Catherine Lowe v Newsham Peers
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 1768 |
| Date | 14 May 1768 |
| Court | Court of the King's Bench |
English Reports Citation: 98 E.R. 160
IN THE COURT OF KING'S BENCH
S. C. Wilmot, 364. Referred to, Hurst v. Hurst, 1849, 4 Ex. 579; Leigh v. Lillie, 1860, 6 H. & N. 109; Newton v. Marsden, 1862, 2 J. & H. 364; Soothill Upper Urban Council v. Wakefield Rural Council [1905], 2 Ch. 534.
catherine lowe versus newsham pebrs. Saturday 14th May 1768. Contracts in restraint of marriage void. [S. C. Wilmot, 364. Referred to, Hurst v. Hurst, 1849, 4 Ex. 579 ; Leigh v. Lillie, 1860, 6 H. & N. 109; Newtm v. Marsden, 1862, 2 J. & H. 364; Soothill Upper Urban Council v. Wakejield Rural Council [1905], 2 Ch. 534.] This was an action of covenant, upon a marriage-contract ; being a promise under the defendant's hand and seal, and in his own hand-writing, to the effect following - " I do hereby promise Mrs. Catherine Lowe, that I will not marry with any person besides herself : if I do, I agree to pay to the said Catherine Lowe 1000 within three months next after I shall marry any body else. Witness my hand Newsham Peers,* and seal, &c." This deed was executed in 1757. And in 1767 Peers married another woman. Whereupon, this action was brought. [2226] The plaintiff avers, in her declaration, " that she had remained aingle, and was always willing and ready to marry him, whilst he continued single : but he married Elizabeth Gardiner." The breach was assigned in non-payment of the 1000 though demanded. The defendant, pleaded " non est factura." The question turned upon the second count only : for, it was admitted, that no sufficient evidence was given to support the first count.(a) * These last words, " and seal," were subsequent to his name. (a) According to Hill's MS. note of the judgment given in Cam. Scacc. on this case, there was a verdict for the defendant on the first count, which differed from the 4BURB.2227. LOWE V. PEERS 161 The cause was tried before Lord Mansfield. It appeared in evidence, by letters that were read, that there had been a long courtship; and that thia obligation was fairly and voluntarily given by the defendant to the plaintiff, the defendant pulled the ttampt paper out of his own pocket; and wrote, signed, sealed, and executed it, in the presence of one witness. And a witness who saw it executed, attested it, after the defendant was gone. There was no intercourse between the plaintiff and defendant afterwards. The witness to prove this deed swore that the defendant sealed it before he wrote his name " Newsham Peers." Evidence was called, on the other side, to prove the contrary. His Lordship directed the jury to find for the plaintiff, with damages 1000 if they thought the deed to be a good deed. If this direction was wrong, he gave the defendant leave to move for a new trial, without costs. Accordingly, on Thursday 21st April last, Mr. Dunning, Solicitor-General, moved for a new trial, with liberty also to move afterwards in arrest of judgment. Rule to shew cause. Upon shewing cause on Monday last (the 9th instant,) a question was proposed to be debated, "whether the jury could give any more or less damages than the 1000, the specific sum mentioned in the deed;" as well as " whether this instrument is good enough in law, to support any action whatsoever 1" It was then agreed that both motions, (viz. for a new trial, and in arrest of judgment,) should come on to be argued together. Pursuant to which agreement, the case was, yesterday and to-day, argued by Sir Fletcher Norton, Mr. Gust [2227] and Mr. Wallace, for the plaintiff: and by Mr. Dunning, Solicitor-General, and Mr. Mansfield for the defendants: but the Court, in giving their opinions upon the two motions, entered so fully into the grounds and reasons upon which they founded their determination, and discussed the objections and cases cited so particularly, as may rentier the arguments of the counsel unnecessary to be given here at all; or at least, more than a slight sketch of them. The general tendency of them was shortly this. The motion for a new trial was founded upon an objection to the direction given to the jury, " to find the whole sum of 1000 in damages, in case they should find for the plaintiff:" the counsel for the defendant insisting that the jury ought to have been left at liberty to give a less sum, if they...
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