case Lockyer ux plaintiff Simpson and broom defendant at the roll a man and  woman about to marry surrender their copyhold to the use of they two and the  survivor the man die before marriage the woman enter on his land and after  year quiet enjoyment be decree to surrender to his heir Mr attorneygeneral for  the plaintiff the plaintiff file their bill for a legacy of pound give to mrs  Lockyer by the will of Mr Tolson and the executor insist by their answer to  deduct out of this legacy the value of a diamond necklace and other present  make to mrs Lockyer by the testator to the amount of pound Mr Tolson be relate  to the young lady and intimate in the family from the time she be two year of  age and often declare that from that time he have give her a legacy in every  will he make and a marriage be conclude between they and he die on the very  day that be fix for the wedding no condition be annex to these present but  they be a absolute free gift and wear by the lady in the lifetime of Mr Tolson  and the marriage break off by the act of God not by the default of the lady or  her parent and if the executor have a right to these present they may bring  their action for they but can set they off in this court by way of discount Mr  solicitor general for the defendant if these present do not belong to the  plaintiff but be to be consider as part of the personal estate of Mr Tolson  this mosely report er p court will not decree the executor to pay the legacy  unless the plaintiff give up these asset or allow for they though the testator  use no conditional word when he make these present they be not give to the  plaintiff absolute but the nature of the gift must be collect from the time  and other circumstance the treaty of marriage be then depend and every thing  prepare two day be set for the wedding and these present be make after the  first day the plaintiff portion of pound which be pay and secure to the  testator have be repay and the security deliver up by his executor who think  it as reasonable that these jewel shall be restore likewise because they be  present in view and contemplation of marriage the plaintiff allow that if the  lady have refuse to marry the present ought to be return but if the marriage  do not take effect whether it arise from her default or from accident if the  party who make the present be in no default his representative will be mosely  report entitle to they vern Hammond versus Hicks a man and woman be about to  marry surrender their respective copyhold estate to the use of they two and  the survivor the man die before marriage and the woman enter on his land and  after thirty year quiet enjoyment she be decree to surrender to the heir and  account for the profit as be a trust for the husband and his heir till the  marriage take effect the difference between this case and we be in our favour  if the marriage in that case have be solemnized and the wife have survive her  husband he can not have alien the land from her but if the marriage in this  case have take effect these present will immediate have be in the husband  power and if the wife survive he they will have be heir only in case he have  not dispose of they Mr lutwych Lord north quote this case in the case of  Beaumont versus Mod a person of quality intend a marriage with a lady present  her with a jewel and the marriage not take effect he bring a action of detinue  against her and she take it to be a gift offer to wage her law but the court  be of opinion that the property be not change by this gift be to a special  intent and therefore will not admit her to do it if the man indeed break off  the match it be a injury to the lady and he be entitle to no relief but death  be a accident this court have always a regard to Mr attorneygeneral reply the  defendant say the particular nature of this gift make it as much conditional  as if the present have be give express on condition but they be give to the  plaintiff absolute and out of kindness and not bare on the account of the  marriage and if the testator have be ask whether the lady be to restore they  in case he die before the marriage he will have think himself affront by the  question and how can the court with certainty declare he intend they shall be  restore where two person come acquaint only on a treaty of marriage no other  reason can be assign for the present but here the party be relate and acquaint  many year before the treaty and the legacy he have give her show he have a  kindness for the lady abstract from a view of marriage but the executor say  these present ought to be give back as well as her portion a settlement be  make in consideration of the portion but the use be to the testator and his  heir till the marriage take effect so his own estate remain in he at the time  of his death and the use of the settlement never arise and therefore the money  be return because there be not quid pro quo   light a if a man give land to a  mosely report woman causan marriage prlocuti and she refuse to marry he yet  she shall hold the estate and a strong if he die and these present be make in  contemplation but not on condition of a marriage and to do a thing in view and  contemplation of another be not the same as to do it on condition and though  the party be disappoint in his view and expectation that be no cause to refund  master of the roll this gentleman be relate to and begin a early acquaintance  with the lady even from her age of two year and he declare that from that time  he have always remember her in his will this intimacy increase with her year  and when she grow to a proper age he make his address to her with the  approbation of her parent and a marriage be agree on her portion pay and  secure and a settlement make and pen the treaty he make her several present  without any declaration to defeat they and two day be set for the wedding on  the first it be put off and on the second day he die by his will he give her a  legacy of pound express for the kindness he have for her and that he design to  make her his wife and the bill be bring for this legacy and I be of opinion  that if the defendant the mosely report er p executor have a right to these  present either in law or equity they shall not be oblige to bring a action or  a bill for the recovery of they but may deduct the value of they out of the  legacy because it be common justice if a legatee bring a bill and have possess  himself of any of the asset that he shall take they as a satisfaction pro  tanto but I think in this case the executor have no right to these jewel  because no condition be express the law prima fancy presume the gift to be  absolute and be not fond to create a condition to defeat it the question then  be whether there be any circumstance that imply a condition if no motive for  these present can be assign but the marriage then indeed it will be more  reasonable to suppose this condition but in this case there be other motive he  be relate to her and have a long and intimate acquaintance with her of which  the marriage be only the effect and consequence and it will be too great a  strain for a court of justice to fix upon this motive out of so many other but  suppose this a recent kindness spring up from the intention of marriage  portion be pay and a settlement make in consideration of it and the marriage  all this be reduce to write but these present be not bring into the article as  part of the consideration and therefore ought to be exclude but I go more upon  the nature of this gift which ought to be take in a honourable sense and  though the husband by marriage will have become owner of they yet if he have  declare that in case of marriage he design to take they from her again they  will be mosely report no present at all his ostentation of a kindness will  vanish and the treaty be a mere bargain if land be convey causan marriage  prlocuti the man can aver the cause but the woman may but in both case the  condition must be express or aver and if the woman refuse to marry she shall  hold the land but here no condition be either express or aver but only suppose  or fancy and they be absolute present and she put in possession of they the  question in Mod be only whether time shall be allow to bring compurgator to  wage her law in which the court will not indulge her because the court be  always against wager of law for fear of perjury and be desirous to have matter  fair put in issue here all the particular circumstance take away any  implication of a condition but if they be all away I think it become a court  of equity to declare present make by a intend husband absolute gift Thursday  February the that