PROMISES TO

MARRY.

Insanity.

damages could be recovered. For so numerous are the ills that flesh is heir to, that in the opinion of a great physician (p), there is not one of the whole human race who has not, in his person, the elements either latent or apparent of some fatal malady.

Therefore, let us imagine a case to try this question. Suppose, after promises exchanged, that one of the parties objects to the other on the ground of mental insanity. This, I apprehend, would on all hands be deemed a good objection. But suppose the ground taken to be herediHereditary mala tary insanity existing in the family of the individual objected to, but never evinced in himself. To admit this as an excuse for breach of promise would be going too far. The case must often have occurred; but I find nothing in the Books to aid its determination.

dies.

Case of plaintiff being an infant.

The Scotch lawyers, however, had an analogous question about thirty years ago. Damages in Scotland are awarded as "a solatium to injured feelings, and compensation for loss of market." In one case (which excited much attention and discussion), the demand of damages was resisted on the ground that the lady, (the plaintiff in the cause,) "was subject to hereditary scrofula." But this defence was repudiated with expressions of judicial indignation,—one of the judges (Lord Meadowbank) observing, that "the most consummate beauty, elegance, and accomplishments, were unfortunately, not merely not incompatible with, but were even in some degree allied to that disease" (q).

An infant may bring an action against an adult for breach of promise to marry. This was doubted till the determination of the Court of King's Bench in Holt v. Ward Clarencieux (r); where Lord C. J. Raymond said,

(p) The late Dr. Gregory.
(9) Faculty Reports, 27th May,

() 2 Strange, 937. See 1 Barn. 290.

MARRY.

that the contract by mutual promises of marriage, one PROMISES TO of the parties being an infant, "is not void, but merely voidable at the election of the infant; and, as to the person of full age, it absolutely binds." But it must be remembered that an infant's marriage is required by the Statute to be with consent of guardians (s). So that the want of such consent (when applied for) would most probably be a good defence to an infant's action claiming damages from an adult promissor, because an infant's marriage, without consent of guardians, although not absolutely void, is nevertheless interdicted by the law.

And thus much of promises to marry; concerning which I forbear to say more, since they, perhaps, do not in strictness appertain to my subject.

SECTION II.

REQUIREMENTS

OF FRAUDS.

OF PROMISES AND AGREEMENTS IN CONSIDERATION OF OF THE STATUTE REQUIREMENTS OF THE STATUTE OF

MARRIAGE

By promises and agreements in consideration of marriage, we mean promises and agreements affecting property, and liable to be enforced at law or in equity.

(s) Supra, p. 13.

REQUIREMENTS

OF THE STATUTE

OF FRAUDS.

Policy of the statute requiring written evidence

Now, in dealing with such promises and agreements, whether ante-nuptial or post-nuptial, the first thing to be ascertained is, whether compliance has been had with the provisions of the Statute of Frauds; the 4th section of of the agreement. which requires that promises and agreements in consideration of marriage shall be in writing, and signed by the party to be charged therewith. The object of this enactment is to guard against the danger of admitting parol evidence in matters very liable to be misapprehended and misconstrued, and consequently very likely to give rise to perjury and fraud. It may indeed be asked, Are not these consequences just as likely to happen in the case of promises to marry? But promises to marry, as before remarked, are in their nature uniform and certain; whereas promises and agreements in consideration of marriage are of endless variety, and would almost in every case produce a conflict of oral testimony. The policy of the statute is indeed rested on a different basis, in the well-known case of Montacute v. Maxwell, before Lord Chancellor Macclesfield. There it was contended that the object of the clause was to protect parties from being bound by those unguarded verbal declarations which are common in courtships, “since in no case can there be supposed so many expressions and promises as in addresses in order to marriage, where many passages of gallantry usually occur" (t). But this is somewhat lax morality, which we ought not to attribute to the legislature; for the Act was made, as its preamble declares, not to promote "passages of gallantry," but to repress perjuries and frauds.

Terms of Sect. 4.

The words of the 4th section are as follow:

That no action shall be brought to charge any person upon any agreement made upon consideration of marriage, unless the agreement upon which such action shall be brought, or some memorandum or note

(t) Montacute v. Maxwell, 1 P. Wms. 619.

thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised.

REQUIREMENTS

OF THE STATUTE
OF FRAUDS.

equity as at law.

Although these words point at legal remedies, they have of equal force in the same authority, and receive the same construction in Courts of Equity as in Courts of Law. Unless, therefore, there be a writing duly signed, no bill can be filed in equity, nor any action brought at law to enforce a promise or agreement in consideration of marriage. I do not cite authorities for this position; nor for another equally well established, namely, that it is sufficient, if the note or memorandum be signed either by the party to be charged or by his agent.

The signature of the plaintiff is not necessary. Nor is it indispensable that the defendant's signature should be at the close of the document. If found in any part of it, the exigency of the statute will be satisfied (u).

It has been decided that the consideration, as well as the promise, must appear in the writing (v). The consideration of marriage, however, is a favourite of the law (w); which regards that contract as, per se, so im

(u) In Hammersley v. De Biel, 12 Cla. & Fin. 45, one of the questions was, whether there was a sufficient signature of certain articles to bind the father of the lady. Lord Cottenham said, "The father's name is in one place written at length by one son, and in the other, by initials only, by the other son; and as it is clearly immaterial in what place the signature of the name is to be found, it is, in the terms of the Statute of Frauds, an agreement made in consideration of marriage, of which there is a memorandum or note in writing, signed by a person thereunto lawfully authorised by the party to be charged therewith."

(v) Wain v. Warlters, 5 East, 10;

and see Randall v. Morgan, 12 Ves.
72, where Sir William Grant says,
"The 4th section requires the very
agreement to be in the writing;
which he tells us is not necessary
in the case of a trust under the 7th
section-for it is enough if a trust
be manifested without being actually
constituted by writing.

(w)" If it be supposed to be neces-
sary to find a contract such as usually
accompanies transactions of im-
portance in the pecuniary affairs of
mankind, there may not be found in
the memorandum or in the other evi-
dence in the cause, proof of any such
contract; but when the authorities
on this subject are attended to, it
will be found that no such formal

Rule as to the sig or memorandum.

nature of the note

Necessary that

the consideration, as well as the agreement, shall

appear in it.

OF THE STATUTE
OF FRAUDS.

REQUIREMENTS portant and all-sufficient, that the amount of pecuniary benefit moving from either side, is deemed immaterial (x). Accordingly if a father, on his son's marriage, were to convey an estate to him in fee, the son would be considered a purchaser for valuable consideration, although nothing actually lucrative passed to the father (y). Need not be in a The agreement need not be contained in a single writing. It may be collected from several; provided the connexion and meaning of the whole can be clearly made out without calling in the aid of oral testimony. This, too, is so well settled and so well known, that I need not cite authorities to prove it (z).

single writing.

How far verbal promises will be enforced.

Remarks of Lord
Macclesfield.

How far an agreement by parole is binding where it has been acted upon; in other words, whether marriage is to be regarded in the light of what is called in equity a part performance of an agreement, and as such, taking the case out of the statute, is a question respecting which it is easier to cite authorities than to state their result. In Montacute v. Maxwell (a), Lord Chancellor Macclesfield says:

Equity should relieve in cases of fraud, even against the words of the statute; as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly brought in and executed in lieu of the former. But where there is no fraud, only relying upon the honour, word, or promise of the defendant, the statute making those promises void, equity will not interfere (b).

contract is required." Per Lord Cot-
tenham, C., in Hammersley v. De
Biel, 12 Cla. & Fin. 61, n.

(x) "I do not apprehend that the
quantum of pecuniary benefit will
affect the question; and I am sur-
prised to find observations about the
amount of the penalty, as varying the
reciprocity where marriage is one of
the considerations." Per Lord Eldon
in Prebble v. Boghurst, 1 Swan. 319.
(y) Per Lord Redesdale, in Ogor-

man v. Comyn, 2 Sch. & Lef. 147.

(2) The 4th section of the Statute of Frauds, now under consideration, applies to five different contracts. Cases upon it arise most frequently upon contracts relative to the sale of real estates. See therefore Sir Edward Sugden's Vend. & Pur., where he treats of the requisites under this section.

(a) 1 P. Wms. 619.

(b) Lord Macclesfield held the