In the early case of Smith v. Brun-ing,1 the Master of the Rolls, in ordering a marriage brokage bond to be given up, decreed that the sum of fifty guineas paid to one of the defendants be refunded. And in two comparatively recent cases, one decided in England and the other in New York, it is held that money paid by a woman to the proprietor of a "matrimonial bureau" under an illegal contract to introduce men to her with a view to matrimony, may be recovered. But the two courts do not assign the same reason for their conclusion. In Hermann v. Charlesworth,2 the English case, there is no suggestion that the parties were not in pari delicto, and the court rests its decision, apparently, upon the ground that the plaintiff withdrew from the transaction before its illegal purpose was accomplished. In Duval v. Wellman,3 the New York case, on the other hand, it is declared that the plaintiff was not in pari delicto, - or, at least, that there was sufficient evidence to justify the jury in so finding. Said the court:

"It is true there is no evidence of actual overpersuasion or undue influence. But at most the inferences to be drawn from these facts were for the jury. The prominent fact in the case is that such a place as the defendant maintained existed in the community with its evil surroundings and immoral tendencies. What influence was exerted upon the mind of the widow by the mere fact of the existence of such a place to which resort could be had, cannot of course appear except by inference. But if the evidence was not sufficiently strong to authorize the court to hold as a question of law that the parties were not in pari delicto it at least presented a question of mixed fact and law for the jury."

To infer actual fraud or undue influence over a woman who desires a husband from the mere fact that she has dealt with the proprietor of a "matrimonal bureau" seems hardly justifiable. But it is not unreasonable that credulous and weak-minded persons should be protected by law from the tempting representations of marriage brokers, and there is reason to believe that such is one of the purposes of the doctrine which makes marriage brokage contracts illegal. "Every temptation," said Story,1 in expounding the doctrine, "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, especially of females." 2

1 1700, 2 Vera. 392; also reported under the title of Goldsmith v. Bruning, in 1 Eq. Cas. Abr. 90.

2 [1905] 2 K. B. 123.

3 1891, 124 N. Y. 156, 163; 26 N. E. 343.

If, then, the purpose, or one of the chief purposes, of the prohibition is the protection of a class of persons represented by the plaintiff from a class represented by the defendant, it follows that the plaintiff is not in pari delicto, even though no actual fraud or constraint is established. That this is the underlying reason for the decision in Duval v. Wellman is suggested in one paragraph of the opinion, as follows:3

"But where a party carries on a business of promoting marriage as the defendant appears to have done, it is plain to be seen that the natural tendency of such a business is immoral and it would be so clearly the policy of the law to suppress it and public interest would be so greatly promoted by its suppression, that there would be no hesitation upon the part of the courts to aid the party who had patronized such a business by relieving him or her from all contracts made, and grant restitution of any money paid or property transferred."

It should be noted, in conclusion, that the theory of Duval v. Wellman might be held to have no application if the defendant were not the proprietor of a"matrimonal bureau," 4 or a professional marriage broker, while the grounds adopted in Hermann v. Charlesworth would support a decision against one who did not hold himself out as a promoter of marriages, as well as against a professional broker.

1 "Equity Jurisprudence," Sec. 261.

2 See also Drury v. Hooke, 1686, 1 Vern. 412; Crawford v. Russell, 1872, 62 Barb. (N. Y. Sup. Ct.) 92.

3 At page 162.

4 But see, contra, Wenninger v. Mitchell, 1909, 139 Mo. App. 420; 122 S. W. 1130.