Court of Common Pleas

IN THE COURT OF COMMON PLEAS

		1860

The declaration stated that the testator, in his life-time, in consideration that the plaintiff would marry Ellen Nicholl, agreed with and promised the plaintiff, who was then unmarried, in the terms contained in a writing in the form of a letter addressed by the said testator to the plaintiff, which writing was and is in the words, letters, and figures following, that is to say, "11th August, 1838. Gray's Inn. My dear Lancey, I am glad to hear of your intended marriage with Ellen Nicholl; and, as I promised to assist you at starting, I am happy to tell you that I will pay to you 150l. yearly during my life and until your annual income derived from your profession of a Chancery barrister shall amount to 600 guineas; of which your own admission will be the only evidence that I shall receive or require. Your ever affectionate uncle, Charles Shadwell:" Averment, that the plaintiff did all things necessary, and all things necessary happened, to entitle him to have the said testator pay to him eighteen of the said yearly sums of 150l. each respectively, and that the time for the payment of each of the said eighteen yearly sums elapsed after he married the said Ellen Nicholl, and in the life time of the said testator, and that the plaintiff's annual income derived from his profession of a Chancery barrister never amounted to 600 guineas, which he was always ready and willing to admit and state to the said testator, and the said testator paid to the plaintiff twelve of the said eighteen yearly sums which first became payable, and part, to wit, 12l., of the thirteenth; yet the said testator made default in paying the residue of the said thirteenth yearly sum, which residue is still in arrear and unpaid, and in paying the five of the said eighteen yearly sums which last became payable, and the same five sums were still in arrear and unpaid: Claim, 1000l.

Fourth plea: That, before and at the time of the making of the supposed agreement and promise in the declaration mentioned, the same marriage had been and was, without any request by or on the part of the testator touching the said intended marriage, but at the request of the plaintiff, intended and agreed upon between the plaintiff and the said Ellen Nicholl, of which the testator, before and at the time of making the supposed agreement and promise also had notice; and the same marriage was after the making of the supposed agreement and promise duly had and solemnized as in the declaration mentioned, at the request of the plaintiff, and without the request of the testator; and that., save and except as expressed and contained in the writing set forth in the declaration, there never was any consideration for the supposed agreement and promise in the declaration mentioned, or for the performance thereof.

Fifth plea: to part of the claim of the plaintiff, to wit, to so much thereof as accrued due in and after the year 1855, that, although the supposed agreement and promise in the declaration mentioned were made upon the terms then agreed On by the plaintiff and the testator, that the plaintiff should continue to practise and carry on the profession of such Chancery barrister as aforesaid, and should not abandon the same; yet that, after the making of the said agreement and promise, and before the accruing of the supposed causes of action by this plea pleaded to and in the declaration mentioned, or any part thereof, the plaintiff voluntarily and without the leave or licence of the testator, relinquished and gave up and abandoned the practice of the said profession of a Chancery barrister, which before and at the time of the said making of the said supposed agreement and promise lie had so carried on as aforesaid; and, although the plaintiff could and might during the time in this plea and in the declaration mentioned have continued to practise and carry on that profession as aforesaid, yet the plaintiff, after such abandonment thereof, never was ready and willing to practise the same as aforesaid, but practised only as a revising-barrister, that is to say, as a barrister appointed yearly to revise the lists of voters for the year for the county of Middlesex, according to the provisions of the statutes in that behalf, by holding open courts for such revision at the times and places in that behalf provided by the said statutes.

Second replication to the fourth plea: that the said agreement declared on was made in writing, signed by the said testator, and was and is in the words, letters, and figures following, and in none other, that is to say, setting out the letter as in the declaration: Averment, that the plaintiff afterwards married the said Ellen Nicholl, relying on the said promise of the said testator, which at the time of the said marriage was in full force not in any way vacated or revoked; and that he so married while his annual income derived from his profession of a Chancery barrister did not amount and was not by him admitted to amount to 600 guineas.

Second replication to the fifth plea: that the said agreement declared on was in writing signed by the said testator, and was and is in the words, letters, and figures set out in the next preceding replication, and in none other; and so the plaintiff said that the terms upon which it was in the fifth plea alleged that the said agreement and promise were made, were no part of the agreement and promise declared on, and the performance of them by the plaintiff was not a condition precedent to the plaintiff's right to be paid the said annuity.

The defendants demurred to the above replications, the ground of demurrer as to each being, "that the promise of the testator was voluntary only, and without consideration." Joinder.

Bullar, in support of the demurrers^[1]. The question is whether the promise stated in the declaration is founded upon any consideration, whether the true consideration for the promise is that alleged, viz, that the plaintiff would marry the lady named. The consideration stated, and no other, must be gleaned with certainty from the contract itself: Hawes v. Armstrong, 1 N. C. 761, 1 Scott, 661. "It is not," says Tindal, C. J., in that case, "necessary that such consideration should appear in express terms; it would undoubtedly be sufficient in any case if the memorandum were 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. Not that a mere conjecture, however plausible, that the consideration stated in the declaration was that intended by the memorandum, would be sufficient to satisfy the statute; but 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." In terms the document here does not contain the consideration stated in the declaration: that consideration was the former promise to assist the plaintiff" at starting; "and clearly that is not a sufficient consideration to support the promise. In Eastwood v. Kenyon, 11 Ad. & E. 438, 3 P. & D. 276, it was held that a pecuniary benefit voluntarily conferred by the plaintiff and accepted by the defendant, is not such a consideration as will support an action of assumpsit on a subsequent express promise by the defendant to reimburse the plaintiff. In delivering the judgment of the court, Lord Denman says: "Most of the older cases on this subject are collected in a learned note to the case of Wennell v. Adney, 3 Bos. & P. 249, and the conclusion there arrived at seems to be correct in general, 'that an express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original cause of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision.' Instances are given of voidable contracts, as those of infants ratified by an express promise after age, and distinguished from void contracts, as of married women, not capable of ratification by them when widows: Loyd v. Lee, 1 Strange, 94; debts of bankrupts revived by subsequent promise after certificate; and similar cases. Since that time some cases have occurred upon this subject, which require to be more particularly examined." After observing upon Barnes v. Hedley, 2 Taunt. 184, Lee v. Muggeridge, 5 Taunt. 36, Cooper v. Martin, 4 East, 76, Littlefield v. Shee, 2 B. & Ad. 811, and Mitchinson v. Hewson, 7 T. R. 348, his Lordship in conclusion says: "In holding this declaration bad because it states no consideration but a past benefit not conferred at the request of the defendant, we conceive that we are justified by the old common law of England." Chief Baron Skynner, in delivering the opinion of the judges in the House of Lords in Bann v. Hughes, 7 T. R. 350 (a), says: "It is undoubtedly true that every man is by the law of nature bound to fulfil his engagements. It is equally true that the law of this country supplies no means, nor affords any remedy, to compel the performance of an agreement made without sufficient consideration; such agreement is nudum pactum ex quo non oriter actio; and, whatsoever may be the sense of this maxim in the civil law, it is in the last mentioned sense only that it is to be understood in our law. The declaration states that the defendant, being indebted as administratrix, promised to pay when requested, and the judgment is against the defendant generally. The being indebted is of itself a sufficient consideration to ground a promise, but the promise must be co-extensive with the consideration unless some particular consideration of fact can be found here to warrant the extension of it against the defendant in her own capacity. If a person indebted in one right, in consideration of forbearance for a particular time, promise to pay in another right., this convenience will be a sufficient consideration to warrant an action against him or her in the latter right: but here no sufficient consideration occurs to support the demand against her in her personal capacity; for, she derives no advantage or convenience from the promise here made. For, if I promise generally to pay upon request what I was liable to pay upon request in another right, I derive no advantage or convenience from this promise, and therefore there is not sufficient consideration for it."In Hopkins v. Logan, 5 M. & W. 241, it was held that an executed consideration, whereon the law implies a promise to pay on request (as, upon an account stated), is not sufficient to support a promise to pay at a future day. And Parke, B., says; "The promise which arises in law upon an account stated, is, to pay on request, and any other promise is nudum pactum, unless made upon a new consideration." The mere performance of an act which the party was by law or agreement hound to perform, is not a sufficient consideration. Seiw. Ni. Pri. 12th edit. 44, citing Jackson v. Cobbin, 8 M. & W. 790, and Crowhurst v. Laverack, 8 Exch. 2Q8, per Parke, B. Here, the plaintiff being already under an engagement to marry the lady named, his promise to perform that engagement afforded no consideration: Cowper v. Green, 7 M. & W. 633; Clutterbuck v. Coffin, 4 Scott, N. R. 509, 3 M. & G-. 842; Pothier on Obligations, p. 25, Evans's translation.

As to the fifth plea, that shews a breach of a condition precedent, viz, that the plaintiff should not by his abandonment of his professional practice put it out of his power to realize the amount of income upon the realization of which the payment of the annuity was to cease.

V. Harcourt, contra^[2]. It is now settled law that the provisions of the Statute of Frauds do not apply where the consideration is executed: Souch v. Strawbridge, 2 C. B. 808; Green v. Saddington, 7 Ellis & B. 503: and see the cases collected in Chitty on Contracts, 5th edit. pp. 454 et seq. Here, the promise is made by a third person, and not to the person to whom the original promise was made. In Chitty on Contracts, p. 57, it is said: "a past or executed consideration is not sufficient to support an assumption, unless such consideration was moved by the precedent request, either express or implied, of the party promising. Therefore, where A.'s servant was arrested for a trespass, and J. S., who knew A., without his knowledge bailed the servant., and afterwards A., for his friendship, promised to save him harmless, -it was held that the promise was void, because the bailing, which was the consideration, was the voluntary courtesy of J. S., and was past and executed before. And a promise, without any new consideration, to pay a debt already incurred by a third person, would fall within the same principle. But, where the plaintiff's act is moved or procured by the request of the party that gives the assumpsit, it will bind; for, though the promise follows, yet it is not naked, but couples itself with the precedent request, and the merits of the party procured by that suit; as if, in the case last put, the third person had been credited at the instance of the defendant "^[3]. Again, at p. 60 (6th edit. p. 59), it is said: "A continuing consideration, being one in part executed, but which still continues, is also in many cases sufficient to sustain a promise; e.g. in consideration that the defendant had become and was the plaintiff's tenant, he undertook to manage the farm in a husband-like manner; or, in consideration that the lessee then in possession had occupied the land and paid his rent, to save him harmless against all persons for his occupation, 'because his occupation and prompt payment of the rent is a continuing consideration.' So marriage is a continuing consideration. So the payment of money for the defendant, and the having obtained a release for him, amount to a good continuing consideration for his promise. And, where the plaintiff declared that, in consideration he had bought three parcels of land on such a day, the defendant afterwards promised to make him a sufficient assurance: the consideration was adjudged not to be absolutely past, for the assurance was the substance of the sale"^[4]. In Rolle's Abridgment, Action sur Case (Q.), pl. 9, p. 12, is the following passage,-"Si A., seisie d'un shop, bargaine ove B. a leaser ceo a luy pur 5 ans, rendant 40s. rent, et 13d. d'ambideux parties est done pur performance de cest agreement, et puis, en consideration que A. faira le leas accordant al dit promise, B. promise a paier a luy 30l., sur que A. leas le shop accordant, ceo est bon consideracion d'aver action pur le 30l. coment que la fuit un perfect bargaine devant cest promise fait, entant que le leas fuit fait accordant al promise devant cest promise fait. Pasch. 11 Jac. B. R. enter Jones & Clarke, adjudge." So, in Com. Dig. Action upon the Case upon Assumpsit (B. 12), it is said: "An assumpsit lies, though the consideration be executed in part; as in consideration that he had done a thing at my request. So, if the consideration is continuing, though the act be executed; as in consideration that the lessee now in possession had paid his rent very well, to save him harmless; for, prompt payment of the rent is a continuing consideration, when he remains in possession (citing Pearle v. Unger, Cro. Eliz. 94, 1 Leon. 102). In consideration that he will make a lease according to a former agreement; for the agreement is not executed till the lease is made." These passages from Comyns's Digest were cited and relied upon by Littledale, J., in Payne v. Wilson, 7 B. & C. 423, 1 M. & R. 708. There, the plaintiff declared in assumpsit, that, in consideration that he, at the request of the defendant, would consent to suspend proceedings against A. on a cognovit, defendant promised to pay 30l. on account of the debt (for which the cognovit was given) on the 1st of April then next: averment, that the plaintiff did suspend proceedings on the cognovit. The plaintiff at the trial proved the following agreement in writing: "The plaintiff having, at my request, consented to suspend proceedings against A., I do hereby, in consideration thereof, personally promise to pay 30l., on account of the debt, on the 1st day of April:" and it was held, first, that, as the request must have preceded the consent to suspend proceedings, the contract might have been declared on as an executory contract, and consequently that there was not any variance, secondly, that the consideration for the promise was sufficient, because it must be taken as a consent to suspend proceedings, at least until the 1st of April. From the time of the marriage^[5]. In England v. Davidson, 11 Ad. & E. 856, 3 P. & D. 594, the defendant offered a reward to whoever could give such information as would lead to the conviction of a felon: the plaintiff, who was constable and peace-officer of the district where the felony was committed, gave such information; and it was held, on demurrer, that the plaintiff's having given the information was a good consideration for a promise by the defendant to pay the reward. In Chitty on Contracts, 6th edit. p. 52, it is said: "A distinction is to be taken between the case of a mere gratuitous promise and that of a promise on the faith of which one party is induced to do some act which, but for such promise, he would not have done. And therefore, although if A. promise to buy a house for B., that is nothing; yet, if A. promise to buy a house for B., but requests B. to enter into the contract of purchase in his own name, and B. does so, it would seem that the law would imply a promise on the part of A. to re-imburse B. any part of the purchase-money which he may be called upon to pay,"citing Crosbie v. M'Doual 13 Ves. 148, 158, 160. In Montefiori v. Montefiori, 1 Sir W. Bl. 363, Joseph Monteflori, a Jew, being engaged in a marriage treaty, his brother Moses, to assist him in his designs, and represent him as a man of fortune, gave him a note for a large sum of money as the balance of accounts between him and his brother Joseph, which balance he (Moses) acknowledged to have in his hands, though in truth no such balance, or anything like it, existed. After the marriage, Moses reclaimed this note, as being given on no consideration; and the matter was referred to arbitration. The arbitrators awarded the note to be delivered up, which Joseph refused to do; upon which the court was moved for an attachment against him for non-performance of this award; and on his part a cross-motion was made to set aside the award, on a suggestion that the arbitrators were mistaken in point of law: and the award was set aside, on the ground that, "where, upon proposals of marriage, third persons represent anything material in a light different from the truth, even though it be by collusion with the husband, they shall be bound to make good the thing in the manner in which they represented it." So, in Bold v. Hutchinson, 20 Beavan, 250, it was held that, where, upon the marriage of two persons, a third party makes a representation, upon the faith of which that marriage takes place, he will be bound to make good that representation. As to the fifth plea, -it is said that it was a condition precedent to the plaintiff's right to the annuity that he should continue the exercise of his profession of a barrister. His deriving an income of 600 guineas a year from that source, however, clearly was nothing more than a defeasance,-an event on the happening of which the plaintiff was to cease to receive the 150l. a year.

Bullar, in reply. The interpretation put upon the letter in question in the declaration, viz, that the defendant's promise was made "in consideration that the plaintiff would marry Ellen Nicholl," is not the true one. Unless the consideration so alleged be established, the action fails. Looking at the letter and all the surrounding circumstances, it is plain that it was not intended to be anything more than an act of kindness towards his nephew on the part of the testator. In delivering the judgment of the court in Eastwood v. Kenyon, 11 Ad. & E. 438, 452, Lord Denman says: "Lampleigh v. Brathwait, Hob. 105, is selected by Mr. Smith (1 Smith's Leading Cases, 67) as the leading case on this subject, which was there fully discussed, though not necessary to the decision. Hobart, C. J., lays it down that ' a mere voluntary courtesy will not have a consideration to uphold an assumpsit. But, if that courtesy were moved by a suit or request of the party that gives the assumpsit, it will hind; for, the promise, though it follows, yet it is not naked, but couples itself with the suit before, and the merits of the party procured by that suit; which is the difference;" a difference brought fully out by Hunt v. Bate, Dyer, 272 a., there cited, where a promise to indemnify the plaintiff against the consequences of having bailed the defendant's servant, which the plaintiff had done without request of the defendant, was held to be made without consideration: but a promise to pay 20l. to plaintiff, who had married defendant's cousin, but at defendant's special instance, was held binding. The distinction is noted, and was acted upon, in Townsend v. Hunt, Cro. Car. 408, and indeed in numerous old books; while the principle of moral obligation does not make its appearance till the days of Lord Mansfield, and then under circumstances not inconsistent with this antient doctrine when properly explained." In Thomas v. Thomas, 2 Q. B. 851, 859, Patteson, J., says: "Consideration means something which is of some value in the eye of the law, moving from the plaintiff: it may be some benefit to the plaintiff or some detriment to the defendant; but, at all events, it must be moving from the plaintiff."

Cur. adv. vult.

The court not being unanimous, the judgment was now pronounced as follows:

ERLE, C. J. The question raised by the demurrer to the replication to the fourth plea is, whether there is a consideration which will support the action on the promise to pay the annuity of 150l. per annum. If there be such a consideration, it is a marriage, and therefore the promise is within the Statute of Frauds, and the consideration must appear in the writing containing the promise, that is, in the letter of the 11th of August, 1838, construed with the surrounding circumstances to be gathered therefrom, together with the averments on the record.

The circumstances are, that the plaintiff had made an engagement to marry one Ellen Nicholl, that his uncle had promised to assist him at starting, - by which, as I understand the words, he meant on commencing his married life. Then the letter containing the promise declared on is sent, to specify what that assistance would be, namely, 150l. per annum during the uncle's life, and until the plaintiff's professional income should be acknowledged by him to exceed 600 guineas per annum; and the declaration avers, that the plaintiff, relying on this promise, without any revocation on the part of the uncle, did marry Ellen Nicholl.

Now, do these facts shew that the promise was in consideration either of a loss to be sustained by the plaintiff or a benefit to be derived from the plaintiff to the uncle, at his, the uncle's, request? My answer is in the affirmative.

First, do these facts shew a loss sustained by the plaintiff at his uncle's request? When I answer this in the affirmative, I am aware that a man's marriage with the woman of his choice is in one sense a boon, and in that sense the reverse of a loss: yet, as between the plaintiff and the party promising to supply an income to support the marriage, it may well be also a loss. The plaintiff may have made a most material change in his position, and induced the object of his affection to do the same, and may have incurred pecuniary liabilities resulting in embarrassments which would be in every sense a loss if the income which had been promised should be withheld; and, if the promise was made in order to induce the parties to marry, the promise so made would be in legal effect a request to marry.

Secondly, do these facts shew a benefit derived from the plaintiff to the uncle, at his request? In answering again in the affirmative, I am at liberty to consider the relation in which the parties stood and the interest in the settlement of his nephew which the uncle declares. The marriage primarily affects the parties thereto; but in "a secondary degree it may be an object of interest to a near relative, and in that sense "a benefit to him. This benefit is also derived from the plaintiff at the uncle's request. If the promise of the annuity was intended as an inducement to the marriage, and the averment that the plaintiff, relying on the promise, married, is an averment that the promise was one inducement to the marriage, this is the consideration averred in the declaration; and it appears to me to be expressed in the letter, construed with the surrounding circumstances.

No case shewing a strong analogy to the present was cited: but the importance of enforcing promises which have been made to induce parties to marry has been often recognized; and the cases cited, of Montefiori v. Montefiori, 1 W. Bl. 363, and Bold v. Hutchinson, 20 Beavan, 250, are examples. I do not feel it necessary to advert to the numerous authorities referred to in the learned arguments addressed to us, because the decision turns upon the question of fact, whether the consideration for the promise is proved as pleaded. I think it is; and therefore my judgment on the first demurrer is for the plaintiff.

The second demurrer raises the question whether the plaintiff's continuance at the bar was made a condition precedent to the right to the annuity. I think not The uncle promises to continue the annuity until the professional income exceeds the sum mentioned. I find no stipulation that the annuity shall cease if professional diligence ceases, - no limitation except a defeasance in case of an amount of income from the other source. If the prospect of success at the bar had failed, a continuance to attend the courts might be an unreasonable expense. My judgment on this demurrer is also for the plaintiff.

The above is the judgment of my Brother Keating and myself.

BYLES, J. I am of opinion that the defendant is entitled to the judgment of the court on the demurrer to the second replication to the fourth plea.

It is alleged by the fourth plea that the defendant's testator never requested the plaintiff to enter into the engagement to marry, or to marry; and that there never was any consideration for the testator's promise, except what may be collected from the letter itself as set out in the declaration.

The inquiry therefore narrows itself to this question: Does the letter itself disclose any consideration for the promise? The consideration relied on by the plaintiff's counsel being the subsequent marriage of the plaintiff. I think the letter discloses no consideration. It is in these words "11th August, 1838. Gray's Inn. My dear Lancey, I am glad to hear of your intended marriage with Ellen Nicholl; and, as I promised to assist you at starting, I am happy to tell you that I will pay to you 150L. yearly during my life and until your annual income derived from your profession of a Chancery barrister shall amount to 600 guineas; of which your own admission will be the only evidence that I shall receive or require. Your ever affectionate uncle, Charles Shadwell."

It is by no means clear that the words "at starting" mean "on marriage with Ellen Nicholl," or with any one else. The more natural meaning seems to me to be, "at starting in the profession;" for, it will be observed that these words are used by testator in reciting a prior promise made when the testator had not heard of the proposed marriage with Ellen Nicholl, or, so far as appears, heard of any proposed marriage. This construction is fortified by the consideration that the annuity is not in terms made to begin from the marriage, but, as it should seem, from the date of the letter: neither is it in terms made defeasible if Ellen Nicholl should die before marriage.

But, even on the assumption that the words "at starting" mean on marriage, I still think that no consideration appears, sufficient to sustain the promise. The promise is one which by law must be in writing; and the fourth plea shews that no consideration or request dehors the letter existed, and therefore that no such consideration or request can be alluded to by the letter.

Marriage of the plaintiff at the testator's express request would be no doubt an ample consideration. But marriage of the plaintiff without the testator's request is no consideration to the testator. It is true that marriage is or may be a detriment to the plaintiff: but detriment to the plaintiff is not enough, unless it either be a benefit to the testator, or be treated by the testator as such by having been suffered at his request. Suppose a defendant to promise a plaintiff: 'I will give you 500l. if you break your leg," would that detriment to the plaintiff, should it happen, be any consideration? If it be said that such an accident is an involuntary mischief, would it have been a binding promise if, the testator had said: "I will give you 100l. a year while you continue in your present chambers?" I conceive that the promise would not be binding, for want of a previous request by the testator.

Now, the testator in the case before the court derived, so far as appears, no personal benefit from the marriage. The question, therefore, is still further narrowed to this point: Was the marriage at the testator's request? Express request there was none. Can any request be implied? The only words from which it can be contended that it is to be implied, are the words "I am glad to hear of your intended marriage with Ellen Nicholl." But it appears from the fourth plea that the marriage had already been agreed on, and that the testator knew it. These words, therefore, seem to me to import no more than the satisfaction of the testator at the engagement, an accomplished fact. No request can, as it seems to me, be inferred from them. And, further, how does it appear that the testator's implied request, if it could be implied, or his promise, if that promise alone would suffice, or both together, were intended to cause the, marriage or did cause it, so that the marriage can be said to have taken place at the testator's request? Or, in other words, in consequence of that request?

It seems to me not only that this does not appear, but that the contrary appears; for, the plaintiff before the letter had already bound himself to marry, by placing himself not only under a moral but under a legal objection to marry; and the testator knew it. The well-known cases which have been cited at the bar in support of the position that a promise based on the consideration of doing that which a man is already bound to do is invalid, apply in this case. And it is not necessary, in order to invalidate the consideration, that the plaintiff's prior obligation to afford that consideration should have been an obligation to the defendant. It may have been an obligation to a third person: see Herring v. Darell, 8 Dowi. P. C. 604; Atkinson v. Settree, Willes, 482. The reason why the doing what a man is already bound to do is no consideration, is, not only because such a consideration is in judgment of law of no value, but because a man can hardly he allowed to say that the prior legal obligation was not his determining motive. But, whether he can be allowed to say so or not, the plaintiff does not say so here. He does, indeed, make an attempt to meet this difficulty by alleging in the replication to the fourth plea that he married relying on the testator's promise: but he shrinks from alleging, that, though he had promised to marry before the testator's promise to him, nevertheless he would have broken his engagement, and would not have married without the testator's promise. A man may rely on encouragements to the performance of his duty, who yet is prepared to do his duty without those encouragements. At the utmost the allegation that he relied on the testator's promise seems to me to import no more than that he believed the testator would be as good as his word.

It appears to me, for these reasons, that this letter is no more than a letter of kindness, creating no legal obligation.

In their judgment on the other portion of the record, I agree with the rest of the court.

Judgment accordingly^[6].

Note 1   The points marked for argument on the part of the defendant were as follows: tea cc That the promise was a voluntary act of kindness only on the part of the testator to his nephew, and was not intended to be the foundation of a legal claim in an actio: " 2. That there is no consideration expressed in the writing itself, or to be properly inferred from it, which would support the plaintiff's claim.    [Back]

Note 2   The points marked for argument on the part of the plaintiff were as follows: "As to the demurrer to the replication to the fourth plea: That the agreement declared on can be sufficiently gathered from the writing: "That the prior engagement with his intended wife did not prevent the marriage from being a sufficient consideration to support the testator's promise: "That if before the marriage the testator might have retracted, yet, when the plaintiff married relying on the promise, the promise became as irrevocable and binding as the marriage: "That the plea shews no retractation before the marriage: "That it was quite unnecessary that there should he any request by the testator to the plaintiff to marry, other than the agreement: "That the plea does not state that the parties intended that the payment should he voluntary or optional with the testator, and admits the agreement is one intended to bind: "That, if it he suggested that the plea serves the double purpose of a denial of the contract and a plea in confession and avoidance, so as to enable the defendants on the argument to exclude the consideration of the sufficiency of the avoidance by contending that in truth the plea is non assumpsit, the court should not adopt that view which would render it proper to amend or strike out the plea, hut should hold that the two questions simply are,-first, whether the writing is sufficient under the 4th section of the Statute of Frauds, and-secondly, whether the prior engagement renders it nudum pactum, which cannot he enforced. "As to the demurrer to the replication to the fifth plea: That such a condition as the fifth plea supposes to exist cannot he gathered from the writing: "That, if such a condition had been intended, it would naturally have been qualified by permission to leave off -practice in case of weak health, old age, or other cause either absolutely preventing practice or rendering practice irksome, or preventing all reasonable prospect of success at the bar,-cases in which the presumption is that the testator intended that the provision should continue, rather than that it should cease: "And that it is highly improbable that the condition set up by the fifth plea was contemplated by the parties, as there was apparently confidence and affection between them; and the court cannot assume that the plaintiff had not good reasons for discontinuing practice, as the form of the plea does not enable him to shew by a replication what those reasons were."    [Back]

Note 3   The following authorities are referred toHunt v. Bate, Dyer, 272 a., Sidenham v. Worlington, 2 Leon. 224, 225, Lampleigh v. Brathwait, Hob. 106, Com. Dig. Action upon the Case upon Assumpsit (B.), (B. 12), 1 Saund. 264, n. (1), Lord Suffield v. Bruce, 2 Stark. R. 175.    [Back]

Note 4   For these positions, the author citesMattock v. Kinglake, 8 Ad. & E. 795, 1 P. & D. 46, Powley v. Walker, 5 T. R. 373, Legh v. Hewitt, 4 East, 154, Pearle v. Unger, Cro. Eliz. 94, 1 Leon. 102, Bac. Abr. Assumpsit (D.), Com. Dig. Action upon the Case upon Assumpsit (B. 12), Adams v. Dansey, 6 Bingh. 506, 4 M. & P. 245, Marsh v. Rainsford, 2 Leon. 111, Sidenham v. Worlington, 2 Leon. 224, Web v. Russell, 2 Keble, 99, Warcop v. Morse, Cro. Eliz. 138.    [Back]

Note 5   The plaintiff's professional career commenced in Easter Term, 1832.    [Back]

Note 6   The plaintiff dying shortly after the judgment was given, and his representatives, not being desirous of continuing the litigation, the matter was compromised.    [Back]