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CH.XVIII.3.1. 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.

The pre-engagement of the defendant to another person is no Pre-engage

defence to this action, as he cannot thus avail himself of his own defence ;

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 nor concealed proved that the concealment was fraudulent (y); nor even that the insanity;

plaintiff had concealed the material fact of having been insane (z). nor being And it has been held, that the promise of a man to marry within a married.

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 (6). It is submitted that the view of Pollock, C. B., is so far correct, and that no action could be sus. tained 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). Fraud.

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

thereof (d). Relationship So, if the parties be related within the Levitical degrees, and withiu Levi tical degrees.

their intermarriage be therefore prohibited, their promises are

void, and the breach thereof will afford no ground of action (e). Uuchastity of 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.

(2) 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.

(6) 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 ; Clours v. Clowes (1842), 3 Curt. 185.

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


on the conduct of the party ;-and therefore, what the public CA.XVIII.8.1. thought was evidence on such an issue (f). So, in a subsequent The Contract

to Marry. 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 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 (I), 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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CH.XVIII.3.1. tiff was apparently in good health ; but that the defendant afterThe Contract wards discovered that the plaintiff had an abscess in his breast, and to Marry.

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 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. Hall v. Wright (p), by four judges to three adopting the reasoning Wright.

of Lord Campbell, C. J., in the Court below, that a plea that the defendant was incapable of marriage without great danger to his

life, and therefore unfit for the married state, was bad in law (9). Discharge It is a good defence to an action for breach of promise to marry, from promise.

that, after promise and before breach, the plaintiff absolved the 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). Place of trial. An action for breach of promise of marriage is not triable in a

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 1001. (t). Damages. The damages, which may be aggravated by seduction and infec

tion 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). Return of It has been said that presents made in contemplation of a presents.

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 Ch.XVIII.s.1. only; and that third parties might recover presents so given. A The Contract

(p) Hall v. Wright (1858), E. B. & E. 746.

(9) Hall v. Wright, supra. The plaintiff recovered 1001. damages.

(r) King v. Gillett (1840), 7 M. & W. 55.

(3) Davis v. Bomford (1860), 6 H. & N. 245.

(1) County Courts Act, 1888, ss. 56, 64, and 65.

(u) See notes (k) and (1), supra.

(2) See Harrison v. Cage (1690), Carth. 467 (4001.); Wood v. Hurd (1835), 2 B. N. C. 166 (3,5002.); Smith v. Woodfine (1857), 1 C. B., N. S. 660 (3,0001.) ; Gough v. Farr (1827), 1 Y. & J. 477 (2501.); Berry v. De Costa (1866), L. R..

1 C. P. 331 (2,5001.).

In Finney v. l'iscount Garmoyle (1886), the plaintiff recovered 10,000). by consent; and in Broughton v. Viscount Dangan (1889), 2,5001., also by consent.

In Knowles v. Duncan (1891), the plaintiff recovered 10,0001. by the verdict of a jury in the absence of the defendant, which was reduced by the Court of Appeal to 6,5001, 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.

to Marry. donor in default would stand in the position of one who by his own act had made the fulfilment of the condition impossible. If the gifts should be things quæ in ipso usu consumuntur an intention would be imputed that the donee should take absolutely ().

Sect. 2.The Contract of Marriage.

(See Chitty's Statutes, tit. “ Marriage" ; Browne and Powles on Divorce, 5th ed., A.D. 1889, pp. 145, 198 ; Dixon m 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 Liricon, tit. “ Marriage.”] A male of fourteen and a female of twelve years of age are Age of the

parties. capable of contracting marriage, and a marriage contracted even before those ages is only voidable by act of the party, and not void (a). Lunacy existing at the time of the marriage avoids the mar- Free consent

of the parties. riage (b): and it is voidable for duress (c).

Impotence, if existing at the time of the marriage, and incurable, Capacity. is a ground for annulling a marriage on suit by either of the parties during their joint lives (d) on the ground of the impotence of the other. Marriages within the prohibited degrees of consanguinity or Consanguinity

or affinity. afiinity (as laid down in the Prayer Book Table), are by 5 & 6 Will. 4, c. 54, absolutely void, and not merely voidable as before that Act. It is necessary to the validity of the contract of marriage in Necessary

formalities in England that there should be a public ceremony, either according England. to the rites of the Church of England by a priest (e) in a parish church, or in a chapel registered for marriages; or, as to nonconformists, at a registered building in the presence of the registrar, or by the registrar alone at his office (f).

There are also many requirements as to previous publication of banns, or a licence being obtained from the surrogate or registrar, as to

(z) Williams on Personal Property, 13th ed., p. 342 ; and see Andrew v. Andrew (1845), 1 Coll. 690.

(a) See Bro. N. C. 108; Blackden's case (1611), Brownl., pt. 2, p. 36.

(6) Lord Durham's case (1885), 10 P. D. 80; 51 Geo. 3, c. 37.

(c) Scott v. Sebright (1886), 12 P. D. 21.

(d) A. v. B. (1868), L. R., 1 P. & M.


(e) Marriages by a parson subsequently deprived quia mere laicus are valid, because by his induction he is the only person the law can take cognizance of; Costard v. Winder (1601), Cro. Eliz. 775.

(f) 4 Geo. 4, c. 76; 6 & 7 Will. 4,

C. 85.

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In respect

CH.XVIII.s.2. solemnization within the hours of 8 A.M. and 3 P.m., and other The Contract matters (g), but the requirement of consent of parents has been of Marriage.

expressly held to be directory only, and not imperative (h); and, generally, it would seem, that it is only wilful and knowing disobedience of previous statutory formalities that would annul a

marriage. Necessary The Foreign Marriages Act, 1892, 55 & 56 Vict. c. 23, regulates formalities out of England. marriages of British subjects on board ship or abroad.

to marriages out of England generally, the rule is that any marriage will be held valid by the English Courts which was valid by the law of the country in which it was solemnized, subject to the exceptions that polygamous marriages are not recognized (i); and that for validating a marriage in Scotland contracted without religious ceremony, a twenty-one days' preliminary residence is required by 19 & 20 Vict. c. 96. And where a parson cannot be readily obtained, as up country in India, it would seem that a marriage per verba de presenti will be good (k).


(g) 4 Geo. 4, c. 76; 6 & 7 Will. 4, c. 86 ; 6 & 7 Will. 4, c. 85; 19 & 20 Vict. c. 119; 49 Vict. c. 14.

(h) R. v. Birmingham (1828), 8 B. & C. 29.

(i) See Bethell, In re (1888), 38 Ch. D. 220 ; and Hyde v. Hyde & Woodmansee

(1866), L. R., 1 P. & M. 130 (Mormon marriage).

(k) Maclean v. Christall (1849), 7 N. C., Supp. XVII. ; and see Catterall v. Sweetman (1847), 4 N. C. 222 ; 5 N. C. 466.

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