need not be in ex press terms; if it can be inferred from the memoran dum, it will be sufficient. express terms; it is sufficient if the memorandum is so framed that any person of ordinary capacity must infer from the perusal of it, that such, and no other, was the consideration upon which the undertaking was given. But a mere conjecture, however plausible, that the consideration stated in the declaration was that intended by the memorandum, will not be sufficient; there must be a well grounded inference to be necessarily collected from the terms of the memorandum, that the consideration stated in the declaration, and no other than such consideration was intended by the parties to be the ground of the promise. Therefore, where the declaration stated that in consideration that the plaintiffs, at the request of the defendant, would give for the payment of a debt of 260l., then due from A. to D., and would take, by way of security, certain bills of exchange, and would forbear to sue the said A. and D. until the bills should become payable; the defendant promised to see the said bills paid, &c. Plea, that there was no undertaking in writing; replication, that there was the following memorandum, "enclosed I send you the bills drawn by A. upon and accepted by D., which I doubt not will meet with due honour; but in default thereof, I will see the same paid ;" held, on demurrer, that the consideration was not set forth with sufficient certainty; for there was nothing whatever in the letter itself that necessarily connected the undertaking of the defendant with the consideration of forbearance; no expression to denote that the bills were delivered in satisfaction of, or as security for the debt due from A. to D. to the plaintiffs, nor even any mention that any debt was due to them. As the consideration for the defendant's promise was left in complete uncertainty on the defendant's letter, it was not sufficient to satisfy the statute. So where the guarantee was in these words, “Mr. H. being about to proceed to Barbadoes, having incurred an account with you amounting to 491. 5s., with the understanding that he is to transmit the amount to you in three months, &c., we guarantee the performance of the said engagement, and in failure thereof we will be responsible to you;" held insufficient. So where the terms of the undertaking were as follows, as you have a claim on my brother for 5l. 17s. for boots and shoes, I hereby undertake to pay you the amount within six weeks from this day;" it was held, that the consideration did not sufficiently appear b. So where the memorandum was in these terms, "R. plaintiff, and J. defendant; we the undersigned jointly and severally undertake to pay G. C. the debt and full costs in this action, provided on or before the 1st of January, 1831, the sum of 117. 10s. 3d. be not paid to him at his office as attorney for the plaintiffs;" held insufficient. Lord Lyndhurst, C. B., observed, "on looking at the instrument, various interpretations might be put upon its language, and several considerations with much ingenuity conjectured. It appears to me, that if in such a written agreement to be answerable for the debt of another person, two distinct considerations may with equal probability be inferred, as the inducement for the engagement, the writing is not taken out of the operation of the statute of frauds, and consequently can give no right of action." c So where the words were, "whereas H. S. has hired a ship for six months from the 12th of July, 1830, and such longer time as his intended voyage may require, and has paid or secured the freight for six months, from the 20th of August, 1830, and is about to leave E.; I guarantee the payment of freight which shall accrue for any portion of the voyage after the said six months;" held insufficient for want of consideration apparent on the face of it. So where the guarantee was, 'I hereby agree to see you paid, within three months from the date hereof, the amount of 5l., due to you on account of Mr. G-M-, Jun." e "e • Id. James v. Williams, 5 B. & Ad. 1109. 3 N. & M. 196. * Cole v. Dyer, 1 C. & J. 461. d Bushell v. Bevan, 1 Bing. N.C. 103. 4 M. & Scott, 622. e Clancey v. Pigott, 2 Ad. & Ell. 473. 1 H. & W. 20. 4 N. & M. When the consideration is executory. If the consideration can be gathered by a fair intendment from the whole tenor of the writing, it is sufficient. And it is observable, that when an agreement is in its nature prospective, such an inference is much more easily arrived at than when it is in its nature retrospective. Where the terms of the guarantee were as follows: "You will be so good as to withdraw the promissory note, and I will see you, at Christmas, when you shall receive from me the amount of it, together with the memorandum of my son's, . making in the whole 45l.;" a promissory note for 35l., made by the defendant's son, and payable to the plaintiff, was proved at the trial, but not the memorandum; the guarantee was proved, and a subsequent admission by the defendant, that he had to pay the plaintiff 451., due from his son; held, that the withdrawing of the promissory note was a sufficient consideration to satisfy the statute of frauds, though the letter left it uncertain what the note was, and whether it was a note of the father or of the son. The consideration being executory, the plaintiff was to shew that he had fulfilled it, and for that purpose must of necessity prove, by parol evidence, that the note withdrawn by him was the thing meant by the agreement. If it had appeared in proof that there were two notes to which the promise might have applied, there might have been a difficulty as to explaining this by parol testimony. But when the evidence given was of one note only, it was clear that the plaintiff had complied with his part of the agreement". So where the guarantee was as follows: "I undertake, on behalf of Mr. Peate, (in consideration of Mr. Dicken having this day given me an undertaking to procure Mr. Ward's check or note in favour of Mr. Peate for 150l., on account of a debt due from Mr. Chambers to Mr. Peate,) that Mr. Chambers shall have credit for that sum in his accounts with Mr. Peate, and that Mr. Ward shall stand in the place of Mr. Peate to that amount; and I further undertake, that Mr. Peate shall not personally dispute Mr. Ward's right to deduct that sum 496. See Morley v. Boothby, 3 * Shortrede v. Cheek, 1 Ad. & Ell. 57. from the accounts owing by the colliers of the Black Park Colliery to Mr. Chambers; " held, that this agreement shewed a sufficient consideration moving from the plaintiff a. 4 So when the defendant addressed a letter to the plaintiff's attorney in these terms: "The bearer D. has a sum of money to receive from a client of mine some day next week, I trust that you will give him indulgence until that day, when I undertake to see you paid; " held sufficient, though it did not specify the sum, which was allowed to be proved by parol evidence b. C The following guarantees have been held sufficient :-" I do hereby agree to become security for R. G., now your traveller, in the sum of 500l., for all monies which he may receive on your account." "To Mr. N.-I do hereby agree to bind myself to be security to you for C. J., late in the employ of Mr. R., for whatever, while in your employ, you may entrust him with, to the amount of 50l., in case of default to make the same good." "I guarantee the payment of any goods which T. S. delivers to J. N." e " d Where the defendant signed and gave a guarantee to the plaintiff, stating that his ship was chartered, and that the charterer having paid one half the freight, and given the plaintiff his acceptance for the remaining half, at four months' date, the defendant engaged to be accountable to the plaintiff for the amount of the said acceptance, should it not be paid when due ; held, that the consideration clearly appeared on the face of such guarantee, as the bill would not have been taken unless thus signed. So where the plaintiff, being a merchant abroad, was in the habit of dealing with F. S., and having shipped goods for him to the amount of 1,0267., and suspecting his solvency he re quested the defendant to enter into a guarantee for the payment of the above sum, when he wrote a letter, addressed to the plaintiff, stating that F. S., having accepted a bill drawn on him by the plaintiff for 1,0267., he gave his guarantee for the due payment of the same, in case it should be dishonoured by the acceptor; held sufficient a. It is, however, difficult to reconcile the two last cases with the modern authorities, for they only disclose a past consideration, without shewing that the bills were taken at the defendant's request b. SECTION VIII. AGREEMENT IN CONSIDERATION OF MARRIAGE. It is clearly settled, that mutual promises to marry are not within the statute, and that its provisions extend only to agreements to pay money, or do some collateral act in consideration of marriage. Where a father promised his daughter 3000l., and died before her marriage, leaving her 2000l. only, a bill filed by her husband, to obtain the other 1000l., was dismissed, because the marriage was not contracted in expectation of 3000l. A parol agreement to pay money, or make a settlement in consideration of marriage, is void, and a recognition after marriage of a parol promise before marriage, will not take the case out of the statute e. A subsequent marriage is not sufficient to take a previous parol agreement out of the statute, as a part performance f. Boehm v. Campbell, 8 Taunt. 639. 3 Moore, 15. See Bushell v. Bevan, and other cases, ante, 1035, and the observations of Best, C. J., in Morley v. Boothby, 3 Bing. 114. B. N. P. 280. Harrison v. Cage, Ld. Raym. 386. 1 Salk. 24. Cocke v. Baker, Stra. 33. 45. 73. Ayliff v. Tracey, 2 P. Wms. Maxwell v. Montacute, Prec. Chan. 526. 1 P. Wms. 618. Taylor v. Beech, 1 Ves. 297. See Shaw v. Jakeman, 4 East, 201. |