her and her children." After the father's death, without having made the promised provision by will, the only child of the marriage - his mother having died before her father -instituted a suit in equity against his grandfather's executors to recover £10,000 out of his assets. Lord Langdale, M. R., held that by acceptance the proposal had "ripened into an agreement," and that the plaintiff was entitled to the relief he prayed i. e., to the sum of £10,000, with interest at 4 per cent. from the end of one year after the father's death, on the footing of a legacy. Lord Cottenham, L. C., affirmed this decision, saying this, 12 Cl. & F. 45, at p. 62, n.: "I propose, first, to consider whether there was any such agreement previous to the marriage of the plaintiff's father and mother as was binding on the late Mr. Thomson to give an additional £10,000 as the portion of his daughter. If it be supposed to be necessary for this purpose to find a contract, such as usually accompanies transactions of importance in the pecuniary affairs of mankind, there may not be found in the memorandum, or in the other evidence in the cause, proof of any such contract; and this may have led to the defence set up by the defendants; but when the authorities on this subject are attended to, it will be found that no such formal contract is required."

This was affirmed in the House of Lords by Lord Lyndhurst, L. C., Lord Brougham, and Lord Campbell, without calling upon the respondents. We have examined the case closely, because it is of the highest authority, not merely as a judgment of the House of Lords, but it was decided by some of the best equity lawyers of that time. Lord St. Leonards has criticised the decision on the ground that the memorandum in that case might have been construed as a mere expression of an intention, not as a definite proposal which could by acceptance ripen into a contract. Sugden's Law of Property, p. 53. But he does not intimate a doubt that the decision was right if the proposal was not merely of an intention which might be changed. Therefore, a

definite proposal in writing so as to satisfy the Statute of Frauds to leave property by will, made to induce a marriage, and accepted, and the marriage made on the faith of it, will be enforced in equity.

Then, what is the remedy where the proposal relates to a defined piece of real property? We have no doubt of the power of the court to decree a conveyance of that property after the death of the person making the proposal against all who claim under him as volunteers.

It is argued that courts of equity cannot compel a man to make a will. But neither can they compel him to execute a deed. They, however, can decree the heir or devisee in such a case to convey the land to the widow for life, and under the Trustee Acts can make a vesting order, or direct that some one shall convey for him if he refuses. And under the like circumstances, the court has power to make a declaration of the lady's right.

But counsel do not press for such relief, or ask for a declaration to bind the house and land. The relief they ask is damages for breach of contract. It seems to be proved that the grantees of the property under the deeds executed by Sir R. Synge took without notice of the letter; they acquired, as we understand, the legal estate by the grant. If there was any valuable consideration moving from them, no relief in the nature of specific performance could be given against them; and it is suggested that the property, being partly leasehold, according to the decision. in Price v. Jenkins, 5 Ch. D. 619, there was such valuable consideration. It is not necessary to examine this argument, as counsel elect to ask for damages only.

Sir R. Synge had all his lifetime to perform this contract; but, in order to perform it, he must in his lifetime make a disposition in favor of Lady Synge. If he died without having done so, he would have broken his contract. The breach would be omitting in his lifetime to make such a disposition. True, it would only take effect at his death; but the breach must take place in his lifetime, and as by

the conveyance to his daughters he put it absolutely out of his power to perform this contract, Lady Synge, according to well-known decisions (Hochster v. De La Tour, 2 E. & B. 678; Frost v. Knight, Law Rep. 7 Ex. 111), had a right to treat that conveyance as an absolute breach of contract, and to sue at once for damages; and as this court has both legal and equitable jurisdiction, we are of opinion that such relief should be granted.

We have not before us the materials for assessing such damages. The amount must depend on the value of the possible life estate which Lady Synge would be entitled to if she survived her husband. Their comparative ages would, of course, be a chief factor in such a calculation. There must be an inquiry as to the proper amount of damages.

Sir R. Synge must pay the costs of the action here and in the court below. Appeal allowed.

Solicitors for plaintiff: Torr, Janeway, Gribble, Odie, & Sinclair, for Eastley, Jarman, & Eastley, Torquay.

Solicitors for defendant: Wood, Bigg, & Nash, for Kitson, Mackenzie, & Hext, Torquay. A. M.

BOOK II.

A SELECTION OF CASES ON TORTS.

FORDE v. SKINNER AND OTHERS.

Nisi Prius, 1830.

[Reported in 4 C. & P. 239.]

FALSE imprisonment, with a count for a common assault. Plea General issue.

The defendants were the parish officers of the parish of Ninfield, in Sussex; and the plaintiff was a young woman. who was a pauper in the poor-house there. The false imprisonment was not proved; and the assault complained of was, that, on the 10th of December, 1829, the defendants sent for the plaintiff into a room in the poor-house, and by force, and against her consent, cut off her hair; and it appeared, that in the struggle, occasioned by her resisting, one of her arms was bruised. It was shown that the plaintiff wore long hair, and kept it in a clean and neat state; and there was also evidence given that when the plaintiff had, shortly before, gone with two of the defendants before the magistrates at Battle, one of the defendants said, alluding to the plaintiff and her sister, who was also in the poor-house, that he would soon do something" to take their pride down." It also appeared that the sister's hair was cut off in a similar way.

BAYLEY, J. (in summing up). However desirable such a regulation as that of cutting off the hair of persons in a poor-house may be with regard to health and cleanli

ness, yet it is altogether unauthorized by law, and is a wrongful act, if done without the consent of the party. If, in this case, it was done violently and with force, and with the malicious intent imputed, namely, of "taking down their pride," and not with a view to cleanliness, that will be an aggravation, and ought to increase the damages. You will therefore decide on the motives which actuated the defendants, and according to that decision you will estimate the amount of damages.

Verdict for the plaintiff - Damages £60.

Platt and Thesiger, for the plaintiff.

Gurney, for the defendants.1

PURSELL v. HORN AND ELIZABETH, HIS WIFE.

Queen's Bench, 1838.

[Reported in 8 A. § E. 602.]

TRESPASS. The declaration stated that defendant Elizabeth, on etc., assaulted plaintiff, "and then cast and threw divers large quantities of boiling water on the plaintiff, and also then wetted, damaged, and spoiled the clothes and wearing apparel, to wit, one great-coat," etc., of the value etc., "which the plaintiff then wore : " by means of which he was hurt, scalded, etc., and forced to expend money in endeavoring to cure himself.

Pleas. 1. "As to the said assaulting the said plaintiff as in the said declaration mentioned, and wetting, damaging, and spoiling the said clothes and wearing apparel of the said plaintiff, as therein also mentioned;" that plaintiff assaulted and would have beaten defendant Elizabeth, wherefore she defended herself as she lawfully, etc., "and in so doing did necessarily and unavoidably a little assault the said plaintiff, and a little wet, damage, and spoil his said clothes and wearing apparel in the said declaration

1 See Wam. St. Cas. §§ 1-3, 63.