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within the principle of Deering v. Winchelsea (y), and is entitled to CH. XVII. s. 7. the benefit of all payments made by the acceptor, and on paying

Indemnities

of Surety. the holder to be put in a situation to sue the acceptor ; and in this case affirmed the judgment and restored the order of the Vice-Chancellor of the County Palatine of Lancaster, that the indorsers paying should have the benefit of the securities so deposited (2).

But where a guarantee contained a proviso that, before the defendant was called upon, the plaintiff should avail himself to the uttermost of any bonâ fide securities he held of the principal ; and the plaintiff had neglected to adopt means to enforce payment of a bill by a party who was shown to be totally insolvent, this was held not to discharge the surety (a). Nor will the surety be discharged where the debtor becomes bankrupt, and the creditor, on proving his debt upon the debtor's estate, surrenders his collateral security to the trustee under the bankruptcy (6), and so in bankruptcy or winding-up of the principal debtor where the creditor has proved for the whole of a debt exceeding that limit, a surety with a limit in the amount of his liability, is entitled to the benefit of a rateable proportion of the dividends payable on the whole debt (c). By the Mercantile Law Amendment Act, 1856, 19 & 20 Vict. Mercantile

Law Amend. c. 97, s. 54

ment Act. “Every person who, being surety for the debt or duty of another, or being Assignment of liable with another for any debt or duty, shall pay such debt or perform such securities to duty, shall be entitled to have assigned to him, or to a trustee for him, every

surety. judgment, specialty or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security, shall or shall not be deemed, at law, to have been satisfied by the payment of the debt or performance of the duty; and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor as the case may be, indemnification for the advances made and loss sustained, by the person who shall have so paid such debt or performed such duty; and such payment or performance so made by such surety, shall not be pleadable in bar of any such action or other proceeding by him : provided always, that no co-surety, co-contractor, or co-debtor shall be entitled to recover from any other co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned persons shall be

justly liable."

(y) Deering v. Winchelsea (1787), 2 B. & P. 270 ; 1 Wh. & T.; 1 R. R. 41.

(z) Duncan, Fox & Co. v. North and South Wales Bark (1880), 6 App. Cas. 1.

(a) Muskett v. Rogers (1839), 8 Scott, 51 ; but see London Guarantee Co. v. Fearnley (1880), 5 App. Cas. 911.

(6) Rainbow v. Juggins (1880), 5 Q. B.

D. 422, C. A.

(c) See as to bankruptcy, Hobson v. Bass (1871), L. R., 6 Ch. 792 ; winding up, Gray v. Seckham (1872), L. R., 7 Ch. 680 ; and, generally, Ellis v. Emmanuel (1876), 1 Ex. D. 157, C. A.

CH. XVII. s. 7. Under this Act it is immaterial whether the surety has obtained Indemnities

an actual assignment of the judgment (d). of Surety,

And so a surety who has paid a crown debt due from his principal Crown debt.

is entitled to the crown rights of priority over the other creditors of

the principal (e). Proof against

Where one of several co-sureties has paid off the debt, he is enco-sureties.

titled, notwithstanding the above section, to the benefit of a proof by the creditor against one of the co-sureties for the full amount of the debt, and his right of proof is not (though his right of dividend is) limited to the sum which as between him and his co-surety such co-surety is liable to pay (f).

(d) In re McMyn (1886), 33 Ch. D. 575; and see Batchelor v. Lawrence (1861), 9 C. B., N. S. 543.

(e) In re Lord Churchill (1888), 39

Ch. D. 174 ; and see R. v. Fay (1878), 4 Ir. L. R. 606, App.

() Parker, In re, Morgan v. Hill, (1894] 3 Ch. 400.

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 (6).

A promise by A. to marry B, is a good consideration for B.'s It must be promise to marry A. (c); and, as a general rule, such promises are

reciprocal. 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).

(a) See per Bowen, L. J., in Finlay v. Chimney (1888), 20 Q. B. D., C. A. at p. 505.

(6) For instance of specific performance decreed, see Baxter v. Buckley (1752), 1 Lee, 42. For Chancery order to marry an infant ward of Court, see Re Maria Stewart (1828), Irish Law Recorder, Vol. II., p. 112.

A resolution in favour of abolishing the action for breach of promise to marry, "* except in cases where actual pecuniary loss has been incurred by reason of the promise, the damages being limited to

C.C.

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, l. 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

Infant may

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 to Marry.

he may not be sued, for the breach of a promise to marry (f).

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 for breach,

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

It is not, in any case, necessary to prove an express promise to not be in ex: marry, in totidem verbis ; but the contract may be evidenced by press words;

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 in

Nor need a promise to marry be reduced into writing (1): for writing;

8. 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). nor to marry

So the engagement is binding, although the precise time for within any

completing it be not agreed upon ; for, in such a case, the law definite time.

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), i Ld. Raym. 386.

reasonable time; and whether the declarations of the defendant Ch.XVIII.s. 1. had any other effect, than to render that definite and certain, which the Contract

to Marry. before was uncertain (o).

The promise cannot be proved by the plaintiff alone; there must Material be material evidence" in corroboration of the plaintiff's testimony, corroboration

evidence in 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).

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.

Frost v. 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 (3), 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 of it furnishes no cause of action to the personal representative of against executhe 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 (c), 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

(0) Potter v. Deboos (1815), 1 Stark. 32.

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

(9) 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.

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

111, Ex. Ch.

(1) 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 y. Chirney, infra.

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

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