case John roberts Esq and catharine his wife plaintiff david roberts Esq the  son of the plaintiff roberts defendant sir Joseph Jekyll master of the roll a  treat for the marriage of his son and in the settlement on the son there be a  power reserve to the father to jointure any wife who he shall marry in pound  per annum pay pound to the son the father treat about marry a second wife the  son agree with the second wife relation to release the pound and do release it  but take a private bind from the father for the payment of this pound equity  will not set aside this bind because it will be injurious to the first  marriage which be prior in time be to be prefer the bill be to be relieve  against a underhand bind date the saint of February gain by the defendant  David Robert the son from the plaintiff his father peer William er p in the  penalty of pound for the payment of pound within fourteen day after the date  of the bind the equity be that the bind be obtain by the defendant the son  from the plaintiff John Robert the father in fraud of a agreement make on the  marriage of the plaintiff John Robert the father with the other plaintiff  Catherine his second wife and without the privity of her or any of her  relation the plaintiff John roberts first wife who be the defendant mother be  a considerable heiress and die leave several child by the plaintiff the  defendant David Robert peer William be the second son for who the plaintiff  his father buy a commission of lieutenancy in a company of dragoon after which  the old son die the defendant David Robert the son intermarry with the sister  of Mr meller late one of the master of the court of chancery who have a  portion of pound and inter all the plaintiff the father who be tenant by the  courtesy of all his wife estate join in settle a good part of this estate on  his son the defendant David Robert in possession and on his wife meller the  residue of the estate be limit to John Robert the father for life remainder to  David Robert the son with a power reserve to John Robert the father to settle  pound per annum part of the premise limit to he for life upon any wife which  the plaintiff Robert the father shall marry he the say Robert the father pay  or secure to the good like of the defendant Robert the son pound the power in  the settlement be pen in a strict manner by way of condition precedent  videlicet a proviso that in case the plaintiff Robert the father shall pay to  the defendant Robert the son or to his good like secure to the say Robert the  son pound it shall be lawful for Robert the father to limit to any wife that  he shall marry land of the value of pound per annum there be also a power for  the defendant Robert the son to limit land of pound per annum to any wife that  the son shall thereafter marry afterward the plaintiff Robert the father enter  into a treaty of marriage with the plaintiff Catharine Barker the sister of  George Barker of Chiswick Esq who have pound portion and thereupon the  plaintiff Robert the father propose to settle these premise of pound per annum  upon the say Catharine his intend wife but then it appear that peer William  the plaintiff Robert the father be to pay pound to his son David Robert upon  his the father make this jointure and that the payment thereof will very much  straighten the plaintiff Robert the father unless this pound be release the  say plaintiff Catherine and her relation will not consent to the marriage upon  which the plaintiff Robert the father apply to his son and inform he where the  marriage treaty stick namely at the father pay this pound to the son and that  it can not proceed unless the son will release the same the defendant Robert  the son do agree to release this pound in consequence whereof he write several  letter to Robert the father intimate that he will release the son but it do  not appear that the son wife or any of her relation be consent to such release  however the plaintiff the father introduce his son into Mr barker company on  which occasion the son express himself please with the intend match but not  long after the defendant Robert the son begin to recede from his promise and  insist with his father that if he the son release this pound to the father  then the father shall give he the son a bind for the payment thereof within a  short time after the father marriage to which the father be very much set upon  this second marriage do at length consent view to give a bind to the son for  the payment of the pound upon the son give a release to the father and the  bind which the father be to give to the son be to pay the pound to the son  within a fortnight after the father marriage but this agreement for the father  give the say bind to the son be without the privity of the say Catherine  Barker the intend wife or any of her relation peer William thereupon a release  be prepare for this purpose which Robert the son do execute and the father  private give his bind for the payment of pound to his son but the release of  the son not be think effectual by the friend of the say Catherine Barker  another lease be prepare for he to execute which accord Robert the son do  execute for this pound but a day or two before the marriage and the father do  about the same time or soon after execute a new bind to the son but this bind  as the former be give by Robert the father without the privity of Catherine  his intend wife or any of her relation the marriage between Robert the father  and the say Catherine take effect and the portion of pound be pay afterward  the defendant Robert the son sue his father peer William er p on this bind for  pound upon which the father Robert bring a bill in equity against his son and  on motion before the master of the roll have a injunction on the merit and now  between the seal after Trinity term the cause come on to be hear at the roll  when on behalf of the plaintiff it be insist that it be plain this bind for  the pound in question be obtain from the plaintiff Robert the father without  the privity of the plaintiff Catherine the wife or any of her relation that it  seem as plain that neither Catherine the wife nor any of her relation will  have consent to the match have they know of this underhand bind be give by the  plaintiff Robert the father to the defendant his son which appear still more  evident by the great caution make use of by the peer William plaintiff  Catherine and her relation in except to the first release execute by the  defendant Robert as not sufficient and effectual and in insist upon another  release which be think more effectual and have be execute by the defendant  Robert the son that whenever any of these underhand agreement on marriage come  in judgement the court constant declare a abhorrence of they as be in fraud of  the marriage and general tend to make the marriage unhappy and that every  thing which have or seem likely to have those effect ought high to be  discourage that for this reason equity be careful that the open and public  contract make upon the marriage shall take place and will not suffer that to  be infringe by any clandestine and private agreement whatever nay so odious in  a court of and underhand deal as to entitle to relief even the husband himself  though part to the fraud and consent to the agreement but in the principal  case the bind give by the husband for the payment of the money do in  consequence affect the wife pound be a considerable sum of money for which  when the husband shall be call upon he must be disable thereby from maintain  his wife at least in so comfortable a manner as otherwise he may and probable  will have do and therefore it be proper the wife shall be as here she be a  coplaintiff in order to contest and set aside the bind that it be true the  bind in question be only for pound but it may have be for pound and if the  present bind for pound be allow to be good by the same reason a bind for pound  have be good also which must utter have incapacitate the plaintiff Robert from  maintain his peer William wife who must in such case have go back to and be a  clog upon her relation although she have bring so considerable a portion as  pound it be admit to be in proof that the plaintiff Robert the father do in  all outward appearance execute this bind free but this be not at all material  for still it be a clandestine bind give without the privity of the wife or her  relation and will as be before observe if discover in all probability have  prevent the marriage that innumerable precedent may be allege here the husband  not only be passive in consent to the underhand agreement but have also be  active in encourage it and yet have be relieve against his own act fraud and  contrivance be doubtless be do in favour to the wife and to the end her  husband may not thereby be disable from the better maintain her who in the  present case be not pretend to have know any thing of the bind but to have be  entire innocent and free from the least imputation of fraud and as to the  jointure make upon the wife in this case it be say to be a hard bargain be but  a jointure of pound per annum for pound portion whereas it be usual to settle  pound per annum for every pound and this pound per annum lie at a great  distance in Wales without any the least provision for the child of the  marriage that with regard to the father power reserve to he to make a jointure  it be observable he be make to pay peer William pound for it for a power to  limit only a estate for life and this in reversion too after another life so  that if Robert the father shall happen to survive his wife it will have be pay  for nothing that it be at the rate of five year purchase which be hold he to  rigorous term especial when at the same time the son be entrust with a power  of make double that jointure be allow to make a jointure of per annum without  pay one farthing for it it be admit this be a bind give by the father to the  son not by the son to the father so that the usual argument of its have be  give by compulsion or coercion may seem not applicable in this case but still  the fraud be not the less upon the plaintiff Catherine who be entire innocent  and keep in ignorance of it peer William er p the wife be equal a sufferer and  her relation impose on to as great a degree as if she have be the wife of the  son not of the father and as to authority they be very strong as in vern  redmans case so vern gale v Lindo in which case the wife as well as the  husband be sharing in sin and yet relieve the same in Turton v Benson vern see  vol where there be a note refer to this case wherefore it be pray that as the  court former order a injunction till the hear so they will now grant a  perpetual injunction on the other side it be urge that in the principal case  the plaintiff Robert the father be not only party to what be here call the  fraud in give this underhand bind for the payment of the pound but that upon  the defendant Robert the son marriage when he reserve to himself a power to  make a jointure of pound to any wife who he shall thereafter marry he himself  make a private agreement with his son that the latter shall release this pound  to he and the very bill set forth that the son the peer William defendant  Robert at the time when he make his marriage settlement do declare before  several person that he will not insist upon such claim nor expect payment of  the pound so that all that can be allege in favour of the second wife of the  plaintiff Robert the father may likewise be say on behalf of the wife of the  defendant Robert the son and if it shall be insist to be injurious to the  plaintiff Catherine the second wife of the father that this private agreement  shall take place it must be allow to be no less prejudicial to the wife of the  son that the private underhand agreement for the release or not insist on the  payment of the pound on the father make a jointure on the second wife shall  hold good and it be plain that the agreement on the marriage of the son that  the father if he settle a jointure on a second wife shall pay pound be make on  a valuable consideration and with a view to prevent the father marry again  then if the plaintiff Robert the father have not a undoubted equity on his  side and the law shall be in favour of the defendant Robert the son as clear  it be the bind be good at law the son bind must prevail that as it appear from  the son settlement that this provision be make at the instance of the first  wife friend that if the father marry again he shall on his a second wife pay  pound to the son the second wife or her apply to the relation and trustee  under the first settlement notice of this intend release of the pound they be  in some measure in equity interest therein peer William here the court propose  it to the plaintiff counsel whether they have know or can cite any precedent  of a underhand agreement to give a bind on a marriage be set aside which when  do will be injurious to a former agreement make upon a valuable consideration  to which it be answer that whatever agreement or promise the son may make to  the father of his not insist to be pay this pound on the father second  marriage yet it do not appear that the father ever require a bind or covenant  from the son to oblige he to it and as to any verbal agreement to that purpose  suppose there be any such the son must know it will not be bind and it will be  hard that this agreement for the father give a bind to pay this pound to the  son which be plain a underhand bind shall be bind to the prejudice of the  father second wife who bring a good portion and be at least herself innocent  of any fraud whatever imputation of that kind may lie on the husband master of  the roll it be most true that equity do abhor all underhand agreement in case  of marriage and perhaps this may be the only instance in equity where a person  though sharing in sin shall yet be allow to avoid his own act marriage ought  to be encourage to which end the open and public agreement on marriage treaty  shall be support and make good it be not usual in case of this nature for the  wife to be make a coplaintiff with the husband in order to avoid the agreement  but the husband have be relieve on a bill bring by he alone and therefore I do  not think that the wife join in this bill at all alter peer William the case  neither do it make any difference that the father seek here to be relieve  against the bind No evidence have be give of his have make use of his paternal  authority and the father be as much at liberty to marry again as the son but  what I take to be material be that whatever argument can be make use of in  favour of the plaintiff Catherine the father second wife or of her husband to  prove peer William er p that the father ought to be discharge of the bind for  payment of the pound the very same argument may be urge on behalf of the son  and his wife to prove that it ought to be pay thus suppose it to be a hardship  upon the father second wife that her husband shall be force to pay this pound  in breach of the public and open agreement make by the son be it not equal a  hardship upon the son wife and as much a violation of the open and fair  agreement make on her marriage that the pound shall not be pay upon the father  make a second jointure the consequence of which will be that as the agreement  on the son marriage be the first it ought to have the preference who prior be  in tempore drinking be in lure further on the face of the bill it be allege  that the son on his marriage and when his father agree to pay the pound on his  make a jointure to a second wife engage not to insist on or expect the payment  thereof which show it be intend as a fraud upon the son wife or her relation  and the father agree to pay the pound on such contingency may be some  inducement to the son wife and her relation to come into the match but if this  have not be charge in the bill it still appear on the merit that the defendant  Robert the son and his wife be purchaser of the pound in peer William case of  the father marry again and make such jointure as he have do wherefore since  the payment of this pound by Robert the father may as much contribute to the  comfortable subsistence of Robertsthe son and his wife as the nonpayment of it  may conduce to the comfortable live of the father and his wife and as by mean  of this land Robert the son have the law on his side I think the bind must be  pay and the only relief I can give the father be to award a perpetual  injunction upon payment of principal interest and cost Reg lib b fol in this  case the master of the roll observe that the practice of the court in relieve  against all marriagebrocage bind plain show it to be their opinion that ever  that contract relate to marriage ought to be free and open and he take notice  that in the case of potter v keen can in parliament et vide law v law post  where there be a bind to pay money for procure a marriage the Lord summer  decree in favour of the bind conceive that as the procure a marriage be a good  consideration at law for a assumpsit so provide the bind be in a reasonable  sum the same may be a good consideration for a bind in equity but that the  lord with great justice reverse the Lord summer decree for that it will be of  dangerous consequence to allow of any such bind as tend to introduce many  improvident marriage so Arundel v Trevillian Chan Rep Drury v hook vern smith  V Bruning vern Stribblehill v Brett vern smith v Aykwell atk coal v Gibson Ves  which be case of direct marriage brocage and in the case of Shirley v Martin  in the exchequer on that Nov the court be of opinion that contract of this  nature be avoid on reason of public inconvenience will not admit of subsequent  confirmation by the party see this case state in ba and be so any private  agreement or treaty infringe the open and public agreement or marriage be  consider as fraudulent Peyton v Bladwell vern Redman v Redman vern gale v  Lindo vern Lamlee v Hanman vern keat v Allen vern Webber v farmer bro PC and  Edward bro p c Morrison v Arbuthnot bro c c note Pitcairne v Ogbourne Ves in  Neville v Wilkinson before Lord Thurlow in November his lordship say he will  not lie it down as a rule that fraud in case of this nature must be upon a  article express contract for but any representation mislead the party contract  on the subject of the contract be within the principle of the other case and  his lordship relieve by injunction against a bind enter into by the plaintiff  to the defendant before the plaintiff treaty of marriage the defendant have by  the plaintiff desire upon the occasion of such treaty misrepresent to the wife  father the amount of the plaintiff debt and particular conceal from he the  bind in question and this relief be give although it do not appear that there  be any actual stipulation on the part of the wife father in respect of the  amount of the plaintiff debt bro c c S c vide etian key v Bradshaw vern duke  of Hamilton v Lord Mohun ante vol Woodhouse v Shepley atk Blanchet v foster  Ves Montefiori v Montefiori Bla Rep Jackson v Duchaire t r Scott v Scott   ex  part gardener Ves palmer v neave Ves peer William er p it be a rule in case of  fraud on marriage that although the husband be a party to such fraud yet his  interest be not to be affect where there be a wife or child wonder will also  be affect Thompson v Harrison Cox peer William de term S michaelis