It has since been considered in the construction of this statute, that a representation by a person, that the title-deeds of an estate which A. had bought were in that person's possession, that nothing could be done with the estate without his knowledge, and consequently that the plaintiff would be safe in lending money to A., was a representation made concerning A.'s ability; and, therefore, as it was not in writing, the defendant was not liable on account of its falsehood (c). It has also been considered that a representation by a partner as to the credit of a firm in which he was a partner is a repre(b) Haslock v. Ferguson, 7 A. & E. (34 E. C. L. R.) 86. (c) Swan v. Phillips, 8 A. & E. (35 E. C. L. R.) 457.
57 Miss. 607; but the fact that the party making the representation will derive benefit from the credit given is not, of itself, sufficient to raise a conclusive presumption of fraud : Pearson v. Seligman, 48 L. T. N. S. 482; Mann v. Blanchard, 2 Allen, 386. See also McLean v Dun, 1 Ont. App. 153; St. John v. Hendrickson, 81 Ind. 350; Hunter v. Randall, 62 Me. 423.
In Wade v. Tatton, which was decided in the Court of Exchequer Chamber, that Court determined that where a written representation is made as to the character of a third person, and also a parol representation of the character of the same person, and the person deceived thereby trusted to both representations, and would not have trusted to either of them alone, that the party deceived *thereby may maintain an action -a material part of the representation having been made in writing (e).
The effect of this section (of Lord Tenterden's Act) was also much discussed in the great case of Lyde v. Barnard (f), in which the Judges of the Court of Exchequer differed, but the judgments in which will repay a very attentive perusal.
It has been held that, although under the above section of Lord Tenterden's Act, the signature of an agent generally is not sufficient, yet that in the case of a banking company formed under 7 Geo. IV., c. 46, the signature of the manager is the signature, not merely of an agent, but of the company itself, and therefore " the signature of the party to be charged " within that section (g). In the case just cited, it did not appear that there was any other mode of signing by the bank except by the manager.
The third of the species of contracts enumerated by the 4th section, and required by it to be evidenced in writing is-any agreement made in consideration of marriage.
(d) Devaux v. Steinkeller, 6 Bing. N. C. (37 E. 0. L. R.) 84.
(e) 25 L. J. (C. P.) 240; 18 C. B. (86 E. C. L. R.) 371. (/) 1 M. & W. 101.
(g) Swift v. Winterbotham, L. R. 8 Q. B. 244; 42 L. J. (Q. B.) 111.
It certainly would strike any one (except, perhaps, a lawyer) that a promise by a woman to marry a man, in consideration of his promise to marry her, was an agreement made in *consideration of marriage. And, indeed, in Philpott v. Wallet (h), it was expressly so decided. That was an action of assumpsit for breach of promise of marriage, in which the jury found the promise, and found also that it had not been reduced to writing. And it was objected, "that this is no promise within the Statute of Frauds and Perjuries, for that must be intended of promises to pay money upon marriages, and not of promises to marry." But the report proceeds to say that to this it was answered and resolved, that this promise is directly within the words of the statute, and not out of the intent, because the promise is, that in consideration the one would marry the other, the other would marry him. However, as Lord Coke has observed, the reason of the law is not always like a man's natural reason; and, accordingly, the case of Philpott v. Wallet has been overruled by Cork v. Baker (i), and it has been decided by that case, and Harrison v. Cage (k), that an agreement between two persons to marry is not an agreement in consideration of marriage, within the meaning of this enactment, but that these terms are confined to promises to do something in consideration of marriage, other than the performance of the contract of marriage itself:1
(h) 3 Levinz, 65.
(i) 1 Str. 34.
(k) 1 Ld. Raym. 386.
1 The doctrine of these cases was affirmed in Ogden v. Ogden, 1 Bland, 287, and Clark v. Pendleton, 20 Conn. 508.-r.
Other cases are George v. Bartoner, 7 Watts, 532; Crane v. Gough, 4 Md, 322; Withers v. Richardson, 5 Mon. 94; Blackburn v. Mann, 85 111. 222; Short v. Stotts, 58 Ind. 36; Morgan v. Yarborough, 5 La. Ann. 316. But it has been held that a contract to marry in five years is within the prohibition of the statute in regard to parol contracts not to be performed within a year: Derby v. Phelps, 2 N. H. 516; see also Houghton v. Houghton, 14 Ind. 505.
Thus a promise made by the intended husband to the intended wife before marriage to settle her *per-sonal property on her, will not be carried into effect by the Court of Chancery unless evidenced by writing (I). But if so evidenced it would be otherwise, although the writing acknowledged the promise to have been made before the wedding, but it was, in fact, made after (m). And where a promise was made by a testator to the intended husband of his daughter, previous to her marriage, that she should share in the testator's property equally with the rest of his children, and the daughter married the plaintiff, and died in the testator's lifetime, leaving issue, but the testator, who had not given anything to the daughter on her marriage, gave by his will a legacy to one surviving daughter, and bequeathed the residue of his property to another, leaving nothing to his deceased daughter or to the plaintiff, her husband, it was held that the promise of the testator to the plaintiff, although verbal only, yet being repeated in terms in an affidavit made by the testator in a former legal proceeding against the plaintiff, the affidavit was a sufficient compliance with the requirements of the statute (n).