And it sometimes happens that a jury who are obliged by 70 the rules of law to give a verdict for the plaintiff, render that of no avail, by finding only nominal damages. (k) The promise is so far of a personal nature, that the breach of it gives no action to the personal representative of the party injured, unless perhaps special damage to the estate of the decedent is alleged and proved. (1) Nor does it survive against the administrator of the promisor. (m)

Whether in an action to recover damages for the breach of a promise of marriage, damages for seduction may be recovered, has been much questioned. (n)1 By the strict rules of law, they

record, as the cause of his desertion of the plaintiff, that she had repeatedly had criminal intercourse with various persons, and fails entirely in proving it, this is a circumstance which ought to aggravate the damages. A verdict for nominal or trifling damages, under such circumstances, would be fatal to the character of the plaintiff; and it would be matter of regret, indeed, if a check upon a license of this description did not exist in the power of the jury to take it into consideration in aggravation of damages." In Gough . Farr, 1 Y. & J. 477, it is decided, that the court will not, in an action for a breach of promise of marriage, grant a new trial on the ground of excessive damages, unless they be so large as to induce the court to infer that the jury were actuated by undue motives, or acted upon a misconception of the facts. And Hullock, B., said: "The principle which governs the courts in cases of this description is, not whether they think the damages too large, but whether they be so large as to satisfy the court that the verdict was perverse, and the result of gross error, misconception, or undue motives. There are, I think, no circumstances in this case to warrant such a conclusion. Poverty is pleaded as a ground for inducing the court to interfere; I am not, from the evidence, satisfied that the defendant is unable to pay the damages; but even if he were, that would not, I apprehend, be a ground for disturbing the verdict. These are questions which must depend upon the circumstances of each particular case if there were an imputation upon the character of the plaintiff, and the damages

were excessive, the court might interfere; nothing of that sort, however, appears in this case." In Goodall v. Thurman, 1 Head, 209, the rule is said to be, that the amount of damages rests in the sound discretion of the jury, who are to look to the rank and condition of the parties, the estate of the defendant, and to all the facts proven in the case, and award damages commensurate with the injury inflicted.

(k) See Baddeley v. Mortlock, Holt, 151, cited ante, p. 65.

*

(1) Chamberlain v. Williamson, 2 M. & Sel. 408. Wade v. Kalbfleish, 58 N. Y. 282; Grubb v. Sult, 32 Gratt. 203. See Shuler v. Millsaps, 71 N. C. 297, contra.

(m) Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Cush. 408.

(n) Perkins v. Hersey, 1 R. I. 493, does not permit seduction to be shown in aggravation of damages. So Burks v. Shain, 2 Bibb, 341; Weaver v. Bachert, 2 Penn. St. 80. Contra, Paul v. Frazier, 3 Mass. 73; Conn v. Wilson, 2 Overt. 233; Matthews v. Cribbett, 11 Ohio St. 330; Goodall v. Thurman, 1 Head, 209. In Baldy v. Stratton, 11 Penn. St. 316, it is held, that though seduction cannot be given in evidence in an action for breach of promise of marriage, the improper conduct of the defendant, in which the plaintiff did not participate, may be so given in aggravation of damages. So loss of time, and expenses incurred in preparations for marriage, are grounds of damage, directly incidental to the breach of a promise of marriage, but not of special damage. In Tullidge v. Wade, 3 Wills. 18, and Foster v. Schoffield, 1 Johns. 297, it was held,

1 Such evidence is now generally admitted. See Berry v. Da Costa, L. R. 1 C. P. 331; Millington v. Loring, 6 Q. B. Ď. 190; Sherman v. Rawson, 102 Mass. 395; Hattin v. Chapman, 46 Conn. 607; Sauer v. Schulenberg, 33 Md. 288; Bennett v. Beam, 42 Mich. 346; Bird v. Thompson, 96 Mo. 424; Smith v. Braun, 37 La. An. 225; Wilds v. Bogan, 57 Ind. 453; Kniffen v. McConnell, 30 N. Y. 285; Williams v. Hollingsworth, 6 Baxter, 12; Giese v. Schultz, 53 Wis. 462; 69 Wis. 521.

should, we think, be excluded, where the plaintiff was in actual or constructive service, or lived in a State in which the statute law gave her an action for the seduction, and not otherwise; and the weight of authority seems to be so. Where courts hold to this rule they would exclude evidence of seduction as irrelevant. But in most cases it would be difficult to exclude this entirely, so as to keep the fact entirely from the jury, without excluding other evidence to which the plaintiff would certainly be entitled. And if the jury were made cognizant of the fact, they would probably regard it in estimating damages; and probably courts would now seldom set aside a verdict on this ground under any ordinary circumstances; especially if the seduction followed the promise and was effected by means of it. (nn) And it has recently been held in England, that the court might direct the jury in assessing damages, to consider the altered position of the plaintiff by reason of the seduction. (no) It has been held in England, that a father cannot maintain an action, "per quod servitium amisit," for the seduction of his daughter; unless she

was in service to him, or owing him service, at the *71 time. (0) And it has been held that the service must be real, genuine service, such as a parent, master, or mistress may command, and not such occasional assistance as the daughter out at service may be able to render to her parent by permission of the master with whom she lives. (p) But the American law is held, in some cases, not so strictly. (q) In others, there seems a disposition to adopt the severity of the English law. (r)

that in an action for seduction, the promise (p) Thompson v. Ross, 5 H. & N. 16. of marriage could not be given in evi- (9) See Ingersoll v. Jones, 5 Barb. 661, dence. But this rule if it be law-is and Bartley v. Richtmyer, 2 Barb. 182; not usually regarded in practice. In Davidson v. Goodall, 18 N. H. 423; White Wells. Padgett, 8 Barb. 324, it is de- v. Nelis, 31 N. Y. 405; Lipe v. Eisenlerd, cided, that in an action for breach of 32 N. Y. 229; Kennedy r. Shea, 110 Mass. promise, the seduction of the plaintiff is 147. In Updegraff v. Bennett, 8 Ia. 72, to be regarded as a breach of the promise held, that the right of a father to recover in all cases in which it is followed by for the seduction of a minor daughter, abandonment and a refusal to marry, and has not been changed by the Code, but is to be considered by the jury in estimat- this rule has been so relaxed, that he may ing the damages. The same doctrine is now recover, although such minor daughheld in King v. Kersey, 2 Cart. (Ind.) 402. ter be not living with him, and there may (nn) Espy v. Jones, 37 Ala. 379. be no actual loss. See also Doyle v. (no) Berry v. Da Costa, Law Rep. 1 Jessup, 29 Ill. 460. C. P. 331.

(0) In Postlethwaite v. Parkes, 3 Burr. 1878, the plaintiff hired herself to the defendant, who seduced her and then turned her away when pregnant, and she returned to her father, and the father brought an action per quod servitium; and it was held, that the action was not maintainable.

(7) George v. Van Horn, 9 Barb. 528; Bartley v. Richtmyer, 4 Comst. 38; Dain v. Wycoff, 3 Seld. 191; Mulvehall v. Millward, 1 Kern. 343. In other American cases, the principle of the English law seems to prevail, as in Lee v. Hodges, 13 Gratt. 726; Roberts v. Connelly, 14 Ala. 235; Kendrick v. McCrary, 11 Ga. 603; Heinrichs v. Kerchner, 35 Mo. 378.

Evidence that the parents of the defendant disapproved of the engagement has been received in mitigation of damages. (s) A bill in equity has been sustained to compel a party to discover whether he has promised to marry the plaintiff. (t)

SECTION II.

PROMISES IN RELATION TO SETTLEMENTS OR ADVANCES.

A promise to give to a woman, or settle upon her, a specific sum or estate on her marriage, is valid. Marriage is regarded as one of the strongest considerations in the law, either to raise a use, or to found a contract, gift, or grant. (u)1 But such promises are certainly within the statute of frauds, as made" in consideration of marriage," (v) although a promise to marry They must therefore be in writing in England, and in those of our States which have enacted this clause of the statutes of frauds. And the celebration of the marriage is not such part performance of the contract as to take it out of the statute. (w) But the Court of Chancery has frequently interfered

*72 is not.

(s) Irving r. Greenwood, 1 C. & P. 350. (t) Vaughan v. Aldridge, Forest, 42. (u) Holder v. Dickeson, 1 Freem. 96; Smith v. Stafford, Hob. 216. Waters v. Howard, 8 Gill, 262.

(v) Randall v. Morgan, 12 Ves. 67. In this case it is doubted whether a settlement after marriage, founded upon a parol agreement before marriage, could be sustained against creditors. The same question occurred in Dundas v. Dutens, 1 Ves. Jr. 196, and Lord Thurlow seemed to think such settlement might be valid. He says to counsel: "I should be glad to hear you support it (that is, his objection to such settlement), though it is mere matter of curiosity, if the first point be against you." This question does not seem to be distinctly settled. Perhaps the courts would take this distinction;

where the property was the wife's, and had come to the husband by a marriage made after a promise to secure it to her, a settlement in fulfilment of the promise would be sustained against creditors, because they lose nothing by it; but not so if the property had been originally the husband's.

(w) Dundas v. Dutens, 1 Ves. Jr. 196; Montacute v. Maxwell, 1 P. Wms. 618; s. c. 1 Stra. 236. In Simmons v. Simmons, 6 Hare, 352, it is said that although a parol agreement by the husband, made before marriage, that the wife should possess certain ehattels for her own use, is not binding upon him, yet if the parties voluntarily place the property under the dominion of trustees as part of the property under trust, the agreement may then be made effectual.

1 Thus a settlement by an insolvent debtor of a large amount of real estate upon a woman was upheld, although she knew that he was financially embarrassed, Prewit v. Wilson, 103 U. S. 22; and where no fraud on the husband's creditors can be laid to the wife, a settlement of his whole estate upon her is good, though they had cohabited and had children before the marriage. Herring v. Wickham, 29 Gratt. 628. Gay v. Parpart, 106 U. S. 679, held the assignment of a mortgage by a man to a woman whom he had married and by whom he had children, after her discovery that he had a wife living at the time of the marriage, is a meritorious act, and not impeachable for immorality of consideration. - K.

where there was a writing, and in some instances where there was none, to compel parties to carry into effect the intentions of such a contract, or the expectations justly raised by the conduct and declarations of relatives and friends. (x) But a mere representation concerning the property or prospects of a party about to be married, if made in good faith, will not bind a party to make it good, even in equity, although the representation be untrue in fact. (y) Letters from parents, or persons standing in loco parentis, promising provisions, if sufficiently specific and explicit, have been held to satisfy the requirements of the statute. (2)

Contracts or gifts by way of settlement upon a wife, after marriage, are valid if not in fraud of creditors. (zz) If the husband were insolvent at the time, they would be deemed fraudulent; but they would not be deemed necessarily fraudulent, if he were not insolvent, although he was indebted at the time; but a fraudulent intent might be shown and it would invalidate the settlement. (za) If those who were creditors at the time fail to receive their debts, this would go far to prove legal fraud; and hence it is said that a voluntary conveyance by a husband to or for his wife cannot be sustained against existing creditors. (zb)

Contracts have been frequently declared void, on the ground that they were in fraud of settlements and marriage portions, or promises thereof. As where a private bargain was made with the husband, or even with husband and wife, to pay back a part of the wife's portion; (a) or to return a part of an annuity *73 or other provision apparently given to a son to enable him to marry; (b) or to restore money given to impart to one appearance of wealth by which he or she may induce another to

(r) Hunsden v. Cheyney, 2 Vern. 150; Beverley v. Beverley, id. 131.

(y) Mereweather v. Shaw, 2 Cox, 124. (2) Bird v. Blosse, 2 Vent. 361, Seagood e. Meale, Prec. Ch. 561; Cookes v. Mascall, 2 Vern. 200; Moore v. Hart, 1 id. 110. In Wankford v. Fotherley, 2 id. 322, £3,000 were decreed to be paid on the strength of a letter written by the father's direction, wherein he offered to give £3,000 portion with his daughter. He was afterwards privy to the marriage, and seemed to approve thereof. See Ayliffe v. Tracy, 2 P. Wms. 65. In Douglas v. Vincent, 2 Vern. 201, an uncle promised by letter to give his niece £1,000," but in the same letter dissuaded her from marrying the plaintiff;" and

the court refused to decree payment, but left the plaintiff to his action at law.

(2) Williams v. Avery, 38 Ala. 115; Belford v. Crane, 1 Green, 265; Woolston's Appeal, 51 Pa. 452; Patrick v. Patrick, 77 Ill. 555; Lloyd v. Fulton, 91 U. S. 479.

(za) Larkin v. McMullin, 49 Pa. St. 29; Clayton v. Brown, 30 Ga. 490; Clawson v. Clawson, 25 Ind. 229; Moritz v. Hoffman, 35 Ill. 553.

(zb) Sargent v. Chubbuck, 19 Ia. 37.

(a) Thurton v. Benson, 1 P. Wms. 496; s. c. 2 Vern. 764; Pitcairn v. Ogbourne, 2 Ves. Sen. 375. See also Jackson v. Duchaire, 3 T. R. 552.

(b) Peyton v. Bladwell, 1 Vern. 240; Palmer v. Neave, 11 Ves. 165; Morisone v. Arbuthnot, 8 Bro. P. C. 247.

marry him. (c) A note given fraudulently to induce a marriage contract is good against the maker. (d) So creditors who conceal or deny debts due to them from a man about to be married, that their debtor may get the consent of the woman or her parents to the marriage, are bound by such representations as effectually as by a release. (e) Any private agreement impairing or avoiding an open and public treaty of marriage, is considered fraudulent; and it is sometimes laid down as a principle, that whoever acts fraudulently in such cases shall not only not gain, but shall lose by his fraud.

How far a direct gift or transfer, without consideration, of land from husband to wife is valid, and in what way it may be made effectual, must depend in each State upon the present condition of the statute law in that State in relation to the rights and powers of husband and wife, and of the adjudication on this subject. At common law, and now therefore wherever the common law is unchanged, such gift or transfer, unless through the medium of a trustee, would be void. Recent decisions have held, in Ohio, that the conveyance is void both in law and equity; (ee) in Arkansas, that it is void at law, but (being bona fide) will be sustained in equity; (ef) and in Michigan, that a husband may make such conveyance at law. (eg) Although the husband be insolvent or bankrupt, he may give the wife whatever neither his creditors nor assignees could take. (eh)

(c) Scott v. Scott, 1 Cox, 357; Thomson v. Harrison, id. 344. In this last case, Lord Thurlow says: "It is a rule, in cases of frauds on marriage, that although the husband be a party to such fraud, yet his interest is not to be affected since it is impossible to make him liable in respect thereof, without involving the wife and children, and the family upon whom the

deceit has been practised." See also Gale . Lindo, 1 Vern. 475.

363.

(d) Montefiori v. Montefiori, 1 W. Bl.

(e) Redman v. Redman, 1 Vern. 348; Neville v. Wilkingson, 1 Bro. Ch. 543. (ee) Fowler . Trebein, 16 Ohio. 493. (ef) Eddins v. Buck, 23 Ark. 507. (eg) Burdeno v. Amperse, 14 Mich. 91. (el) Smith v. Allen, 39 Miss. 469.

Gifts or conveyances are, however, good as between the husband and wife themselves, Kitchen v. Bedford, 13 Wall. 413; Hunt v. Johnson, 44 N. Y. 27; Sims v. Rickets, 35 Ind. 181; such as choses in action, Campbell v. Galbreath, 12 Bush, 459; an assignment of a claim, Seymour v. Fellows, 77 N. Y. 178; a deposit in a savings bank to her account, Spelman. Aldrich, 126 Mass. 113; see Way v. Peek, 47 Conn. 23; and rents and profits of land, Hutchison v. Mitchell, 39 Tex. 487. Neither a child, not dependent, Horder v. Horder, 23 Kan. 391, nor his heirs, can impeach such a gift or conveyance if reasonable. Crooks v. Crooks, 34 Ohio St. 610; Majors v. Everton, 89 Ill. 56. A wife may encumber or dispose of land so conveyed. McMillan v. Peacock, 57 Ala. 127; Myers v. James, 2 Lea, 159. — K.

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