neral yet definite and reciprocal understanding between them, their friends and relations, evinced and corroborated by their actions, that a marriage was to take place. And where the promise of a 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 (z). But expressions to third persons of an intention to marry another, not in the hearing of the latter, do not amount to a promise to marry (a). A promise of this nature need not be reduced into writing (b); for the statute 29 Car. 2, c. 3, s. 4, applies to promises "in consideration of marriage ;" not to promises to marry (c). And even if the promise be in writing, no stamp is necessary (d). The engagement is binding, although the precise time for completing it is not agreed upon; and in such case the law presumes that the parties promised to intermarry in a reasonable or convenient time, upon request (e). 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 "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 (f)." However, when the (z) Hutton v. Mansell, 3 Salk. 16, 64, S. C.; 1 Bla. C. 433, note (2), Chitty's ed. In Daniel v. Bowles, 3 C. & P. 553, which was an action by a woman for a breach of promise of marriage, it was objected that there was no evidence of her promise to marry the defendant, so that there was no mutuality. But Best, C. J., held that it was sufficient to prove that he asked the lady's hand in the presence of herself and mother,—that the mother assented,-that the lady did not dissent, though she said nothing, that the defendant took the mother's hand, and said, "from this time consider me as your son,"-and that the defendant was accordingly allowed to visit as a suitor or intended husband. (a) Cole v. Cottingham, 8 C. & P. 75. (b) Phillpott v. Wallett, 3 Lev. 65; Harrison v. Cage, 1 Lord Raym. 387; Salk. 280; Bul. N. P. 280; 10 Ves. 439. (c) Id.; Cork v. Baker, Stra. 34; Montacue v. Maxwell, Stra. 236; 10 Ves. 439. A subsequent marriage not sufficient to take the case out of the statute, even in equity, as a part performance; id.; Ves. 199; Shaw v. Jakeman, 4 East, 201. (e) Harrison v. Cage, Carth. 467; 1 (f) Potter v. Deboos; and see Phillips v. Crutchley, 3 C. & P. 178; 1 M. & P. 239, S. Č. promise of the defendant is to marry within a certain period, or on certain conditions, or when the plaintiff's affairs should be settled, the declaration must be framed accordingly, showing that the specified time has elapsed, or that the condition has been performed (g). And where the declaration charged only a general promise, and the only promise proved was, that the defendant would marry the plaintiff within a convenient time after the death of his, the defendant's, father; Lord Kenyon held that there was a fatal variance between the declaration and the evidence (h). Where the promise was to marry on request, a special request must be laid in the declaration, and proved at the trial; unless the defendant, by marrying another person, has incapacitated himself from performing his engagement, and the declaration state that fact (i). But it was always held to be unnecessary to aver or prove that the plaintiff, when making the request, was accompanied by a clergyman (k). The pre-engagement of the defendant to another person would form no defence to the action, as he could not thus avail himself of his own wrong; but if the parties be related within the Levitical degrees, and their intermarriage be therefore prohibited, their promises are nugatory, and the breach thereof would consequently afford no ground of action (1). In an action (m) 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: that was, public 75. (g) Cole v. Cottingham, 8 C. & P. (h) Atchinson v. Baker, Peake's Addl. C. 103. But the declaration need not state the settlement of the fortune; id. 124, S. C.; see Form, 2 Chitty Pl. 6th ed. 201; Chitty jun., Precedents, 147. (i) Harrison v. Cage, 1 Lord Raym. 386; and see Phillips v. Crutchley ; and Gough v. Farr, 3 C. & P. 631; 1 Y. & J. 477, S. C. (k) Holder v. Dickinson, 1 Freem. 95; Dickinson v. Holcroft, 3 Keb. 148; Harrison v. Cage, 1 Lord Raym, 386; Carth. 467, S. C. The defendant's statement to the plaintiff's father, that he did not mean to perform his promise, is a sufficient breach; Gough v. Farr, 3 C. & P. 631; 1 Y. & J. 477, S. C., not S. P. When the court will grant a new trial for excessive damages, id., and Wood v. Hurd, 2 Bing. N. C. 166. (1) Harrison v. Cage, Lord Raym. S87; see the late Marriage Act, Chit. & Hulme's Statutes, tit. Marriage. (m) Foulkes v. Sellway, 3 Esp. R. 236; and per Lord Kenyon, in Atchinson v. Baker, supra. opinion, founded on the conduct of the party, and was a fair subject of inquiry; and, therefore, what the public thought was evidence on such an issue." In a subsequent case (n), it appeared that after the promise the plaintiff had had a child. Abbott, C. J., observed to the jury, that if they thought the defendant was not the father of the child, he was entitled to their verdict; for if any 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, and that if any man had been paying his addresses to one that he supposed to be a modest person, and afterwards discovered her to be a loose and immodest woman, he was justified in breaking any promise of marriage that he may have made to her; but that, to entitle a defendant to a verdict on that ground, the jury 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 promise to marry such a person, he was bound to do so." If the promise were made by the defendant in consideration that the plaintiff would have connexion with him, it is void; but it seems that if he renew his promise after the illicit intercourse had taken place, the subsequent promise will be binding (0). In the course of a cause of this description (p), 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. In summing up to the jury, Lord Ellenborough said, "That, notwithstanding what has 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 (n) Irving v. Greenwood, 1 C. & P. 350. In this case, evidence that the parents of defendant disapproved of the match was allowed to be received in mitigation of damages. Verdict for the plaintiff, damages 500l. And see Young v. Murphy, 3 Bing. N. C. 54; 3 Scott. 379, S. C. In an action for seducing plaintiff's daughter, it is no defence that she had on a former occasion had a child by defendant himself; Verry v. Watkins, 7 C. & P. 308; Bamfield v. Massey, 1 Camp. 460; Rosc. Ev. 258, 259. (0) See Morton v. Fenn, 3 Dougl. 211. (p) Leeds v. Cook, 4 Esp. R. 257. commit her happiness to such keeping; and she might set up such defence, and it would be legal; but though no such evidence appeared, which went to the ground of action, if the plaintiff appeared to be of gross manners, and destitute of feeling, as he complained in this action of an injury, in the loss of the society of a woman, which he appeared never to have valued, and the pleasures of which society he seemed little calculated to taste, the jury should take it into their consideration in the verdict they were to pronounce." And Gibbs, C. J., held at Nisi Prius (q), that, in an action against a woman for a breach of promise of marriage, it is a sufficient excuse for the non-performance, that the person to whom she had given the promise turned out, upon inquiry, to be a man of bad character; but that mere accusation and suspicion are not sufficient: the charges which she makes against him must, if capable of proof, be substantiated, or they go only to the damages. In Atchinson v. Baker (r) it appeared that the plaintiff was a widower, upwards of forty years of age, and the defendant a widow, about the same age; when the promise was made the plaintiff was apparently in good health, but the defendant afterwards discovered that he had an abscess in his breast, and for that reason refused to marry him. 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 connexion. Lord Mansfield had held that if, after a man had made a contract of marriage, the woman's character turned out to be different from what he had reason to think it was, he might refuse to marry her without being liable to an action (s);' and whether the infirmity was bodily or mental, the reason was the same. It would be most mischievous to compel parties to marry who could never live happily together." It seems that a promise of marriage is not binding, if it be obtained, or the continuation of the engagement be procured, by means of a fraudulent and false representation to the defendant, or wilful concealment from him of the plaintiff's former situation in life, and the circumstances of her family (t). (q) Baddeley v. Mortlock, 1 Holt N. P. R. 151. (r) Peake's Addl. C. 103, 124, S. C. (s) Foulkes v. Sellway, 3 Esp. 236. (t) Wharton v. Lewis, 1 C. & P. 529; Foote v. Hayne, id. 546. 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, and as regards whom it was violated; at least, unless there be laid in the declaration, and proved, some special damage affecting the personal estate of the deceased because it is not in the power of such representatives to complete the contract on their part (u). If a contract to perform any work, or to transact any business, be not tainted or connected with any illegal consideration or object, the law implies an engagement on the part of the person undertaking to do the work, that it shall be performed and completed with due care, diligence, and skill, or according to the orders given and assented to (a); and a promise by the party who employed the workman (y) to pay him in money a reason (u) Chamberlain, Administrator, &c. v. Williamson, 2 M. & Selw. 408; and see ante, 98. (x) Streeter v. Horlock. 7 Moore, 287. As to the degree of care, &c., required from a bailee of goods employed to perform work thereon, see ante, 475. It seems that the law would imply a promise on the part of a person whose services were engaged for any particular object, or in any particular character, for a remuneration, (for instance, an actor,) that he was reasonably competent to fulfil the object or perform the duties of the office or situation he agreed to occupy. (y) Or a person who by fraud induced the workman to perform work for a third person; Lucas v. Godwin, 4 Scott, 502; 3 Bing. N. C. 743. |