nuity. An objection was taken upon the 4th section of the statute of frauds, that the agreement was not to be performed within the year. And it was said that it would be extremely inconvenient to establish promises of this kind, not reduced to writing; that the agreement could not be performed on May's part within a year, for a whole year from his death was to elapse before the annuity or any part of it was to become payable: but it was answered on the other side that the action was brought for May's not having done what he ought to have done in his life-time, so that it might have been done with in the year. And Mr. Justice Dennison declared his opinion to be, in which opinion the other judges fully coincided, that the statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. That a contingency was not within it, nor any case that depended upon a contingency. And that it did not extend to cases where the thing might be performed within the year.

The learned judge then cited a case of Peter v. Compton, as reported in Skinner,(h) which case was stated by Mr. Northey, in arguing the case of Smith v. Westall,(i) as follows: "The agreement was, that A, in consideration of 57. paid by B, should pay to B 201. upon his day of marriage; which promise was not in writing; and it was held by the judges at Serjeant's Inn, to be out of the intent of the statute, and good, because it might have been performed within the year. Holt, Ch. J. agreed, that if the marriage had taken effect within the year, no writing would have been necessary; but, as the marriage did not happen within the year, but nine years afterwards, he was of opinion that the promise ought to have been in writing; because the design of the statute was, not to trust to the memory of witnesses for a longer time than one year. But the majority of the judges were of opinion, that it was not within the statute of frauds.

To the same effect is the case related by Lord Ch. J. Treby, according to the report in Salkeld, which case was as follows: "A parol promise was made to pay so much money upon the return of such a ship, which ship happened not to return within two years after the promise made; and whether this parol promise was void by the statute of frauds, was the question before

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all the judges. And they were of opinion, that this was a good promise, and not within the clause of the statute, which provides, that no action shall be brought upon any agreement that is not to be performed within the space of one year from the making thereof, unless it be in writing; for that by possibility the ship might have returned within the year. And though by accident it hap[190] pened not to return so soon, yet they were of opinion that the said clause of the statute extended only to such promises where, by the express appointment of the party, the thing was not to be performed within the year.

That promises to marry are out of the statute, which ex

sideration of marriage.

PART IV.

Contracts in consideration of Marriage.

SOON after the making of the statute of frauds, we find an opinion in the books,(k) that the clause relating to marriage extends as well to a promise to marry, as to the payment of marriage portions; but this doctrine has been expressly denied by tends only to later resolutions, and the settled construction appears now to be, promises made in con- that mutual promises to marry are out of the statute, which extends only to promises made in consideration of marriage. Thus, in a note to Harrison v. Cage,(/) it is said to have been ruled at the preceding Norfolk assizes, by Lord C. B. Ward, that the promise to marry had no need to be in writing, by the statute of frauds. And Mr. Northey said at the bar, that the statute intended only agreements to pay marriage portions, and that it had of ten been ruled so by Holt, Ch. J. which Holt did not deny. But in Cork v. Baker,(m) this point was expressly in judgment. The plaintiff declared on the defendant's promise to marry her, and obtained a verdict. The defendant moved in arrest of judgment, that this parol promise was not good in law; but after argument it was held that this was not a promise within the statute of frauds and perjuries, which relates only to contracts in consideration of marriage.

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On this clause of the 4th section, the effect of letters from parents, or persons in loco parentis, containing promises of "provisions, have been a frequent subject of adjudication, and wherever

(*) Lev. 65, 411.

(7) 1 Lord Raym. 386.

(m) 1 Strange, 34.

they have been explicit in their terms, and the subject matter of the promise has been reduced to sufficient certainty, they have been held to satisfy the statute. Thus, in a case determined a very few years after the statute was passed,(n) where a father wrote a letter, signifying his assent to the marriage of his daughter with J. S. and that he would give her 1,500l. and afterwards by another letter, upon a further treaty concerning the said marriage, went back from the proposals of his first letter; and again, at some time after, declared that he would agree to what was proposed in his first letter; the letter was held a sufficient promise in writing, within the statute of frauds, and that the last declaration had set up the terms of the first letter again.

To the like effect was the observation of Lord Macclesfield, in the case so often alluded to, of Seagood v. Meale.(0) His Lordship, however, in that observation, laid some stress upon the operation of the letter, as an encouragement to the party to marry; and in the case of Ayliffe v. Tracy,() this operation as influencing the intended husband to conclude the match, was, according to the report of that case in Peere Williams, consider ed by the same Chancellor, as necessary to the obligatory effect of the letter, within the statute of frauds. The case as stated by the above reporter, was as follows: the plaintiff courted one of the daughters of Sir Thomas Haslewood, and treated with the father about the marriage; the father consented to the marriage, and wrote to his daughter intimating, that he had met the plaintiff, Mr. Ayliffe, and had agreed to give him as a portion 30007, which the plaintiff (he said) seemed fully to assent to, and that they were to meet the next day, when the affair was to be fully concluded; and subscribed his name to the letter. Accordingly, the father and intended husband met and agreed to the marriage, and the father gave money to the daughter to buy *her wedding clothes, and the wedding-day having been appointed, the father died before that day, having made his will long before this treatý for the marriage, and given his daughter only 2000, the daughter did not show this letter to her intended husband, whom she afterwards married; and the 20007, was paid to the plaintiff, the husband, but he made no settlement, nor was he required to make any on his wife. The Lord Chancellor was of opinion,

(n) 2 Vent. 361, Bird v. Blosse. (0) Prec Chanc. 560. (p) 2 P.

Wms. 65,

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that these circumstances amounted to nothing more than a mere communication, and had no ingredient of equity; the husband, his Lordship said, had made no settlement; he did not know of this letter, it being written to his daughter; and that, therefore, he could not be supposed to have married in confidence of this letter; that he had accepted the 20007. legacy as the portion, and at that time had demanded no more; and that the other daughter had but 15007. portion.(q)

It does not appear that this case supposes any necessity that the facts should supply evidence of fraud, or artifice, in bringing about a marriage by false assurances, in respect to the portion (which will of itself take a case wholly out of the statute, and entitle a party to a performance in equity of a promise not in writing) but it seems to be in analogy with the decision of the Court of King's Bench, in the case of Wain v. Warlters,(r) which has been so much above considered; for if, according to the definition given by Chief Baron Comyns, of the word 'agreement,' quoted by Lord Ellenborough, there ought to be the assent of two or more minds to constitute its perfection, or if, according to the words of Lord Ellenborough himself, in the abovementioned case, an agreement in its proper and correct sense signifies a mutual contract on consideration between two or more parties; this letter, though written to a person interested in the performance, yet, not being sent or communicated to that party, *[193] from whom the consideration moved, and with whom alone *there could be a reciprocity of undertaking, and mutuality of confidence, seems to have ranked under too loose a description of promise to satisfy the exigency of the principle upon which the determination in the abovementioned case was founded.

Upon a somewhat similar principle, where an uncle by letter promised his niece 1000/. portion; but in the same letter, dissuaded her from marrying the person intended, the Lords Commissioners() would not decree the payment, but left the plaintiff to his action at law.(t) But it is not so easy to account for the determination by the same judges in the same term, in the case of Cookes v. Mascall, et e contra,(u) which case was as follows: a marriage was in treaty between the plaintiff Cookes and

(7) See this case very differently reported in 9 Mod. 3. (r) 5 East, 10 (s) Rawlinson and Hutchins. (t) Douglas v. Vincent, 2 (u) 2 Vern. 200.

Vern. 202.

the defendant Mascall's daughter, it being pretended that Sir Thomas Cookes would make a considerable settlement on the plaintiff his kinsman: proposals were made for mutual settlements, and it was thereby agreed, that Mascall should settle 407. per ann. for the present, and that Edward Cookes the father, should settle the reversion of his estate at Wick, after the death of him and his wife, and should allow his son 201 per ann. for maintenance in the mean time, and Mascall was to settle reversions of copyholds after the death of himself and his wife, of the value of 80l. per ann. In 1684, a meeting was appointed, and held at Worcester, in order to a full agreement; the proposals were then considered, and all parties seemed to allow and approve thereof. In October, 1684, Cookes the father, with one Baker an attorney, came over to Mascall's house at Fordebigg, in order to make a final arrangement touching the settlement to be made on the intended marriage. Mr. Baker having conversed with both parties, proceeded to draw the agreement *[194]. into articles in writing to be mutually signed by the parties; but before the same were ready for execution, Mascall and Cookes disagreed; and Mascall by his answer swore *positively, that upon reflecting that Sir Thomas Cookes had refused to make any settlement on his kinsman, as it was pretended he would, and that Cookes the father, also refused to settle a further estate upon the plaintiff, to answer the reversion that Mascall was to settle, expectant on the death of his mother, he refused to proceed any further, in order to perfect the agreement, and never signed it. But Cookes put up what Baker had written into his pocket, and so they parted, and had no further meeting nor treaty; but Cookes the father swore, that after the articles were drawn, they were read over and agreed to, and that Mascall promised to meet at another time to execute; that young Cookes was afterwards permitted to come to Mascall's house, and in December, 1684, married his daughter, Mascall being privy to it, helping to set them forwards in the morning, and entertaining them, and seeming well pleased with the marriage, upon their return to his house at night. Upon this case, Cookes the father, having by his answer offered to perform the agreement on his part, the court thought fit to decree Mascall also to perform the agreement, according to what was contained in the writing drawn by Baker, though that was not signed by Mascall, as was intend