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Keenan v Handley

(1864) 28 JP 660, 2 De GJ & Sm 283, 10 Jur NS 906, 12 WR 1021, 10 LT 800

Court: pre-SCJA 1873

Judgment Date: circa 1864

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CONTRACT - CONSIDERATION AND PRIVITY - CONSIDERATION - WHAT AMOUNTS TO - COMPROMISE - CLAIM BONA FIDE BUT DOUBTFUL OR UNFOUNDED - GENERAL RULE - ALLEGED PROMISE OF MARRIAGE
CONTRACT - VOID AND ILLEGAL CONTRACTS - CONTRACTS ILLEGAL OR VOID AT COMMON LAW - IMMORAL CONTRACTS - AGREEMENTS IN RESPECT OF COHABITATION CEASING - AGREEMENT ON SEPARATION - SUPPORTED BY OTHER CONSIDERATION - ABANDONMENT OF REASONABLE LEGAL CLAIM

Defendant had lived with plaintiff, as his mistress, for some years, during which she passed by the names by which he was known, but at length the connection terminated at defendant's desire. Plaintiff alleged a promise by defendant to marry her. Defendant positively denied having ever made such a promise. Defendant wrote promising to allow her £150 a year upon the separation, and soon afterwards a draft deed was prepared by a solicitor on behalf of both parties, whereby, in consideration of plaintiff's releasing all claims in respect of the alleged promise, defendant was to pay to plaintiff £100 a year for herself and £50 for a child born during the cohabitation. Defendant ultimately refused to execute this instrument, and on a bill being filed: Held this was a contract for valuable consideration, and its specific performance was accordingly decreed.

EVIDENCE - MODES OF PROOF AND WEIGHT OF EVIDENCE - INSPECTION - WEIGHT OF EVIDENCE - MATTERS AFFECTING WEIGHT - WHERE EVIDENCE DIRECTLY CONFLICTING - CIRCUMSTANCES COMPELLING DISBELIEF

Plaintiff lived with defendant as his mistress passing by his name as his wife. By her affidavit and viva voce she swore that defendant had promised spontaneously on several occasions to marry her. Letters were written by defendant to plaintiff in which he proposed a separation and offered to settle an annuity on her and their child. This plaintiff agreed to and a draft was prepared and approved of by both whereby in consideration of plaintiff's releasing all claims in respect of a promise which she alleged defendant had made to marry her she was to have the annuity. Defendant afterwards declined to execute the deed, and in his evidence viva voce positively denied that he had ever promised to marry plaintiff: Held plaintiff was entitled to a decree for the specific performance of this agreement; for, although the onus lay on her to prove the alleged promise and there was oath against oath, yet there were circumstances not in controversy to compel the court to disbelieve defendant.

RENTCHARGES AND ANNUITIES - CREATION, DURATION AND CHARGE - CREATION OF ANNUITIES - CREATION BY DEED OR OTHER INSTRUMENT INTER VIVOS - ENFORCEMENT IN EQUITY - SPECIFIC PERFORMANCE

Past cohabitation is a sufficient consideration for an agreement to grant an annuity, and such agreement will be enforced by a court of equity.