withstanding the Act, such promises may be verbally made, as indeed is usually the case.' It may next be noticed, that although, as a general rule, equity will enforce a contract, even void by the statute, provided that it be a complete agreement,' and that there has been such a part performance on the side of the plaintiff, as that it would be a fraud on him, if the defendant could object that the agreement was not in writing, yet it has been repeatedly held, that the marriage per se is not a part performance within this rule; and, therefore, if a suitor verbally agrees to settle property on his intended wife, and the lady, relying on his honour, marries him, she cannot compel the performance of his agreement; neither can a suitor, after simply marrying his intended wife, enforce the specific performance of a parol agreement made by her father with reference to settlements. Perhaps, however, in the event of a clear case of fraud being established, the Court, notwithstanding the Act, would compel the father to realise the expectations, on the faith of which the marriage was contracted; and little doubt can be entertained that, if the father were to say to the suitor, "Marry my daughter, and settle so much a year on her for her jointure, in which case I will give you so much for her portion," this proposal, though not reduced to writing, would amount to a valid contract in equity, if the marriage were actually to take place, and the jointure were settled. It is also now established law, that a verbal agreement

2

'B. N. P. 280, c.

Lady E. Thynne v. E. of Glengall, 2 H. of L. Cas. 131.

3 Clinan v. Cooke, 1 Sch. & Lef 41; Kine v. Balfe, 2 Ball & Beat. 347, 348; Surcome v. Pinniger, 3 De Gex, M. & Gord. 571; Taylor v. Beech, 1 Ves. Sen. 297.

Hammersley v. Baron de Biel, 12 Cl. & Fin. 64, per Lord Cottenham ; Redding. Wilks, 3 Bro. C. C. 401; Lassence v. Tierney, 1 M. & Gord. 571, 572, per Lord Cottenham; 2 Hall & T. 115, 134, 135, S. C.; Warden v. Jones, 23 Beav. 487.

• Montacute". Maxwell, 1 P. Wms. 619.

• Dundas v. Dutens, 1 Ves. 199.

7 Baron de Biel v. Hammersley, 3 Bea. 469, 475, 476, per Lord Langdale; 12 Cl. & Fin. 86, per Lord Brougham, S. C.

Hammersley v. Baron de Biel, 12 Cl. & Fin. 45, 64, per Lord Cottenham; 65 & 66, per Lord Campbell and Lord Lyndhurst. See also Maunsell r. White, 4 H. of L. Cas. 1039; Bold v. Hutchinson, 20 Beav. 250; 5 De Gex, M. & Gord. 558, S. C.; Jameson v. Stein, 21 Beav. 5.

made before marriage will be enforced in equity, if subsequently to the marriage it has been recognised and adopted in writing.' But the Court of Chancery will not interfere, even though there be a written memorandum, unless it appears that the marriage was contracted on the faith of the agreement; and, therefore, where a father wrote to his daughter, saying that he had agreed to give her intended husband 3000l. as her portion, and this letter was never shown to her husband, it was held not to be such an agreement in writing as satisfied the statute, since the husband could not have married on the faith of the letter.2

§ 946. In interpreting what is meant by an agreement that is not to be performed within a year from the making thereof, the Courts have held that the statute does not apply, where the contract is capable of being performed on the one side or on the other within a year. Neither does it extend to an agreement made by a contractor to allow a stranger to share in the profits of a contract, that is incapable of being completed within a year, because such an agreement amounts to nothing more than the vendition of a right which is performed instanter on the bargain being struck. It would seem also that the statute is inapplicable in any case where the action is brought upon an executed consideration; for as the object of the Legislature clearly was, to prevent the setting up, by means of fraud and perjury, of contracts or promises by parol, upon which parties might otherwise have been charged for their whole lives,-it does not appear unreasonable to limit the statute to such actions only as are

1 Barkworth v. Young, 26 L. J., Ch., 153, 157, per Kindersley, V. C.; Hammersley v. Baron de Biel, 12 Cl. & Fin. 64, per Lord Cottenham, citing Hodgson v. Hutchenson, 5 Vin. Abr. 522; Taylor v. Beech, 1 Ves. Sen. 297; and Montacue v. Maxwell, 1 Str. 236; and questioning Randall v. Morgan, 12 Ves. 73, where Sir William Grant expressed serious doubt upon the subject. See also 12 Cl. & Fin. 86, per Lord Brougham; and 3 Bea. 475, 476, per Lord Langdale.

2 Ayliffe v. Tracy, 2 P. Wms. 65.

3

Cherry v. Heming, 4 Ex. R. 631; and Smith v. Neale, 2 Com. B., N. S., 67; both recognising Donellan v. Read, 3 B. & Ad. 899.

M'Kay v. Rutherford, 6 Moo. P. C. R. 413, 429.

5

See ante, §§ 893, 900—902; post, §§ 953, 954.

brought to recover damages for the non-performance of contracts, which are not to be performed on either side within a year from the time of their being made.' Subject, however, to the limitation. just stated, a part performance is not sufficient to take the case out of the statute; but whenever it appears, either by express stipulation, or by inference from the circumstances, that the contract is not to be completed on either side within the year, documentary proof of the agreement must be given.' If, therefore, a farm-servant be verbally hired for a year's service, which is to commence at a future day, he cannot maintain an action against his master for discharging him before the expiration of the year, though he has faithfully performed his duty as such servant up to the date of his discharge. But though no action can be brought on the parol agreement, it will not be void for all purposes; for in the event of a sufficient service under it, the servant may acquire a settlement.'

§ 947. Again, the mere fact that the contract may be determined by the parties within the year, will not take the case out of the statute, if by its terms it purports to be an agreement, which is not to be completely performed till after the expiration of that period.' For the rule of law here is the same. as in the case of a defeasible estate, where if a party enters, he is in of the whole estate, though an event may afterwards occur, which would prevent the estate from continuing during the entire term contemplated in the original grant. Still, if the agreement is silent as to the time within which it is to be performed, and its duration rests upon a contingency, which may or may not happen within the year, as, for instance, if it depends on the death or marriage of a party, the length of a voyage, the

1

Souch v. Strawbridge, 2 Com. B. 814, per Tindal, C. J.

2 Boydell v. Drummond, 11 East, 142, 156, 159.

3

Bracegirdle v. Heald, 1 B. & A. 722; Snelling v. Huntingfield, 1 C. M. & R. 20; 4 Tyr. 606, S. C.; Giraud v. Richmond, 2 Com. B. 835. 1 B. & A. 727, per Bayley, J.

Birch v. Earl of Liverpool, 9 B. & C. 392, 395; 4 M. & Ry. 380, S. C.; Roberts v. Tucker, 3 Ex. R. 632; Dobson v. Collis, 1 H. & N. 81. R. v. Herstmonceaux, 7 B. & C. 555, per Bayley, J. §§ 920-922.

See ante,

giving of a notice, or the like, the case is not within the statute, though the event, which is to terminate the agreement, does not in fact occur within the year.'. When the contract is clearly one which is not to be performed within a year, it matters not whether it were made in this or in any other country; for as the Act does not bar the right as well as the remedy, or in other words, does not render the agreement void, but only prevents its being enforced by action here, it applies to all foreign contracts equally with those entered into in England.'

§ 948. The term, interest in lands, used in § 4, is one that has given rise to much litigation, and its meaning is not yet satisfactorily defined. Little doubt, however, can be entertained, that it extends to a contract to abate a tenant's rent; or to submit to arbitration the question whether a lease shall be granted; or to relinquish a tenancy, and let another party into possession for the residue of term; or to permit the profits of a clergyman's living to be received by a trustee ; or to become a partner in a colliery, which was to be demised by the partnership upon royalties; or to take furnished lodgings; or to convey an equity of redemption. On the other hand, it appears that an equitable mortgage by the deposit of title-deeds ;" a collateral agreement by a lessee to pay a per-centage on money laid

10

1 Souch v. Strawbridge, 2 Com. B. 808; Wells v. Horton, 4 Bing. 40 ; 12 B. Moore, 177, S. C.; Gilbert v. Sykes, 16 East, 154; Peter v. Compton, Skin. 353; 1 Smith, L. C. 142; id. 241, 4th ed., S. C.; Fenton v. Emblers, 3 Burr. 1278; 1 W. Bl. 353, S. C. See Mavor v. Payne, 3 Bing. 285; 11 B. Moore, 2, S. C. Leroux v. Brown, 12 Com. B. 801.

Smith v.

O'Connor v. Spaight, 1 Sch. & Lef. 306. Walters v. Morgan, 2 Cox, Ch. C., 369. Buttemere v. Hayes, 5 M. & W. 456; 7 Dowl. 489, S. C. ; Tombs, 3 Jur. 72, Q. B.; Cocking v. Ward, 1 Com. B. 858; Kelly v. Webster, 12 Com. B. 283; Smart v. Harding, 15 Com. B. 652.

6 Alchin v. 7 Caddick v. Skidmore, 3 Jur., N, S., 1185, per Ld. Cranworth, Ch.

Hopkins, 1 Bing. N. C. 102; 4 M. & Sc. 615, S. C.

8 Edge v. Strafford, 1 C. & J. 391; 1 Tyr. 293, S. C.; Inman v. Stamp,

1 Stark. R. 12, per Lord Ellenborough; Mechelen v. Wallace, 7 A. & E.

49; 2 N. & P. 224, S. C.; Vaughan v. Hancock, 3 Com. B. 766.

9 Massey v. Johnson, 1 Ex. R. 255, per Rolfe, B. See Toppin v. Lomas, 16 Com. B. 145.

10

Russel v. Russel, 1 Bro. Ch. C. 269; 12 Ves. 197.

out by the landlord on the premises;' a contract relating to the investigation of a title to land; an agreement between a landlord and tenant, that the former shall take at a valuation certain fixtures left by the latter in the house; or a contract that an arbitrator shall determine the amount of damages sustained by a party, in consequence of a road having been made through his lands; are not within the statute. How far the Act applies to profits à prendre, easements, and other incorporeal rights relating to lands, is a question by no means clear; though, on principle, it ought to extend to all agreements respecting rights of common, rights of way, grants of rent-charge, tolls, or licenses coupled with an interest, however trifling, in lands.'

196

§ 949. The question, whether shares in a joint-stock company, possessed of real estate, could be regarded as an interest in lands, was one which, until recently, was much discussed in Westminster Hall. The Legislature has, however, to a great extent set the matter at rest, by enacting that all shares issued under the JointStock Companies Act, 1856, "shall be personal estate, and shall not be of the nature of real estate.' In many cases, too, where the company has been incorporated by statute, parliament has expressly declared, that the shares shall be deemed personal estate. So, even in the absence of such a declaration, if the company be incorporated by statute or by charter from the Crown, and the real property be vested in the corporation, who are to have the sole management of it, the shares of the individual proprietors will be personalty, and will consist of nothing more than a right to participate in the net produce of the property of

Hoby v. Roebuck, 7 Taunt. 157.

2 Jeakes v. White, 6 Ex. R. 873.

Hallen v. Runder, 1 C. M. & R. 266; 3 Tyr. 959, S. C.

• Gillanders v. Lord Rossmore, Jones Ex. R. 504.

s Cook v. Stearns, 11 Mass. 533; R. v. Salisbury, 8 A. & E. 716.

19 & 20 Vict., c. 47, § 15.

This is so in the case of all companies subject to the provisions of "The Companies' Clauses Consolidation Act, 1845," 8 & 9 Vict., c. 16, § 7. So also in the case of the Vauxhall Bridge Co., 1 Gl. & Jam. 101; of the Lancaster Canal Co., Mont. & Bl. 112; of the London and Birmingham Rail. Co. (see Bradley v. Holdsworth, 3 M. & W. 422), and of many others.