2 N.H. 515 | Superior Court of New Hampshire | 1822
Our statute “ to prevent frauds and perjuries,” provides, among other things, “ that no action shall “ be brought whereby to charge any person upon an agree- “ ment made upon consideration of marriage, or upon any “ agreement, that is not to be performed within the space “ of one year from the time of making it, unless such prom-‘⅝ ise or agreement” “ be in writing,” &c.(l)
The defendant cannot avail himself of the first clause above cited ; because, though once decided in Philpolt vs. Wallet,(2) that a contract to marry must in all cases be in writing; yet, that decision has since been overruled in Cork vs. Baker,(3) and in Harrison vs. Cage and wife.—1 Ld. Ray, 386.—Salk, 24.-5 Mod. 411.— Bull. N. P. 280.—2 Equ. Ca. Ab. 248.—Skin. 136.
This clause of the statute is now held to reach not mutual promises to marry, but only promises for other things made in consideration of marriage. Bax. Ab. “Agreement,” C, 3. But tinder the other clause of the statute, we apprehend the objection to the evidence must be adjudged fatal. This was an agreement, which by the terms of it ivas not to be performed till the expiration of about five years ; and hence comes within the* very teeth of the statute. Had the tenor of the agreement been, that the contract should be fulfilled on a certain event, which might or might not have happened within a year, but which in fact did not happen till after a year, the agreement would not have been within the statute. 1 Salk. 280.-Skin. 326— Stra. 34.—Burr. 1278.— 1 Bl. Rep. 353.—1 Ld. Ray. 317.—Com. Rep. 49.—Holt 326.—3 Salk. 9.—10 John. Rep. 244.
But such was not the tenor of it. Nor can this description of contracts be taken out of the statute by the circumstance, that when the original statute of frauds passed under Charles the II., these contracts were not sued at law, but were merely the subject of proceedings to compel a performance ■of them in the ecclesiastical courts. For numerous kinds of contracts, not then in use and not then prosecuted in the
In respect to a part performance of this contract, which doubtless, if proved, might cure the absence of any writing,fl) the case as saved presents no question of this kind, and, according to otir recollection, none such was raised at the trial
Should this be relied on hereafter as an answer to the statute, it will then be early enough to decide what ought, to be considered a part performance of a contract, on whose rites and ceremonies, and their respective importance in peeing a marriage, so much diversity of opinion exists. See Londonderry vs. Chester, ante.
New trial.
