(/) See Hunt v. Wimbledon Local Bd., (1878) 3 C. P. D. 208, 214 ; 47 L. J. C. P. 540 ; 48 L. J. C. P. 207; ef. Crook v. Corp. of Seaford, (1871) 6 Ch. 551.

(g) Wilson v. West Hartlepool B. Co., (1865) 2 D. J. & S. 475; 34 L. J. Ch. 241. As to contracts of corporations, see sup. p. 260.

Marriage is not, for the purposes of specific performance, considered a part performance of a parol contract, for which it forms the consideration (h). Thus, where instructions were given to a solicitor to prepare a settlement of the intending husband's property, but it could not be ready by the time fixed for the marriage, and there was no antenuptial contract, a settlement made shortly after the marriage was held fraudulent and void as against the husband's creditors (i). And where an infant before marriage by letter promised to settle certain specified property on his wife, and fifteen years after the marriage by a deed, which did not refer to the letter, settled other property than that mentioned in the letter, and upon different trusts, it was held that the settlement was merely voluntary, and that a purchaser from the husband of part of the settled property was entitled to specific performance (k). So, where a draft settlement was prepared according to instructions given by the intending husband, but, before it was finally approved, the idea of a settlement was abandoned on his verbal promise that he would forthwith execute a will leaving his wife all her own property, and such a will was executed immediately after the marriage ceremony, but was subsequently revoked, it was held that the execution of the will, which was in itself a mere revocable instrument, was not sufficient to constitute part performance (/). On appeal to the House of Lords the question of part performance was not argued ; and the decision of Lord Cranworth was affirmed, on the simple ground that there was no sufficient memorandum signed by the party to be charged (m).

Marriage as part performance.

(h) Spurgeon v. Collier, (1758) 1 Ed. 55 : Taylor v. Beech, (1749) 1 Ves. sen. at p. 298 ; Lassence v. Tierncy, (1849) 1 M. & G. at p. 572 ; Goldt-cutt v. Towtwnd, (18C0) 28 Bear. 415; Kammersley v. De Biel, (1845) 12 C. & F. 45, 64, n. ; Caton v. C, (1867) L. R. 2 H. L. 127 ; 35 L. J. Ch. 292; 36 L. J. Ch. 886.

(i) Warden v. Jones, (1857) 2 D. &

J. 76; 27 L. J. Ch. 190; in effect overruling Dundas v. Dutens, (1790) 1 Ves. at p. 199.

(k) Trowell v. Shenton, (1878) 8 Ch. D. at p. 318 ; 47 L J. Ch. 738.

(l) Caton v. C, (1866) 1 Ch. 137; 35 L. J. Ch. 292 ; 30 L. J. Ch. 886 ; cf. Vincent v. V., (1887) 56 L. T. 243.

(m) Caton v. C, (1867) L. R. 2 H. L. 127.

But where there is a written agreement after, in pursuance of a parol agreement before, marriage, or where, after the marriage, possession of the property is given up, or some other act is done, in pursuance of the parol agreement, which, independently of the marriage, will constitute part performance, the contract may be enforced (n) ; thus, where one of the contracting parties verbally agrees, as the consideration for the marriage, to settle an estate, and, on the faith of that promise, the other contracting party, or some person acting on his or her behalf, makes a settlement and the marriage is solemnised, the settlement so made is a sufficient act of part performance to take the case out of the Statute (o) ; so, where a marriage was contracted, and a settlement made by the husband, on the faith of representations by his wife's father, that his daughter upon the death of her parents would become absolutely entitled to one-third of certain trust funds, the sole surviving child of the marriage was held entitled to have the representations made good, and to have a subsequent appointment by her grandfather, which prevented the devolution of the one-third share, set aside (p). But in these cases, too, the rule holds good that the act relied upon as part performance must be unequivocally referable to the contract which it is intended to support. Thus, where A. consented to the marriage of her daughter with B., on the faith of an unattested paper signed by C, stating that as a mark of his esteem and friendship for B., he agreed to allow him £500, and that he had left him after his own death £10,000 in lieu of the £500 a year: it was held that there was no sufficient connection between C.'s promise and representation, and the consent given by A., to sustain a claim against C.'s estate (q).

Part performance of parol agreement, independently of the marriage.

(n) Surcome v. Pinniger, (1S53) 3 D. M. & G. 571; Barkworth v. Young, (1856) 4 Dr. 1 ; 26 L. J. Ch. 153 ; Ungley v. U., (1877) 5Ch.D. 887 ; 46 L. J. Ch. 854; followed in Sharman v. S., (1892) 67 L.T. 834; and see Cooper v. Wormald, (1859) 27 Beav. 266.

(o) Hammersley v. Be Bid, (1845) 12 C. & F. 45 ; but qu. whether this case "was decided on the Statute of Frauds; see Maunsell v. Hedges, (1854) 4 H. L. C. at p. 1055.

(p) Walford v. Gray, (1864) 13 W. R. 761 ; Coverdale v. Eastwood, (1873) 15 Eq. 121 ; 42 L. J. Ch. 118.

(q) Bashwood v. Jermyn, (1879) 12 Ch. D. 776.

Where a father by his will left his real estate to his two sons, but the will, for want of due attestation, could not he admitted to probate, and the elder son, who inherited the estate, told his brother on several occasions that the property should be "not mine, nor thine, but ours," and it was accordingly held by them as tenants in common for nearly twenty years, the Court considered this to be a sufficient proof of a family arrangement, enforceable against the elder brother (r).

Parol family arrangement.

In one case, where an agreement in writing for a three years' tenancy reserved to the tenant the option of requiring a twenty-one years' lease at the expiration of the prior term, V.-C. Wigram appears to have considered that his verbal notice of intention to take the new lease, accompanied by retention of possession, was binding upon him (s).