* [195]

ed it should have been, nor any other agreement reduced into writing.

It may be worthy of observation, that the expression of the court thought fit,' used by the reporter, Mr. Vernon, savours of something bordering upon dissatisfaction; and, to be sure, the decision seems not to be in perfect consistency, either with the general effect of the cases upon this subject, or with the particular authority of Douglas v. Vincent, decided in the same term by the same Commissioners. Lord Macclesfield, in the important case of Montacute v. Maxwell,(x) seems to have manifested a greater regard to the apparent intention of the legislature in this provision of the act. Which case merits the particular consideration of the reader, under the several aspects it presents in the different reports of it.

*The plaintiff brought a bill against the defendant her husband, setting forth, that the defendant, before her intermarriage with him, did promise that she should enjoy all her own estate to her separate use, that he had agreed to execute writings to that purpose, and had instructed counsel to draw such writings,' and that when they were to be married, the writings not being perfected, the defendant desired this might not delay the match, in regard his friends being there, it might shame him; but engaged upon his honour she should have the same advantage of the agreement, as if it was in writing, drawn in form by counsel, and executed; upon which the marriage took effect, and afterwards the plaintiff wrote a letter to the defendant, her husband, putting him in mind of his promise, to which the defendant her husband, wrote her an answer, under his hand, expressing that he was always willing she should enjoy her own fortune, as if sole, and that it should be at her command.

To this bill the defendant pleaded the statute of frauds and perjuries, by which "all promises in consideration of marriage, unless signed in writing by the party, are made void ;" and averred that he never signed any promise or agreement before marriage, for her enjoying any part of her estate separately, which he pleaded in bar of any relief or discovery.

It was urged against this plea, that this promise was on the plaintiff's side, executed by her intermarriage; and was, there

(x) 1 P. Wms. 618.

fore, like the several cases in which equity did relieve and compel a mutual execution; that the letter written by the defendant, though after marriage, was an evidence under his hand of the agreement before the marriage, and so took it out of the sta

tute.

On the other side, it was said, that the express words of the statute made all such promises in consideration of marriage void, unless they were in writing, signed by the parties; and that there was the greatest reason for it, since in no case *could there be * [196] supposed so many unguarded expressions and promises used, as in addresses in order to marriage, where many passages of gallantry usually occur, and it was therefore provided by the statute, that all promises made in consideration of marriage, should be void, unless signed by the party. That it was very wrong to call The marrimarriage the execution of the promise, when until the marriage age itself is it was not within the statute; and the statute makes the promise for mance within this in consideration of marriage void; therefore, to say that the clause. marriage was an execution which should render the promise good, was quite frustrating the statute; which the court took notice of and approved.

And the Lord Chancellor declared, that in cases of fraud, equity should relieve, even against the words of the statute: as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly brought in and executed in lieu of the former; in this, or such like cases of fraud, equity would relieve; but when, as in the case before him, there was no fraud, but only a reliance upon the honour, word, or promise of a party, the statute making those promises void, equity would not interfere; nor were the instructions given to counsel for preparing the writings material, since, after they were drawn and engrossed, the parties might refuse to execute them, and as to the letter it consisted only of general expressions; as, "that the estate should be at the plaintiff's command, or at her service; indeed, had it recited or mentioned the former agreement, and promised the performance thereof, it had been material; but as this case was circumstanced, the plea should be allowed: and as the plea was in bar of a discovery as to all matters, which if discovered and admitted might be barred by the statute, so far might the statute be pleaded in bar of such discovery. But according to

no part-per

If one agree

ment in writing is proposed, and ano

ther is frau

dulently executed, equity will relieve.

[197]

tion to sup

port a settle

ment made agreeable to it after marriage, or to establish a promise made in writ ing after marriage.

1

the report of the same case in Strange,(y) the plaintiff afterwards amended her bill, by further charging, that in order to induce her to marry him, without a previous settlement, and to secure the *performance of his promise, in executing it afterwards, the husband had promised to take the sacrament on it, and that he did take the sacrament on the marriage accordingly. That after the marriage he wrote a letter, wherein he promised to make such settlement, and that he was ready to sign the writThat a parol`ings, according to her desire. To this he confessed that he did promise on take the sacrament, but said, he did it only in compliance with a marriage is a sufficient custom established in the parish church (of which he was a consideramember) of receiving the sacrament on their marriages, and not to give any sanction to this pretended agreement: and as to the letter, that he did not remember the particulars; but if he had written any thing concerning his readiness to sign any writings, it only related to some proposals he had made of settling a sum of 1,5007. on her, and which he did soon after sign. He then pleaded the statute of frauds and perjuries again. But the Lord Chancellor was of opinion, that the case was very much altered by these new circumstances. That at first it stood purely on the parol promise before marriage; upon which there was no colour to relieve the plaintiff. But that such parol promise on marriage was a sufficient consideration, to support a settlement made agreeable to it after marriage. That this has been frequently determined; that it was also a sufficient consideration to establish a promise made in writing after marriage; that there was great evidence of such a promise made in writing after marriage; the defendant did not deny his writing, but declared himself ready to execute the writings as she desired; he avoided it, however, by saying, that they referred to proposals of settling 1,500l. which was impossible, because it appeared that she never desired any such settlement. And though he had said he had signed that settlement, it did not appear when he did it; and his Lordship was very suspicious that he had done it since the amended bill. His answer to the charge of receiving the sacrament, in confirmation of his promise, was not at all satisfactory. He could have no occasion to promise receiving the sacrament, but on that account; and though he might receive it (y) 1 Str. 236.

in compliance with the custom of his church, yet that was *very consistent with his laying hold of that solemn act of devotion, to testify his sincerity. The plea was ordered to stand for an an

swer.

According to the report of the same case, in Eq. Ca. Abr.(z) the husband privately countermanded the instructions given by him for drawing the settlement, and then drew in Lady Montacute to marry him, and from the loose statement in Precedents in Chancery,(a) it seems that some such decided act of fraud was imputable to the defendant. For the Chancellor is there represented to have said, that if the parties rely wholly upon the parol agreement, neither party can compel the other to the specific performance, for the statute of frauds is directly in their way. But that if there is any agreement for reducing the same into writing, and that is prevented by the fraud and practice of the other party, this court will, in such case, give relief; as where instructions are given, and preparations made, for the drawing of a marriage settlement; and before the completion thereof, the woman is drawn, by the assurances and promises of the man to perform it, to marry without a settlement.

If instructions are given and prepara tions made for drawing the marriage settlement,

and the woman is drawn in to marry upon the as

surances of the man,

without the settlement's being exewill relieve. cuted,equity

We perceive in this case, under the different views which the books give us of it, an anxiety in the court to prevent the statute from being enervated by dangerous exceptions; and we must regard the decision as wholly proceeding on the proof of actual fraud. It was fully seen, that if the marriage could be consider ed as an execution of the contract, to take the case out of the statute, this clause of the statute would be made a perfect nullity. For it is clear, that the compulsory execution of the supposed agreement could never be called for in equity, until the marriage, which was the only consideration of making it, and without which it could have no application, was celebrated, so that if the celebration of the marriage were an answer to the statute, the clause could never be enforced, since the exceptions out of it would always arise together with the occasions for its application. In a *case determined a few years afterwards,(b) the same [199] doctrine on this subject was maintained. On the marriage of

(a) 1 Eq. Abr. 19. (a) Prec. in Chan. 526. (b) Sansum v. Butter, reported in 1 Bac. Abr. 119, Edit. Gwyllim. Tit. Parol Agreements.(C)

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the plaintiff with the defendant's daughter, the defendant promised to give her 450l. portion, and accordingly paid the plaintiff 2007. in part, but took a bond from him for it, till a suitable settlement should be made, and the defendant himself gave particular directions concerning the settlement, which was drawn accordingly and engrossed; but before it was executed, the plaintiff's wife died, and the bill was brought to have the 2004. bond delivered up, and the remaining part of the portion paid; the defendant pleaded the statute of frauds and perjuries, the agreement not having been reduced to writing, and signed by the parties; and by way of answer, denied that the 2007. was paid in part of the portion, but said that it was lent to the plaintiff, and that the bond was given for securing the re-payment. The plea was allowed, notwithstanding it had been insisted that the agreement was executed by the marriage; for that if the marriage should be looked upon as an execution of the agreement on one side, so as to take the case out of the statute, it would entirely evade it; for that all promises of this kind suppose a marriage either already had, or to be had. The authority of these cases, and the rational grounds on which they proceeded, seem not to have been broken in upon even at times when the doctrine of part-performance has been most favourably received by the courts, and may now, it is conceived, be considered as out of controversy.

But though these parol promises made before and in consideration of marriage, fall obviously within the statute of frauds, and as the authorities decisively show, ought not be taken out of it, by any evidence in proof of their solemnity and repetition, or by the preparations made, or directions given, for carrying them to their accomplishment, or by the consequential fact of the marriage; yet it appears from the expressions of Lord Chancellor Parker, in the above case of Montacute v. Maxwell, as reported in Strange, that a verbal promise on marriage is a sufficient consideration to support a settlement made agreeable to it after marriage. And his Lordship added, that it had been frequently so determined. The indulgent inclination of the courts of equity towards these settlements after marriage, has carried them a great way; for the inference from this doctrine is, that the consideration for these settlements after marriage, derived from the existence of these prior agreements, does not depend upon the