3 Clinan v. Cooke, 1 Sch. & L. 40; O'Herlihy v. Hedges, Ib. 129; Jackson's Assignees v. Cutright, 5 Munf. 318; 2 Story, Eq. Jur. § 760, and cases cited; Leak v. Morrice, 2 Ch. Cas. 135; Alsopp v. Patten, 1 Vern. 472. See, also, Sngden on Vendors, ch. 3, § 3, p. 107 to 112, and cases cited; Coles v. Trecothick, 9 Ves. 234; Ex parte Hooper, 19 Ves. 479; 1 Mer. 7, 8.
4 2 Story, Eq. Jur. § 761.
5 Clinan v. Cooke, 1 Sch. & L. 40; Pengall v. Ross, 2 Eq. Abr. 46, pl. 12; Savage v. Foster, 9 Mod. 37; Eaton v. Whitaker, 18 Conn. 222; Til-ton v. Tilton, 9 N. H. 386.
6 Foxcroft v. Lester, 2 Vern. 456; Colles, 108; Wetmore v. White, 2 Caines' Cas. 87; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273.
7 Hawkins v. Holmes, 1 P. Wms. 770; Pembroke v. Thorpe, 3 Swanst. 437, n.; Whitbread v. Brockhurst, 1 Bro. Ch. 404; Redding v. Wilkes, 3 Ib. 400; Frame v. Dawson, 14 Ves. 386; Stokes v. Moore, 1 Cox, 219.
§ 1465. These exceptions to the requirements of the statute, although well founded in authority, have not met with the thorough approbation of the courts, and they are, therefore, subject to strict construction, and cases arising under them are rigorously examined.3
§ 1466. Another exception is to be found in cases where the agreement was intended to be reduced to writing, but was not, in consequence of the fraud of one of the parties, for courts of equity would then interfere on the ground of the fraud.4 If, therefore, a person intending to marry, in view thereof, promise to make a marriage settlement and to have it reduced to writing, and then fraudulently and secretly prevent it from being done, and the marriage take place, courts of equity would compel him to perform his agreement.5 But in such case it should appear that there was an express promise to make the settlement in writing, and a fraudulent non-performance, and not a mere parol promise, not looking to a settlement in writing.6 The real equity of the case itself will, however, always be regarded, and no agreement will be enforced unless manifestly for equitable purposes.1
1 Cole v. White, 1 Bro. Ch. 409; Wills v. Stradling, 3 Ves. 378; Frame v. Dawson, 14 Ves. 386; Butcher v. Stapely, 1 Vern. 363; Pyke v. Williams, 2 Ib. 455; Gregory v. Mighell, 18 Ves. 328.
2 Charnley v. Hansbury, 1 Harris, 16; 2 Story, Eq. Jur. § 764, and cases cited; Boardman v. Mostyn, 6 Ves. 467; Clinan v. Cooke, 1 Sch. & L. 22, 40; Savage v. Carroll, 2 Ball & B. 451; Parkhurst v. Van Cort-landt, 1 Johns. Ch. 283.
3 2 Story Eq. Jur. § 765, and note 1; 1 Fonbl. Eq. B. 1, ch. 3, § 8, note (e); Lindsay v. Lynch, 2 S. & L. 4, 5, 7; Forster v. Hale, 3 Ves. 712.
4 Montacute v. Maxwell, 1 P. Wms. 618; 3 Wooddes. lect. 57, p. 432; Taylor p. Beech, 1 Ves. 297; Newl. on Cont. ch. 10, p. 191, 192, 194; Redding v. Wilkes, 3 Bro. Ch. 400.
5 Ibid. See, also, Dundas v. Dutens, 1 Ves. Jr. 196.
6 Hollis v. Whiteing, 1 Vern. 151; Whitchurch v. Bevis, 2 Bro. Ch. 565; Taylor v. Beech, 1 Ves. 297.
§ 1467. In all these cases it must, of course, appear that there were no gross laches or negligence on the part of him who seeks relief; and if there be a considerable lapse of time between the making of the agreement and the suit brought, it must be clearly explained, and shown not to operate injuriously upon the other party.2 Time, however, is not generally considered in equity of the essence of a contract, unless it have been so treated by the parties or unless the circumstances of the case plainly so indicate.3
1 Western Railroad Co. v. Babcock, 6 Met. 346; Gasque v. Small, 2 Strob. Eq. 72; Webb v. Alton Mar. & Fire Ins. Co., 5 Gilman, 223; Mechanics' Bank of Alexandria v. Lynn, 1 Pet. 376; Attorney-General v. Sitwell, 1 Y. & C. 582; King v. Hamilton; 4 Pet. 311. Mr. Justice Story, in 2 Eq. Jur. § 769, says in this respect: " An agreement to be entitled to be carried into specific performance ought (as we have seen) to be certain, fair, and just in all its parts. Courts of equity will not decree a specific performance in cases of fraud or mistake, or of hard and unconscionable bargains, or where the decree would produce injustice, or where it would compel the party to an illegal or immoral act, or where it would be against public policy, or where it would involve a breach of trust, or where a performance has become impossible, and generally not in any cases where such a decree would be inequitable under all the circumstances."
2 Pratt v. Law, 9 Cranch, 456; Colson v. Thompson, 2 Wheat. 336; Kendall v. Almy, 2 Sumner, 278; Doggett v. Emerson, 3 Story, 740. See ante, § 622; Taylor v. Longworth, 14 Pet. 172; Brashier v. Gratz, 6 Wheat. 528.
3 Doggett v. Emerson, 3 Story, 740; 2 Story, Eq. Jur. § 776, and cases cited; Hipwellt;. Knight, 1 Y. & C. 415. See ante, § 622.