The Lord Chancellor
This was an Appeal against a Decree originally made by the Master of the Rolls, and afterwards affirmed on appeal in the Court of the Lords Justices. The decree was pronounced in a cause instituted by James William Bayley Money, commonly called in the suit William Money, against Mr. and Mrs. Jorden, and other parties, praying that a certain debt of £1200, secured by a bond and warrant of attorney, might be declared to have been abandoned, and that the Defendants, Mr. and Mrs. Jorden, might be decreed to release the Plaintiff from the bond, the warrant of attorney be given up to be cancelled, and satisfaction entered up on the judgment which had been obtained against the Plaintiff, or else that it might be declared that this was a partnership transaction arising upon this bond, and that the Plaintiff was liable only for a portion of the bond debt.
Mrs. Jorden was formerly Miss Marnell. She married late in life, in England having been in the earlier period of her life in India, with her two brothers, one of them Richard Marnell, a barrister, at Calcutta, and the other Charles Browne Marnell, an attorney and solicitor there. Mr. George Money, the father of the Plaintiff in the cause, was also a barrister, at Calcutta, and held the lucrative office of Master of the Supreme Court. These parties were upon very friendly terms with each other, and while they were all resident in India, Mr. George Money made a conveyance to Miss Marnell of a house and some land at Midnapore. This property was variously described as of the value of 1219 rupees, -that is, £120- a year, and as worth only about £70 a year. On the one hand, it was alleged that this settlement was purely a gift; on the other, that it was partly gift and partly a settlement for consideration. This settlement, as it was alleged, arose in the following manner:
In 1825, George Money, by means of his influence with the Judges of the Supreme Court, procured for Richard Marnell the appointment of "Counsel for Paupers," which he had himself previously held, but which he then resigned. It was stated that a friendly dispute about some of the fees of this office, amounting to about 1200 sicca rupees, arose between George Money and Richard Marnell, and that at the instance of a mutual friend it was agreed to be settled by presenting the amount to Miss Marnell. In the answer to the Plaintiff's Bill in Chancery it was alleged that she accepted the money, but immediately afterwards placed the amount in the hands of George Money, who agreed to hold the same for her, paying her interest at the rate of 12 per cent., then the usual rate of interest at Calcutta, and that he did so hold it till the end of 1832. The date of the friendly dispute, or of the gift of the original sum, was not stated. At the end of 1832, George Money proposed to convey to Miss Marnell a house and some land at Midnapore, the value of which was stated to be 10,000 sicca rupees; and the consideration for the conveyance was in part formed of the 1200 sicca rupees and some small amount of interest due thereon. The deed, however, dated 1st January 1833, described the consideration as 10,000 sicca rupees, the receipt for which was indorsed on the conveyance at the time. The Plaintiff alleged that Miss Marnell did not enter into, possession till 1838. She alleged that she took immediate possession.
Mr. Richard Marnell died in India, and soon afterwards Miss Marnell and Charles Marnell returned to England. Mr. Money also returned here, and those transactions then occurred which afterwards gave rise to the present suit.
In the year 1841, Mr. George Money went to Spain, in order to arrange with the Government of that country some plan for the settlement of the claims of the English holders of Spanish bonds. The Plaintiff, William Money, then a young man 22 years of age, and holding an ensign's commission, apparently under the influence of two persons, one of them named Patrice Gougis, and another calling himself the Marquis de Crouy Chanel, seems to have thought that his father's journey must have a successful result, and that it would therefore be a good speculation to buy up Spanish bonds, which were at that moment very low in the market. Funds were required for this purpose, and the three speculators, together with a man named Hooper, applied to Charles Marnell to assist them. It was arranged that Charles Marnell should advance funds to the amount of £2000 on the following terms. The money was to be raised by the borrowers drawing and accepting, and by Charles Marnell discounting, four Bills of Exchange, for £500 each, or, at all events, bills to the amount of £2000, the parties agreeing that though he was to advance that money, he was to incur no risk, and was to have the option of either taking 30 per cent. upon the loan, or to share the profits. Funds were in fact advanced to the amount of £1200, but before any further sum was advanced, in the autumn of 1841, Mr. George Money sent word back that his mission had failed. This speculation was, therefore, wholly given up, and Charles Marnell did not advance any more money. The question then arose how the money so advanced was to, be repaid, and there appeared to have been some threat of forcing the Plaintiff to sell his commission for that purpose, but that was not done, and he ultimately gave the bond and warrant of attorney in question, which was also executed by Hooper.
In the course of Charles Marnell's lifetime, some application was made by him for payment of the money secured by the bond, and George Money, the Plaintiff's father, knowing that his son could not discharge the debt, and believing his son to be properly liable for no more than a share of it, offered to pay the sum of £400, if Charles Marnell would accept that sum in discharge of William Money's liability. The offer was not accepted.
Charles Marnell died on the 29th of January 1843, having given, by will, all his property to Miss Marnell, his sister, and having appointed her and Mr. George Money his executrix and executor. She, therefore, became entitled to the bond and warrant of attorney, and the money secured thereby. So far there was but little material difference between the parties as to facts. The suit arose on circumstances which occurred sometime after that event.
Miss Marnell was acquainted with the whole of the proceedings with reference to the speculation and the bond and warrant of attorney, while the same were in progress; and she repeatedly, as the Plaintiff alleged, during her brother's lifetime, expressed to many persons her strong disapprobation of the conduct of all the parties to these transactions, except that of the Plaintiff, of whose youth and inexperience, and ignorance of business, she considered unjust and improper advantage to have been taken.
The Plaintiff further alleged that from the time of Charles Marnell's death, and even before the death actually occurred, Miss Marnell had repeatedly declared, and sometimes in the most solemn manner, to George Money, to the Plaintiff himself, and to numerous other persons, that she had abandoned and never intended to enforce against the Plaintiff the claim which she was entitled to make, as her brother's representative, for the debt of £1200, originally secured by the bond; assigning, as her reasons, that she had never considered the Plaintiff liable, in honour or justice, for more than his proportionate share of that sum, and that she was determined to relinquish that share by way of return for the benefits which she had derived from George Money, the Plaintiff's father. Messrs. Manning and Dalston acted as her solicitors in all the affairs relating to the probate of her brother's will, and the administration of his estate. The probate duty was originally paid upon the sum of £2000, under which the estate was sworn in the first instance; afterwards this was increased to £4000, upon an affidavit sworn by Miss Marnell herself on the 30th of July 1845; and on the 1st of August 1845, being subsequent to the date of the Respondent's marriage, she passed at the proper office the residuary account of Charles Marnell's estate. The debt of £1200 due upon the bond was not included in the sum of £2000, under which the probate was first taken out, or in the increased amount of £4000, or in the residuary account; and no application for payment of any part of this debt was ever made while Miss Marnell continued unmarried, except upon one occasion, soon after Charles Marnell's death, when Messrs. Manning and Dalston (without, as it was alleged, any previous instructions from Miss Marnell, though she was subsequently informed of the fact,) wrote to George Money a letter, dated the 9th of March 1843, in these terms:
To which Mr. Money replied as follows:
The Plaintiff left the army in 1843, with the intention of going to the bar, to which he was called in due course. In 1845, he became engaged to be married to, his present wife, then Miss Eleanor Poore, daughter of the late Sir Edward Poore, of Cuffnells, near Lyndhurst, baronet. The Plaintiff, having no property of his own, and being dependent upon his profession, and upon what he might receive from his father after his decease, it was first arranged that his marriage should be postponed for two years. The Plaintiff informed his intended wife, and Lady Poore, her mother, of the circumstances under which he had become liable for the debt of £1200, and of the kindness of Miss, Marnell to him, in promising not to enforce that liability; and immediately on his engagement being formed, he wrote her a letter (28th June 1844), informing her of his intended marriage, and also stating that he had told both Lady Poore and Miss Poore of "all her various kindnesses to, him."
During the negotiations and arrangements which took place after the date of this letter, with a view to the solemnization of the marriage, and to the execution of a proper settlement thereon, it was considered necessary, both by the Plaintiff and his family, and by Lady Poore, on behalf of her daughter, that the Plaintiff should be made secure against any future demand for payment of the debt of £1200. Conversations took place with Miss Marnell which were spoken to by various witnesses examined on behalf of the Plaintiff.
On the part of the Defendants an answer was put in, denying in positive terms that there had been any abandonment of the debt, or any contract to abandon it.
The cause was heard before the Master of the Rolls, who, on the 9th February 1852, granted an injunction to restrain the Defendants from enforcing the judgment on the warrant of attorney. The case was taken by appeal before the Lords Justices, who, on the 29th May 1852, delivered judgment. Their Lordships differed in opinion. Lord Justice Knight Bruce concurred with the Master of the Rolls, and Lord Justice Lord Cranworth thought that the order of his Honour must be reversed. (2 De Gex, Macn. and Gord. 318.) The order made at the Rolls continued, therefore, to stand, and this appeal was then brought.
Mr. Rolt and Mr. Willcock (Mr. White was with them) for the Appellants. There is not here any contract to abandon the debt: there is nothing to constitute a legal bar to the Appellants putting the bond in suit, and, if so, there is no equity that can be set up as a bar to their legal rights. Wikett v. Raby (2 Bro. P.C. 386) does not apply to this case, for there the original obligee had in terms created in his devisee a trust to deliver up the bond as soon as he was dead. The principle that must govern this case is laid down in Cross v. Sprigg (6 Hare, 552), where Vice-Chancellor Wigram held that merely voluntary declarations, indicating the intention of the testator to forgive or release a debt, if they are not evidence of an actual release at law, do not constitute a release in equity, which, without some ground of distinction, will follow the law. Aston v. Pye (5 Ves. 350, n.) is to the same effect. There is no such ground of distinction here. In Richards v. Syms(2 Eq. Cas. Ab. 617), though the words were much stronger than they are here, for if they had really been uttered they amounted to a legal, and not merely to an equitable, discharge of the debt, the Court would not release the debtor, but directed an issue. In Reeves v. Brymner (4 Ves. 6), under what were considered very hard circumstances, an issue was permitted. In Byrn v. Godfrey (6 Ves. 516) there was, what there is here, a statement made the day before the death, that the obligor would not call for payment; but it was held that that was not effectual as a release of the debt, which therefore was held to be part of the assets. In Eden v. Smyth, (5 Ves. 341) the same course was pursued; and Vice-Chancellor Wigram, in Cross v. Sprigg, said that the only case which had made him doubt at all upon the subject, was that of Flower v. Marten (2 Myl, and Cr. 459), where it was supposed that Lord Cottenham had intimated his opinion that when a creditor by his conduct showed an intention to abandon his rights as a creditor, and treat the debt as a gift to the debtor, Equity would not permit the debt to be enforced. Vice-Chancellor Wigram, however, expressed his doubts, whether Lord Cottenham could ever have laid down such a doctrine. If the supposed promise not to sue is to be considered as a contract made in contemplation of marriage, and therefore enforceable against the person who made the promise, then it is a promise which ought to have been in writing; otherwise it is simply void under the Statute of Frauds. The Defendants can make that defence without specifically pleading it. The pleadings here by denying that there was any such contract or agreement, raise the question of its validity under that Statute.
The difference between the two cases is, that in the one the agreement is admitted, and the remedy only barred; in the other the agreement is denied. The denial of an agreement includes the denial of its legality for want of writing: Buttermere v. Hayes (5 M. and W. 456). The burden of proving a legal agreement lies in equity, as at law, on those who set it up. A specific performance of a parol agreement, although the agreement is admitted by the answer, cannot be decreed if the Defendant insists upon the Statute of Frauds: Cooth v. Jackson (6 Ves. 12-37); and in the same case Lord Eldon laid it down, that in equity the denial by the answer of a parol agreement, which is within the Statute of Frauds, is conclusive, and that against the answer there can be no decree upon the testimony of a single witness, unless supported by special circumstances (id. 39, 40). Skinner v. M'Doual (2 De G. and S. 265) does not impeach that doctrine, and may indeed be considered an erroneous decision, for it treats a plea that there is no sufficient agreement in writing, as a plea which does not set up the Statute of Frauds. Ridgway v. Wharton (3 De G., Mac. and G. 677) decides that where a Defendant denies, or does not admit, an agreement, he need not plead the Statute of Frauds.
The answer here expressly denies any agreement, and against that answer a Court of Equity will not act merely on the evidence of a single witness: Evans v. Bicknell (6 Ves. 174). Here there is nothing to support the allegation of an agreement but George Money's evidence; and on the rule now stated, that evidence is insufficient for such a purpose. Besides which, his evidence is not only not supported, but it is in many respects contradicted by other testimony, and by the probabilities of the case.
As to the evidence of what was said by Mrs. Jorden, it is clear that the debt was always spoken of as a subsisting debt, but an intention was declared not to distress the Respondent by enforcing it. That such intention existed at the time, there can be no doubt; but to abstain from distressing a debtor by enforcing payment at a particular time, does not amount to an abandonment of the debt itself. From the beginning, the retention of the bond was insisted on, and every application to Mrs. Jorden to give it up was peremptorily refused. There is not here any such promise of benefit as existed in the case of Maunsell v. White (4 H. L. C. 1039), where the statement of the person from whom the benefit was expected was, at his desire, communicated to the guardians of the lady. Yet in that case this House held that representations of intention did not amount to a contract binding on the party who made those representations. Even where there has been a will containing a gift of a legacy, it has been held, that though such gift may release a debt, it can only do so, by the clear expression of a distinct intention to that effect: Wilmot v. Woodhouse (4 Bro. C. C. 227). There is no such clear expression of intention here. On the contrary, the declared intention was to keep the bond and the legal rights attached to it, though not to distress the Respondent by enforcing them.
Mr. Roundell Palmer and Mr. Bates, for the Respondents. There is ample evidence here that what passed between these parties was more than a mere declaration of an intention not to press for the payment of the bond: it was a declaration of an actual abandonment of the bond, and that declaration was made with the knowledge that it would affect, and with the object that it should affect, the conduct of parties about to contract marriage. The evidence of Mrs. Jorden is plainly that of a person with a confused and bad memory, and who acted on momentary impressions, and whose recollection of what she said and did at different times is not at all to be relied on. It is not necessary, in order to bring a case of this kind within the authority of Flower v. Marten (2 Myl. and Cr. 459), that the renunciation of legal rights should have been made at the creation of the instrument: it is sufficient if they take place afterwards, and arise from the course of conduct of the party, which is such as to induce other parties to enter into engagements into which they would not have entered but for that renunciation.
That case proves that the fact of a legal debt existing does not inhibit equity from interfering to prevent its enforcement; and it also shows that if the debt is created or kept alive for a specific purpose, which becomes exhausted, equity will, under such circumstances as existed there, confine its application to that specific purpose. Here the declarations were that the bond was kept solely for the purpose of being enforced, if possible, against Hooper. Under the circumstances which exist here, equity ought to confine the holders of it to that purpose: Major v. Major (1 Drewry, 165). To allow the Respondents here to do more, would be to contravene the principle of the decisions in Neville v. Wilkinson (1 Bro. C. C. 543) and Montefiori v. Montefiori (1 Sir W. B1. 363), in the latter of which Lord Mansfield said, that "No man shall set up his own iniquity as a defence any more than as a cause of action." Scott v. Scott (1 Cox, 366) has fully adopted that principle, and so has Doe d. Roberts v. Roberts (2.B. and Al. 367).
Of course it had, as it removed all doubt as to the fact of what was done and intended when the bond was executed. But the judgment there proceeded on the well recognised principles of equity, and not-on that endorsement, the effect of which was held to be matter of law; but the general circumstances of the case were held to raise an equity sufficient to restrain the enforcement of the bond.
The absence of any written contract in this case is occasioned by the circumstance that Miss Marnell was offended at not being trusted. The Respondent married in 1845: his mother-in-law, in the belief that he was free from this bond, a belief occasioned by the continued representations of Miss Marnell, made over to him a part of her own life-interests, and while Miss Marnell remained unmarried she never thought of enforcing the bond.
The only difficulty with one Judge in the Court below seemed to be as to, the fact of an abandonment; but the evidence here was sufficient to, prove that fact. It is a mistake to say that the only evidence in contradiction to the answer is that of Mr. Money the elder. It is, however, not true, that there is any such absolute rule as that the answer is to be treated as conclusive if there is but the direct testimony of one witness, against it. The true rule is, that other circumstances are to be considered, and if they support the testimony of the one witness, then the answer is overruled: Walton v. Hobbs (2 Atk. 19), Cooth v. Jackson(6 Ves. 12. 40). In Keys v. Williams (3 Y. and C. (Exec.) 55), that doctrine was acted on. There a letter was produced, which supported the testimony of the single witness who contradicted the answer, and the Court acted on the evidence, and not on the answer. Here the answer contains many statements that are undoubtedly erroneous, while the evidence of Mr. Money is supported by a great deal of other testimony, and by the probabilities of the case, and the testimony must therefore prevail over the answer.
The objection as to the Statute of Frauds is for the first time raised at the hearing at the bar of this House. It was neither pleaded in the answer, nor argued in the Court below (see Withy v. Mangles, 10 Cl. and Fin. 215-236): The first question on this point is, whether this is a case in which the Statute of Frauds applies at all. The Respondent relies on two grounds of equity; first, that there having been an assurance of the creditor that the bond should not be enforced, a marriage took place on the faith of that assurance. The Statute of Frauds cannot apply to such a case.
It is not: the statute says, "nor upon any agreement made upon consideration of marriage." This was not so made: it is a promise with reference to a marriage, a promise of a creditor not to enforce a claim; but it is not a promise the consideration of which, in the legal sense of the words, is a marriage. This is a moral equity, which courts of equity will enforce, for they will not allow one party to mislead another, especially so as to induce that other to enter into the irrevocable contract of marriage upon a false representation. Neville v. Wilkinson (1 Bro. C. C. 543), and Harrison v. Cage (1 Ld. Raym. 387), in the latter of which it is stated, that, "Northey said at the Bar, that the statute intended only agreements to pay marriage portions, and that it had been often so ruled by Holt, C. J., -quod Holt non negavit."
That is no doubt its real meaning. Prodgers v. Langham (1 Sid. 133) shows that a promise irregular, and even fraudulent, as against a purchaser before marriage, becomes by the fact of the marriage valid. Kirk v. Clark (1 Pre. Ch. 275), which was recognised in Brown v. Carter (5 Ves. 862), establishes that so far as relates to the agreement being founded on the promise of Mr. Money not to disturb the settlement of the Midnapore property, he thereby made the previous voluntary settlement of that property valid, and so gave to Mrs. Jorden a valuable consideration for her abandonment of the right to sue on the bond. This arrangement between these two parties cannot be affected by the Statute of Frauds.
But further, the statute cannot be relied on, for it is not pleaded: Cooth v. Jackson (6 Ves. 12-39; see Lord Tenterden's observations in Lysaght v. Walker, 2 Dow. and C1. 225), where it is said, "If the Defendant does not say anything about the statute, he must be taken to, renounce the benefit of it." A defendant who intends to rely on the statute must in equity give notice to his opponent of that intention, otherwise, though he may in his answer admit the agreement, if he afterwards sets up the statute as a bar to relief, he admits nothing. There are besides various equitable circumstances which will avoid the statute. There is in equity no distinction between pleading the Statute of Frauds and the Statute of Limitations. A defendant who has answered, cannot have the benefit of the Statute of Limitations at the hearing, unless he has insisted on it in his answer. Harrison v. Borwell (10 Sim. 382). It is the same with the Statute of Frauds.
Mr. Rolt replied.
The Lord Chancellor (July 7), after very fully stating the facts of the case, and observing that though for convenience sake he should speak only of the bond, his observations must be taken to apply equally to the warrant of attorney, proceeded thus:
The first question we have to consider is, whether the bond was a valid security, because though it has not been actually argued that it was not, yet a good deal of discussion took place upon the question of this bond with a view to show that the Plaintiff had been induced by Charles Marnell improperly to, execute it, and that in truth he ought never to have been liable for the sum for which it was given. On that point not much reliance was placed, but I ought, perhaps, to say that I do not entertain a doubt that, at all events for the purpose of this suit, it must be treated as a valid bond.
The transaction which gave rise to the bond was unquestionably one of a very doubtful character; but however hard the terms on which the money was obtained might be, they were perfectly lawful terms, which the parties being all sui juris, and upon an equal footing, could accept or refuse. I may stipulate what I choose, though I cannot thereby absolve myself from liability to third persons. I may stipulate with another, if I like to do so and he likes to, agree, that I will advance £1200 upon a speculation upon the terms, that at all events he is to pay me £1200 with interest; that if there is profit, I am to have a share of that profit, and if there is a loss, he is to bear the loss; or upon any other terms between ourselves, for which we may choose to stipulate. I do not inquire into the relations of these persons as between themselves and third parties. However, whatever the terms were, the bond and the warrant of attorney were given, and being given, William Money thinks that there is something afterwards to affect his liability to Charles Marnell as to, the payment of the £1200.
I had occasion, being one of the Lords Justices when the case was considered upon appeal, to look into the matter very attentively, and I have again done so on this occasion. Whatever defects there may be in my judicial character, the being too confident in my own opinion is not one of them, perhaps the reverse; but having again examined the matter, I cannot arrive at any conclusion different from that at which I arrived when the case was before me in the Court below.
There are two grounds upon which it is said that the parties have lost their right to enforce the bond. The one is, that previously to William Money's marriage, Mrs. Jorden, then Miss Marnell, represented that the bond had been abandoned, that she had given up her right upon it, and upon the faith of that representation the marriage was contracted. And then it is said that upon a principle well known in the law, founded upon good faith and equity, a principle equally of law and of equity, if a person makes any false representation to another, and that other acts upon that false representation, the person who has made it shall not afterwards be allowed to set up that what he said was false, and to assert the real truth in place of the falsehood which has so misled the other. That is a principle of universal application, and has been particularly applied to cases where representations have been made as to, the state of the property of persons about to contract marriage, and where, upon the faith of such representations, marriage has been contracted. There the person who has made the false representations has in a great many cases been held bound to make his representations good. A leading case, Neville v. Wilkinson(1 Bro. C. C. 543), upon that subject, which has been referred to, came before Lord Thurlow. In that case, Mr. Neville, the son of Lord Abergavenny, was in treaty for a marriage with the daughter of a very rich person, a gentleman of the name of Robinson. The father of the young lady, it seems, was anxious as to the property, knowing that Mr. Neville, the intended husband, was a young man of expensive habits, and that he was involved in considerable debts, and Mr. Neville, in order to quiet Mr. Robinson's mind, induced Wilkinson, the defendant, who was his principal agent, to make out a schedule, and to state it to be a schedule of all the debts to which Mr. Neville was liable. Mr. Wilkinson did so, and he represented that a sum of £18,000 was the amount of all Mr. Neville's debts, concealing, at the instance of Mr. Neville, from Mr. Robinson, the fact that besides the £18,000, Mr. Neville was really indebted to Wilkinson himself, and another person, in a further sum of nearly £8000, making £26,000, instead of £18,000. Upon that representation the marriage took place, and provision was made for the payment of the £18,000 debts, and then Mr. Robinson thought that his daughter was marrying a person who was free from debt. Afterwards Mr. Wilkinson sought to enforce his own claim of £8000, and Lord Thurlow said that he could not do that; he had represented that there was not any sum of £8000 due to him, and upon the faith of that representation the marriage had been contracted, and he could not be suffered to say that that which he had thus represented was a falsehood, and now to proceed upon the truth.
That was, in truth, a decision which was exactly in conformity with what had been previously decided by Lord Mansfield, in the case of Montefiori v. Montefiori (1 W. Bl. 363). In that case Joseph Montefiori, being about to contract marriage, induced his brother Moses to give him a note for a large sum of money, as the balance of accounts between them, which balance Moses acknowledged to have in his hands, though, in truth, no such balance, or anything like it, existed. The marriage took place upon the faith of that representation. Moses afterwards sought to get back the note, and the matter was referred to arbitration. The arbitrators awarded the note to be given up, but the matter was brought before the Court of King's Bench, and Lord Mansfield said, "No, it shall be as you represented it to be. No man shall set up his own iniquity as a defence, any more than as a cause of action."
There had been a much earlier case of Gale v. Lindo (1 Vern. 475), where just in the same way a person, in order to make it appear that his sister had a fortune of £500, whereas, in truth, she had only 6350, gave her a sum of £150, so as to make up the £500, and she gave him a bond for the amount. After the marriage had taken place upon the faith of that, it was held that the bond could not be enforced, and it was ordered to be delivered up to be cancelled.
These principles are plainly and perfectly intelligible, and quite consistent with good sense, and I should be in the last degree sorry that any opinion or decision to which I am a party, should lead to a notion that I, in the slightest degree, question their propriety. Nay, more, I think that the principle has been carried, and may be carried, much further; because I think it is not necessary that the party making the representation should know that it was false; no fraud need have been intended at the time. But if the party has unwittingly misled another, you must add that he has misled another under such circumstances that he had reasonable ground for supposing that the person whom he was misleading was to act upon what he was saying. It will not do if he merely said something, supposing it to be quite right, and then that some stranger, having heard and acted upon it, should afterwards come to him to make it good.
The whole doctrine was very much considered at law, for it is a doctrine not confined to cases in equity, but one that prevails at law also; and there are, in fact, more cases upon the subject at law than in equity. It was much considered in the case of Freeman v. Cooke (2 Exch. 654). There had been a previous case in the Court of Queen's Bench, of Pickard v. Sears (6 Ad. and El. 469), in which the doctrine had also prevailed. I shall shortly refer your Lordships to what fell from Mr. Baron Parke, who after great consideration amongst all the Judges of the Court of Exchequer, (to which I can speak from personal knowledge), delivered judgment in Freeman v. Cooke. I need not refer to the particular facts in that case; it was a case where, upon the Sheriff seizing goods, a party had made certain representations as to the ownership of them, and the question was whether he was estopped from disputing the truth of what he had so said. Mr. Baron Parke says (2 Exch. 662), The estoppel therefore, if it be one, created by the conduct of the bankrupt in this case, is not opened by the omission to plead it, and the only question is, whether it be an estoppel? It is contended that it was upon the authority of the rule laid down in Pickard v. Sears. That rule is, '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.' That was founded on previous authorities in the cases Greaves v. Key, Hearne v. Rogers, and has been acted upon in some cases since. The principle is stated more broadly by Lord Denman, in the case of Gregg v. Wells, where his Lordship says that a party who negligently or culpably stands by and allows another to contract on the faith of a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving," (I must beg leave, by the way, to say that I think that this is stated a little too broadly). "Whether that rule has been correctly acted upon by the jury, in all the reported cases in which it has been applied, is not now the question; but the proposition contained in the rule itself, as above laid down in the case of Pickard v. Sears, must be considered as established. By the term 'wilfully,' however, in that rule, we must understand, if not that the party represents that to be true which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon accordingly; and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth."
My Lords, I believe that the rule of law, which, as I have more than once said, is a rule founded upon perfectly good sense and is intelligible to every capacity, is illustrated by what then fell from Mr. Baron Parke, as well and as accurately as in any of the cases upon the subject. The question is, whether the evidence here shows that anything took place which brings the case within those authorities. I am clearly of opinion, as clearly as I can be, knowing that I am counter in this respect, certainly, to an authority for which I feel very great deference, namely, the Master, of the Rolls, probably to the Lords Justices, and I have some reason to suppose, also to some at least of your Lordships, that it does not. I am bound to state my view of the case; I think that that doctrine 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. In the former case it is a contract, in the latter it is not; what is here contended for, is this, that Mrs. Jorden, then Miss Marnell, over and over again represented that she abandoned the debt. Clothe that in any words you please, it means no more than this, that she would never enforce the debt; she does not mean, in saying that she had abandoned it, to say that she had executed a release of the debt so as to preclude her legal right to sue. All that she could mean, was that she positively promised that she never would enforce it. My opinion is, that if all the evidence had come up to the mark, which, for reasons I shall presently state, I do not think it did, that if upon the very eve of the marriage she had said, "William Money, I never will enforce the bond against you," that would not bring it within these cases. It might be, if all statutable requisites, so far as there are statutable requisites, had been complied with, that it would have been a very good contract whereby she might have bound herself not to enforce the payment. That, however, is not the way in which it is put here; in short, it could not have been, because it must have been a contract reduced into writing and signed; but that is not the way in which this case is put; it is put entirely upon the ground of representation. Now, my Lords, I think that the not adhering to this statement, call it contract or call it representation, is no more a fraud than it would be not adhering to her engagement, if she had said, "Mr. William Money, you may marry; do not be in fear, you will not be in want; I promise to settle £10,000 Consols upon you." If she does not perform that promise, she is guilty of a breach of contract, in respect of which she may be sued, if it is put into a valid form, but not otherwise; so if she had said, as she did to William Money, "I mean to give you everything I am worth in the world; I promise to do so" her not doing so,, is no fraud in the sense in which these cases speak of fraud; it is no misrepresentation of a fact which the party is afterwards held bound to make good as true; it seems to me that the distinction is founded upon perfectly good sense, and that in truth in the case of what is something future, there is no reason for the application of the rule, because the parties have only to say, "Enter into a contract," and then all difficulty is removed. It appears to me, therefore, that this which is the ground upon which the Master of the Rolls proceeded, and upon which he thought that the Plaintiff Money had the right to restrain the Jordens from enforcing this bond, fails, for the reasons which I have stated.
There was another ground, however, upon which it was suggested by Mr. Money, and strongly argued, that he was entitled to relief, and upon which ground my then learned colleague Lord Justice Knight Bruce also decided in favour of the Plaintiff. It was this: It was said that the Midnapore property, which was settled by Mr. Money, the father, upon Miss Marnell, then in India, was a mere gift, a mere voluntary settlement, a settlement, therefore, which it was competent to Mr. Money, the settlor, to defeat by parting with it for a valuable consideration to another: that Mr. Money, the father, when his son was about to marry, had an interview with Mrs. Jorden (this is the allegation); and that, as the result of that interview, he agreed with her that he would never exercise the power of revoking the Midnapore settlement, in consideration of her engaging never to, enforce the bond; that that agreement having been entered into, upon the faith of it the parties married. Mr. Money has certainly, if such an agreement was entered into, performed his part of it, for he has since died without ever attempting to exercise that power of revoking the gift of the Midnapore property. And I may say, in passing, that it appears to me that the allusion which was made in the course of the argument to the Statute of Frauds in such a case is wholly inapplicable; it would not apply at all. The contract sought to be enforced against Mrs. Jorden would be a contract not to sue upon a certain bond; that is not within the Statute of Frauds: if there was a valid consideration for that contract, unquestionably she was bound to perform it. I advert to this only because certain expressions fell from me in the argument, in which I said that the Statute of Frauds could not be insisted upon for another reason. I only wish to say that I doubt the validity of that reason; but in truth it comes to the same result, because I think that the Statute of Frauds in no respect applies.
The question upon this part of the case is simply one of fact. Is it made out by such evidence as can justify a court of justice in acting upon it, that such a contract as that which is alleged really was entered into? I thought when the case was before the Lords Justices below, and I am unable to alter that opinion, that it was not so made out. As I stated before, it is spoken to by only one witness, and could only be spoken to by one witness, because it is a contract at which nobody was alleged to have been present except Mr. Money himself; and it is positively denied by the other party to that alleged contract, namely, Mrs. Jorden, who is the Defendant. Now the rule of the Court of Equity in such a case is perfectly clear: the present Law of Evidence, which my noble and learned Friend has introduced, which allows the parties to be examined, may create a little difficulty about that sometimes; but that difficulty cannot arise in this case, because that which is now the Law of Evidence for examining parties was not then in force. The rule of equity is clear, and is one of good sense, that if a particular allegation is supported by only one witness, and is positively denied by the answer of the Defendant, and there is nothing to show that the one is more to be credited than the other, you cannot enforce against the Defendant that which rests upon the testimony of one witness contradicted by the answer of the Defendant. The existence of such a rule is not denied; but then it was very ably argued by Mr. Roundell Palmer, that you must take that rule in its entirety; that though the rule is, that if a matter spoken to by one witness is contradicted by the answer, it cannot be enforced, if there is no reason to give more credit to the witness than to the answer; yet it certainly may be enforced if the answer is such that, looking at it altogether, it is an answer you cannot rely upon. I take it, that the real sense of that qualification is, that you must look at the answer with the concomitant circumstances, which may tend to depreciate that answer; and you must look at the testimony of the witness with all the circumstances which may tend to invalidate that testimony; and, doing so, I still come to the conclusion which I arrived at before, that there is not only nothing to satisfy me that this contract was entered into; but I must go further, and say I am quite convinced, as far as I can be convinced of a transaction to which I was not a party, which is one of many years' standing, and upon which we have very little testimony, that that contract never was entered into in the sense of Mrs. Jorden understanding that she was binding herself to do that which I suppose Mr. Money thought she was binding herself to do.
In order to show that Mrs. Jorden's statement is not to, be relied upon, Mr. Roundell Palmer made a very able analysis of her evidence, for the purpose of showing that she has, in a great variety of particulars, stated, matters which are so entirely at variance with the testimony of a host of other witnesses, that you cannot rely upon a word she says. I think that is a very legitimate mode of looking at the answer, to see whether it is an answer that can be put in competition with the testimony which goes against it. It may be, that this is a matter as to which it is almost impossible to state exactly what it is that influences the mind; but I cannot say that I arrive at the conclusion at which he does, that Mrs. Jorden is a person altogether so untrustworthy that you cannot believe what she says. I do believe she has stated in her answer many things which are entirely inaccurate. I believe that she very often said that she wholly abandoned the debt; that she had the greatest affection for William, and wholly abandoned the debt. What did she mean by that? Why, she meant to say (what was perfectly true at the time) that she had no intention of enforcing it. That that was her meaning, and her only meaning, is, I think, to be deduced from the evidence of a great number of witnesses, even of those who speak most strongly upon this subject.
In the first place, what I think a judge, in deciding upon this matter, has to satisfy himself upon, is this: Looking to what is stated by the Defendant upon the answer, and deducting from it all you please on account of the loose and incorrect way in which Mrs. Jorden has represented many of those transactions, which are rather questions of feelings than questions of fact, do you believe, can you believe, as a judge, that this passed under such circumstances, that Mrs. Jorden understood herself to, be entering into a positive contract, that on the one side the Midnapore property should be hers irrevocably, and that on the other she should never enforce the bond? My Lords, I cannot believe that she so understood it; and not meaning to say anything against Mr. Money, who I believe to be a gentleman of the highest respectability, who is now dead, and whose testimony would be entitled to all weight, I must say, that I think, if this be a correct account, that in a conversation which he had, it was agreed by and between Miss. Marnell and himself, that in consideration of his permitting her to continue in the possession and enjoyment of that property, she should engage wholly to abandon the debt, it is the most unfortunate thing I ever knew in my life that Mr. Money, a barrister, a man advanced in life, whose son was about to marry, who, as the father knew, had this outstanding claim against him, if he thought that this was a positive contract, and that the lady so understood it, I say it is the most unfortunate thing I ever knew in my life, that he did not reduce it into writing, because if the lady so understood it, she would have been perfectly willing to sign the writing. I cannot help thinking that some loose conversations took place then as before, but that was all. I will not say that Mr. Money knew that Mrs. Jorden did not understand it to be a contract binding on her, but there is her own positive denial that she did so know and understand it.
Then I think beyond that, the further evidence furnishes strong ground for supposing that the parties themselves did not so understand it. Because, observe what passed. This marriage had been contemplated in the year 1844; it was not effected till the year 1845. In the year 1844, while the marriage was first in contemplation, the mother, Mrs. Money, who is a French lady, had a conversation with Miss Marnell, in which she strongly pressed Miss Marnell to give up this bond, and, what is partly relied upon is, that she did then agree not to enforce the bond. Now, my Lords, what I understand from that conversation is exactly the contrary, that she did not agree, that she would not agree, but made excuses for not agreeing to give up the bond. She made, excuses, for not giving up the bond. She said, "She wanted to keep it; that it would be necessary for her to have it, because another person, at that time a bankrupt, was liable." But she repeatedly, when asked to give it up, says, "No; I will never enforce it;" but being pressed to give up the bond, she added, "No, I will be trusted. I will not give you up the bond." What is the meaning of that? It is this: "I will retain my legal right, and I will make you rely upon my honour." That is what she means. I must say, after this, to enforce it, is a breach of honour as strong as one can well imagine. About that I have no doubt. But the question is not whether Mrs. Jorden has forfeited her honour, but whether she is now enforcing something which she did not always assert she had a right, and would retain her right, to enforce; and when she said to, Mrs. Money, "I will give you my word of honour I will never enforce it, but I will not give it up;" whether she did not mean by that, "I will keep the bond, because I will keep my legal right." That this was the understanding of the parties is perfectly manifest from subsequent negotiations with Mr. Money to which he speaks, because if the parties had understood this to be an engagement upon her part positively that she would not enforce it, what is the meaning of Mr. Money afterwards stipulating, that if she will then agree not to enforce it, he will agree never to disturb the Midnapore settlement? The conduct of the parties seems to me to show clearly that that was the understanding of all of them. I have no doubt she made them the promise in honour, but that she made this distinction: "It shall be in honour only, or binding in honour only, but that the bond, or that which constitutes the legal right, I will retain."
That is made, I think, still more manifest by what takes place after the marriage. Mr. Money says in his evidence, that he communicated this fact in express terms, that it was agreed by and between, and so on; that he communicated that to young Mr. Money, his son, previously to the marriage. Now let us see what happened. The marriage of Mr. Money took place in 1845. After that marriage, occurred the marriage between Miss Marnell and Mr. Jorden, and I cannot but think that in all probability this question never would have arisen if that lady had remained single. Let us see what Mr. Dalston, the solicitor, states. You must bear in mind, if Mr. Money is correct in his evidence, that it was a contract; it was one of the details and particulars of which young Mr. Money, the intended bridegroom, who afterwards marries, was perfectly apprised, because he told him of it immediately afterwards. But what took place between him and Mr. Dalston? It seems to me that what Mr. Money then stated is utterly irreconcileable with the notion that that gentleman knew that previously to the marriage, and in consideration of the marriage, a valid contract had been made, whereby the Midnapore property had become irrevocably the property of Mrs. Jorden, and the bond, so to say, irrevocably his property. It appears to me that the statements are very difficult, if not impossible, to be reconciled the one with the other.
I may further remark (and this is rather reverting back to another part of the case, which I think it is necessary to allude to, but which I forgot to do, before), that Mrs. Jorden did not understand that the bond had been given up, is, I think, perfectly plain from this: that after her brother's death, she complained that George Money had not renewed to her the offer he had made to her brother. Perhaps it is unnecessary to refer to that; it breaks the thread of what I am saying, and which are the concluding remarks I have to make upon this case.
It appears to me, upon the grounds I have stated, first, that there is nothing within the meaning of the authorities or of principles to make this a representation by which Mr. and Mrs. Jorden are to be bound. I think further, that the second ground, and that on which the Lords Justices wholly or mainly proceeded, namely, the existence of a valid contract as to the Midnapore property, has not been made out by evidence upon which your Lordships can safely act, and consequently, that there has been nothing established which impeaches the right of Mrs. Jorden, as the representative of Richard Marnell, to enforce this bond. I repeat that I do believe that she often and often told this young man that she would leave him all her property, and that she would never enforce this bond; that I believe she said this over and over again, knowing that it would come to his ears, but that that was all that was said either expressly or impliedly, and said with the qualification, "I will not give up my right to the bond; you must trust to my honour." That is the way in which I interpret what she has said from time to time; and that being so, however discreditable or dishonourable it may be, having so spoken, to recede from it, it appears to me that that is a ground upon which your Lordships cannot safely act, and that consequently there was no valid foundation for this bill, which I think, therefore, ought to have been dismissed.
Lord Brougham. My Lords, this case has given me, as I believe it has the rest of your Lordships, no small anxiety in the course of the argument, and subsequently, in considering its details before coming to, a decision, for there are a great many facts, and a very considerable number of matters not easily reconcileable one with the other, and no little obscurity hanging over parts of the case, even after all attempts shall be made to reconcile and to explain the darker passages. But there is also another circumstance which has given me very considerable anxiety, and that is the manner in which it was disposed of in the Court below. For, first, we have the judgment of a most learned and able judge, the Master of the Rolls; then an appeal from that decree to the Court of Appeal in Chancery; and then the two learned judges, the Lords Justices, differing upon the subject; so that, in reality, there cannot so much be said to have been a decision of the Court of Appeal, from which this case comes to your Lordships, as that in consequence of the difference of opinion between the learned judges, before whom the decree of the Master of the Rolls was brought by appeal, there could be no decision, and that therefore, of necessity, the decree of the Master of the Rolls stood. If I found, upon examining the reasons of that learned and most able judge, for whom I entertain the greatest respect, that upon the question of fact that learned judge entertained one clear opinion, and that by the Lords Justices differing, it was sanctioned by the concurrence of one of those learned judges, I should certainly feel slow to disturb that judgment when brought before your Lordships by appeal.
But upon examining the decree of the Master of the Rolls, and the reasons which he gave, I do not find that he proceeds upon the same ground as that upon which Lord Justice Knight Bruce proceeded, when he differed from my noble and learned Friend; and I do not find that there was that difference of opinion upon the matters of fact in the case between the learned Master of the Rolls and my noble and learned Friend one of the Lords Justices in the Court of Appeal below. The Master of the Rolls proceeded upon the ground of there having been such a misrepresentation by Louisa Marnell, afterwards Mrs. Jorden, as brought the case within the authorities which have been referred to, beginning with Gale v. Lindo, and followed by Neville v. Wilkinson, and Montefiori v. Montefiori. I entirely agree with my noble and learned Friend that this is not a case of that kind. For example, in Gale v. Lindo (1 Vern. 475) the ground is stated to have been a misrepresentation of a material fact, giving rise to what had taken place. The Lord Chancellor (who must have been Lord Jeffreys at that time, October 1687), said "That which was once a fraud will always be a fraud;" and so acted upon that principle on the ground of preventing or frustrating a fraud.
In like manner take the case of Montefiori v. Montefiori (1 Sir W. Bl. 363). There a man had stated that he owed his brother a sum of money upon the balance of partnership accounts, and gave a note for that amount to be shown to the friends of the lady whom he was about to marry, upon which a marriage took place shortly afterwards, and so forth. The rule for the attachment was discharged upon the ground of misrepresentation of a fact, and Lord Mansfield said, "The law is, that where, upon proposals of marriage, third persons represent anything material in a light different from the truth, even though it be by collusion with the husband, they shall be bound to make good the thing in the manner in which they represent it."
So in Neville v. Wilkinson (1 Bro. C. C. 543), the Plaintiff had stated his apprehension that the disclosure of the whole truth as to his debts would prevent his marriage, and he induced the Defendant, in making out a list of his debts, to omit from that list the amount which was due to himself. He was after the marriage, on a bill filed for the purpose, restrained by injunction from proceeding to recover the amount upon the ground of his own representation. And Lord Eldon, in speaking of that case, in the case of the Vauxhall Bridge Company v. Lord Spencer(1 Jac. 64; 2 Mad. 356), says he remembers arguing the case of Neville v. Wilkinson before Lord Thurlow; but Lord Thurlow thought that the Defendant, "having made a representation, a court of equity must hold him to it, and that although the Plaintiff was particeps criminins."
In all those cases, therefore, there was a misrepresentation of the facts. And the learned Master of the Rolls appears to consider that in this case there was a similar misrepresentation. In my opinion, there was a misrepresentation by Louisa Marnell of an intention as to her will, and a promise was made by her; but of misrepresentation of fact there was none. She simply stated what was her intention; she did not misrepresent her intention; and I have no manner of doubt that, at the time she made that statement, she had the intention which it is stated she professed, of never putting William Bailey Money in trouble, by proceeding upon the bond.
Then, taking the evidence before us, and not merely relying upon that answer, but. taking the evidence of the witnesses, particularly that of Mrs. Money, the mother, as to what took place between her and Mrs. Jorden, and coupling that even with what took place afterwards between Mrs. Jorden and Mr. Money himself, the father, I certainly have, after very considerable doubt upon some parts of the case, but after fully viewing the whole particulars, and examining those statements and those depositions, come to the conclusion by which my noble and learned Friend abides, the conclusion to which he arrived in the Court below, that there was not an abandonment of the debt, by Mrs. Jorden; not only that there was not an abandonment of it, but that there was rather a refusal of abandonment, when you come to examine in what sense, and with what intent the word "abandonment" has been used. And here I will only step aside for one moment, to bear my testimony to the truth of what my noble and learned Friend has represented with respect to himself. I have not known any judge here less obstinately wedded to his own opinion, or more disposed to re-consider the grounds of his own opinion, when that opinion has been appealed from, than my noble and learned Friend. I have known other judges also show the same laudable candour when sitting in a Court of Appeal. I have known Lord Lyndhurst, on more than one occasion, when his judgment was brought here upon an appeal, at once admit that he had erred in the Court below, and join in reversing the judgment which he had there pronounced. Upon other occasions, especially on one very remarkable occasion, I mean the case of Attwood v. Small (6 C1. and Fin. 232), where he had given an elaborate judgment in the Court below, when sitting as Lord Chief Baron in the Court of Exchequer, I have known him adhere (as my noble and learned Friend has here to-day), upon a re-consideration and fuller argument at this bar of the whole case, to the opinion he had already given, and support that opinion by most able and elaborate reasons, to induce your Lordships to join him in affirming the decision of the Court below. In that case, I had the misfortune to differ from my noble and learned Friend, and I stated to your Lordships the grounds of that difference, the result of which was certainly a reversal of that decree by your Lordships. I state that for the purpose of showing that it by no means follows, when there is an appeal from the Court below, and the same judge sits here upon appeal from his own judgment, that there is very little doubt what will be the result, though at times such an opinion may have been entertained. Upon hearing a case more fully argued, as it generally is in a Court of Appeal, a learned judge may differ from the opinion he originally held, or he may abide by that opinion, and in either case he is bound conscientiously, in the discharge of his duty, to state his opinion as well when he adheres to and abides by his former opinion, as when he alters it and agrees with the reversal.
It is important to consider a very material part of this case, which consists of the depositions of Pulcherie Money, as to the conversation which she had with Miss Marnell upon the subject of the bond. Now I beg to say that I give entire credit to that very respectable lady's deposition, as I do indeed to almost all the depositions here. The question is rather one as to accuracy of recollection than anything else. Mrs. Money, in effect says, "Trust me with the bond, instead of keeping it yourself." But Miss Marnell answers, "No, I will be trusted;" and she refuses to give it up. Each says, "Trust me;" and the question is which is to be trusted with the bond. That is to say, there is to be no abandonment of the claim at law; there is to be no giving up of the right to sue upon the bond, but Miss Marnell says,"Trust me; you may depend upon it I will not sue upon it, but give it up I will not; you shall not be trusted with it, but I will not enforce it." She would keep the bond in her own hands; she would retain the right; she would not abandon the right; she is asked to abandon the right, and she says she will not. Indeed, what happened afterwards shows that she still considered herself to possess the legal right. Mrs. Money herself, speaking of what occurred after the brother's death, says, "she complained to me that the said George Money did not make the same offer to her; and she added that it " 'was ungenerous in him not to have done so, but that the reason for his abstaining must be that he well knew that she was incapable, out of love to William (meaning the Plaintiff) and gratitude to himself, (the said George Money) to enforce the bond'."
I come now to the next transaction between Mr. Money and Mrs. Jorden respecting the Midnapore property. First, I must observe that there is some difficulty in understanding the whole account of the Midnapore property, from the way in which possession was kept. Mr. Money's account is, certainly, that he had made it over as a free gift to Mrs. Jorden, but if you look at the dates, this story is not very intelligible; it appears that he cannot exactly tell the date of the conveyance giving it up, but it is clear it was early in January 1832. And yet if you look at Mr. Money's depositions, as well as at that of Mr. Lowe, his agent, he appears to have kept possession of it till 1838. The main question, however, is with respect to what Mr. Money maintains took place between him and Mrs. Jorden, upon the abandonment as be said, of the bond and the right to sue upon the bond, in consideration of his giving up the Midnapore property, -and the intention of settling it upon the marriage of his son. And upon that I must say that I agree with my noble and learned Friend, that you have here the answer distinctly and clearly denying that transaction, and you have only the evidence of Mr. Money affirming it.
Now, before coming to say a word upon that, I wish again, upon the subject of the abandonment, in addition to what my noble and learned Friend has said in respect of the use of the word "abandonment" by Mrs. Jorden, to remark that according to the evidence of Mrs. Money and her husband, I think it perfectly reasonable to conclude that she does not intend then to say, that the debt was gone and abandoned. Other witnesses carry the matter no farther; they only show the declaration of an intention not to enforce the bond, an intention, no doubt, at that time sincerely entertained. All the evidence shows that when asked to, make a complete abandonment by giving up the bond, she said, "No, she would do no such thing; her honour was enough, but she would retain her power over it."
With respect to what took place between her and Mr. Money, in the first place, I must observe that that must have taken place probably a year after the conversation between Mrs. Money and Mrs. Jorden. Now if there had been a complete abandonment, and if Mr. Money and his family considered it in that light, and considered that she had given it up, and that there was an end of it, I think it is not very consistent with that view of it that that should have taken place respecting the Midnapore property to which he deposes, and which forms the most important part of the case; for it is quite clear that he could not have considered that the debt was abandoned at that time, nearly a year after the conversation with Mrs. Money, which was in July and August 1844; the marriage taking place in August or September 1845, and the conversation respecting the Midnapore property with Mr. Money occurring immediately preceding that marriage.
My noble and learned Friend has justly observed that the rule is, that if a distinct denial is given in the answer, that denial shall not be countervailed by the testimony of a single witness; and Lord Eldon, in a case which has been referred to, of Evans v. Bicknell (6 Ves. 174), lays that down; adding, "Unless a circumstance attaching credit to the assertion counterbalances the credit of the denial;" that is to say, that there must be some circumstance clear and undenied, some fact in the cause, if I may so say, which casts the balance against the denial, and therefore defeats the effects of the answer.
I do not think that a reference to the analogy of a prosecution for perjury can be said to be quite wide of the mark here, although I must admit that that would be sufficient to support an allegation against a denial in an answer which might not be sufficient to support an indictment in a criminal proceeding against a party alleged to have committed perjury. Nevertheless we shall derive some advantage, I think, in the consideration of this question, from observing, what is the rule, and what is the course of proceeding upon the subject of perjury. Where there is perjury assigned, it is not sufficient, in support of that assignment, to produce the evidence of one witness, because there it is said you have only oath against oath (Per. Parker, C. J., Reg. v. Muscot, 10 Mod. 192. 194); and some judges have gone so far, (the late Lord Tenterden, almost to the end of his judicial life), as to hold not only that there must be enough to cast the balance, but that there must be a second witness to support the testimony of the first against the oath of the Defendant (3 Stark. Ev., tit. "Perjury, 859, n. (g): " It has been so held, ut audivi, by Lord Tenterden"). That has been relaxed, undoubtedly, and is no longer the course of criminal law procedure in this country. It does not require a second witness in order to support an assignment of perjury; but it has been held, that the testimony of a single witness, however clear and however much entitled to credit, was not sufficient to countervail the oath of the Defendant, and to support the assignment of perjury against him, unless that testimony could be "supported by circumstantial evidence of the strongest kind." These are the words of the learned judge in the case, and I quite agree with him.
One circumstance in the case of the Respondent has been relied upon in the very able argument of Mr. Roundell Palmer, which I take it to be quite clear would not apply in the case I have put, namely, that in some other matters there is discredit thrown upon the statements in the answer. I do. not exactly agree with those who hold that those circumstances do throw discredit upon the swearing in an answer such as this. It is said, that Mrs. Jorden denies in the answer having stated that she had very great affection for William Money, "having the deepest affection for him," and having treated him as a mother would treat her child. When we look at the answer, it really does not appear that she denies having had great affection for him; she only denies it in quantum, in degree. All that seems to be only a kind of saving, perhaps, of her own pride, and sometimes possibly a want of due reserve and due caution in stating an expression, I will not say of her opinion, but of her sentiments. But all this does not go, in my apprehension, either to discredit her in point of veracity, or even to discredit her in point of accurate recollection of those matters of fact, which, like the alleged transaction between her and Mr. Money respecting the Midnapore conveyance, are transactions and matters of fact upon which it is perfectly clear she had a most distinct recollection.
I think that the conclusion at which I have arrived, is supported by those circumstances to which my noble and learned Friend adverted at the close of his address to your Lordships. I do not think that it is possible to read the evidence of Mr. Dalston, and to examine what took place with respect to his dealings with his clients, without coming to the conclusion that there had been no abandonment upon her part, and that he did not at that time act as if there ever had been such. I consider that it is inconsistent with the case made for the Plaintiff below (the Respondent here), and that it goes but to support the allegations made upon the part of the Appellant, and the allegations, or rather the denials, contained in the answer.
Upon the whole, therefore, I am of opinion, after very great consideration of the facts, that the decree of the Master of the Rolls cannot be sustained.
Lord St. Leonards: My Lords, it is my misfortune on this occasion to differ from both my noble and learned Friends. I differ from them upon the facts, as well as upon the law applicable to those facts; but I think my noble and learned Friend on the Woolsack stands in need of no apology for maintaining the opinion which he gave in the Court below. I quite agree in what has fallen from my noble and learned Friend opposite, that nobody can be more open than my noble and learned Friend on the Woolsack is, upon points which come for consideration before this House, upon which he has already given an opinion in the Court below, to re-consider his decision.
I shall be under the necessity of troubling your Lordships in rather minute detail with the facts of this case, in order to justify the view which I take of them, before I state what I consider to be the law as applicable to the case. Whilst in India, George Money conveyed the Midnapore property to Louisa Marnell, for, as stated in the deed, 10,000 rupees, the price which he had previously paid for it; a receipt for the consideration was indorsed on the deed and signed by George Money, but not a shilling was paid. Money, therefore, had a lien on the estate for about 7000 rupees, allowing for the 1200 rupees and interest; or if the conveyance was really voluntary, he might have defeated it by a sale or settlement for valuable consideration. Let us now inquire what, in point of law, was the operation of that, in order that we may know how Miss Marnell and Mr. Money stood towards each other in relation to the property at that period. That conveyance was either partly for a valuable consideration, or it was simply voluntary. If it was simply voluntary, then though Mr. Money could not directly have put an end to it for his own benefit, yet he could (because the statute of Elizabeth enables him to do so) have put an end to it indirectly. For example, he might have settled it for a valuable consideration on his son's marriage, or he might have sold it to a third person, and put the money into his pocket; and in either of these ways he would have defeated the title of Miss Marnell. But supposing that is not the true view of the case, then there is another, which is clearly the only other view that can be taken of it, namely, that it is to be treated according to the view which Miss Marnell herself never could be heard by any statement of hers to deny, as a positive conveyance for 10,000 rupees, and that the sum of 1200 rupees, with interest upon that sum, was actually paid or allowed in consideration of the 10,000, leaving the difference as the balance. Then the law is perfectly clear that Mr. Money had a lien upon that estate as against Miss Marnell for the sum, of 7000 or 8000 rupees, and that was a debt which he might at any time have enforced against the estate, whenever he thought proper to do so.
Under those circumstances, there is abundant proof of kindness, which I dare say was very well returned by very substantial friendship and very kind acts, on the part of Mr. Money towards Miss Marnell and her brother, during their residence in India. The brother, Richard Marnell, dies and the parties come back at different periods to this country. The friendship appears to have been renewed after their return to this country; and Charles Marnell having money, the transaction giving rise to this bond takes place.
The transaction in which William Money became involved whilst his father was in Spain was a highly improper one on the part of Charles Marnell, who took a bond payable in two months from this youth, a lieutenant in a marching regiment, without a shilling beyond his pay, and also a warrant of attorney, upon which judgment was entered up. George Money was desirous to compromise the claim, and offered to pay £400, and was pressed to do so by his son, but this offer was rejected. During Charles Marnell's life, Louisa expressed herself in strong terms against the transaction, and she said to George Money, at Charles Marnell's bedside, just before his death, that if Charles had left her his property, William should never pay one farthing of that bond: it was a most unjust transaction on the part of Charles. The next day, 29th January 1843, Charles Marnell died, and Louisa was his legatee; and on the night of his death, after referring to the above conversation at his death-bed, she went with her servant to the room where the body was lying to search for the bond. She wrote a letter to William, desiring his presence at the funeral, and told her servant that she had set Willy's heart at rest about the bond; and when he arrived, she told him that she had found the bond (she had a copy of it), and he was safe, and he kissed and thanked her. About this time she declared to those about her that she had abandoned the debt, and that William should never pay a farthing. A few days after Charles, Marnell's death she applied to Manning, her attorney, to give her up the bond, as she wished to give it up to the "dear boy," as she had abandoned the debt. Manning evaded the request by saying that something might be got from Hooper, the co-obligor. Six months afterwards she renewed her application on the same grounds, but was again put off by Manning. She still declared that she had abandoned the debt. A few days after her first interview she proved her brother's will, but wholly omitted the bond from her account of assets, and when, as late as August 1845, she made an affidavit on payment of increased duty, she did not supply the omission. Her acts and declarations were consistent up to this period.
On the 9th March, 1843, Manning and Dalston wrote to George Money that the terms proposed in Charles Marnell's lifetime would be accepted by Miss Marnell, and claiming the £400 from him. George Money, on the next day, wrote an answer that his offer had been rejected, and he declined to renew it. This has been much relied upon as evidence that the debt was not abandoned; but the application was to the father, who was not bound, and not to the son, who was. There is a letter of the son to Miss Marnell, on the 11th of March, in which he tells her what had passed between him and his father about the attorney's letter, as a matter in which he had no concern, and in which he thanks her for a post-office order, (so that she was sending him some pocket-money), and he signs himself "Your loving boy, Willy." She had repeatedly declared that she had adopted him. It is distinctly proved that the application by the attorney was made without her knowledge, and that she disapproved of it, although upon one occasion she said it was ungenerous in George Money not to renew his offer, but that she well knew that the bond would never be enforced against his son. Upon two occasions she burned some papers, and said that it was the bond: no doubt upon one occasion she burned the copy in her possession. She told Dalston, in reply to a question, what she intended to do about the bond, that the debt was abandoned altogether. All this time William intended, when of ability, to pay Miss Marnell £300, which he considered his full share of the original liability, but which she said she never would receive.
At length, in 1844, William entered into an engagement to, marry, which he communicated to her by a letter, signed, as usual, "Your loving boy, Willy." She stated to her maid, to whom she had often spoken on the subject, as she constantly did to her other servants, that she had forgiven William his debt, and that he was about to be married to a rich lady. She had, previously to the marriage, conversations with George Money and with his, wife, and also with G. Henry Money, a brother of the Plaintiff, and all prove her declarations of abandonment of the debt. Some of the expressions have been much commented upon, but they are consistent with her previous declarations, and no step had been taken to follow up the demand by the attorneys, on George Money, in 1843. These declarations were communicated to, Lady Poore, and she swears that William did marry on the faith of the abandonment of the debt, and that it was upon the faith of that abandonment she consented to the first life-interest in the property of her daughter being settled upon William; and she would not have permitted such settlement to be executed if she had not confided in such abandonment. It appears that Lady Poore released her own life-interest in part of the settled funds. After the marriage, Louisa. Marnell lived near to the young people, and continued to state to, several witnesses that she had abandoned the debt.
We shall presently see what the legal effect is; but, as, a matter of fact, I state to your Lordships, without the possibility of any man disputing it, that the marriage took place, and that the young lady's property was settled upon this gentleman for his life upon the faith of the representations which were made by Louisa, Marnell, that she never would call for that bond. What was the consequence, if she, Miss Marnell, reserved the right to exercise the power to call for the money, and did exercise it? Why, that Miss Marnell would find the property of this young lady ready to be taken in execution, as well as the person of this young man, which was taken in execution (after all her pretended affection, throwing him into jail); she would find this young lady's property ready at her hands to pay her the debt which she had so often declared she had abandoned; which property, if she had not so declared, would never have been subject to be taken in execution for that debt. For of course Lady Poore would have taken care not to give the young man a life-interest in it, and the property would have been secured without the power of anticipation for the separate use of the young lady herself, which would not have left Miss Marnell the opportunity of destroying the settlement, and depriving these young people of the only fund they had to subsist upon, namely, the property of the wife. After all her representations, declarations, and protestations over the death-bed of her brother, to those who came in contact with her, that she had abandoned the bond, she suddenly, upon the fact of herself having married, called upon the Plaintiff to pay it. Your Lordships see she does marry at rather an advanced period of life, and then she carries this bond as a marriage portion to her husband, and her husband prosecutes the claim upon this bond, which was a debt relinquished, and gone, and abandoned, and, in fact, in the view of a Court of Equity, as I apprehend, beyond all power of dispute, given up.
If these facts are established, I consider that they raise an equity which is not to be resisted, according to the rules of equity, as I understand them.
Let us now see what took place with regard to, the Midnapore property. It is perfectly clear as anything ever was, that if he had settled that property on his son, one of two results would have followed, that is, that he either would have been able to set aside the conveyance of the Midnapore property, or he would have been entitled to come against that estate for the 7000 or 8000 rupees, the remainder of the debt, with interest; so that there was a real tangible interest in the father which remained in him, and which he could deal with, had she not relinquished the bond, and said, "Do not let there be any trouble of this sort; I do not mean to enforce it." He says, that they came to an agreement upon the matter. It is now argued that that, if anything, was a contract; but I will not so treat it, and I am not arguing that your Lordships are driven to treat it as a contract in the proper sense of the word. It is, however, a representation by one party of an intention to do an act which he refrains from doing in consideration of another party giving up a right to something else, and refraining from doing another act; and I will show your Lordships that that is perfectly good in law, and can be enforced without any legal contract at all.
Observe, that I use that only as a part of the res gestoe. I have shown to your Lordships, that the father had the actual power in his hands over Midnapore, either to the whole extent of the estate, or unquestionably to the extent of the lien upon it, for the 7000 or 8000 rupees, and the interest; so that he had something to give up, independent of affection and kindness, in consideration, for the something which she had to give up: He says, "I will not enforce the right against you, which I know I have, if you will not enforce your right against my son." That is a representation which your Lordships will presently see the effect of in point of law; but it is a representation that does not depend upon contract; it is not buying and selling, but dealing in representation between parties, a part of the res gestoe of the case up to the time of the marriage. I need not say that if you believe that fact, if you believe that there was such a representation, and that the father said, "If you will not come against my son for this debt, I will not impugn your title to the Midnapore property," no lawyer would deny that it would clearly be a perfectly valid transaction binding in a court of equity, and which might be enforced in a court of equity, if not of law.
But then it is said that this is not legally proved, because we have only one witness asserting it, and it is denied in the answer. Upon that, I beg leave to say, that I come to a different conclusion. The rule is, no doubt, perfectly clear, that you cannot receive the evidence of a single witness against the answer of the Defendant; and here, no doubt, we have the very clear and distinct evidence of Mr. George Money met by the solemn denial of Mrs. Jorden on her oath in the answer. So far the case seems to fall within the rule. But then the rule holds good only where there are no circumstances which go to corroborate the witness as against the answer; if there are any, the evidence of the witness does bear a weight which the answer does not, and you are entitled to use the evidence against the answer.
Are there any such circumstances here? In the first place, was or was not the father in a situation in which he could validly convey, if he had pleased, a portion, if not the whole, of the Midnapore property to his son? Is that the fact or not? Is it the law or not? I have already told your Lordships, that I believe it is, and I believe that my noble and learned Friends do not dispute that he had the right either to, the whole extent of the 10,000 rupees, or a very large portion of that sum. Supposing, therefore, that he had that right,, and that he never exercised it, and that he was most anxious to have the marriage of his son effected, and that it was necessary to the perfection of the marriage settlement that he should be discharged from the debt under the bond; and that this lady, to whom he had shown. so much kindness, had always declared that she had abandoned the debt; I ask your Lordships, whether those are not circumstances in the evidence to which you are bound to look, which do weigh (they weigh in my mind with the strongest possible force), against the answer of this lady, and which, therefore, give to, the evidence of the single witness, corroborated as it is by all these circumstances, a strength that does enable you, and ought to enable you, to come to, a decision, that this fact is proved as against the answer?
But independently of that, there is a very great difficulty connected with the answer in other respects. I should be exceedingly sorry to say a word which could reflect upon this lady, who may have been very much misled in what she did. She is an excitable person; all affection at one time, and all desire to have the money at another time; but I desire not to reflect upon her testimony. Her answer has been drawn up by the attorney from instructions, but no, one can read this evidence and this answer, as I have done, or take the same pains with it that I have taken, without arriving at the conviction, that the answer is not an answer to, the facts, according to those facts as they existed.
My noble and learned Friend has relied upon her answer as to Midnapore as a test of her veracity, but the truth is, that with respect to Midnapore, there was no dispute about it; but I do not consider it at all a just test of her accuracy to take her answer as to Midnapore, for this reason: I do not find it anywhere stated in the answer, that she had paid any portion of the purchase-money of 10,000 rupees. She evades making such a statement in every sentence. She says it is expressed to be paid, but she takes care never to pledge her oath to the question, whether it was paid or not. We know it was not paid. Why did not she say what the real fact was? She knew that she had never paid a shilling, and yet in page after page, just as you come to the point where you expect her to tell you whether it was paid or not, she takes care to evade it. Then, my Lords, if her evidence is to go upon her answer, I contrast it, as Mr. Roundell Palmer did with great force, with the evidence of the other witnesses upon the different facts; and I am compelled to say that a state of circumstances is proved by a crowd of witnesses, being witnesses of truth, which, beyond all doubt, is utterly inconsistent with the answer. But then, if the answer is to stand as against a particular witness, or a particular fact, which is one out of twenty, what is to prevent me from trying the worth of the answer as regards nineteen other questions? I have a right to apply that test. Suppose that this question was now being tried at law; suppose that under the new Law of Evidence, framed with great care by my noble and learned Friend, the parties themselves were examined, if in nineteen out of twenty questions she had denied a number of facts, every one of which had been proved by witnesses, to your satisfaction, what credit would you give to, her answer to the twentieth question, when a disinterested witness came forward and swore like the rest to something contrary to what she had said I place, therefore, great reliance in this case on this circumstance, that her general testimony in her answer is directly at variance, as I can show it to be, with the facts, as clearly proved in the case. Indeed, this has already been done, and it would be wasting your Lordships' time to go through it again. I could show again, if it were necessary, that her testimony is not a true and correct statement of the facts, but that it is contradicted by a great many witnesses in this case. Therefore without any contest as to the evidence, we may assume that there was an undertaking by the one party not to pursue the right as against Midnapore, which was met by an undertaking by the other not to pursue the right upon the bond. That is a very important circumstance, but it is not a necessary circumstance, for the marriage of William was itself a sufficient consideration. If, without having a shilling of interest in Midnapore, if Midnapore had never existed, she had said, previous to the marriage, intending the parties to believe her, and to act upon that belief, "I will never enforce this bond," I apprehend the law to be that she never could enforce it afterwards.
As soon as her own marriage had taken place, she and her husband set about endeavouring to enforce the bond. Now there is some evidence to which I must call your Lordships' attention, as very great stress is laid upon it, a stress I cannot persuade myself it is entitled to. It is the evidence of Mr. Dalston, the attorney, which has been already referred to. It arose in this way, that they (Mr. Dalston and Mrs. Jorden), meaning, as I understand, to revive the judgment, they were anxious to see whether William Money would allow it to be revived, and he proposed to have a meeting, and Mr. Dalston met William Money at his chambers, where a statement was made to him. Mr. Dalston tells you that he knew nothing of the facts stated by Mr. Money. He knew nothing of the facts. Why, he had travelled through the case from the beginning to the end. He was the attorney who witnessed the bond; he was the attorney who was to manage the delicate transaction, or rather the indelicate transaction, with regard to Mr. Hooper; he was so according to the paper. I should be very sorry to misrepresent him. The words of the paper are, "If Hooper refuses to give a new security, Marnell will follow Dalston's judgment as to whether it will be more advisible at that time to destroy Hooper's certificate, by the documents proving his gambling, or to wait till the death of his father before pressing him." I do not say at all that that fixes Mr. Dalston; I am only saying that the parties were looking to him throughout, and it shows that they considered that he would give them advice whether they were to take the course so improperly suggested in that paper; but what I do say is this, that Mr. Dalston, from the beginning to the end of this transaction, was the attorney; that he cannot separate himself from Mr. Manning; that the application on the former occasion when George Money refused to pay, and stated the reason why he refused to pay, was signed "Manning and Dalston," and therefore, if there could be any ground for the one separating himself from the other, they did not separate themselves, for those letters were written in the name of the firm. And I say that when it is proved by all, beyond the power of dispute, that Louisa Marnell went to Manning and Dalston, and saw Manning on two different occasions, separated from each other by the distance of six months' time, and demanded from him, as far as she could, the bond which he ought to have delivered up to her, and which, if he had delivered up as he ought to have done, and was bound to do, it would have been destroyed, and there would have been no litigation in this case; and when he advised her to put it off, saying, "We may yet recover something from Hooper;" and when, by and by, he writes the letter to which I have referred, which was written without her concurrence, which is not attempted to be proved to have been by her direction, and which she disclaimed to the witnesses (although at one time she said it was a shabby thing of George Money, the father, not to pay her the £400), I say that the whole of this proves that Mr. Dalston, in point of law, must be considered as knowing everything which had taken place in regard to this bond, from the time that he signed it as a witness, down to the moment when the conversation took place at the chambers with William Money, as soon as this lady was married, two or three years afterwards.
Not meaning to make any imputation at all upon Mr. Dalston, his evidence is open to this very just observation, that when an attorney goes to an adverse party with a view to a compromise, or to an action, you must always look with very great care at his evidence of what then occurred. There must be such a disposition in an attorney who has brought an action, to maintain it, that it is always very desirable that the attorney should abstain as much as possible from talking to a person when he means afterwards to swear to the conversation, and upon that conversation to found a right which otherwise might not be found to exist.
With these observations as to the weight of the evidence, I will state what he says.
I confess that this evidence certainly very much astonishes me; it only shows how frail the memory of man is. Mr. Dalston says, that is the first time that he ever heard of these circumstances. Why, of course he knew all about the partnership transaction, as it was called. I say that he knew it, for this reason, that in point of fact he was a witness to that bond; he prepared it, and the bond was in lieu of the money which had been embarked in that speculation. And it is too much to ask your Lordships to believe that he could have prepared that bond for the young man, describing himself, too, as the attesting party, the young man being a lieutenant in a marching regiment, and having not a farthing, except his pay, without inquiring why the money was demanded, why a bond was obtained from him and this Mr. Hooper, and a judgment from him alone; so young a man as this, just then about to embark in the Indian service. The solicitor must have asked, what are the circumstances? What money has been passing? All must have been told to the solicitor; he was the person who prepared the bond, the partner of Manning, and consulted him on several occasions. When Mr. Manning refused to deliver the bond to this lady in order that she might give it up to this young man, refused twice and evaded it afterwards, and then wrote a letter without her concurrence and direction in order to obtain the £400 from the father -an attempt which did not succeed- can you believe that that must not have been communicated to Mr. Dalston? And even if it had not been communicated to Mr. Dalston, the letters coming from "Manning and Dalston" were in law binding on them as a partnership firm, and neither of them can withdraw from being fixed with the knowledge of that which was known either to the one or to the other. Well, then, I say I do not mean to press upon this gentleman the imputation that his veracity is to be impeached. I have no doubt that he meant to speak the truth, but he has forgotten all about it. But if his partner. Mr. Manning, had been examined, or if he had gone to the meeting, he would have been perfectly acquainted with the matter, and therefore if Dalston had inquired of his partner before he went to this meeting, he himself would have known all that he was bound to know.
But that conversation, which appears to me to be perfectly consistent with the case of the Plaintiff, is thought to bear against him. It is said, that if it had been supposed that there had been an agreement with Mr. George Money, the answer of the young man would have been, "Why, you have already given it up." I think his answer was a true one; but I think it shows to your Lordships that Midnapore was only one of the circumstances to occasion the abandonment of the bond; that she gave it up independently of Midnapore; but she did more than that; she gave it up for the consideration of Midnapore, though she had given it up before Midnapore was mentioned. The whole result of this evidence is not to be arrived at simply by weighing syllable by syllable and looking at sentences; but let anybody, after looking at all the evidence to which I have called your attention, just say, as a jury, aye or no, was there a clear explicit abandonment by this lady of this bond of £1200? If that question was submitted to a jury, I am myself confident that the result would be, that any jury to whom this question was put would deliver a verdict in favour of the Plaintiff.
Having so far drawn your Lordships' attention to the facts of the case, I ask what is the effect of all this? I think I have shown your Lordships, from the evidence and from the facts, that the debt was abandoned, as far as it could be abandoned, both from affection and from the circumstances connected with the two families, for a valid consideration, namely, the intended marriage; and for a further valuable consideration (if that were necessary), namely, the abandonment of, or the nonexecution of, the right to defeat the gift of the Midnapore property. Then, what is the effect of that in point of law? As I understand the way in which it is put by my noble and learned Friend on the Woolsack, it is this, and I am trying to see whether my view of it can be considered as in any way an answer to it. My noble and learned Friend has made use of a form of expression that the whole question here turns on this, that in point of law, in order to avail yourself of any statement in a case like the present, it must be a misrepresentation of the facts, and not a declaration of what you intend to do or intend to omit to do. It is my misfortune not to agree in that view of the matter. I do not consider that that can be the case. I think it is utterly immaterial whether it is 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 whom you thereby induced to deal in marriage or in purchase, or in anything of that sort, upon the faith of that representation. It is admitted that if she had said, "I have cancelled the bond, or have destroyed it, or burnt it," and she had not done so, then the Plaintiff must necessarily have succeeded in a court of equity; but it is said that if she states "I have got the bond, but you may safely rely upon it that I never intend to use it," that is not a representation of a fact, but only the declaration of an intention.
What is the principle upon which the cases have proceeded? The principle is simply this, that you shall not be allowed, either in a court of equity or in a court of law, to misrepresent the state of circumstances in which property exists, so as to deceive parties and induce them to rely upon your statement, and to deal with matters of the utmost importance; for example, as in this case, with a marriage settlement, or in the purchase of property, which is a very common case. If, therefore, I either say that I have abandoned a security, or that I never will enforce that security, and a third party is induced to enter into marriage upon the faith of that statement, although it may have been unwise (as in this case it was) that the party did not insist upon a release in order to make the thing quite regular and right, yet surely it is not meant to be argued, -it is not, I think, arguable,- that that man can afterwards enforce that right after an act has been done upon the faith of that declaration; an act which cannot be undone as to the party whom he has induced so to act. The whole current of authorities is the other way.
Take it even on the Midnapore property, and let us see how it stands. George Money says, "You have got a bond against my son; it may at this moment not be binding, but he is about to be married; now therefore come to a determination, for the settlement will depend upon your determination. I have a right to affect your title, or to load your title to Midnapore with a heavy liability, and I can do that in favour of my son. I will not enforce my right if you choose not to enforce yours; that is agreed to, and that is a mutual promise." Can either party retire from that promise?
Now, take the case which was decided a century and a half ago, and has been several times decided since, and is not disputed in law, namely, where a man makes his will and gives to a devisee all his property; he then tells the devisee that he is about to alter his will because he wants to give legacies to other persons, and the devisee says to him (there being nothing in writing), "If you will abstain from revoking your will, I promise you that the legacies shall be paid;" and the man abstains from revoking his will. It is perfectly settled law, that in such a case the devisee having made the promise is bound by it. Yet that is not a misrepresentation of a fact; it is a declaration of an intention and a promise to do a thing in consequence of which a threat is not acted on, and a court of equity has over and over again enforced the right thereby created, and nobody disputes the authority to enforce it. Now, how is that distinguishable from this case? Mr. Money says, "If you will not enforce that bond, I will not enforce my right; I will not, if you will not; if you will, I will." In the other ease, the testator says, "If you will pay the legacies which I wish to give, there is no need of a codicil." In either case it rests on a mere promise. The Statute of Frauds, about which something has been said, does not operate as any bar to the enforcement of the right by those who would have been legatees of a testator against the man who became devisee under the circumstances I have stated; and as a lawyer I am at a loss to distinguish that case from this in point of principle.
As regards the authorities upon this subject, the question is, whether I can find a case with the facts just the same as those of this case? My noble and learned Friend said, that the cases which he referred to were cases where there was a misrepresentation of a fact, and that therefore they do not form a precedent for this case. But the question is, what is the principle involved in these cases? Certainly I should recommend your Lordships to consider that principle as extending to this case. Let us hear how the principle is put in the case of Motefiori v. Montefiori (1 Sir W. Bl. 363); Lord Mansfield there lays down the principle thus: "The law is, that where upon proposals of marriage third persons represent anything material in a light different from the truth, even though it be by collusion with the husband, they shall be bound to make good the thing in the manner in which they represented it. It shall be as represented to be." And the other Judges concurred. Now it may be said, again, that that is representing something in a light different from the truth. Is it not different from the truth to represent that you have abandoned a thing; that you never will attempt to, enforce it; and then subsequently to come forward and say you have not abandoned it, and never did; and that you are going to enforce the right, even to the extreme of throwing into jail the man who is so much the object of your affection? I can no doubt distinguish, in point of fact, the one case from the other, but not in point of principle. The principle is the same in both. She is asked, "Have you abandoned it?" (an abandonment is perfectly good as a consideration for marriage.) She now says that she had not abandoned it, and never did. Then she formerly stated that as a fact which was a misrepresentation, for that she said she had abandoned it, is a fact which is proved beyond all doubt. Therefore if a misrepresentation of fact were necessary, she has misrepresented a fact, for she stated over and over again, not only that she intended to abandon it, but that she had abandoned it; and now she says that she had not abandoned, and never said she had abandoned it.
Independently of that, your Lordships are asked to consider that a representation of an intention is not a binding act, and that you cannot misrepresent what you intend to do. But if you declare your intention with reference, for example, to a marriage, not to enforce a given right, and the marriage takes place on that declaration, I submit that, in point of law, that is a binding undertaking.
In the case of Neville v. Wilkinson, (1 Bro. C.C. 543), Lord Thurlow refers to the language, and adopts, after some hesitation, the very rule of Lord Mansfield, which goes to the real principle of the case.
There is a case in Viner (Vin. Ab. Tit. Contract and Agreement, 523, pl. 40) of this nature. "The bill here was to have a lease according to the Defendant's promise, Plaintiff having laid out money in the premises; and the Defendant insists on the statute, there being no agreement in writing, nor any certain terms agreed upon, and says what Plaintiff laid out was not on lasting improvements, but admits Plaintiff built a stable, which cost him about £10. It was proved that Defendant told the Plaintiff his word was as good as his bond, and promised the Plaintiff a lease when he should have renewed his own from his landlord. The Lord Chancellor said that the Defendant is guilty of a fraud, and ought to be punished for it, and so decreed a lease to the Plaintiff; though the terms were uncertain, it is in the Plaintiff's election for what time he will hold it, and he doth elect to, hold during the Defendant's term, at the old rent, and Plaintiff to pay costs." Now, to be sure no case was ever carried further than that. The equity was of a trifling nature, and the terms not clear, and a court of equity never undertakes to perform, or to decree, that which cannot be ascertained; but the Defendant had promised and agreed to put the Plaintiff in possession of a lease, and declared that " his word was as good as his bond," and the Lord Chancellor held that he was bound by this agreement, in connection with the act done (and here the act is much stronger than that which took place there), and that the Statute of Frauds, though pleaded, could not operate in bar.
There is a case before Lord Thurlow, of Tawney v. Crowther (3 Bro. C. C. 318), in which there was an agreement drawn up and not signed, and one party who refused to execute the agreement swore that he refused to sign it because they could not come ultimately to terms; the father of the other party swore that they had come to terms, and there were two writings produced of the man promising, and the phrase was, that "his word was as good as his bond," just the same as the words in the last case. The Lord Chancellor Thurlow there ultimately held that the man was bound, although he had not signed the agreement, and there were these circumstances: there was oath against oath, and the answer; but the Lord Chancellor makes this observation: he says, "It has been argued that he declined to sign it. If he had said he would never sign it, he could not have been bound; but if he said he never would sign it, but would make it as good as if he did, it would be a promise to perform it; if he said he never would sign it, because he would not hamper himself by an agreement, it would be too perverse to be admitted; but here I am of opinion that the agreement must be performed."
There is another case of Cookes v. Mascall (2 Vern. 200): in that case it was an oath against the answer, which it was not in the former case. There was an agreement for marriage, or proposals, and it appeared that the proposals seemed to be approved, because the father of the intended husband went with an attorney to the father of the intended wife, and the attorney drew an agreement to be mutually signed, but before it was ready for execution, as Mascall, who was the father of the lady, swore positively, they disagreed, and that he refused to proceed and never signed it. The son's father swore that the articles were read over and agreed to, and that it was arranged that they should meet another time to execute them; so that there was an oath against the answer. The son was permitted to go to Mascall's house, and in December the daughter was married, with her father's approbation. In that case the agreement was enforced against her father. Here was an agreement therefore. The parties differed about whether the agreement was ever actually concluded, and there was no witness; but as the father afterwards received the intended son-in-law, and witnessed the marriage, he was held bound by these terms which he had never signed, amounting to a promise to make a settlement, and he was compelled to perform it. That proves, therefore, that the Statute of Frauds in such a case will have no operation, but that the promise to do an act, followed by marriage, which cannot be undone, is equivalent to a binding agreement to do that act.
There are other cases to the same effect, but I will just refer you to the case of Pickard v. Sears (6 Ad. and El. 469-474), where Lord Denman says, "But the rule of law is clear that where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as 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; and the Plaintiff in this case might have parted with his interest in the property by verbal gift or sale, without any of those formalities that throw technical obstacles in the way of legal evidence." Now, that is exactly this case; for this lady having represented that she had abandoned the bond and would never enforce it against this gentleman, who thereupon enters into a marriage treaty, a settlement following upon that, it would be impossible for her, consistently with the principle of that case, afterwards to say that she had not abandoned the bond, but that she would enforce it against him.
That is followed by the case of Gregg v. Wells (10 Ad. and El. 90, 97). The Chief Justice there says, referring to Pickard v. Sears, that "The principle of that case may be stated even more broadly than it is there laid down. A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving." So that, if this lady had stood by, had made no declaration, but knowing that they believed from the former declaration that that bond never would be enforced, and that, acting upon it, they had made a settlement upon that young man for life, and she had afterwards attempted to enforce the payment of her bond as against that property, that declaration would be entirely good and perfect as an answer to such claim. That was followed by a similar case in the Exchequer, Freeman v. Cooke (2 Exch. 654).
I submit, therefore, to your Lordships, that in point of law this case clearly comes within the scope of those authorities; and with great submission to my noble and learned Friends, with whom it is my misfortune to differ, my apprehension is, that the rule of law clearly extends to this case, where the facts are made out that she did abandon the bond; that she abandoned it for a pecuniary consideration; that the marriage followed upon her declaration, that the settlement was made and the property vested in this gentleman in consequence of it; and that he never would have become possessed of the property which was settled upon him so as to make it available for paying the debt, if they had not trusted to that declaration of hers, that the bond was abandoned. Having promised that she would not enforce it, she is, in my opinion, bound by that promise. The Statute of Frauds does not extend to this case.
My Lords, looking at the whole of the circumstances, from the beginning of the transaction down to the time of her own marriage, I should, but for the opinions expressed by my noble and learned Friends, have thought it a clear case, both in point of law and in point of evidence. I regret that my noble and learned Friends, who I believe have never doubted that the claim is inconsistent with the justice of the case, should differ with me upon the evidence and on the law.
Having, for the reasons I have stated, come to the conclusion that this appeal ought to be dismissed with costs, I should, were it not for the different opinion of my noble and learned Friends, have advised your Lordships, upon the weight of evidence as to the facts and upon the rule of law, as I understand it, to adopt the same view. As it is, the decision will be the other way.
The Lord Chancellor: The case will go back to the Court of Chancery, with a declaration that the Bill ought to have been dismissed without costs.
Mr. Bolt prayed for repayment of the costs already paid.
The Lord Chancellor: We refer it back to the Court to do what is right, and to take into consideration the fact that the Bill ought to have been dismissed without costs.