Page:Federal Reporter, 1st Series, Volume 10.djvu/254

 242 FEDERAL REPORTER. �of one year. It was held that, by force of the exception in the third sec- tion of our statute, promises to marry -were not required to be in writing under any circumstanoes, the view being taken that it was the inten- tion of the statute to withdraw agreemeuts to marry altogether from its operation. �As an original proposition it might be debated whether the statute of frauds was ever intended to apply to agreements to marry. They are agreements of a private and confidential nature, which, in coun- tries where the common law prevails, are usually proved by circum- stantial evidence, and at the time the English statute was passed were not actionable at law, but were the subjects of proceedings in the ecclesiastical courts to compel performance of them, Nevertheless, at an early day after such actions became cognizable in courts of law the defence of the statute of frauds was interposed, under that clause of the statute which denies a right of action upon any agree- ment made upon consideration of marriage unleas the agreement is in writing; and though it was held that such clause only related to agree- ment for marriage settlements, there seems to have been no doubt in the minds of the judges that promises to marry were within the gen- erai purview of the statute. In our own country, in Derby v. Pkelps, 2 N. H. 515, the question was directly decided, and it was held that although the defence could not be maintained under the marriage clause of the statute, it was tenable under the cla,use requiring all agreements not to be performed within a year to be in writing. To the same effect are Nichols v. Weaver, 7 Kan. 373, ana Lawrence v. Cooke, 56 Me. 193. �The question h as never been presented in our own state, and the ruling upon the trial was made under the impression that the excep- tion in the third clause of our statute was meaningless, unless in- tended to relate to all the clauses. It was entirely iinnecessary if limited to the particular clause in which it is placed, because by the settled construction of the statute the clause did not apply to the excepted class of promises. 1 Ld. Eaym. 387; 1 Strange, 34. When English statutes, such as the statute of frauds, have been adopted into our own legislation, the known and settled construction of these statutes has been considered as silently incorporated into the acts. Pennock y. Dialogue, 2 Pet. 1. �A more careful examination has, however, satisfied me that the ohly purpose of inserting the exception was by way of explanation, and to remove any doubt as' to the meaning of the clause by incor- porating into it expressly what would otherwise have been left to im- ��� �