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CHAPTER XXXII.

ACTION FOR BREACH OF A PROMISE TO MARRY; OR FOR THINGS FURNISHED TO A WIFE OR CHILD.

1. For breach of promise to marry.

Where a

Courts do not look with favour upon a contract to restrain marriage generally. Hartley v. Rice, 10 East 22. man by a writing under his hand and seal promised a woman that he would not marry with any person besides herself, and that if he did, he would pay her £1000, and ten years afterwards he did marry another woman, the covenantee was unsuccessful in her action on the covenant. It was considered as a restraint upon him against marrying any one else besides the plaintiff; not a reciprocal engagement to marry each other. Lowe v. Peers, 4 Burr. 2225. If there was a mutual promise to marry, the action for breach of that would rest on different ground.

At an early period it was determined that although a suit to perfect a marriage or concerning its lawfulness or unlawfulness might properly belong to the ecclesiastical court, yet that a court of common law may take cognizance of an action on a mutual promise to marry, for a breach by one party of his promise to marry the other; for that here is a mutual contract concerning a lawful act. Holcroft v. Dickinson, Carter 233, Freem. 95. This decision was in the 25 Car. 2 (1673). It was objected that these actions upon the case were things invented in the late times when there was no remedy in the spiritual court; but it was answered, there were precedents of this very case before the time of the troubles; as appears 1 Roll. 14, pl. 3, 4. There have been precedents since in the United States as well as in England. Milstead v. Redman,

3 Munf. 219.

The action lies not only against a man for breach of his promise but also against a woman for breach of hers. Harrison v. Cage and wife, 1 Ld. Raym. 386, 3 Id. 268, Salk. 737; Seymour v. Gartside, 2 Dow. & Ry. 55, 16 Eng. Com. Law Rep. 72. When at the time of the promise, no time is specified for the marriage, it is implied that it shall be in a convenient or reasonable time. Id.

In Holcroft v. Dickinson, it was argued that the marriage could not be without a third person, a priest, and it was objected that the plaintiff had not alleged that the priest was

there when she offered herself; but it was answered that if I am bound to do an act to which a third person must necessarily concur, I must procure the third person at my peril; as it is held in Lamb's case, 5 Rep. 23. A like exception was overruled in Harrison v. Cage & wife, 1 Ld. Raym. 386.

It may be 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. But if at the time of the promise to the plaintiff she was ignorant of the defendant's marriage, there ought to be a remedy against him.

In an action on a promise to marry the plaintiff within a reasonable time, the declaration averred that the plaintiff remained sole and unmarried, and that the defendant disregarded his promise, and at the time of his promise and thenceforward was married and the plaintiff was ignorant of the defendant's marriage at the time of his promise. It was contended that as the declaration disclosed that the defendant was a married man at the time of the promise-so that the plaintiff was not bound by her promise to marry the defendantthere was a total absence of consideration. But as the declaration alleged a promise by the plaintiff to marry the defendant within a reasonable time-which involved within it a promise to remain single for a reasonable time; and this the plaintiff averred that she did;-the court considered this consideration enough. It added that the defendant's promise to marry the plaintiff within a reasonable time was not absolutely impossible of performance; for his wife might have died within a reasonable time, and so he would have been in a condition to perform his promise to the plaintiff. Wilde, C. J. said, "it would be strange, indeed, to allow the defendant to rely upon his own wrong-to set up his fraudulent concealment of his marriage-in order to discharge himself from his promise; the plaintiff having performed her part of the condition, by remaining unmarried and ready to marry the defendant until she discovered that he was already a married man." Wild v. Harris, 7 Man. Grang. & Scott 999, 62 Eng. Com. Law Rep. 999.

The matter is placed on clear ground by Parke, B. His position is that "the promise by the defendant to marry the plaintiff, implies on his part that he is then capable of marrying, and he has broken that promise at the time of making it. The consideration to support the promise is, that the plaintiff, at the request of the defendant, engaged to marry him within a reasonable time, and therefore she remained unmarried; and that is a sufficient consideration to bind the defendant." This.

consideration would be sufficient, though the plaintiff "discovered on the day after the defendant's promise that he was a married man." Millward v. Littlewood, 5 W. H. & G. 775; 1 Eng. Law & Eq. 408.

In Seymour v. Gartside-where the man sued the woman-it was objected to the count, first, that it did not state that she had any notice of his being ready to marry her during the reasonable time therein alleged; 2dly, that it did not state any request made to her to marry him; 3dly, that it did not aver any appointment of time when he was ready to marry her; and fourth, that there was no allegation of any special refusal to perform the contract of marriage. But the motion in arrest of judgment was overruled. The court said "The words 'did not, nor would within such reasonable time as aforesaid, or at any time afterwards, marry him the said plaintiff, but hath hitherto wholly neglected and refused so to do,' necessarily imply a request to marry."

In a case in New York where the woman was plaintiff, the supreme court of that state thought an offer by her of marriage was unnecessary. Johnson v. Caulkins, 1 Johns. Cas.

116.

If a party puts himself out of the condition in which a request could properly be made, he dispenses with the request. Harrison v. Cage & wife, 1 Ld. Raym. 386; Short v. Stone, 8 Adol. & El. N. S. 358, 55 Eng. Com. Law Rep. 358.

In

If a man being under a contract to deliver certain goods to another, should put it out of his power to do so by destroying them, it cannot be necessary to request him to deliver them. And so a declaration may state that the defendant promised the plaintiff to marry her, and the plaintiff remained and still is sole and unmarried, and was during all the time ready to marry the defendant, whereof the defendant always had notice; yet the defendant disregarded his said promise and wrongfully and injuriously married another woman. such case it is no valid plea that the defendant was not at any time before the commencement of the suit requested by the plaintiff to marry her; nor can it be necessary to aver the lapse of a reasonable time for the performance of the defendant's agreement with the plaintiff. It being argued that the defendant's wife may die before the lapse of the reasonable time, and he may still be able to perform his contract with the plaintiff; that the declaration does not even aver that the defendant's wife is still alive, Alderson, B. asked "why should we presume that the wife will die before the lapse of a reasonable time, or in the lifetime of her husband? We ought," he said, "rather to presume the continuance of the

present state of things; and while that continues it is clear that the defendant is disabled from performing his contract." Caines v. Smith, 15 M. & W. 189. Moreover there being a breach of contract at once when the defendant married, it is then no matter how long the person whom the defendant has married lives. Short v. Stone.

2. Marriage gives wife a right to be supplied with necessaries notwithstanding husband become insane.

By contracting the relation of marriage, a husband takes on himself the duty of supplying his wife with necessaries; and if he does not perform that duty the wife has, by reason of that relation, an authority to procure them herself, and the husband is responsible for what is so supplied. Manby &c. V. Scott, 1 Lev. 4, 1 Sid. 109; Morton v. Withens, Skinn 348; 2 Smith's L. C. 252. He is responsible though the supply was during the period of his lunacy. The marriage gives her authority to pledge his credit for her support, if circumstances render it necessary, she herself not being in fault; and that authority is not revoked by the husband becoming insane. Read v. Legard, 6 W. H. & G. 636.

3. How far husband is liable on his wife's contracts, when they are living together.

When the husband and wife are living together, and he provides her with necessaries, he is not bound by her contracts, except where there is reasonable evidence to shew that the wife has made the contract with his assent. Etherington v. Parrot, 1 Ld. Raym. 1006, Salk. 118, Holt 102. The party seeking to charge the husband in respect of such a contract, is bound either to prove an express assent on his part, or circumstances from which such assent is to be implied. Montague v. Benedict, 3 Barn. & Cress. 631, 10 Eng. Com. Law Rep. 205; Spreadbury v. Chapman, 8 C. & P. 371, 34 Eng. Com. Law Rep. 434. If a wife buy necessary apparel for herself, the assent of the husband shall generally be intended. Com. Dig. tit. Baron & Feme (2). While she is living with him, and there is no reason to suppose any difference between them, the law presumes an authority for her to order proper things for his house and her clothing, and in general for such other things as are fairly within her superintendence. Hardie v. Grant, 8 C. & P. 512, 34 Eng. Com. Law Rep. 506. But if the wife gives extravagant orders, when the husband's income is small, that is a circumstance to

repel the inference of assent. Atkins v. Curwood, 7 C. & P. 756, 32 Eng. Com. Law Rep. 721.

In the case of Mr. Espinasse, who was working hard at his profession, as a special pleader, and did not keep a man servant, and was living in a ready furnished house, it could not (Bayley, J. observed) be supposed for a moment that he could authorize his wife to spend upwards of £ 80 in jewelry in about six weeks. It appeared that she was related to a family of rank-was a cousin of Lord Petre-still, said Abbott, C. J., it is not the rank of the party but the estate that must be considered. Montague v. Espinasse, 1 C. & P. 356, 502, 11 Eng. Com. Law Rep. 416, 454.

Sometimes a tradesman supplies goods, not on the credit of the husband but of the wife, and can look to her only for payment. Metcalfe v. Shaw, 3 Camp. 22; Bentley v. Griffin, 5 Taunt. 356, 1 Eng. Com. Law Rep. 131. The curate of Milton, residing at the rectory near Northampton, knowing that his wife had a great fancy for birds, had an aviary fitted up for her, and in about 10 months she ordered between 6 and 700 live birds, mostly foreign, consisting of love birds, cut throats, quakers, bishop birds, cardinals, black headed manakins, mountain lories, avadavats, and other kinds. This was too much for the curate; his income was only about £ 400 a year, and the wife's orders for birds exceeded £ 900. Such orders being out of the ordinary course, Lord Abinger thought the jury should require strict proof of the husband's authority, and here the inference of such authority was repelled by the wife's having a separate provision of about £380 a year, and by other circumstances. Freestone v. Butcher, 9 C. & P.

643, 38 Eng. Com. Law Rep. 269.

In another case, an action was brought to recover £ 5287 for articles of millinery, viz: bonnets, feathers, lace and ribands, supplied to the defendant's wife during part of the year 1843. She had a separate fortune; and the plaintiff having made enquiry was told she had £ 1100 a year. Her giving orders to such an extent went to shew that she was not acting as the husband's agent. It was considered that the tradesman who supplied these articles must have known that she was exceeding her husband's authority. Lane v. Ironmonger, 13 M. & W. 368.

In all this class of cases, the question is one of agency. When the wife is living with the husband and is supplied by him with necessaries, if he tells her that he will not permit her to have a particular kind of dress, she cannot bind him by ordering it. When she is sufficiently provided with clothes and orders more, there is no implied authority from the hus

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