66 But REQUIREMENTS In cases of fraud, then, equity will relieve. according to Lord Macclesfield, the breach of one's honour, word, or promise," is not a fraud, however much relied upon and acted upon. This resolution is not satisfactory. In Dundass v. Dutens (c), Lord Chancellor Thurlow, after saying that the Court would relieve in a case of fraud, proceeds thus:— OF THE STATUTE If there is a parole agreement for a settlement upon marriage, a suit Remarks of Lord after marriage, upon the ground of part performance, will not do (d). According to this, marriage is not to be accounted a part performance; and, unless there be fraud, the parole agreement will not be binding. The difficulty is to define what shall be considered fraud. In Denton v. Davies (e), which was a suit by a husband and his wife against the father of the wife, praying that certain representations communicated, not to the plaintiffs, but to third parties, should be made good to the plaintiffs, Sir W. Grant said : Thurlow. If those representations (ƒ) had been made to the plaintiffs, and they Remarks of Sir had married upon the faith of them, the Court would, I apprehend, Great Seal for seven years, from 1718 to 1725. (c) 1 Ves. jun. 198; 2 Cox, 235. (d) See also Redding v. Wilkes, 3 Bro. C. C. 401, where Lord Thurlow says: "The statute is different in the case of marriage from other circumstances; and marriage has been held not to be a part performance." In the case of Montacute v. Maxwell, before referred to, there is this passage in the argument of counsel, "which the Court (Lord Macclesfield) took notice of and approved”namely, "that it was very wrong to call marriage the execution of the promise, when until the marriage it was not within the statute; and the (e) 18 Ves. 503. (f) The representations here referred to were in writing, and signed. So that it is doubtful whether Sir William Grant would have expressed himself in the same way had the representations been merely verbal. W. Grant. REQUIREMENTS have compelled the defendant to make that settlement which he OF THE STATUTE pretended he had already made, or was about to make. OF FRAUDS. Representations made to third parties. Sir William Grant was here supposing a case of actual deception; and conformably with Lord Macclesfield and Lord Thurlow, he held that the Court would, in such case, relieve. But he proceeds to put another illustration, with which he deals more cautiously: Whether (says he) a party coming to the knowledge of a representation not made to him, nor with any view to deceive him, but to which he gave credit, and upon the faith of which he acted, would be entitled to relief against the person by whom that representation was made, it is unnecessary to discuss. In a late remarkable case, Hammersley v. De Biel (g), there was neither fraud, nor any allegation of fraud; but Remarks of Lord the House of Lords decided it to be "a principle of law, Lyndhurst. Remarks of Lord at least of equity, that if a party holds out inducements to another to celebrate a marriage, and holds them out deliberately and plainly, and the other party consents, and celebrates the marriage in consequence of them,if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, a Court of Equity will take care that he is not disappointed and will give effect to the proposal" (h). In the same case, Lord Chancellor Lyndhurst said : Would not a Court of Equity enforce the execution of a settlement after marriage, in pursuance of proposals or contract entered into before marriage? And Lord Campbell added, that "if that were not to be considered as the doctrine of a Court of Equity, the most monstrous frauds would be committed." Some fraudulent father (said his lordship) might hold out to the suitor of his daughter that he meant to make a settlement upon his daughter and her issue. The marriage would take place in the belief (g) 12 Cla. & Fin. 45. (h) Per Lord Chancellor Lyndhurst. REQUIREMENTS OF FRAUDS. that that settlement would be made; and then after the marriage he might say, "This was only an intimation of my intention at the time. OF THE STATUTE I have changed my mind, and I will not give her a shilling." That would be most unjust; and to prevent such frauds this doctrine has been laid down, and, I think, has been most properly laid down, and ought to be acted upon (¿). The House of Lords in this case affirmed the decision of Lord Chancellor Cottenham, whose judgment in the Court of Chancery had confirmed upon appeal the decree of Lord Langdale. The case on that appeal is not reported; but a note of Lord Cottenham's observations in disposing of it, was printed for the use of the House of Lords, and admitted by the counsel on both sides to be correct (k). From that note I extract the following passage, which bears on the point now under consideration. Cottenham. A representation made by one party, for the purpose of influencing Remarks of Lord the conduct of the other party, will, in general, be sufficient to entitle him to the assistance of this Court for the purpose of realising such representation. Of this Hodgson v. Hutchenson (1); Cookes v. Maskall (m); and Wankford v. Fotherley (n); which last was affirmed by the House of Lords, afford strong instances. In Luders v. Anstey (0), a suggestion for consideration, followed by marriage, was held to be binding. These dicta may appear at first sight to sanction the general doctrine, that a parole agreement in consideration of marriage is binding where it has been relied upon and acted upon. But it is to be observed, that the Lords throughout abstain from actually affirming in so many words, that marriage is to be regarded as a part performance; and in the case before them, the requisites of the (i) Lord Campbell here supposes throughout a case of fraud. But it will be observed that Lord Lyndhurst puts the thing more largely, so as apparently to embrace a case of mere verbal inducements held out to a suitor. (k) 12 Cla. & Fin. 61. (1) 5 Vin. Ab. 522. (m) 2 Vern. 200. The report of this case has the following marginal note: "Marriage agreement reduced into writing, though not signed by either party, yet decreed to be performed." (n) 2 Vern. 322. OF THE STATUTE OF FRAUDS. REQUIREMENTS Statute had in fact been satisfied; so that their remarks may, perhaps, be either regarded as delivered obiter, or as assuming throughout the existence of an agreement in writing. Satisfaction of the statute by subse Indeed Lord Cottenham seems to have acquiesced in the position, that "marriage is not per se a part performance of a parole agreement, so as to take the case out of the statute," for his Lordship appears to have relied not so much on the fact of marriage, as on the circumstance that the intended husband (the Baron de Biel) had performed his part of the agreement in another respect, namely, by securing for his wife 500l. a-year. And with reference to this provision Lord Lyndhurst, addressing counsel at the bar of the House of Lords, asked, "What say you to the jointure of 500l. a year? Was not that a part performance and consideration?" Which shows that it was something collateral, and not the marriage itself, that was to be regarded as a part performance. On the whole, then, the case of Hammersley v. De Biel, when strictly examined, so far as this point is concerned, seems to reveal nothing new; neither does it disturb the doctrine above quoted from Lord Thurlow (p). This I say, however, rather as a deduction doubtfully drawn, than a conclusion confidently arrived at; for the cases (g), put in abstract and general terms by Lord Lyndhurst, may to other minds justify a different construction. Perhaps the most important point really decided in quent recognition. Hammersley v. De Biel, was that upon which Lord Langdale had proceeded in the original decree, namely, that (p) Supra, p. 228. Lord Thurlow directly negatives the notion that marriage can be regarded as a part performance, and indeed to hold otherwise would be going very far towards a repeal of so much of the statute as relates to agreements upon marriage. (q) See supra, p. 230. OF THE STATUTE OF FRAUDS. the provisions of the 4th section of the Statute of Frauds REQUIREMENTS respecting agreements in consideration of marriage, may be satisfied by subsequent recognition. This view of the matter appears to have been adopted by Lord Cottenham in the Court of Chancery, notwithstanding doubts more than once judicially expressed upon the question, how far a written undertaking after marriage to perform a parole promise before marriage, could be enforced. In Hammersley v. De Biel, however, there was before the marriage a great deal more than a parole agreement; for the case was of this complexion. A parent on the marriage of his daughter entered, by the agency of his two sons, into an undertaking in writing, to leave his daughter by will 10,0001. Relying on this document, and as a part of the arrangement, the intended husband secured for the lady a provision of 5007. a year, and the marriage thereupon was solemnised. After the marriage the father wrote a letter, duly signed by him, in which he referred to the prior document. This was the whole case. The bill was filed by a son of the marriage against the parent's executor to compel payment of the 10,0007. out of his assets. From the following remarks of Lord Cottenham, it is apparent that he considered the requirements of the statute to have been satisfied no less by the agency of the two sons, than by the parent's subsequent recognition of their proceedings. Assuming for the present that the two brothers of the intended wife were duly authorised by the father to enter into the arrangement with the intended husband, the document containing the proposed arrangement proves that both concurred in what that paper contains; for it is written partly by the one and partly by the other.-Independently of this, however, there is the letter of the father, signed by himself, in which he, referring to this document, says, "The only question now is, I conceive, what the expression used in the engagement legally implies ;" by which he must be understood to mean that if the expression used amounted to an obligation to pay the 10,000l., he was ready to perform |