case woodhouse versus Shepley et e contra march Lord Hardwicke of opinion that  on the original bill the plaintiff be entitle to be relieve and declare though  none of the circumstance single may prevail on the court to overturn her bind  yet they be sufficient altogether but the chief of they be the encouragement  this may give to disobedience and the fraud on parent and on the whole decree  it to be deliver up to be cancel the original bill be bring by Hannah  Woodhouse to be relieve against a bind obtain from her by the defendant upon  this case the defendant who be a tailor by trade and entitle to a small real  estate of about pound per and in the year make his address to the plaintiff  who be then about the age of year and be the daughter of a man who be esteem  in the neighbourhood to be a person of substance and who can give her about  pound for her fortune the courtship have be carry on sometime before it come  to her father knowledge who as soon as he be acquaint with it declare a great  dislike of the match and forbid the plaintiff give the defendant any  encouragement notwithstanding which the courtship be carry on in a clandestine  manner till January when the defendant meet the plaintiff at Macclesfield a  markettown in the neighbourhood and there at a alehouse the follow bind be  execute no body be present except the witness who be two stranger and be call  in for that purpose videlicet a bind from her in the penalty of pound with  condition that if the above bind Hannah Woodhouse do on or before the  expiration of month after the decease of her father Robert Woodhouse accord to  the usage and ceremony of the church of England espouse and marry the above  name Ralph Shepley atkins if the above name Ralph Shepley will thereunto  assent and the law of this realm permit atkins er p the same or if it shall  happen the say Hannah Woodhouse shall not nor will not marry and take to  husband the say Ralph Shepley as aforesaid but shall happen to marry with some  other person then the say Hannah Woodhouse shall and will well and true pay or  cause to be pay unto the say Ralph Shepley the sum of pound of lawful British  money at or immediate after failure of such marriage but if it shall happen  that the say Hannah Woodhouse shall die before the time limit and appoint for  the say marriage then the say Hannah Woodhouse shall leave and give the say  Ralph Shepley pound as a token of her love to buy he a suit of mourning with  then this obligation to be void or else shall remain in full force a bind from  he in the like penalty with condition that if the above bind Ralph Shepley do  on or before the expiration of thirteen month after the decease of Robert  Woodhouse father of the abovenamed Hannah Woodhouse accord to the usage and  ceremony of the church of England espouse and marry the say Hannah Woodhouse  if the say Hannah Woodhouse will thereunto assent and the law of the realm  permit or if it shall happen the say Ralph Shepley shall not nor will not  marry and take to wife the say Hannah Woodhouse as aforesaid but shall happen  to marry with some other woman then the say Ralph Shepley do hereby covenant  and agree to forfeit surrender and yield up unto the say Hannah Woodhouse for  her own use all his estate real and personal in Macclesfield park and  Somerford booth or elsewhere by sea or land but if it shall happen that the  say Ralph Shepley shall die before the time limit and appoint for the say  marriage then the say Hannah Woodhouse be to have to her own use one half of  all the say Ralph Shepleys estate both real and personal that he shall be  possess of at the time of his decease then this obligation to be void or else  to remain in full force a endorsement on the back of Shepleys bind memorandum  that before the seal of this bind that Ralph Shepley do promise covenant and  agree that he will settle and assure the within name Hannah Woodhouse a yearly  dower accord to what portion she shall have and make her a good assurance as  the law direct either of land money or live that shall please her if this say  Hannah Woodhouse shall have child or child then she shall have one half of his  estate and the child or child the other half that he shall die possess of or  that may by any mean belong to he or his inheritance that may either fall to  he by sea or land and if this say Hannah Woodhouse shall marry this Ralph  Shepley and have no child by he then she shall pay to Sarah Shepley atkins  pound of lawful money as a legacy and then all his land live good chattel  money and any thing that shall ever belong to he or that ever do in his  lifetime that have not be receive she shall have and peaceable enjoy and take  for her own use and at her own dispose both in her life and at her death unto  which I have put my hand r S upon the examination of the witness to the bind  it appear they differ in their account of the execution one say the bind be  read over before execution the other that they be not one that they be  exchange the other that both of they remain in the custody of the defendant  and in fact at the time the answer be put in they be both in the hand of the  defendant after this transaction the execution of these bind remain unknown  and the intercourse be continue till may when the plaintiff father die who by  his will leave her a fortune of about pound the month expire and then the  plaintiff file the original bill to be relieve against her bind and die soon  after the cause be revive by the present plaintiff her administrator the  crossbill be bring by Ralph Shepley to have satisfaction for this bind out of  the asset of Hannah Woodhouse allege he be always ready and Willing to have  marry her but be prevent from have any access to her by her brother Mr  attorney general and other for the plaintiff S insist that this bind ought to  be deliver up and rely first upon the circumstance of fraud attend the  execution of these bind the inequality of the circumstance of the party and  the circumstance of both the bind be now in his custody second that here be no  breach of the condition in regard the plaintiff never marry any other person  and because he have not show any tender on his part or refusal on her part to  perform the contract three that suppose the condition be break and the bind  fair obtain yet that the bind be of such a nature as that a court of equity  for public consideration and the general inconvenience that will attend the  permission of such sort atkins er p of contract ought to set it aside and it  be compare to marriage brocage bind smith v Aykwell post atk bind obtain by  solicitor from their client draper company v Davis ante atk bind from young  heir c that it be in restraint of marriage tend to encourage improvident match  and disobedience to parent and will be void both by the civil and canon law  and the case of key versus Bradshaw vern and baker and his wife versus white  vern be cite atkins Mr brown and other counsel for the defendant insist that  there be no circumstance of fraud in obtain the bind sufficient for a court of  equity to set it aside that she be of full age that it be a suitable match  that the obligation be mutual which show no design of fraud that the bargain  appear to be most beneficial on her side that as to the breach of the  condition there be no occasion to prove a tender at law for a plaintiff may  declare general upon the bind and the defendant must have plead performance  payment or a tender and refusal and from the circumstance it appear he be  always ready to have perform his contract that as to the necessity of marry  although the condition be inaccurate pen yet upon the whole it appear to be  the intention and agreement of the party that the bind shall be forfeit if she  refuse to marry the defendant that there be nothing improper or unreasonable  in this agreement nor do this case fall within the inconvenience in the case  which have be mention for be of full age she have a right to dispose of  herself and if she part with the liberty of marriage it be for a valuable  consideration that this be a contract for the breach of which if there have be  no bind damage may have be recover at law which likewise the ecclesiastical  court will enforce consequent neither unequitable nor improper nor can the add  a penalty vitiate the contract itself that such penalty ought to be consider  as the state damage settle betwixt the party themselves that the argument draw  from the restraint on marriage the promote improvident match and disobedience  to parent prove too much because they tend to show that all such contract be  void in themselves which they certain be not the case of Atkins v far vide  tram atk be cite as in point before Lord Hardwicke Feb in that case the  defendant far have give the plaintiff daughter in her lifetime a bind in the  penalty of pound condition for the payment of pound if he do not marry her  within the twelvemonth from the date of the bind the defendant do not marry  her within the time but clandestine get the bind from her she die soon  afterward and the plaintiff her mother take out administration to her daughter  and bring a bill for the pound and insist that upon the breach of the  condition the bind become absolute and the pound vest in the daughter and be  transmissible to the plaintiff as her representative the defendant insist that  the obligee be a orange girl at the playhouse and a common strumpet that it be  turpis shrinking and ought not in a court of equity to be carry into execution  but fail in his proof the chancellor be of opinion that it be a good bind and  the penalty in the nature of state damage between the party and therefore  decree the defendant to pay the pound to the plaintiff as representative of  her daughter the obligee atkins Lord chancellor this be a new case and in the  decree which I shall make I shall not find myself on any circumstance of  actual fraud appear in it for though there may be some suspicion arise from  the manner of the execution of this bind yet I think there be not sufficient  foundation to decree on the actual fraud the party be both of full age the  bind mutual and their circumstance not great unequal and as I shall go upon  the nature of such bind I shall begin with mention the point I give no opinion  upon at present first I do not give any opinion what will be the judgement of  this court on such bind enter into by party both equal Himself law have a  absolute power over themselves and their fortune and where the parent be not  live neither do I give any opinion that such bind will be void in all case  between person not Himself law to all purpose though this case and Atkins v  far fall under very different consideration for that be of the first kind  before mention but there be also something of the prmium decency and his  defence be her bad character vide clarke v periam ante atk and the reference  at the end of the case which be not prove though indeed that case be contrary  to the general rule of the civil law in the present case I be of opinion that  I ought not to decree satisfaction of this bind on atkins er p the crossbill  but direct it to be deliver up to be cancel on the original bill and the point  upon which I find my judgement be these that bind of this sort where parent be  live be liable to great fraud and abuse that to decree in favour of such a  bind will be a great encouragement to person to lie upon the catch to procure  unequal marriage against the consent of parent and though they dare not  solemnize the marriage in the lifetime of the parent but only engage the  affection and draw the unfortunate person into a bind to forfeit their whole  fortune as be the case here yet it be of very dangerous consequence and tend  to bring great misfortune into family another principal ground of my opinion  be that this tend to encourage disobedience to parent and indeed be a fraud  and imposition on the parent though there be no actual fraud as between the  party in this case she live with her father and be dependent on he for her  portion and he consider her as a child to be advance and though a parent have  no power by law to prevent the marriage of his child yet it be expect that she  shall take his consent and approbation and by the law of some country that be  make necessary atkins it be therefore a fraud on the father who think his  child have submit to his opinion of the match and in that opinion make a  provision for her to advance her in marriage which have he know of the bind he  will not have do or may have do in such a manner as will have prevent the  marriage it be therefore in fraud of the father right of dispose of his  fortune among his child accord to their desert and may be compare to the case  of bind give before marriage to return a part of the portion Peyton v Bladwell  vern Redman v Redman ibidem gale v Lindo ibidem Lamlee v Hanman vern Hamilton  v Mohun p W Turton v Benson p W Debenham v ox Ves coal v Gibson ibidem  Pitcairn v Ogbourne Ves for there be no fraud in those case between the  contract party but on the parent or friend of one of they who be deceive by  settle land equal to the portion that appear to be give and for that reason  such bind have be set aside another ground of relief be the penalty for this  differ great in the reasonableness of it from executory promise where the jury  can consider the whole case and whether the party have be unwary draw into  such a contract or not and the change of circumstance since the execution and  give damage accord and though it have be true say that a great alteration of  circumstance or character will be a ground of relief here yet that can be  offer at law against the penalty and bind tend themselves to prevent such  circumstance from be proper consider bind of this sort therefore deserve less  favour upon this account though perhaps that alone will not be sufficient to  set they aside as to the case cite none of they come up to this vern the  reason of that case be the inequality of circumstance and the party be a  servant and the danger of admit such transaction into family baker v white  vern go upon the general restraint of marriage there be some circumstance  further attend this case which make it unfavourable the bind be execute in a  alehouse where she have no friend two stranger be call in to witness it and  the witness differ as to its be read over the bind execute by he be at the  time of her death in his hand one witness say it be leave in his hand at the  time of the execution and there be no evidence how it come into his hand he  say by his answer she give it he but even that be a evidence of the great  power he have over her and if there be no mutual obligation there have be no  colour to support this bind I be therefore of opinion that on the original  bill the plaintiff ought to be relieve and I say the same inthis case as Lord  Cowper do in Floyer v Lavington p wms that though none of these circumstance  single may be sufficient to overturn this bind yet altogether they be so but  the chief of they and which have great weight with I be the encouragement this  may give to disobedience and the fraud on parent bill I be not very clear that  here be a sufficient atkins as to the case make by the cross breach of the  condition the breach insist on must depend on the first part for in the second  it be conjunctive and the payment of the pound be connect with that and if it  rest on the first part the whole penalty be forfeit not the pound and it be  pretty strange to think that it be agree if she marry another that she shall  lose pound if she only refuse to marry the plaintiff she must lose pound I  therefore must have decree the pound penalty which will have be very  extraordinary as to the tender I doubt whether a breach can have be assign  without his show a tender of himself by write or send though by the  circumstance of this case atkins er p a personal tender may have be excuse and  I shall think the assent of the man must have be in this case a actual  proposal and the first act like the case put by Lord coke upon frankmarriage  where the modesty of the sex be consider by the commonlaw as to cost I think  it will be too hard to make he pay they as here be no actual fraud and he may  think he have act fair by her since therefore I decree this chief on public  and general consideration there shall be no cost on either side Lord  chancellor decree the bind to be deliver up to be cancel and dismiss the  crossbill