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cant is not entitled to his claim. No [IN THE EXCHEQUER CHAMBER.] doubt his position in the Scotch Univer. (Error from the Court of Ecchequer.) sity is equal, if not superior, to the degree of B.A. or M.A. The case may be hard,

1871. but the words of the statute are plain, and

June 20, 21.

FROST V. KNIGHT. confine the benefit to persons having


Feb. 8. taken the degree of B.A. and M.A., and the applicant has neither.

Breach of Promise to marry on a ContinCHANNELL, B.—This case has given rise gency-Absolute Refusul before happening to many anxious considerations as to our

of the Event. jurisdiction. I entertain all the doubts expressed by my brother Bramwell, and I

An action for breach of promise of marcannot see my way to saying that we have

riage may be maintained against a man any jurisdiction. It may be that if there is who has promised to marry a woman after any authority at all which can grant such

the death of his father, and has afterwards an application, it is in the tribunal of all absolutely declared his intention never to the judges sitting at Serjeants' Inn. It fuljil his promise, although his father be 1.ay be--though I think not—that this living at the time the action is brought.

— Court, as the Court of Exchequer, has

This case came before the Court on jurisdiction; but I am clear as to this, that if the Court of Exchequer has juris.

error upon a judgment of the Court of diction, the Queen's Bench has the same,

Exchequer, arresting the judgment on a and may have more; for the Queen's

verdict given for the plaintiff. Bench has power in various cases-where

The action was for breach of promise we have no such power- to order persons

of marriage. The promise proved was to do things which they refuse to do.

to marry the plaintiff on the death of de

fendant's father. While the father was I also agree that if we had any jurisdiction, the applicant is not entitled to

still living, the defendant announced his the benefit of the 23 & 24 Vict. c. 127.

intention of not fulfilling his promise on s. 2, for the reasons stated by my brother

his father's death, and broke off the enBramwell.

gagement, whereupon the plaintiff withPigotr, B.-- I think there is some diffi

out waiting for the father's death at once culty and doubt on the question of juris brought the present action. diction. If we had jurisdiction with re

The plaintiff baving obtained a verdict, gard to the final examination, then I think

a rule nisi was granted to arrest the judgwe should have it as a consequence with

ment, on the ground that a breach of the regard to the intermediate. But there is

contract could only arise on the father's no precedent for interfering at the present

death, till which event no claim for per

formance could be made, and consequently stage. I cannot see any harm in our having the jurisdiction, and I incline to

till its occurrence no action for breach of think we have it. It is, however, not

the contract could be maintained. A manecessary to determine that, because I

jority of the Court of Exchequer concurred agree with my brothers that the applicant in making this rule absolute, Martin, B., is not entitled to the benefit given by the

dissenting (1); whereupon error

was 23 & 24 Vict. c. 127. He has a position brought by the plaintiff. which the statute has made equivalent to

A. S. Hill (with bim C. Dod), conthe degree of M.A., but only with respect

tended that the action was maintainable. to the governing body of the university.

Rule refused.

J. J. Powell (with him F. T. Streeten),

contra, argued in support of the judgment Attorneys–Markby & Tarry, for the applicant ;

of the majority of the Court below. E. W. Williamson, for the Incorporated Law

The arguments were substantially the Society.

same as those in the Court below, and all the cases bearing on the question will be

(1) 39 Law J. Rep. (x.s.) Exch. 227.

found fully dealt with in the judgments keeps the contract alive for the benefit of of the Court.

Cur. adv. vult.

the other party as well as for his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract (if so advised), notwithstanding his previous denunciations of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it.

On the other hand, the promisce may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the prescribed time, subject however to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.

Considering this to be now settled law, notwithstanding anything that may have been held or said in Phillpotts v. Evans (10) and Ripley v. McClure (11), we should have had no difficulty in applying the principle of the decision in Hochster v. De la Tour (5) to the present case, were it not for the difference which undoubtedly exists between that case and the present, namely, that whereas there the performance of the contract was to take place at a fixed time, here no time is fixed, but the performance is made to depend on a contingency, namely, the death of the defendant's father during the lifetime of both the contracting parties. It is true that in every case of a personal obligation to be fulfilled at a future time, there is involved the possible contingency of the death of the party binding himself before the time of performance arrives; but here we have a further contingency depending on the life of a third person, during which neither party can claim performance of the promise. This being so, we thought it right to take time to consider whether an action would lie before the death of the defendant's father had placed the plaintiff in a

The judgment of the Court (2), was (on Feb. 8) delivered by

COCKBURN, C.J. (after recapitulating the facts and proceedings.)-The question for us is whether the judgment of the majority of the Court of Exchequer was right.

The cases of Lovelock v. Franklyn (3) and Short v. Stone (4), which latter case was an action for breach of promise of marriage, having established that where a party bound to the performance of a contract at a future time puts it out of his own power to fulfil the contract, an action will at once lie, the case of Hochster v. De la Tour (5) (upheld in this Court in The Danube and Black Sea Company v. Xenos) (6) went further, and established that notice of an intended breach of a contract to be performed in futuro had a like effect.

The law with reference to a contract to be performed at a future time, where the party bound to performance announces, prior to the time, his intention not to perform it, as established by Hochster v. De la Tour (5) and The Danube and Black Sea Company v. Xenos (6) on the one hand, and Avery v. Bowden (7), Reid v. Hoskins (8), and Barwick v. Buba (9) on the other, may be thus stated: The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance; but in that case he

(2) Cockburn, C.J., Byles, J., Keating, J., and Lush, J. Montague Smith, J., was present during the argument, but was promoted to the Privy Council in November, 1871.

(3) 8 Q.B. Rep. 371; s. c. 15 Law J. Rep. (N.s.) Q.B. 146.

(4) 8 Q.B. Rep. 358; s. c. 15 Law J. Rep. (N.S.) Q.B. 143.

(5) 2 E. & B. 678; s. c. 22 Law J. Rep. (N.S.) Q.B. 455.

(6) 13 Com. B. Rep. N.S. 825; s. c. 3 Law J. Rep. (N.S.) C.P. 284.

(7) 6 E. & B. 953; s. c. 26 Law J. Rep. (N.s.) Q.B. 3.

(8) 6 E. & B. 953; s. c. 26 Law J. Rep. (N.s.) Q.B. 5.

(9) 2 Com. B. Rep. N.S. 563; s. c. 26 Law J. Rep. (N.s.) C.P. 280.

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position to claim the fulfilment of the The contract having been thus broken defendant's promise.

by the promiser, and treated as broken After full consideration we are of opi- by the promisee, performance at the apnion that, notwithstanding, the distin. pointed time becomes excluded, and the guishing circumstance to which I have breach by reason of future non-perforreferred, this case falls within the principle mance becomes virtually involved in the of Hochster v., De la Tour (5), and that action as one of the consequences of the consequently the present action is well repudiation of the contract; and the brought.

eventual non-performance may therefore The considerations on which the deci. by anticipation be treated as a cause of sion in Hochster v. De la Tour (5) is action, and damages be assessed and refounded are that, by the announcement, of covered in respect of it, though the time the contracting party of his intention not for performance may yet be remote. to fulfil it, the contract is broken, and It is obvious that such a course must that it is for the common benefit of both tend to the convenience of both parties. parties that the contract shall be taken to And though we should be unwilling to be broken as to all its incidents, including found our opinion on grounds of connon-performance at the appointed time; venience alone, yet the latter tends strongly and that an action may be at once brought to support the view that such an action and the damages consequent on non-per- ought to be admitted and upheld. By actformance be assessed at the earliest ing on such a notice of the intention of moment, as thereby many of the in- the promiser, and taking timely measures jurious effects of such non-performance in consequence, the promisee may in many may possibly be averted or mitigated. cases avert or, at all events, materially

It is true, as is pointed out by the Lord mitigate the injurious effects which would Chief Baron in his judgment in this case, otherwise flow from the non-fulfilment that there can be no actual breach of a con- of the contract; and in assessing the tract by reason of non-performance so long damages for breach of performance a jury as the time for performance has not yet will of course take into account whatever arrived. But on the other hand, there the plaintiff has done or has had the ig-and the decision in Hochster v. De la means of doing (and as a prudent man Tour (5) proceeds on that assumption-a ought in reason to have done), whereby breach of a contract when the promiser bis loss has been or should have been repudiates it, and declares he will no diminished. longer be bound by it. The promisee has It appears to us that the foregoing an inchoate right to the performance of considerations apply to a case of a conthe bargain, which becomes complete tract, the performance of which is made when the time for performance has arrived. to depend on a contingency, as much as In the meantime he has a right to have to one in which the performance is to take the contract kept open as a subsisting and place at a future time; and we are thereeffective contract. Its unimpaired and fore of opinion that the principle of the unimpeached efficacy may be essential to decision in Hochster v. De la Tour (5) is his interest. His rights acquired under equally applicable to such a case as the it may be dealt with by him in various present. It is next to be observed that ways for his benefit and advantage. Of the law, as settled by Hochster v. De la all such advantage, the repudiation of the Tour (5) and The Danube and Black Sea contract by the other party, and the an- Railway Company v. Xenos (6), is obnouncement that it never will be fulfilled, viously quite as applicable to a contract must of course deprive him. It is there- in which personal status or personal rights fore quite right to hold that such an an- are involved as to one relating to com. nouncement amounts to a violation of the

mercial or pecuniary interests. Indeed contract in omnibus, and that upon it the the contract of marriage appears to afford promisee, if so minded, may at once treat a striking illustration of the expediency it as a breach of the entire contract, and of holding that an action may be main. bring his action accordingly.

tained on the repudiation of a contract to

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be performed in futuro. On such a con- and the damages to be recovered for a tract being entered into, not only does a breach of the promise would be less if the right to its completion arise with reference refusal was made when the time for to domestic relations and possibly pe- marrying was accomplished ; and that cuniary advantages, as also to the social consequently an action ought not to be status accruing on marriage, but a new allowed till the time when the fulfilment status, that of betrothment, at once arises of the contract could have been claimed. between the parties. This relation, it is We cannot concur in this view. We true, has not by the law of England the think that in estimating the amount same important consequences which at- of injury done, and of the compensation tached to it by the canon law and the to be made for it, if the contract were law of many other countries. Neverthe- broken when the time for marrying had less, it carries with it consequences of the arrived, the wasted years and the imatmost importance to the parties. Each possibility of forming any other engagebecomes bound to the other; neither can, ment during the intermediate time, should consistently with such a relation, enter be ken into account, and not merely the into a similar engagement with another age of the parties, and the then existing person; each has an implied right to have value of the marriage. It is therefore this relation continued till the contract manifest that it is better for both parties is finally accomplished by marriage. To -for the party intending to break the the woman more especially, it is all im- contract, as well as for the party wronged portant that the relation shall not be by the breach of it—that an express re, put an end to. Independently of the pudiation of the contract should be treated mental pain occasioned by the abrupt ter- às a violation of it in all its incidents, mination of such an engagement, the fact and should give the right to the party of its existence, if followed by such a ter- wronged to bring the action at once, and mination, must necessarily operate to her have the damages assessed at the earliest serious disadvantage. During its con- moment. No one candoubt that, morally tinuance others will naturally be deterred speaking, a párty who intends to break from approaching her with matrimonial off a matrimonial engagement acts far intentions ; nor could she admit of such less culpably in at once giving notice of approaches, if made; while the breaking the intention, than by keeping the intenoff of the engagement is too apt to cast a tion secret until the time for fulfilling slur upon one who has been thus treated. the promise has come. The reason is, We see, therefore, every reason for apply- that the giving such notice at the earliest ing the principle of Hochster v. De la Tour moment tends to mitigate, while the delay (5) to such a case, and for holding that in giving it necessarily aggravates the the contract is broken on repudiation, injury to the party wronged. not only in its present but in its ultimate It has been urged that there must be obligations and consequences.

great difficulty in thus assessing damages To hold that the aggrieved party must prospectively, but this must always be wait till the time fixed for marrying shall more or less the case, wherever the prinhave arrived, or the event on which it is tociple of Hochster v. De la Tour (5) comes depend shall have happened, would have to be applied. It would equally exist the effect of aggravating the injury, by where one of the parties, by marrying preventing the party from forming any another person, gave rise, as in Short v. other union, and by reason of advancing Stone (4), to an immediate right of action. age rendering the probability of such a It cannot be said that the difficulty is by union constantly less. It has been sug- any means insuperable ; and the advantagested that the desire of marrying, and ges resulting from the application of the the happiness to be expected from mar- principle of Hochster v. De la Tour (5) riage, diminish with advancing years, and are quite sufficient to outweigh any intherefore that, when by the terms of the convenience arising from the difficulty of contract marriage is only to take place at assessing the damages. a remote time, the value of the marriage We are struck by the fact that the Lord New SERIES, 41.-EXCHEQ.



Chief Baron, while holding that the pre

before the day fixed for performance, sent action would not lie, expressed an seems to me to be equally a breach of the opinion that the wrong done by the re- contract, for it puts an end to the condipudiation of a contract of marriage, might tion of betrothment, which according to be made the foundation of an action on the contract was to continue. In each of the case, in which the facts should be set these three cases there is a repudiation of forth. But as the rights and obligations the duties springing from the new relaof the parties arise here entirely out of the tion involved in the contract. contract, we have a difficulty in seeing But independently of the peculiarities how such an action could be maintained. attending a pre-contract of marriage, tho But be that as it may, seeing that in decision in Hochster v. De la Tour (5) such an action as is thus suggested, the shews that in the analogous case of a predamages would have to be ascertained contract for future service, the refusal of with reference to the same facts and the one of the parties to perform the consame considerations in an action tract, though before the time appointed brought on the contract, it seems to us for its fulfilment, is a breach. And the by far the simpler course—the case being decision in that case goes further than is clearly within the decision of Hochster v. necessary for our decision in this case, De la Tour (5)--to hold that the present for there no status had been established action for breach of the contract may be like that involved in a pre-contract of marmaintained, and that in it the plaintiff is riage.

riage. And the Court of Common Pleas entitled to recover damages in respect of in Wilkinson v. Verity (12), and the Court the non-fulfilment of the promise, as of Error in Xenos v. The Danube and Black though the death of the defendant's father Sea Company (6), have laid it down that

- the event on which the fulfilment was an absolute unconditional renunciation of to depend—had actually occurred.

a contract before the time of performance We are therefore of opinion that the amounts to a breach, at the election of judgment of the Court of Exchequer the promisee. should be reversed.

Judgment reversed. KEATING, J., and Lush, J., concurred in the above judgment.

Attorneys--Pitman & Lane, for plaintiff; De Gex BYLES, J.-I also think the plaintiff en- & Harding, agents for Blagg & Son, Cheadle, titled to recover both on principle and on for defendant. anthority ; but as my judgment was prepared before I saw the judgment of my Lord, I ought perhaps-looking to the importance of the case—to deliver it. An express pre-contract of marriage,


Jan. 17, as my Lord has suggested, places the

SOUTH-WESTERN RAILWAY man and woman in the condition or status 25, 26, 27.

COMPANY. of betrothment, in which condition or

Prohibition to Admiralty Court Mer. status there are certain mutual duties.

chant Shipping Act, 1854 (17 & 18 Vict. The woman, for example, may not, with- c. 104), s. 514-Admiralty Court Act, 1861 out a breach, marry another man, although (24 Vict. c. 10), s. 13—"Ship or Proceeds it is possible that he might die before the

thereof, under Arrest

Merchant Shipfuture day appointed for the first intended ping Act Amendment Act, 1862 (25 8• 26

f marriage, whether already fixed, or

Vict. c. 63), s. 54. whether contingent on a future event. So I conceive the man cannot, during the

A steam-vessel having, through the neglistipulated period of betrothment, without

gence of those navigating it, come into col. a breach of contract, marry another

lision with another ship, and having been woman, though she might die in the

sunk and totally lost in consequence, the mean time. So for one of the parties to

owners, with a view to obtaining a decree break off the mutual engagement by an

limiting their liability under the 54th secexpress refusal to perform it, though

(12) 40 Law J. Rep. (N.s.) C.P. 141.





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