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CHAPTER XVIII.

THE CONTRACT TO MARRY, AND THE CONTRACT OF MARRIAGE.

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SECT. 1.-The Contract to Marry.

THE action for breach of promise to marry is of comparatively recent date (a), it not being till the middle of the seventeenth century that marriage was recognised by our law as a temporal benefit, marriage being a matter of spiritual jurisdiction, and the spiritual Courts exercising a jurisdiction to enforce specific performance of contracts to marry, which was not formerly abolished until the reign of George the Second by Lord Hardwicke's Act, 26 Geo. II. c. 33; repealed by 4 Geo. IV. c. 76, which by s. 27 repeats the abolition (b).

A promise by A. to marry B. is a good consideration for B.'s It must be reciprocal. promise to marry A. (c); and, as a general rule, such promises are reciprocal and obligatory on both parties; so that if the promise of one of them be void, that of the other will be nudum pactum (d). But where the contract declared on was, that in consideration that the plaintiff, at the request of the defendant, would go to L. for the purpose of marrying the defendant, the defendant promised to marry the plaintiff in a reasonable time after her arrival at L.; this was held to be a sufficient consideration to support his promise (e).

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such pecuniary loss," introduced by Mr.
Herschell, Q.C., now Lord Herschell,
was carried in the House of Commons by
106 votes to 65, May 6, 1879, see
Hansard, Vol. 245, pp. 1867-1887.
Generally, throughout Europe, the law
is substantially what Lord Herschell's
resolution would have made it here, but
the American law is the same as our own.
(c) See 1 Roll. Abr. 22, 1. 20.

(d) See per Holt, C. J., Harrison v.
Cage (1698), 1 Ld. Raym. 386, 387.
(e) Harvey v. Johnston (1848), 6 C. B.

295.

K K

CH.XVIII.S.1.

In the case of an infant, however, whose promise is voidable, The Contract there is an exception to this rule: for an infant may sue though he may not be sued, for the breach of a promise to marry (ƒ).

to Marry.

Infant may

not be sued

for breach.

The Infants' Relief Act, 1874 (pp. 173, 185, ante), whereby an sue, but may infant's contract cannot be made good by ratification after his majority, applies to contracts to marry (g), but the difficult question whether there is a ratification of the old promise or the making of a new one, is a question for the jury, if there is evidence on which a jury might reasonably find that a new promise was made and accepted (h). Therefore, where the defendant during his infancy offered marriage to plaintiff, who accepted him subject to the approval of her parents, and on the day after he came of age he told the plaintiff that he had just obtained his father's approval and added, "Now I may and will marry you as soon as I can," it was held that it was properly left to the jury to say whether there was a fresh promise after majority (i).

Promise need not be in express words;

nor in writing;

nor to marry within any definite time.

It is not, in any case, necessary to prove an express promise to marry, in totidem verbis; but the contract may be evidenced by the unequivocal conduct of the parties, and by a definite understanding between them, their friends, and relations, that a marriage is to take place. And where the promise of the man was proved in an action against him, it was held, that evidence of the woman having demeaned herself as if she concurred in, and approved of his promise, sufficiently established her promise to marry him (k).

Nor need a promise to marry be reduced into writing (1): for s. 4 of the Statute of Frauds, ante, p. 102, which requires writing for promises "in consideration of marriage," does not apply to promises to marry (m).

So the engagement is binding, although the precise time for completing it be not agreed upon; for, in such a case, the law presumes promises to intermarry in a reasonable or convenient time, upon request (n). And where the defendant stated to the father of the plaintiff, that he had "pledged himself to marry his daughter in six months, or a month after Christmas; " Lord Ellenborough left it to the jury to say, "whether they would not presume, from the circumstances, a general promise to marry,which the law would consider as a promise to marry within a

(f) Holt v. Ward (1732), 2 Str. 937; S. C., Fitz. 175; and see ante, Ch. VII. (g) Coxhead v. Mullis (1878), 3 C. P. D. 439.

(h) Northcote v. Doughty (1879), 4 C. P. D. 385; Holmes v. Brierley (1888), 36 W. R. 795, C. A.; and see ante, pp. 206, 207.

(i) Northcote v. Doughty, supra; and see Holmes v. Brierley, ubi sup.

(k) Per Holt, C. J., Hutton v. Mansell (1705), 3 Salk. 16, 64.

(1) Phillpott v. Wallett (1682), 3 Lev. 65; Harrison v. Cage (1699), 1 Ld. Raym. 386.

(m) Cork v. Baker (1717), 1 Str. 34; Mountacue v. Maxwell (1720), id. 236. (n) Per Cur. Harrison v. Cage (1699), 1 Ld. Raym. 386.

reasonable time; and whether the declarations of the defendant CH.XVIII.8.1. had any other effect, than to render that definite and certain, which The Contract before was uncertain" (o).

to Marry.

evidence in

The promise cannot be proved by the plaintiff alone; there must Material be "material evidence" in corroboration of the plaintiff's testimony, corroboration by the Evidence Further Amendment Act, 1869, 32 & 33 Vict. of plaintiff's testimony. c. 68, s. 2 (before which the evidence of the parties was inadmissible). Evidence that the plaintiff was overheard to charge the defendant with the promise and that the defendant made no answer is corroborative evidence within this enactment (p), but the mere fact of the defendant not having answered letters charging him with the promise is not (q).

Frost v.

When the promise of the defendant is, to marry within a certain Conditional period, or on certain conditions; an action for the breach of such promise. promise cannot be maintained, until the time has elapsed, or the Knight. conditions have been performed (r), unless there be express repudiation of the contract, in which case an action can be brought immediately, as was held by the Exchequer Chamber in Frost v. Knight (s), in which the promise was to marry after the death of the defendant's father, and the defendant broke off the engagement in his father's lifetime. So, if the promise was to marry on Breach by marriage of request, a special request must be proved; unless it be shown another. that the defendant has incapacitated himself from performing his promise, by marrying another person (t).

And the promise is so far of a personal nature, that the breach Action by or against execuof it furnishes no cause of action to the personal representative of tor. the party to whom it was made, or against the personal representa- Finlay v. tives of the party having made it, unless indeed there be proved Chirney. some special damage, affecting the personal estate of the deceased (u), or the party to whom the promise was made, and having been in contemplation of both parties at the date of the promise (x). Therefore, in Finlay v. Chirney (x), where executors were sued upon a promise of marriage by their testator, and the only grounds of special damage alleged were that the plaintiff had bought clothes in expectation of the marriage, and had maintained herself from the date of the promise to the date of the death of the testator, and

82.

(0) Potter v. Deboos (1815), 1 Stark.

(p) Bessela v. Stern (1877), 2 C. P. D. 265, C. A.

(g) Wiedemann v. Walpole, [1891] 2 Q. B. 534.

(r) See Cole v. Cottingham (1837), 8 C. & P. 75; Atchinson v. Baker (1797), Peake, Add. C. 103.

(s) Frost v. Knight (1872), L. R., 7 Ex.

111, Ex. Ch.

(t) Caines v. Smith (1846), 15 M. & W. 189; Short v. Stone (1846), 8 Q. B. 358.

(u) Chamberlain v. Williamson (1814). 2 M. & S. 408; 15 R. R. 295; Finlay v. Chirney, infra.

(x) Finlay v. Chirney (1888), 20 Q. P. D. 494, C. A.

CH.XVIII.8.1. had had a child by him, it was held by the Court of Appeal that on The Contract none of these grounds were damages recoverable.

to Marry.

Pre-engagement no defence;

nor concealed insanity;

nor being married.

Fraud.

Relationship within Levitical degrees.

Unchastity of

wonian.

The pre-engagement of the defendant to another person is no defence to this action, as he cannot thus avail himself of his own wrong. Nor is it a defence to this action, that, at the time of the defendant's promise, the plaintiff was engaged to be married to another, and concealed that fact from the defendant; unless it be proved that the concealment was fraudulent (y); nor even that the plaintiff had concealed the material fact of having been insane (z). And it has been held, that the promise of a man to marry within a reasonable time is valid, even although he was married at the time of making such promise; because his wife might have died within such reasonable time (a); and this case was shortly afterwards followed, though with a strong expression of disapproval from Pollock, C. B., on the ground that it is inconsistent with that affection which ought to subsist between married persons that a man should while his wife is alive promise to marry another woman after his wife's death (b). It is submitted that the view of Pollock, C. B., is so far correct, and that no action could be sustained against a promiser married to the knowledge of the promisee, but that if the promisee were ignorant of the marriage, the action would lie (c).

But if the promise of the defendant was procured by fraud, e.g., by false representations or fraudulent concealment, as to the circumstances or previous life of the plaintiff, e.g., the plaintiff holding herself out as a woman of wealth and position whereas she was a pauper this would be a good defence to an action for the breach thereof (d).

So, if the parties be related within the Levitical degrees, and their intermarriage be therefore prohibited, their promises are void, and the breach thereof will afford no ground of action (e).

In an action for breach of promise of marriage, the defence was, that the plaintiff was a woman of bad character, and evidence was given of one instance of gross misconduct; and Lord Kenyon admitted a witness, to state the character which he had heard of her in the neighbourhood in which she lived; observing that character was the only point in issue,-which was public opinion founded

(y) Beachy v. Brown (1860), E. B. & E. 796.

(z) Baker v. Cartwright (1861), 30 L. J., C. P. 364, decided solely on the authority of Hall v. Wright, p. 502, post.

(a) Wild v. Harris (1849), 7 C. B. 999.

(b) Millward v. Littlewood (1850), 3 Ex. 775.

(c) See Millward v. Littlewood, supra. (d) Per Abbott, C. J., Wharton v. Lewis (1824), 1 C. & P. 529; but see Baker v. Cartwright, ante. Such fraud will not, of course, annul the marriage, there being no error de persona; Clowes v. Clowes (1842), Curt. 185.

(e) Harrison v. Cage (1698), 1 Ld. Raym. 386, 387.

to Marry.

on the conduct of the party;-and therefore, what the public CH.XVIII.8.1. thought was evidence on such an issue (f). So, in a subsequent The Contract case (g), it appeared that, after the promise, the plaintiff had had a child; and Abbott, C. J., told the jury, that if a man who had made a promise of marriage, discovered that the person he had so promised to marry was with child by another man, he was justified in breaking such promise; but that, to entitle a defendant to a verdict on that ground, they must be satisfied that the plaintiff was a loose and immodest woman, and that the defendant broke his promise on that account; and they must also be satisfied, that the defendant did not know her character at the time of the making of the promise; for if a man knowingly promised to marry such a person, he was bound to do so (h).

course.

If the promise was made by the defendant, in consideration that Illicit interthe plaintiff would have connection with him, it is void; but, it seems, that if he renewed his promise after the illicit intercourse had taken place, the subsequent promise would be binding (i). But both seduction (k) and infection by disease (1), may be pleaded as material facts and given in evidence as aggravation of damages.

In the course of a cause of this description (m), the defendant gave in evidence many expressions used by the plaintiff at different times, in which, speaking of the defendant, a lady, he gave great proof of want of feeling, as well as of gross manners and sentiments. And Lord Ellenborough, in summing up, said, “that, notwithstanding what had passed, and the promise of marriage proved, if the plaintiff had conducted himself in a brutal or violent manner, and threatened to use her ill, a woman, under such circumstances, had a right to say she would not commit her happiness to such keeping; and she might set up such defence, and it would be legal." So, Gibbs, C. J., ruled at Nisi Prius (n), that in an action against a woman for breach of promise of marriage, it is a sufficient excuse for such breach, that the person to whom she had given the promise turned out, upon inquiry, to be a man of bad character.

In Atchinson v. Baker (o), it appeared that the plaintiff was a Ill health. widower, upwards of forty years of age, and the defendant a widow, about the same age; that when the promise was made, the plain

(f) Foulkes v. Sellway (1800), 3 Esp. 236.

(g) Irving v. Greenwood (1824), 1 C. & P. 350.

(h) And see Bench v. Merrick (1844), 1 C. & K. 463; Young v. Murphy (1836), 3 Scott, 379.

(i) See Morton v. Fenn (1783), 3 Dougl. 211.

(k) Berry v. Da Costa (1866), L. R., 1

C. P. 331.

(1) Millington v. Loring (1880), 6 Q. B. D. 190, C. A.

(m) Leeds v. Cook (1803), 4 Esp. 257; 6 R. R. 855.

(n) Baddeley v. Mortlock (1816), 1 Holt, N. P. C. 151; 17 R. R. 626.

(0) Atchinson v. Baker (1797), Peake, Add. C. 103; S. C., id. 124.

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