Page images

Sect. IV.

In Money v. Jorden, (a) the defendant, a bond creditor of the plaintiff, promised, on the plaintiff's marriage, never to enforce it, and the marriage took effect on the faith of such assurance, Romilly, M.R., held that the defendant was bound to give effect to the promise, and granted an injunction to restrain her from suing on the bond.

On appeal to the Lords Justices, (b) their lordships differed, Knight Bruce, L.J., agreeing with the Master of the Rolls that there was sufficient ground for the interposition of the Court, while Lord Cranworth, L.J., held that the declarations being of intention merely, and not of fact, were not such representations as to bind the creditor. In the House of Lords (c) Lord Cranworth adhered to his opinion, saying that the doctrine " that where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things, as existing at the same time,”(d) does not apply to a case where the representation is not a representation of a fact, but a statement of something which the party intends or does not intend to do,(e) and Lord Brougham took the samo ground. Lord St. Leonards differed, both apon the facts and the law; thinking, (f) that it was utterly immaterial whether there was a misrepresentation of fact, as it actually existed, or a misrepresentation of an intention to do, or to abstain from doing, an act which would lead to the damage of the party induced to act upon the (a) 15 Beav. 372.

(d) Pickard v. Sears, 6 A. & (6) 2 D. M. G. 318.

E. 469.
(c) Nom. Jorden v. Money, 5 (e) P. 214.
U. L. C. 185.

() P. 248.


Chap. III.
Sect. IV.

ment after

faith of that representation; that if an intention is declared, with reference, for example, to a marriage, not to enforce a given right, and the marriage takes place on that declaration, there is a binding undertaking. The decision of the Master of the Rolls was reversed.(a)

A written agreement made after marriage, in pursu- Written agreeance of a parol promise made before marriage, is sufficient

marriage. as against the person making it.(b)

But a post-nuptial settlement, made in pursuance of a Post-nuptia! parol ante-nuptial agreement, is not binding as against pursuance of creditors.(c) There are some dicta to be found in the ante-nuptial cases which support the contrary proposition.

not binding as In Dundas v. Dutens, (d) Lord Thurlow seemed to think that a post-nuptial settlement of the wife's property, rociting a parol ante-nuptial agreement to make a settlement, could be enforced against creditors.(e)

In De Biel v. Thomson, (f) Lord Langdale, M.R., said


to creditors.

(a) See the remarks upon this case in Piggott v. Stratton, Johns. 356, where Wood, V. C., said that it was decided, partly on the ground of the Statute of Frauds, and S. C. 1 De G. F. & J. 51, where Lord Campbell said that the ratio decidendi of the case was, that where a person possesses a legal right, a court of equity will not inter. fere to restrain him from en. forcing it, though, between the time of its creation and that of his attempt to enforce it, he has made representations of his intention to abandon it; and

see Stephens V. Venables, 31
Beav, 128, Loffus v. Maw, 3 Giff,

(6) Taylor v. Beech, 1 Ves.
S. 297; Montacute v. Maxwell,
1 P. Wms. 618; 2 Cox, 236 ;
Barkworth v. Young, 4 Drew.l;
Hammersley v. De Biel, 12 C.
& F. 64 n.

(©) See Mayon Voluntary and Fraudulent Alienation of Property, p. 346.

(d) 2 Cox, 235; 1 Ves. J. 196.

(e) See the remarks of Grant, M. R. upon this case in Randall v. Morgan, 12 Ves, 74.

(f) 3 Beav. 474.

Chap. II.
Sect. IV.

that in the case of Randall v. Morgan,(a) Sir Wm. Grant expressed great doubt whether a letter written after the marriage, referring to a parol agreement before the marriage, would be sufficient to give validity to a promise which of itself produced no obligation ; but that Lord Harcourt, in the case of Hodgson v. Hutchenson,(1) thought that a letter after the marriage, considering the transactions before, was, in that case, sufficient.

On appeal,(c) Lord Cottenham referred to the cases of Hodgson v. Hutchenson, (d) Taylor v. Beech,(e) and Montacute v. Maxwell, (j) as deciding that a written promise after marriage to perform a parol agreement made before, would be binding within the statute. (9) But the actual decisions in these cases turned on acts of part perform

In Surcome v. Pinniger,(h) where Turner, L. J., expressed an opinion to the same effect, the decision was also grounded upon acts of part performance; and in Barkworth v. Young, (i) the marriage took place on the faith of representations made by a third party.

On the other hand, in Spurgeon v. Collier,(k) it was held that a settlement made after marriage was voluntary, proof of its having been made in pursuance of a parol contract failing, and that even if such promise had been proved to have existed, it would not have supported the settlement, Lord Northington saying: “If such a parol


(a) 12 Ves. 73.
(6) 5 Vin. Abr. 522, pl. 34.

(c) S. C. Nom. Hammersley
v. De Biel, 12 C. & F. 64 n.

(d) 5 Vin. Abr. 522, pl. 3t.
(c) 1 Ves. S. 297.

V 1 P. Wms. 618; 2 Cox,

(9) On the appeal to the House of Lords, 12 C. & F. 45, the defence under the statute was abandoned.

(1) 3 D. M. G. 571.
(1) 4 Drew, 12.
() 1 Eden, 55.

Sect. IV.

agreement were to be allowed to give effect to a subsequent settlement, it would be the most dangerous breach of the statute, and a violent blow to credit. For any man, on the marriage of a relation, might make such a promise, of which an execution never could be compelled against the promisor, and the moment his circumstances failed he would execute a settlement pursuant to his promise, and defraud all his creditors."

In Warden v. Jones(a) the point was expressly decided, and the decision of Lord Thurlow in Dundas v. Dutens(b) dissented from.

The facts were as follows:-Previously to a contemplated marriage, the intended husband and wife went to a solicitor to have a settlement prepared of some railway stock, of which the intended wife was the registered proprietor, but which was subject to a mortgage, and the certificates of which were in the hands of the mortgagee. The solicitor not being able to prepare the settlement before the time fixed for the marriage, the husband told the wife that it would be equally good if made afterwards, and no settlement, or agreement for a settlement, was made in writing before the marriage. Shortly after the marriage a settlement was executed, whereby the husband covenanted to invest part of the proceeds of the stock upon trust for the benefit of his wife and children. He sold the stock, paid off the mortgage, and invested the stipulated amount according to his covenant. It was held that the settlement was voluntary and fraudulent, and therefore void as against creditors, and that the wife had no equity to a settlement.

(a) 23 Beax. 487; affd. 2 De G. & J. 76.

(6) 2 Cox, 235; 1 Ves. J. 196.

Chap. III.
Sect. IV.

Lord Cranworth, on the appeal, (a) said :—“The argument here was, first, that the parol agreement being proved, the parties were under a moral though not legal obligation to perform it, so that the settlement could not be fraudulent. To this, however, the judgment of Lord Northington in Spurgeon v. Collier affords a conclusive answer.(6)

Section V.


Sect. V.

Contract or
sale of lands
or interest
Kind of

Contracts for the sale of goods.

No action shall be brought upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them.

This refers to agreements not operating as an immediate transfer or conveyance of an estate or interest in land, but as contracts to make or execute a grant or transfer, or conveyance, at some subsequent period. (c)

The seventeenth section provides that “no contract for the sale of any goods, wares, or merchandises, for the price (d) of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties (a) 2 De G. & J. 84.

445; Mignan r. Parry, 31 Beav. (b) See also Gulliver v. Gul- 211. liver, 2 Jur. (N. S.) 700; Spicer (c) Sugd. V. & P. 94. v. Spicer, 24 Beav. 367; Hogarth (d) This word was changed v. Phillips, 4 Drew. 360; Cooper to "value" by Lord Tenterden's v. Wormald, 27 Beav. 266; Act, 9 Geo. IV. c. 14, s. 7. Goldicutt v. Townsend, 28 Beav,

« PreviousContinue »