear to proceed in a certain action then pending in the Supreme Court of the Hawaiian Islands, brought by her against said Q-eorge P. Trousseau to recover the sum of $31,862.28 then due, owing and payable, by the said George P. Trousseau to plaintiff upon the judgment of a French Court, and that plaintiff, upon the execution and delivery of said agreement, discontinued her said action, and that at the date of the agreement declared on she (plaintiff) was separated from her said husband by decree of a French Court, and said decree was, and until his death remained, in full force and effect, and that by the law of France and also by the law of Hawaii, at the date of said agreement, [142]*142plaintiff liad the right to make contracts and bring suits thereon in her own name as if she were a feme sole.
The defendants, executors, interposed a demurrer, alleging as grounds:
1. The complaint is insufficient in law.
2. The agreement sued on is void for want of a good, sufficient and valuable consideration.
3. The alleged contract sued on is inoperative and of no effect, being an attempted contract between husband and wife.
The demurrer was sustained by Circuit Judge Oooper, on the ground (first) that the agreement does not show any consideration for the promise to pay the principal sum, but only the interest, a forbearance by plaintiff upon lions. Trousseau’s promise to pay interest which he was bound to pay without any new promise and (second) because the parties being separated but not divorced, the statute of 1888, would not authorize a suit by the wife against her husband or his personal representatives.
The law is ivell settled that forbearance to exercise a right is a good consideration. “A valuable consideration, in the sense of the law, may consist in some right, interest, profit or benefit accruing to the one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” Currie v. Misa, 10 L. R. Exch. 162.
“The consideration upon which an assumpsit shall be founded must be for the benefit of the defendant or to the trouble or prejudice of the plaintiff. And therefore a promise in consideration of the forbearance of a suit is good; for that is for the benefit of the defendant, though the action is not discharged.” 1 Oomyn’s Digest, p. 195.
Prof. Langdell in his notes to select cases Part II. p. 1022 finds that “detriment to the promisee is a universal test of the sufficiency of consideration; i. e. every consideration must possess this quality, and, possessing this quality, it is immaterial whether it is a benefit to the promisor or not.” Tested by this [143]*143rule I find that it was a detriment to Madame Trousseau (the promisee) to give time to Mons. Trousseau, to pay the remainder of principal debt “as soon as circumstances would allow” (i. e. “when able”) — and the taking of interest annually at less than the Hawaiian rate. I hold, therefore, that Mons. Trousseau’s assumpsit was upon valuable considerations and the agreement in this respect was good. This ground of demurrer cannot be sustained.
The remaining question is whether the contract itself is inoperative and void, as having been made between husband and wife, who though separated by judicial decree, were not divorced.
The interesting inquiry whether the validity of this contract should be tested by Erench or Hawaiian law becomes pertinent. The contract was made in 1882; the Married Woman’s Act of l'888 has, therefore, no effect upon it. The contract must be tested by the law in force at the time it was made, whether French or Hawaiian. I am of opinion that it must be judged by Hawaiian law. ,
The contract was drafted here. It is of no significance that it was in the Erench language; it might have been written in any other language. The domicil of Mons. Trousseau was here, and the suit against him was pending in this court. The contract was to be performed here. Mons. Trousseau did not engage to pay Madame Trousseau in Paris. He bound himself to pay to the Erench Consul at Honolulu a certain sum which would be equal to five thousand francs in Paris. This means that if the payment of one thousand dollars here would not be sufficient to net 5000 francs in Paris, he must bear the exchange; in ease he removed from Honolulu, he was to notify the Consul of the place where he proposed to establish his new residence. The “mere information” to Madame Trousseau by the Erench Consul at Honolulu that any of the sums agreed by Mons. Trousseau to be paid were not paid when due, authorized Madame Trousseau to revive the suit. The Consul here was to judge whether the contract had been broken.
[144]*144When tested by the rule that the place of the performance of the contract is to be determined by the intention of the parties, we find that the place of the performance was to be at Honolulu, and the contract is to be governed by Hawaiian law. Having thus held, it is unnecessary to consider whether the Erench law is well pleaded in the complaint.
Is this contract void? By the common law it would be, as being made between husband and wife. But a decree of divorce a mensa et thoro had been made. Madame Trousseau was a “separated wife.”
Our Hawaiian statute defining the status of such a woman is peculiar. I do not find any similar statute in other countries. See Dean v. Richmond 5 Rich. 561. The statute reads (Sec. 1339 Oivil Code, Comp. Laws, p. 440): “Whenever a decree of separation is granted, the decree shall have the effect, during such separation, to reinstate the wife, whether the wrong-doer or not, in the right to sue or be sued, to alienate and convey property, to make contracts and to do all other acts as if she were a feme sole.” «
Separation from bed. and board being a relief to married persons under certain circumstances, created by statute, the statute must control. The separated woman is not forbidden by the statute to make contracts with her husband. This character of contracts is not excepted, as in the Married Women’s Act of 1888.
I find the statute broad enough to allow the separated woman to contract with her husband.
Tin's construction is in accord with the modem policy of the treatment of woman.. If she is sepai*ated from her husband' by decree of court she ought to have power to make contracts' with every one, not excepting her husband. The statute says that the decree shall have the effect to “reinstate” her in these rights as if she had not been married.
Very many courts have held that where the Married Women’s Acts allow the wife to have “sole control” of her separate property or “to act as a feme sole,” she may sue even [145]*145her husband with respect to it. Wright v. Wright, 54 N. Y. 437; Whitney v. Whitney, 49 Barb. 319; Scott v. Scott, 13 Ind. 225; Emerson v. Clayton, 32 Ill. 493; and may recover against him in ejectment, Wood v. Wood, 83 N. Y. 575. The opposite view is sustained in Small v. Small, 129 Penn. 366.
If the right of a married woman, separated from her husband, to contract with him and to sue him, is limited to contracts and suits concerning her separate property, the case before us seems to be of that character. A Trench Court had adjudged Mons. Trousseau to be indebted to his wife in the large sum mentioned. The judgment was, therefore, her separate property,, and she brought the suit here to enforce it.
The exceptions are sustained and the demurrer is overruled'.
The case is sent back to the Circuit Court, First Circuit, for further proceedings.