not reduced into writing and signed by the party sought to be charged thereon. (1) But all promises and agreements made by one person in consideration of the completion of a marriage by another, are within the statute, and must be reduced into writing, whether they are executory or executed; the performance of the contract does not take the contract out of the operation of the statute, as the words of the act would be rendered nugatory by such a result. A letter written by a father, signifying his assent to the marriage of his daughter with J. S., and that he would give her a marriage portion of 5007., was held a sufficient promise in writing within the meaning of the statute. (n)

Agreements not to be performed within a year.

The clause in the Statute of Frauds respecting any agreement that is not to be performed within the space of one year from the making thereof, extends to all contracts which are not by the terms of them to be fully and completely executed within a year. A part performance of the contract will not, consequently, take it out of the provisions of the statute. Thus, where a person had become a subscriber to the "Boydell Shakspeare," a work which was published in numbers, and could not, and was not intended. to be completed within a year, and had taken and paid for several numbers as they came out, and then refused to continue his subscription and complete the set, it was holden that an action could not be maintained against him for the money, as there was no written contract signed by him according to the statute. "It has been argued," observes Lord Ellenborough, "that an inchoate performance within a year is sufficient to take the case out of the statute; but the word used in the clause of the statute is performed, which, ex vi termini, must mean the complete performance or consummation of the work." “And I cannot say," observes Bailey, J., "that a contract is performed when a great part of it is to remain unperformed within the year; or, in other words, that part performance is performance. The mischief meant to be prevented by the statute was the leaving to memory the terms of a contract for a longer time than a year. The persons might die who were to prove it; or they might lose their faithful recollection of the terms of it. If part performance were to supply the want of writing, a party might be fixed with a contract for supplying goods for twenty years together, at the price which was paid for them the

(t) Cock v. Baker, 1 Str. 34. Harrison v. Cage, 1 Raym. 386.

(u) Countess of Montacue v. Maxwell, 1 Str.

236. Bird v. Blosse, 2 Ventr. 361. Moore v. Hart, 1 Vern. 110; Bac. Abr. Agreements, (c)

3.

first year," without any evidence in writing of the bargain, which would be contrary to the spirit and intention of the act. (r)

A contract whereby a coachmaker agrees to let a carriage for a term of five years, in consideration of an annual payment for the use of it, but which, by the custom of trade, is determinable at any time within that period, on payment of a year's hire, is an agreement not to be performed within a year, within the meaning of the statute. (y) So also is a contract for a year's service, to commence on a day subsequent to the making of the contract, for a contract which extends one minute beyond the time pointed out by the statute, falls within its prohibition. Where, therefore, an action had been brought upon a verbal contract made on the 27th of May, whereby the plaintiff had agreed to take the defendant into his service for a year, to commence on the 30th of June following, and the defendant had tendered himself as servant to the plaintiff on the day appointed, but the latter had refused to receive him, it was held that the action was prohibited by the statute, as the contract was not to be performed within a year from the time when it was made. (z) So, where the contract was made on the 20th of July to serve from the 24th for a year, and the servant, after serving a few months, was dismissed at a month's warning, and brought an action for his wages for the remainder of the year, it was held that the action could not be maintained, as the contract was within the fourth section of the statute. (a)

But a contract, or general hiring for one year from the time of the making of the contract, and so on from year to year so long as the parties shall respectively please, has been held not to extend beyond the time limited by the statute, and is not consequently within the provisions of the fourth section. (b)

The statute does not extend to contracts which are to be performed upon the happening of some uncertain event, and which may not consequently be completed within a year. (c) An agreement consequently to pay the plaintiff so many guineas on the day of his marriage, was held not within the statute, although the marriage did not take effect for nine years, for it might have happened within the year. (d) And where an oral promise was made to pay so much money on the return of a ship, which ship happened not to return within two years after the time of the making

(x) Boydell v. Drummond, 11 East, 154, 158. Sweet v. Lee, 4 Sc. N. R. 90.

(y) Birch v. The Earl of Liverpool, 9 B. & C.

392.

(2) Bracegirdle v. Heald, 1 B. & Ald. 722. (a) Snelling v. Ld. Huntingfield, 1 C. M. & R. 25; 4 Tуr. 606, s. c.

(b) Beeston v. Collyer, 12 Moore, 552; 4 Bing. 309, s. c. Sykes v. Dixon, 9 Ad. & E. 693.

(c) Wells v. Horton, 12 Moore, 176; 4 Bing. 40, s. c.

(d) Peter v. Compton, Skin. 353; Holt, 326, S. C. Smith v. Westall, 1 Raym. 316.

H

of the promise, it was held that the promise was not within the statute, for that, by possibility, the ship might have returned within the year, though by accident it happened that it did not, and that the clause in the statute only extended to such promises and agreements as were, by the express appointment of the parties, not to be performed within a year from the time of the making thereof. (e) And it has been laid down, that "where the agreement is to be performed upon a contingency, and it does not appear, within the agreement, that it is to be performed after a year, there a note in writing is not necessary, for the contingent and uncertain event might happen within the year; but where it appears, by the whole tenor of the agreement, that it is to be performed after the year, there a note is necessary, otherwise not.” (ƒ)

statute apply

Contracts executed within the year.-Neither does the where the contract is wholly executed, or intended to be so, by one of the parties thereto, within the year, although there are some acts to be done by the other party beyond the prescribed limit. Thus, where a landlord agreed to lay out 507. in improvements upon the demised premises, and the tenant agreed to pay 57. per annum for the remainder of his term, of which several years were then unexpired, in addition to the reserved rent, and the 50%. was expended within the year, and the landlord afterwards brought his action for the arrears of the 57., it was held that he was entitled to recover, though the agreement had not been put into writing and signed. "As to the contract not being to be performed within a year," observes Littledale, J., "we think that as the contract was entirely executed on one side within the year, and as it was the intention of the parties, founded on a reasonable expectation, that it should be so, the Statute of Frauds does not extend to such a case. In the case of a parol sale of goods, it often happens that they are not to be paid for in full till after the expiration of a longer period of time than a year; and surely the law would not sanction a defence on that ground, when the buyer had had the full benefit of the goods." (g)

Promises to answer for the DEFAULT or MISCARRIAGE of another.

The clause in the statute as to charging the defendant upon any special promise to answer for the default or miscarriage of another person, applies to the tortious default or miscarriage of another, as well as for his breach of contract: therefore, where the plaintiff in his declaration alleged that

(e) Anon. Salk, 280. Fenton v. Emblers, 3 Burr. 1282; 1 W. Bl. 353, s. c.

(f) Peter v. Compton, Skin. 353.

Wells v.

Horton, 12 Moore, 182, 183; 4 Bing. 43, 44.

(g) Donellan v. Read, 3 B. & Ad. 906. Mavor v. Pyne, 11 Moore, 2.

the defendant, in consideration that the plaintiff, at the request of the defendant, would let a certain gelding of his out to hire to one Joseph English, to ride to Reading, he, the defendant, undertook and promised the plaintiff, that the said Joseph English should redeliver it safe to the plaintiff, it was held that this was a promise to answer for the default of another, within the statute, and ought accordingly to have been expressed in writing. (h) So, where one T. E. Marter had, without the leave or license of the plaintiff, wrongfully ridden a horse of the plaintiff, in consequence whereof the horse died; and the defendant, in consideration that the plaintiff would not bring an action in respect thereof against the said T. E. Marter, promised to pay the plaintiff a sum of money, to be determined on by a third party, by way of satisfaction to the plaintiff for the damage he had sustained, &c., it was held that this was an undertaking for the default or miscarriage of another within the statute, and ought consequently to have been expressed in writing. (i)

So, where the defendant, in consideration that the plaintiff, at the request of the defendant, would become bail and surety for one Hadley, he, the defendant, would save harmless and indemnify the plaintiff from all payments, damages, costs, and expenses which he might incur, or be put to, by reason thereof, it was held that this was a promise to answer for the default of another within the fourth section of the statute. (k) But a promise by one parishioner to indemnify another against the consequences of resisting a claim of tithe, is not a promise to be responsible for the default of another, but a promise to pay what the promisee may lose by defending the promisor's interests in a suit. (7)

Promises to answer for the DEBT or DEFAULT of another.

If A, in consideration that B will stay proceedings in an action he has commenced against C, to recover a sum of money due to him from C, promises to pay that money, such promise is a promise to answer for the debt of another, within the fourth section of the statute. (m)

A distinction was formerly taken between a promise to pay for goods supplied to a third party, made before and after the delivery of such goods. The former was held to be an original undertaking, and so not within the statute, and the latter a collateral undertaking within the statute, but this distinction has been decisively overruled; and it is now

(h) Buckmyr v. Darnall, Raym. 1085; Salk. 28 & b.; Mod. 249, s. c.

(1) Kirkham v. Marter, 2 B. & Ald. 613.
(k) Green v. Cresswell, 10 Ad. & E. 453; 2

P. & D. 430, s. c.

() Ib. p. 459. Adams v. Dansay, 6 Bing. 506; 4 M. & P. 245, s. c.

(m) Fish v. Hutchinson, 2 Wils. 94.

holden, that if the person for whose use the goods have been furnished, is liable at all, any promise by a third person to pay for them, is a promise to answer for the debt of another, and must be authenticated by writing pursuant to the statute.

The operation of the statute, therefore, is not confined to collateral undertakings to be answerable for a subsisting debt or duty; it extends to undertakings made before the debt accrues or the duty arises, and a guarantee, consequently, which a tradesman, before he sends out goods on credit, requires from a third party, because he does not like to trust the person for whose use the goods are intended, is within the statute, if the latter has been treated by the tradesman as his DEBTOR. (n) Thus, where the plaintiff, a tradesman, being asked by the defendant to serve one Coulthard of Pontefract, with groceries, replied that he did not know him, and did not like to trust him, and the defendant said, "If you do not know him, you know me, and I will see you paid;" and an order was afterwards received by the plaintiffs from Coulthard for groceries, which were sent accordingly, and the plaintiffs made Coulthard their debtor for these goods in their books, and applied to him for payment, but were refused, whereupon they brought their action against the defendant upon his undertaking; it was holden, that this was a promise to answer for the debt of another, within the meaning of the provisions of the statute of frauds.(0) So, where the plaintiff, having commenced certain business for one Fox, refused to go on with it, without a promise by the defendant to pay the further expenses to be incurred, it was holden that this promise was within the statute. (p)

But the sale may be to one man, although the goods are to be delivered to another, and a person may promise to pay for goods supplied to, or for work done at his request, or by his directions for a third party, as the real debtor, and not in the character of a surety, and if he has been treated by the person who has furnished the goods, and done the work, as the party liable, and credit has been given to him, his promise or undertaking to pay is not a collateral promise to answer for the debt of another, and the statute consequently is out of the case.

"If two come to a shop, and one buys, and the other to gain him credit, promises the seller if he does not pay you, I will,' this is a collateral undertaking, void without writing by the statute. But if he says, 'let him have the goods, I will be your paymaster,' or 'I will see you

(n) Peckham v. Faria, 3 Doug. 13. Parsons v. Walter, ib. 14, n. (c). Matson v. Wharam, 2 T. R. 80.

(0) Matson v. Wharam, 2 T. R. 80.
(p) Barber v. Fox, 1 Stark. 270.