quired to the marriage. It is, indeed, a very delicate and difficult duty to be performed by such Courts. But, to permit a different rule to prevail, would be to encourage frauds, and enable a party to withhold consent upon grounds utterly wrong, or upon motives grossly corrupt and unreasonable.

CHAPTER VII.

CONSTRUCTIVE FRAUD.

§ 258. HAVING thus considered some of the most important cases of actual, or meditated and intentional fraud, in which Courts of Equity are accustomed to administer a plenary jurisdiction for relief; we may now pass to another class of frauds, which, as contradistinguished from the former, are treated as legal or constructive frauds. By constructive frauds are meant such acts or contracts, as, though not originating in any actual evil design or contrivance to perpetuate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and therefore are prohibited by law, as within the same reason and mischief, as acts and contracts done malo animo. Although, at first view, the doctrines on this subject may seem to be of an artificial, if not of an arbitrary, character; yet upon closer observation, they will be found to be founded in an anxious desire of the law to apply the principle of preventive justice, so as to shut out the induce

1

Peyton v. Bury, 2 P. Will. 625, 528; Eastland v. Reynolds, 1 Dick. R. 317; Goldsmid v. Goldsmid, 19 Ves. 368; Strange v. Smith, Ambler, R. 263; Clarke ». Parkins, 19 Ves. 1, 12; Mesgrett v. Mesgrett, 2 Vern. R. 580; Merry v. Ryves, 1 Eden. R. 1, 4.

ments to perpetrate a wrong, rather than to rely on mere remedial justice, after the wrong has been committed. By dsiarming the parties of all legal sanction and protection for their acts, they suppress the temptations and encouragements, which might otherwise be found too strong for their virtue. §259. Some of the cases under this head are principally so treated, because they are contrary to some general public policy, or to some fixed artificial policy of the law. Others, again, rather grow out of some special confidential or fiduciary relation between the parties, or some of them, which is watched with especial jealousy and solicitude, because it affords the power and the means of taking undue advantage, or of exercising undue influence over others. And others again are of a mixed character, combining, in some degree, the ingredients of the preceding with others of a peculiar nature; but they are chiefly prohibited, because they operate substantially as a fraud upon the private rights, interests, duties, or intentions of third persons; or unconscientiously compromit, or injuriously affect, the private interests, rights, or duties of the parties themselves.

§ 260. And, in the first place, let us consider the cases of constructive fraud, which are so denominated, on account of their being contrary to some general public policy, or fixed artificial policy of the law. Among these may properly be placed contracts and agreements respecting marriage, (commonly called marriage brokage contracts,) by which a party engages to give another a compensation, if he will negociate an advantageous marriage for him. The Civil Law does not seem to have held contracts of this sort in such severe rebuke; for it allowed proxenetæ, or matchmakers, to receive a reward for their services to a limited extent.2 And the period is comparatively modern, in which

1 See Mr. Cox's note to Osmond v. Fitzroy, 3 P. Will. 131; Newland on Contracts, ch. 33, p. 469, &c. By being contrary to public policy, we are to understand, that in the sense of the law they are injurious to, or subversive of, the public interests. See Chesterfield v. Janssen, 1 Atk. 352; S. C. 2

Ves. 125.

2 Cod. Lib. 5, tit. 1, 1. 6.

a different doctrine was engrafted into the Common Law, and received the high sanction of the House of Lords.'

§ 261. The ground upon which Courts of Equity interfere in cases of this sort, is not upon any notion of damage to the individuals concerned, but from considerations of public policy. Marriages of a suitable nature, and upon the fairest choice, are of the deepest importance to the wellbeing of society; since upon the equality, and mutual affection, and good faith of the parties, much of their happiness, sound morality, and mutual confidence, must depend. And upon these only can dependence be placed for the due nurture, education, and solid principles of their children. Hence every temptation to the exercise of an undue influence or a seductive interest in procuring a marriage, should be suppressed; since there is infinite danger, that it may, under the disguise of friendship, confidence, flattery, or falsehood, accomplish the ruin of the hopes and fortunes of most deserving persons, and especially of females. The natural consequence of allowing any validity to contracts of marriage brokage would be, to introduce improvident, ill-advised, and often fraudulent matches, in which advantage would be taken of youth and inexperience and warm and generous affections. And the parties would be led on, until they would become

1 Hall and Kean, v. Potter, 3 P. Will. 76; 1 Eq. Cas. Abridg. 89, F.; S. C. 3 lev. 411; Show. Parl. Cas. 76; 1 Fonbl. Eq. B. 1, ch. 4, § 10; Grisley v. Lother, Hob. R. 10; Law v. Law, Cas. temp. Talb. 140, 142; Vauxhall Bridge Company v. Spencer, Jac. R. 67.— In Boynton v. Hubbard, 7 Mass. R. 112, Mr. Chief Justice Parsons said: "We do not recollect a contract which is relieved against in Chancery, as originally against public policy, which has been sanctioned in Courts of Law, as legally obligatory on the parties. For although it has been said in Chancery, that marriage brokage bonds are good at law, but void in Equity, yet no case has been found at law, in which those bonds have been holden good." But see Grisley v. Lother, Hob. R. 10, and a case cited in Hall v. Potter, 3 Levinz. R. 411, 412; 1 Fonbl. Eq. B. 1, ch. 4, § 10, note (r).

21 Fonbl. Eq. B. 1, ch. 4, § 10, note (r); Newland on Contracts, ch. 33, p. 469 to 472." Marriage brokage bonds, which are not fraudulent on either party, are yet void, because they are a fraud on third persons, and a public mischief, as they have a tendency to cause matrimony to be contracted on mistaken principles, and without the advice of friends, and they are relieved against, as a general mischief, for the sake of the public." Per Parsons, Ch. Just. in Boynton v. Hubbard, 7 Mass. R. 118.

the victims of a sordid cunning, and be betrayed into a surrender of all their temporal happiness; and thus, perhaps, be generally prepared to sink down into gross vice, and an abandonment of conjugal duties. Indeed, contracts of this sort have been not inaptly called a sort of kidnapping into a state of conjugal servitude;' and no acts of the parties can make them valid in a Court of Equity.2

§ 262. The public policy, of thus protecting ignorant and credulous persons from being the victims of secret contracts of this sort, would seem to be as perfectly clear, as any question of this nature well can be. And the surprise

is, not that the doctrine should have been established in a refined, enlightened, and christian country; but that its propriety should ever have been made matter of debate. It is one of the innumerable instances, in which the persuasive morality of Courts of Equity has subdued the narrow, cold, and semibarbarous dogmas of the Common Law. The Roman Law, while it admitted the validity of such contracts in a qualified form, had motives for such an indulgence founded upon its own system of conjugal rights, duties, and obligations, very different from what, in our age, would be deemed either safe, or just, or even worthy of toleration.

§ 263. Be the foundation of the doctrine, however, what it may, it is now firmly established, that all such marriage brokage contracts are utterly void, as against public policy ;3 so much so, that they are deemed incapable of confirmation ;* and even money paid under them may be recovered back

1 Drury v. Hooke, 1 Vern. 412.

2 Shirley v. Martin, cited by Mr. Cox, in 3 P. Will. 75; S. C. 1 Ball & Beatty, 357, 358.

3 Arundel v. Trevillian, 1 Rep. Ch. 47 [87]; Drury v. Hooke, 1 Vern. R. 412; Hall v. Potter, 3 Lev. 411; S. C. Shower, Parl. Cas. 76; Cole v. Gibson, 1 Ves. 507; Debonham v. Ox, 1 Ves. 276; Smith v. Aykerill, 3 Atk. 566; Hylton v. Hylton, 2 Ves. 548; Stribblehill v. Brett, 2 Vern. 446; S. C. Prec. Ch. 165, 1 Bro. Parl. Cas. 57; Roberts v. Roberts, 3 P. Will. 74, note (1); Id. 75, 76; Law v. Law, 3 P. Will. 391, 394; Williamson v. Gihon, 2 Sch. and Lef. 357 ; 1 Eq. Cas. Abridg. 98, F.

4 Cole v. Gibson, 1 Ves. 503, 506, 507; 1 Fonbl. Eq. B. 1, ch, 4, § 10, note (a); Roberts v. Roberts, 3 P. Will. 74, and Cox's note (1).

again in a Court of Equity. Nor will it make any difference, that the marriage is between persons of equal rank, and fortune, and age; for the contract is equally open to objection upon general principles, as of dangerous consequence.2 Indeed, some writers treat contracts of this sort, as involving considerations of turpitude, and entitled to be classed with others of a highly vicious nature.3

§ 264. The doctrine has gone even farther; and, with a view to suppress all undue influence and improper management, it has been held, that a bond, given to the obligee, as a remuneration for having assisted the obligor in an elopement and marriage without the consent of friends, is void, even though it is given voluntarily after the marriage, and without any previous agreement for the purposes; for it may operate an injury to the wife, as well as give encouragement to a grossly iniquitous transaction, calculated to disturb the peace of families, and to involve them in irremediable distress.4 It approaches, indeed, very near to the case of a premium in favour of seduction.

§ 265. Of a kindred nature, and governed by the same rules, are cases, where bonds are given, or other agreements made, as a reward for using influence and power over another person, to induce him to make a will in favour of the obligee, and for his benefit; for all such contracts tend to the deceit and injury of third persons, and encourage artifices and improper attempts to control the exercise of their free judgment.5 But such cases are carefully to be distinguished from those in which there is an agreement among heirs, or other near relatives, to share the estate equally between them, whatever may be the will made by the testator; for such an agreement is generally made to suppress fraud and undue influence, and cannot truly be said to disappoint the testator's

1 Smith v. Bruning, 2 Vern. 392; 1 Fonbl. Eq. B. 1, ch. 4, § 10, Goldsmith v. Bruning, 1 Eq. Abrid 89. F.

21 Fonbl. Eq. B. 1, ch. 4, § 10; Newland on Contracts, ch. 33; p. 470, 471. 3 Newland on Contr. ch. 33, p. 469.

4 Williamson v. Gihon, 2 Sch. and Lefr. 356, 362.

Debonham v. Ox, 1 Ves. 276.