case Felton harvey and Dorothy his wife versus solomon ashley and other march  when the Cause stand for judgement see Campbell v Ingilby Beav a infant be  bind by a settlement make on her marriage where it be make with the  approbation of parent and guardian see Fonbl treatise of equity note that and  the case refer to inthe different part of this case Lord chancellor this cause  come before the court upon a bill bring by Mr Harvey and his wife to have the  benefit of several provision make for the plaintiff mrs Harvey partly by the  will of her grandfather Alexander pitfield and partly upon the settlement make  by her father and mother notwithstanding the settlement be make upon her  marriage with her late husband Charles pitfield she be then a infant the  prayer of the bill be in the alternative that if she can have this relief then  that she may have satisfaction make her out of the estate of her late husband  the case and the fact be these Dorothy Harvey the plaintiff Feltons wife be  the daughter of the defendant Solomon Ashley and winefrid his wife and the  grandaughter of Alexander pitfield in Dorothy be then of the age of fifteen  and her father and mother both live she with their consent and with the  approbation of all her relation atkins intermarry with Charles pitfield  esquire her first cousin and the heir male of her mother family previous to  the marriage a settlement be make on the that of June Charles pitfield be the  first party two trustee c be party and the plaintiff Dorothy herself be a  party the estate of dorothy fortune stand thus she be entitle under her  grandfather will to pound which be to be pay her on marriage if she marry with  the consent of her father and m other or at her age of twentyone and if she  marry without such consent or die before twentyone then the pound be give over  to her sister beside this she be likewise entitle to a portion under the  marriage settlement of her father and mother for by that settlement in case of  a old son and young child a power be reserve to Mr Ashley and his wife to  charge the estate therein limit with a sum not exceed pound which be to be pay  to all or any of the young child of the marriage in such proportion as they  shall think fit and in case there be no issue male of that marriage then a  year term be limit to trustee to raise the sum of pound for daughter portion  but this be not to be raise till after the death of the father and if a son  shall be bear afterward they be entitle to nothing the other part of dorothy  fortune be a moiety of Alexander Pitfields personal estate after the death of  her mother but depend upon a contingency for by his will if Mr Ashley and his  wife die without leave a son then the residue of Alexander Pitfields person l  estate call pound shall go to such daughter or daughter of Mr Ashley and his  wife as shall be live at the death of mrs Ashley from hence it appear that mrs  Harvey be in present entitle only to pound and in order to entitle her to it  the mother consent by the grandfather will be make necessary if marry before  twentyone and if she have marry without such consent of the mother it will  have go to the other sister as to the circumstance of Charles Pitfields estate  they stand thus he have a estate at Hoxton in Middlesex of pound ayear charge  with a debt of pound he have likewise a moiety of a estate in the isle of Ely  of the value of with encumbrance thereon to the amount of pound and another  estate in London and Middlesex of pound ayear which be in settlement to  himself for life remainder to his first and every other son in tail male  remainder to mrs Ashley in fee atkins under these circumstance the settlement  make and execute be thus as to the estate last mention there be no occasion  nor possibility to make any settlement of it be limit in strict settlement to  the issue male and can not be alter it frequent happen that estate be settle  in such manner that they must necessary go to the issue of the marriage as to  the estate in Hoxton it be settle upon the marriage in strict settlement and  in default of issue to the survivor of the husband and wife the estate in the  isle of Ely be likewise limit in strict settlement the last remainder to  Dorothy in fee atkins er p in consideration of the marriage and the husband  fortune the lady be settle in this manner her pound be agree to be pay  immediate to discharge the encumbrance upon the Hoxton estate one moiety of  the sum of pound to be raise by virtue of the term for that purpose be to be  apply in the same manner as the residue of the moiety of the contingent  bequest in tlhe grandfather will aftermentioned the other moiety of the pound  to belong to Charles pitfield but be not to be pay till after the death of  dorothy father as to the contingent bequest to which Dorothy be entitle under  the will of Alexander pitfield a moiety of that be to go towards discharge the  debt on Mr Charles Pitfields estate and what shall remain of that moiety be to  be lie out in security and the interest be to be pay to Charles pitfield  during his life afterward to Dorothy for life then to the young child and if  no young child then in trust for t survivor of Charles pitfield and Dorothy  and the other moiety of the say contingent bequest be to belong to Charles  pitfield his executor and administrator this be the disposition make in favour  of mrs Harvey of the surplus of the grandfather personal estate the marriage  take effect in July and subsequent to the marriage the fact be these in August  Mr pitfield die and leave issue one daughter mary in December the plaintiff  Dorothy marry with Mr Felton Harvey after the marriage the plaintiff Mr Harvey  enter upon the estate in settlement that Charles pitfield have settle and do  some act of ownership in June the plaintiff Dorothy attain her age of  twentyone and on the that of January the bill be bring it have be say by the  plaintiff counsel that this be not a bill to set aside the marriage settlement  for that will be too strong but only to let in the plaintiff Dorothy and her  second husband to take that interest which she have in her fortune but this in  the present case will appear to be a distinction in word only for it be in  effect to overturn the settlement after there be issue of that marriage the  husband dead and the contract on one side fix atkins this seem to be a bill  prim impression for upon look into the case I can find no precedent to warrant  such a deecree the two principal point arise upon this case be first whether  Mr and mrs Harvey be to be bind by this settlement on her first marriage  abstract from any circumstance that have happen since second if they be not  whether what have be do by the plaintiff subsequent to the settlement either  by act of admission acquiescence and by way of affirmance of it will vary the  case it be not material perhaps to sive a opinion on the first question for  the latter consideration may possible make the first point unnecessary but to  discourage such a attempt as be now set up I will give my think upon it as to  the first point therefore the great objection be that Dorothy at the time of  the marriage and settlement make be a infant and that by the rule of law she  can not be bind but at her election when of the age of twentyone it be very  true in law this difference be take that where a agreement appear upon the  face of it to be prejudicial to a infant it be void but if for his advantage  then voidable only this doctrine be full lie down in holt versus ware in  Fitzgibbonss report a book of no authority but the case be true report and all  the difference upon this point well take by Lord chief justice beef in his  argument which be the best I know upon the subject infant may contract  marriage male at fourteen female at twelve and these agreement differ from all  other the principal consideration be the marriage settlement be prudential act  do chief for this consideration and the estate settle may be great or less  accord to the discretion of the party as soon as the marriage be have the  principal contract be execute and can be set aside or rescind the estate and  capacity of the party be alter the child bear of the marriage be equal  purchaser under both father and mother and therefore it have be true say that  marriage contract ought not to be rescind because it will affect the interest  of three person the issue atkins there be a difference between agreement on  marriage be carry into execution and other agreement for all agreement beside  be consider as entire and if either of the party fail in performance of the  agreement in part it can be decree in specie but must be leave to a action at  law in marriage agreement it be otherwise for though either the relation of  the husband or wife shall fail in the atkins er p performance of their part  yet the child may compel a performance if the mother father for instance have  agree to give a portion and the husband father have agree to make a settlement  though the mother father do not give the portion yet the child may compel a  settlement for nonperformance on one part shall be no impediment to the child  receive the full benefit of the settlement so if there be a failure on the  part of the father relation it be the same all the court can do in that case  will be to lie hold on such estate as he shall claim towards make good his  portion of the settlement for the child consider as purchaser be entitle to  all the benefit of the use under the settlement notwithstanding there have be  a failure on one side if the court shall relieve her it must relieve against  the whole settlement because every part constitute the whole as there be a  consideration arise from each part and therefore it be impossible to take away  any part of the consideration without overturn the settlement entire nay the  interest of mrs Harvey herself will be affect eventual at least for she must  in such case wave her jointure and the husband perhaps may come into  possession of the whole of her fortune and make what use of it he please to go  further the law have entrust the father and guardian with the marriage of  their child and ware and accord to the old law they ought not to do it to  their disparagement but suppose they shall act fraudulent or corrupt the  marriage agreement be not therefore to be set aside or the child to be strip  but the father or guardian may be decree to make satisfaction and the husband  if a party to the fraud shall do it likewise analogous to those case where  fraudulent agreement have be make by parent to take back part of a child  fortune in contradiction to the open public agreement in which case the court  interpose as in Turton versus Benson vern the present case do not fall within  the reason of these case of corrupt agreement here be no disparagement or  pretence of atkins fraud or of any gain make by the father or mother but on  the contrary every thing appear to be do by Mr Ashley and his wife to advance  it the daughter in the first place be marry to the heir male of her mother  family and by their consent to the marriage they accelerate her right to the  pound and vest in Dorothy immediate though but fifteen and if there have be a  son of Mr Ashley and his wife will have be entitle to nothing and in it be not  impossible in the course of nature but there may have be a son and they can  too have appoint the whole to one young child in prejudice to another and yet  they take the only method of secure it by make a appointment irrevocable of it  under the settlement thus it stand as to the nature of the settlement the  first objection be as to the incapacity of Dorothy as a infant and the second  objection that the parent of Dorothy do not make so beneficial a bargain for  her as they may have clone admit this be so I apprehend it will not be a  sufficient reason to set aside the marriage agreement the law have entrust  parent with the marriage of their child there be many consideration that may  induce a parent to agree to a marriage beside a strict equality of fortune as  the inclination of the party their rank and quality the person superior  perhaps in this respect to who the infant be to be marry and other  advantageous circumstance the convenience too and propriety of such a match as  to preserve the whole estate in the family which be matter proper for parent  to judge of the statute of Henry show strong the opinion of the legislature in  this respect for though at law no jointure upon a woman even of full age can  bar her of her dower yet the statute make it a bar and a jointure will en bind  a infant and preclude her from dower consider the trust put in parent and  guardian suppose a female infant be marry to a gentleman of great estate the  dower be one three and yet she have a jointure make to her of only one ten of  the value and notwithstanding this as the law have entrust parent and guardian  with the judgement of the provision for infant she shall not set it aside upon  the inequality between the dower and the jointure jordan v savage Eq ab pl  Buckinghamshire v Drury bro par can and Edward bro p c har   Litt b note  contra Cray v Willis vin pl in glover v Bates atk Lord Hardwicke hold that the  settlement of the personal estate upon the wife a infant in bar atkins er p  and satisfaction of her claim by the custom or any other usage or law can not  bind her after her husband death on the agreement be enter into before  marriage I will not say how far a mere elusory jointure may be relieve against  but if it be not adequate to what she will have have in dower it be no reason  to set it aside atkins there may have be act of parliament obtain for the  marriage of a young lady a who have a interest in a real estate but I never  hear of a private act of parliament obtain for the marriage of a young lady  who have a money portion only mere because she be a infant the reason why it  may be necessary to apply for a act of parliament upon the marriage of a  infant who have a interest in real estate be that the right of the infant to  real estate will not be bind by any agreement make in relation to it unless  the husband shall have issue by that marriage but where it be a money portion  her interest in it may be bind by agreement on the marriage and if a parent or  guardian can contract for the infant so as to bind this property the husband  as it be a personal thing will be entitle to the absolute property in it  immediate upon the marriage to carry this still further than at the bar it  must be allow most portion to young lady arise under settlement and she be as  much a purchaser as if it come from a collateral relation and vet there never  be any objection to a father direct on what term she shall be dispose of in  marriage another objection be make that as part of this fortune be a  contingent interest which by the marriage will not have be transfer to the  husband therefore what have be do with regard to this be redundant and they  shall at least have leave her the chance of take the benefit of it I never  beard any distinction where money portion be in possession or contingency the  case of Theobald versus defay p W Mod SC vide Bates v Dandy atk determine  final in the house of lord be a very strong case to the purpose the court  there give relief against a recovery in ejectment and Lord Cowper and Lord  Macclesfield lie great weight upon its be a reasonable act do by the consent  of the friend and relation of the wife the plaintiff Dorothy if she have be a  feme sole may have make a will of this contingent interest and it be a  personal thing it be say she may have bequeathe it at fifteen year of age many  portion of woman depend upon contingency as upon right of survivorship and yet  disposition of they be frequent make for otherwise they may come absolute in  atkins the power of their husband as where they fall into possession during  the coverture Charles pitfield indeed have happen to die in the life of the  mother and Dorothy but suppose mrs Ashley have die Dorothy and Charles survive  will it not have be a great imputation on the father and mother if they have  suffer the husband to run away with it it be dangerous therefore for the court  to enter nice into a scrutiny of this kind when these provision be make to  guard against the husband and a very prudent proper caution nor will they when  the event have happen determine whether at the time the agreement be make it  be more or less beneficial beside if the plaintiff mrs Harvey and her sister  mrs Beckford have die in the lifetime of their mother Charles pitfield will  have be entitle to the surplus for his life under Alexander Pitfields will it  be a very remarkable limitation in Alexander will to and for my grandson  Charles pitfield after the decease of my two granddaughter this be a very odd  limitation of personal estate but however I do not know but it may take effect  as be in the compass of life in be at the same time and consequent may have  vest in Charles pitfield himself and the testator intention be perhaps to  augment and bring his fortune into one family I know of no precedent where a  marriage agreement have be call into question in this manner where it be make  with the approbation of parent and guardian but there have be several case of  decree against infant in the case of the bishop of bath and well versus  hippesley Charles before Lord Nottingham there be a submission to a award by  the bishop on one part and the defendant a infant and his guardian on the  other part the award be to this effect that during the bishop life and the  infant minority the plaintiff and defend atkins er p ant shall be at liberty  promiscuous to dig lead over in c and that the profit shall be divide equal  between they a bill be bring to confirm the award and the court be of opinion  the infant be bind by it indemnified the trustee for what they have do and  decree accord to the prayer of the bill that he award shall be establish in  the case of Strickland versus Coker the defendant be seize for life of a  church lease in trust for a infant on a treaty of marriage between the infant  and the plaintiff and a thousand pound portion a indenture be make with atkins  the consent of Coker the guardian whereby the infant covenant that the lease  shall be surrender and a new lease take and the wife life put therein for her  jointure Coker be make party only to show his consent the marriage be have the  portion pay the husband die the lease surrender and the wife life put in the  widow sue Coker to assign for her life and decree accord and Coker pretend the  trust be in the first to pay debt to he it be decree the debt shall be pay out  of the trust after the widow death the decree affirm on a rehear Ch Cas in the  case of Blois versus lady Hereford vern a marry b who have a estate in land  and a fortune in money they be both infant a act of parliament be obtain for  settle a jointure on the wife in bar of dower but to cease if she do not  settle her land when of age but nothing say as to the personal estate part of  the fortune be a mortgage for pound take in a trustee name the wife when she  come of age settle her own land and afterward the husband die the question be  whether this money shall go to the plaintiff executor of Lord Hereford or as a  choose in action survive to the wife Lord Cowper then Lord keeper say I lie no  stress upon the declaration of trust the law of this court will presume a  promise and in all case where a settlement be equivalent it shall be intend  the husband be to have the portion the wife shall not have her jointure and  fortune both and the rather in this case because a trust and the husband can  not come at it so as to alter the property without the assistance of this  court and the defendant be condemned in cost I mention this case only to show  that though there be a act of parliament in consideration of real estate  settle by both side yet no notice be take of the money portion in the case of  cannel versus buckle wms Lord chancellor Macclesfield say that if a feme  infant seize in fee on a marriage with the consent of her guardian shall  covenant in consideration of a settlement to convey her inheritance to her  husband if this be do in consideration of a competent settlement equity will  execute the agreement though no action will lie at law to recover damage vide  durnford v lane bro Charles Rep William v William ibidem Slocombe v Glubb bro  Charles Rep this be go a great way as it relate to the inheritance of the wife  but yet there be case where the court will do it as if the land of the wife be  no more than adequate consideration for the settlement that the husband make  and after the marriage the wife shall die and leave issue who will be entitle  to portion provide for they by the settlement it will in that case be very  reasonable to affirm that settlement atkins thus far upon the first point  relate to the force and validity of this settlement as it stand original  abstract from the subsequent circumstance that have happen as to the second  point whether the plaintiff be conclude by act do since the marriage and admit  there be a doubt upon the first point yet the second be very clear it have be  say on the part of the plaintiff and very true that there have be no express  assent in this cause or express ratification of this settlement and that the  party shall not be bind unless the assent be clear and after a full knowledge  of the nature of the settlement and therefore have be compare to the case of a  freeman widow who notwithstanding she lie claim to something under the will of  her husband will not bind her election to take either by will or custom till  she have see into the value of her husband effect and this be true in general  but there be case where she shall be conclude by act do by her and by a  acquiescence as where she have live a year or a year and half after her  husband and accept a interest under the will and then die and upon her death  the executor file a bill for her customary share there the bill have be  dismiss tomkyns v Ladbroke Ves atkins er p there be sufficient evidence here  of the plaintiff Felton harvey have knowledge and notice of dorothy right  under this settlement in he make a lease of a house in Piccadilly in December  he give a letter of attorney to receive the rend of part of the estate and in  January a distress be make by virtue of a authority give by he and in may he  give direction for get in the hay and all this be do before a counsel of  eminence for the plaintiff have peruse the settlement there can hardly be a  case where there have be more solemn act do to affirm a settlement in franklin  versus Thornbury vern a agreement be void as against a infant yet be decree  the infant have receive interest under it after he become of full age which be  a affirmance of it in the case of Cecil and other versus the earl of Salisbury  in vern the court say they will hold a infant to his offer make by he in his  answer to a bill bring against he while a infant if the other side be thereby  delay and if he will have depart from what he have offer he ought immediate  when he come of age to have apply to the court to have retract his offer and  amend his answer so where a provision be make for a wife in lieu of her  jointure by article during coverture if the wife after the husband death enter  but upon part of these land she be oblige to perform the whole article atkins  these case turn upon this that act do after the become a widow will bind but  it have be object these be act of her husband and can bind the wife who be a  infant in the lifetime of her first husband and likewise a infant for some  time since her marriage to her second husband this appear to I to be a new  doctrine that though Mr Felton Harvey himself will be bind yet he be deliver  from it on account of the infancy of the wife which be in effect to say he can  be bind at all if a feme infant marry and a jointure be make after marriage  and the husband die leave her a infant if she without do any act to determine  h r election during her infancy marry a second husband if he enter upon the  jointure estate that entry will bind the husband and wife during the coverture  these be my think on the two main point of the cause but another objection be  make that Charles pitfield be guilty of a fraud in secret judgement and other  debt that be charge upon the estate and that this be a ground for relief and  so it be but not to set aside the whole settlement for if there be any  encumbrance which he do not disclose then Charles Pitfields unsettle estate  ought to be apply to exonerate that estate which be settle for the benefit of  mrs Harvey and her issue as to so much of the bill therefore as seek to set  aside or to break in end impeach the settlement make on the marriage of mrs  pitfield it ought to be dismiss and Lord Hardwicke decree accord