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Action on Promise of Marriage.

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they had all sworn in answer to interrogatories that F. had no authority from them to contract, and was non-suited; it was held, that in an action against F., for breach of warranty of authority, the plaintiff could recover the costs of the action against the others, down to the time when the answers to the interrogatories had been received and considered, and the difference between the contract price and the market price of the estate, of which latter, the price for which the estate was subsequently sold, was prima facie evidence. Godwin v. Francis, L. R., 5 C. P. 295. Where, however, the plaintiff must anyhow have failed in his previous action by reason of the contract on which he sued being oral only, the costs of that action are not recoverable from the agent. Pow v. Davis, 30 L. J., Q. B. 257. A. being instructed by B. to apply for shares, in A.'s name, in a company C., by mistake applied for shares in a company D., which were accordingly allotted to B., and repudiated by him; the company D., had a large number of shares unallotted and the shares were worthless in the market; A. was held liable, to the company D., for the full amount of the shares. Ex pte. Panmure, 24 Ch. D. 367, C. A.

Where A., a banker, on the faith of a statement made to him by B. and C., the directors of a company, that they had appointed D. manager of the company, and had authorised him to draw on the company's account with A., made advances on cheques so drawn by D.; B. and C. had no power to confer this authority on D., but acted bona fide; it was held, that B. and C. were liable to A., for the advances so made by him, on the ground that they had warranted to A., that D. had authority to bind the company. Cherry v. Colonial Bank of Australasia, L. R., 3 P. Č. 24. So, where the plaintiff lent money to a building society, which had no power to borrow money, the directors, signing the deposit note, were held liable to an action on their implied warranty of authority, for the amount of the loan, it not appearing that the company was insolvent. Richardson v. Williamson, L. R., 6 Q. B. 276; see also Chapleo v. Brunswick Building Soc., 6 Q. B. D. 696, C. A. So, the directors of a railway company were held liable for issuing a debenture exceeding the borrowing powers of the company. Weeks v. Propert, L. R., 8 C. P. 427. So, where the directors of a company, which had no power to issue bills, accepted a bill for, and on behalf of the company, they were held liable to a bona fide holder for value. W. London Commercial Bank v. Kitson, 12 Q. B. D. 157. This principle does not apply where the misrepresentation is not one of fact, but an erroneous representation of law. Beattie v. Ebury, Ld., L. R., 7 Ch. 777; affirm. on other grounds, L. R., 7 H. L. 102. See also McCollin v. Gilpin, 5 Q. B. D. 390.

ACTION ON PROMISE OF MARRIAGE.

Either a man or woman may sue for breach of promise of marriage; Harrison v. Cage, 5 Mod. 411; although an attempt was made in that case to resist an action by the former, on the ground that marriage is not an advancement for a man. As an infant may enforce an advantageous contract, although not bound hereby, an infant may sue a person of full age for breach of promise of marriage. Holt v. Ward, 2 Str. 937; per Ld. Ellenborough, C. J., in Warwick v. Bruce, 2 M. & S. 209. A married man may be sued on a promise of marriage to the plaintiff, although he was married when he promised, provided the plaintiff was ignorant of the fact; and the plaintiff's remaining unmarried on the faith of such promise is a sufficient consideration, and the inability of the defendant to marry the plaintiff is a sufficient breach. Milward v. Littlewood, 5 Exch. 775; Wild v. Harris, 7

C. B. 999. This action falls within the general rule actio personalis moritur cum persona, and cannot be maintained by an executor or administrator; Chamberlain v. Williamson, 2 M. & S. 408; unless, perhaps, under peculiar circumstances, as where a strictly pecuniary loss has accrued to the deceased, and the personal estate been damaged accordingly; which special damage must be stated on the record, for it will not be intended; per cur., Id. 416.

Until recently the parties to this action were not competent as witnesses; see ante, p. 153; but now by 32 & 33 Vict. c. 68, s. 2, "the parties to any action for breach of promise of marriage shall be competent to give evidence in such action; provided always, that no plaintiff in any action for breach of promise of marriage shall recover a verdict unless his or her testimony shall be corroborated by some other material evidence in support of such promise." Evidence that the plaintiff said to the defendant, that he had promised to marry her, and that the defendant did not deny it, is sufficient to satisfy this section. See Bessela v. Stern, 2 C. P. D. 265, C. A.

Proof of the contract.] To maintain this action, the plaintiff must prove, under a traverse, the contract and promise of the defendant as stated. The promises must be mutual, the reciprocity constituting the consideration. Harrison v. Cage, ante, p. 443; 1 Rol. Ab. 22, pl. 20. At first, it was held that mutual promises to marry came within the Stat. of Frauds, s. 4; Com. Dig. Action on the Case upon Assumpsit (F. 3); but in Bull. N. P. 280 c, a contrary doctrine is laid down, and it is now settled that the promises need not be in writing. Cork v. Baker, 1 Str. 34; Harrison v. Cage, 1 Ld. Raym. 387, note at end of case. And, if written evidence of the contract be produced, no stamp is required. Orford v. Cole, 2 Stark. 351. A promise, on the part of a woman, may be presumed from such circumstances of acquiescence, or tokens of approval, as usually attend the acceptance of an offer of marriage; her presence when the offer was made, and the consent of parents asked, without her making any objection; her subsequent reception of the suitor's visits, and concurrence in the arrangements for the wedding; her demeanour as one consenting and approving, &c. Express consent in words is not necessary. Daniel v. Bowles, 2 C. & P. 553; Hutton v. Mansell, 3 Salk. 16. But, to prove a promise by a man more would be necessary, neither the usages of society, nor considerations of delicacy interfering to restrain an explicit declaration on his part. A promise to marry generally is, in law, a promise to marry within a reasonable time; and, although an admission of a special promise to marry at a particular time should be proved in evidence, it may be left to a jury to infer from the circumstances a more general promise. Potter v. Deboos, 1 Stark. 82; Phillips v. Crutchley, 1 Moore & P. 239. But, a promise to marry after a certain event will not support a claim on a general promise if the qualification is properly pleaded in the defence. Atchinson v. Baker, Peake, Add. Ca. 103.

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Breach.] To prove the breach of the promise, if denied, evidence must be given, either that the defendant has married another person, so that performance is no longer possible; or, that a tender has been made by the plaintiff, followed by a refusal on the part of the defendant. For this pose it is sufficient that the father of a female plaintiff demanded performance of the defendant. Gough v. Farr, 2 C. & P. 631. Where the defendant has promised to marry the plaintiff on the death of his father, the marriage of the defendant to another woman, during the father's lifetime, gives the plaintiff an immediate right of action. Frost v. Knight, L. R., 7 Ex. 111, Ex. Ch.

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Damages.] The affluent circumstances of the defendant are evidence on the question of damages; and not merely the loss of an establishment in life, but the injury to the plaintiff's feelings, may be considered by the jury; and, in this respect the measure of damages is different from that which is adopted in the case of other contracts. Smith v. Woodfine, 1 C. B., N. S. 660; Berry v. Da Costa, L. R., 1 C. P. 331. It is no misdirection to tell the jury that, in estimating the damages, they may take into consideration the altered social position of the plaintiff, in relation to her home and family, by the defendant's having seduced and deserted her. S. C. It seems doubtful whether evidence of such seduction can be given in aggravation of damages unless it be specially pleaded. See Millington v. Loring, 6 Q. B. D. 190, C. A.

Evidence of character.] Where the defendant, by his defence, sets up a general charge of immodesty, the plaintiff may, in the first instance, give general evidence of good character for modesty and propriety of demeanour; though, this could not be done in the case of a specific charge of immoral acts. Jones v. James, 18 L. T., N. S. 243, E. T. 1868, Ex. ; and see Evidence of character, ante, p. 83. Where a plea alleged that the agreement was made on the faith that the plaintiff would not so immodestly conduct herself with regard to other men as to give reasonable grounds for belief that she allowed other men to have carnal knowledge of her; and then justified on the ground that she had so misconducted herself, the names of the men to whom it was alleged she had so conducted herself being given as particulars; it was held that the plea contained a general charge of immodesty, and that evidence of character was admissible as part of her case. Jones V. James, supra.

Costs. As to plaintiff's right to costs, vide ante, p. 276, et seq. The county court has no jurisdiction to entertain an action for breach of promise of marriage; 9 & 10 Vict. c. 95, s. 58.

Defence.

If, after entering into a contract of marriage, either party discover gross immorality or depraved conduct in the other, it may be pleaded in bar of the action; thus, brutal and violent conduct in the man, accompanied with threats of ill-usage to the woman, goes to the ground of the action; Leeds v. Cook, 4 Esp. 258; and if a man has made a promise of marriage to one whom he supposes to be a modest person, and he afterwards discovers her to be a loose and immodest woman, and he on such account refuses to fulfil his promise, he is justified in so doing; Irving v. Greenwood, 1 C. & P. 350. To entitle the defendant to a verdict on the ground of the bad character of the plaintiff, it is not sufficient to show that charges (as of pecuniary dishonesty or perjury, etc.) were made against the plaintiff, which plaintiff promised, but failed, to explain: the defendant must show that the charges are well founded. Baddeley v. Mortlock, Holt, N. P. 151. To show the general bad character of the plaintiff, where such evidence is relevant. evidence of general reputation is admissible. Foulkes v. Sellway, 3 Esp. 236, Material misrepresentation, of the real circumstances of the family and previous life of the plaintiff, may be a good defence to the action; as, where the plaintiff's father and brother told the defendant that she would have property from her father (who was insolvent), and denied that she had ever been (as in fact she had been) a barmaid. Wharton v. Lewis, 1 C. & P. 529. The plaintiff was in this case, living with the relations who misrepresented

her, and was probably presumed to be privy to their statements. Letters written by the plaintiff's father, with her knowledge, are evidence against her, though she would not be answerable for particular expressions in them; but, a false representation, made orally by the father to a third person in the absence of the plaintiff and without her privity, and by such person communicated to the defendant, is not admissible. Foote v. Hayne, 1 C. & P. 546.

A pre-contract on the part of the plaintiff to marry another person, which the plaintiff concealed from the defendant at the time of his promise, is no defence to the action, without fraud. Beechey v. Brown, E. B. & E. 796 ; 29 L. J., Q. B. 105. Nor, is bodily infirmity supervening, and rendering it dangerous to the defendant's life to marry. Hall v. Wright, E. B. & E. 746, 765; 27 L. J., Q. B. 345; 29 L. J., Q. B. 43, Ex. Ch. So, insanity in the plaintiff, existing unknown to the defendant previously to his promise, is no defence. Baker v. Cartwright, 10 C. B., N. S. 124; 30 L. J., C. P.

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An exoneration, by the plaintiff of the defendant, from his promise, may be implied from the conduct and demeanour of the parties; the total cessation of intercourse and correspondence for two or three years, is evidence for the jury, on a defence of exoneration; although on the last occasion they were seen together, the plaintiff refused to give up the defendant's letters, saying it would be like giving him up altogether. Davis v. Bomford, 6 H. & N. 245; 30 L. J., Ex. 139.

Infancy is a defence to the action, and the contract of marriage is within the Infants Relief Act, 1874 (37 & 38 Vict. c. 62), cited sub tit., Defences to Actions on Simple Contract.-Infancy, post, and cannot, therefore, be ratified after full age. Coxhead v. Mullis, 3 C. P. D. 439; and evidence of mere ratification does not amount to a fresh promise. S. C. Where, however, the parties continue to associate together after the defendant has attained full age, as they did before, it can rarely happen that there is not some evidence for the jury of a fresh promise. See Northcote v. Doughty, 4 C. P. D. 385. Thus, fixing the wedding day was held to be such evidence. Ditcham v. Worrall, 5 C. P. D. 410, diss. Ld. Coleridge, C. J.

ACTION ON AN AWARD.

In an action on an award, the plaintiff must prove the submission and award, and the performance by himself of any conditions precedent put in issue by the pleadings. Where the submission is by a judge's order, which has been made an order of court, it is sufficiently proved by production of the office copy of the latter order. Still v. Halford, 4 Camp. 17; Selby v. Harris, 1 Ld. Raym. 745; vide ante, p. 106. But, not when the submission is by deed or written agreement; for the rule or order of court gives it no binding effect, and is, or may be, obtained ex parte. Berney v. Read, 7 Q. B. 79. In that case the rule or order was evidently not obtained by the party against whom it was offered. It is necessary to prove the submission of all parties to arbitration, for without such proof it does not appear that the arbitrator had competent authority to decide the question between the parties. Ferrer v. Oven, 7 B. & C. 427; Brazier v. Jones, 8 B. & C. 124. If the time for making the award has been enlarged, and the award made within the enlarged time, the plaintiff must show (if it be put in issue) that the enlargement was duly made according

Waiver of Irregularities.-Form of Award.

447 to the terms of the submission, or by the consent of the parties, or under the powers granted by the stat. 3 & 4 Will. 4, c. 42, s. 39, or the C. L. P. Act, 1854, s. 15. As to the construction of these sections, see cases collected in Day's Common Law Procedure Acts, 4th ed., pp. 256, 257; Lord v. Lee, L. R., 3 Q. B. 404; In re Dare Valley Ry. Co., L. R., 4 Ch. 556, n., and 554; Denton v. Strong, L. R., 9 Q. B. 117. If the enlargement was irregularly made, such irregularity is waived by the appearance of the parties having knowledge of it, without objection, before the arbitrator after the enlargement; Re Hick, 8 Taunt. 694; Tyerman v. Smith, 6 E. & B. 719; 25 L. J., Q. B. 359; so, if the time had not been enlarged at all; Lawrence v. Hodgson, 1 Y. & J. 16. Such appearance of the parties may be evidence of a new oral submission, for an award to be made within a reasonable time. Bennett v. Watson, 5 H. & N. 831; 29 L. J., Ex. 357. But, though the parties appear and take part in the reference, if they protest at the time, the objection is not waived. Ringland v. Lowndes, 17 C. B., N. S. 514; 33 L. J., C. P. 337, Ex. Ch. ; so, the objection is not waived, if it goes to the jurisdiction of the arbitrator over the subject-matter; Davies v. Price, 34 L. J., Q. B. 8 Ex. Ch. And, if the award be not made within the time limited by the submission, and one of the parties, not knowing the fact, takes up the award, his so doing will not be a waiver of the conditions as to time stated in the submission. Darnley, El. of, v. L. C. and Dover Ry. Co., L. R., 2 H. L. 43. The plaintiff need not prove that the defendant had notice of the award; for he is bound to take notice of the award as well as the plaintiff. 2 Wms. Saund. 62 (4). Where the award states a "request" to the defendant to pay, this is equivalent to an order to pay. Smith v. Hartley, 10 C. B. 800; 20 L. J., C. P. 169. So, where after issue joined, a cause was referred, and although there was no power to direct a verdict to be entered, the arbitrator ordered that there should be a verdict for the plaintiff for a certain sum: this was held good as an award of that sum to the plaintiff, on which an action for the amount could be maintained; Everest v. Ritchie, 7 H. & N. 698; 31 L. J., Ex. 350; and, where an award directs payment to an arbitrator, or to a stranger, for the use of the plaintiff, the plaintiff may sue on it for the money; Wood v. Adcock, 7 Exch. 468; 21 L. J., Ex. 204, Ex. Ch. An award to be made by two arbitrators must be signed by them, in the presence of each other, and at the same time and place, and it is no award unless so signed. Wade v. Dowling, 4 E. & B. 44; 23 L. J., Q. B. 302; Peterson v. Ayre, 15 C. B. 724; 23 L. J., C. P. 129.

If the award be by an umpire, or by the arbitrators and an umpire, the appointment of the latter must be proved. Still v. Halford, 4 Camp. 19. In the absence of any clause to the contrary, the arbitrators may make a valid appointment of an umpire after the time for making the award has expired, if it be within the time limited for the umpirage. Harding v. Watts, 15 East, 556; Holdsworth v. Wilson, 4 B. & S. 1; 32 L. J., Q. B. 289, Ex. Ch. When the arbitrators have agreed on an umpire, they need not sign the appointment at the same time, or together. In re Hopper, L. R., 2 Q. B. 367.

In practice there is usually a witness to the execution of an award, who, if the execution is disputed, is generally called; but unless the submission requires it, attestation is unnecessary; and in general, therefore, an award may be proved like any other deed or writing, viz., by proof of the arbitrator's handwriting.

As to awards of commissioners under the Inclosure Acts, see Proof of Awards, ante, p. 143.

When the business of a company, incorporated under the Companies Act, 1862, and being voluntarily wound up, is transferred to another company, and the amount to be paid by the company to a dissenting shareholder for

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