CH. XVIII. s. 1. The Contract to Marry. Material evidence in corroboration of plaintiff's testimony. Unanswered Wiedemann v. Conditional promise. Frost v. Knight. Breach by marriage of another. Action by Finlay v. 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 reasonable time; and whether the declarations of the defendant had any other effect, than to render that definite and certain, which before was uncertain" (o). The promise cannot be proved by the plaintiff alone; there must be "material evidence" in corroboration of the plaintiff's testimony, by the Evidence Further Amendment Act, 1869, 32 & 33 Vict. 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 from a third party charging him with the promise is not (q). When the promise of the defendant is, to marry within a certain period, or on certain conditions; an action for the breach of such promise cannot be maintained until the time has elapsed, or the conditions have been performed (), 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 request, a special request must be proved; unless it be shown 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 of it furnishes no cause of action to the personal representative of the party to whom it was made, or against the personal representatives of the party having made it, unless indeed there be proved some special damage, affecting the personal estate of the deceased (u), or the party to whom the promise was made, and (n) Per Cur., Harrison v. Cage (1699), 1 Ld. Rayın. 386. (0) Potter v. Deboos (1815), 1 Stark. 82. (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), (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. CH. XVIII. s. 1. The Contract to Marry. 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 had had a child by him, it was held by the Court of Appeal that on none of these grounds were damages recoverable. The pre-engagement of the defendant to another person is no Pre-engagedefence to this action, as he cannot thus avail himself of his own defence; wrong. Nor is it a defence 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 ment no Wild v. the concealment was fraudulent (y); nor even that the plaintiff nor concealed had concealed the material fact of having been insane (2). And insanity; it has been held, that the promise of a man to marry within a nor being reasonable time is valid, even although he was married at the married. 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 man was secured by fraud, e.g., Fraud. by false representations or fraudulent concealment as to the circumstances or previous life of the plaintiff, e.g., by a pauper holding herself out as a woman of wealth and position, this would be a good defence to an action for the breach thereof (d). within Levi So, if the parties be related within the Levitical degrees, and Relationship their intermarriage be therefore prohibited, their promises are void, and the breach thereof will afford no ground of action (e). (x) Finlay v. Chirney (1888), 20 Q. B. D. 494, C. A. (y) Beachey v. Brown (1860), E., B. & E. 796. (2) Baker v. Cartwright (1861), 30 L. J., C. P. 364, decided solely on the authority of Hall v. Wright, p. 477, post. (a) Wild v. Harris (1849), 7 C. B. 999. (b) Milliard 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), 3 Curt. 185. (e) Harrison v. Cage (1698), 1 Ld. Raym. 386, 387. tical degrees. CH. XVIII. s. 1. The Contract to Marry. Unchastity of woman. Illicit intercourse. Action by man against woman. Ill health. Atchinson v. 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 on the conduct of the party-and, therefore, what the public thought was evidence on such an issue (f). So, in a subsequent 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). If the promise was made by the defendant, in consideration that the 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. Gross manners on the part of a man may be set up as a defence by a woman when sued (m), and so may a man's bad character (n). In Atchinson v. Baker (o), the plaintiff was a widower, upwards of forty years of age, and the defendant a widow, about the same age; that when the promise was made, the plaintiff was apparently in good health; but that the defendant afterwards discovered that the plaintiff had an abscess in his breast, and for that reason refused to marry him and Lord Kenyon said, "that if the condition of the parties were changed after the time of making the contract, it was a good cause for either party to break off the (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. CH. XVIII. s. 1. The Contract to Marry. connection," and cited a dictum of Lord Mansfield to the same effect. But it was afterwards held by a Court of Error in Hall v. Wright (p), by four judges to three, adopting the reasoning of Lord Campbell, C.J., in the Court below, that a plea that Hall v. the defendant was incapable of marriage without great danger Wright. to his life, and therefore unfit for the married state, was bad in law (q). It is a good defence to an action for breach of promise to marry, Discharge that, after promise and before breach, the plaintiff absolved the from promise. defendant from his promise and the performance thereof (r). And the fact of there having been, for a considerable period, a total cessation of intercourse and correspondence between the parties, is evidence in support of this defence (s). An action for breach of promise of marriage is not triable in a Court of trial. County Court, except by consent, or special order of a judge of the High Court in case the claim on the writ does not exceed 100l. (t). The damages, which may be aggravated by seduction or Damages. infection by disease (u), are peculiarly a matter for the jury. In no reported case has a new trial been granted for excess of damages, and in many cases has it been refused (x). presents. It has been said that presents made in contemplation of a Return of marriage that does not take place ought to be returned (y), and though there is no reported case in which an action has been held to lie for such presents, it is submitted, though with some doubt, that they would be recoverable as gifts upon a condition subsequent not fulfilled, the more especially if they should happen to be family jewels or the like. If this view be correct, it would seem that it would apply to a case of rescission by consent; that a donor might waive the breach of promise and sue for return of presents only; and that third parties might recover presents so given. A donor in default would stand in the position of one who by his own act had made the fulfilment of the condition (s) Davis v. Bomford (1860), 6 H. & N. 245. (t) County Courts Act, 1888 (51 & 52 Vict. c. 43), ss. 56, 64, and 65. (u) See notes (k) and (l), supra. (x) See Harrison v. Cage (1690), Carth. 467 (4007.); Wood v. Hurd (1835), 2 B. N. C. 166 (3,5007.); Smith v. Wood fine (1857), 1 C. B., N. S. 660 (3,0007.); Gough v. Far (1827), 1 Y. & J. 477 (2501.); Berry v. Da Costa (1866), L. R., 1 C. P. 331 (2,5007.). In Finney v. Viscount Garmoyle (1886), the plaintiff recovered 10,0007. by consent; and in Broughton v. Viscount Dangan (1889), 2,5007., also by consent. In Knowles v. Duncan (1891), the plaintiff recovered 10,000l. by the verdict of a jury in the absence of the defendant, which was reduced by the Court of Appeal to 6,500l. by consent and conditionally on payment within a month. See Law Journal for Feb. 7th, 1891. (y) Per Lord Hardwicke, in Robinson v. Cumming (1742), 2 Atk. 408. As to effect of divorce on wedding presents, see Wood v. Wood (1889), 14 P. D. 157. s. 1. CH. XVIII. impossible. If the gifts should be things que in ipso usu consumuntur an intention would be imputed that the donee should take absolutely (z). The Contract to Marry. Writing necessary. Cases on contracts for marriage settlements. Shadwell v. Age of the parties. SECT. 2.-The Contract in Consideration of Marriage. Any contract for settlement of property or otherwise in consideration of marriage must, by virtue of sect. 4 of the Statute of Frauds (p. 76, ante), be in writing, signed by the party to be charged, but by the same statute a memorandum signed after marriage of an oral contract before marriage, is sufficient to satisfy the statute (a). Marriage is not of itself" part performance" of an oral contract in consideration of it, so as to take such contract out of the statute (b), but the letting into possession of property orally promised is sufficient (c). In Shadwell v. Shadwell, an uncle wrote to a nephew about to marry as follows: "I am glad to hear of your intended marriage with Ellen Nicholl, and as I promised to assist you at starting, I am happy to tell you that I will pay to you one hundred and fifty pounds yearly during my life, and until your annual income derived from your profession as a Chancery barrister shall amount to six hundred guineas, of which your own admission will be the only evidence that I shall receive or require." It was held that this letter disclosed a good consideration to support an action for arrears of the annuity, and that the nephew's continuance to practice as a Chancery barrister was not a condition precedent to his right to recover them from the executors of the uncle (d). SECT. 3.-The Contract of Marriage. [See Chitty's Statutes, tit. "Marriage"; Browne and Powles on Divorce, 5th ed., A.D. 1889, pp. 145, 198; Dixon on Divorce, 2nd ed., A.D. 1882, Ch. II.; Eversley's Domestic Relations; Bishop on Marriage and Divorce (An.); Fraser on Marriage (Sc.); Geary on Marriage and Family Relations; Wharton's Law Lexicon, tit. " Marriage."] A male of 14 and a female of 12 years of age are capable of contracting marriage, and a marriage contracted even before those ages is only voidable by act of the party, and not void (e). (2) Williams on Personal Property, 13th ed., p. 342; and see Andrew v. Andrew (1845), 1 Coll. 690. (a) Barkworth v. Young (1856), 26 L. J., Ch. 153. (b) Warden v. Jones (1857), 26 L. J., Ch. 427. (c) Ungley v. Ungley (1877), 5 Ch. D. 877, C. A., affirming Malins, V.-C. (d) Shadwell v. Shadwell (1861), 30 |