cery to be relieved from the penalty of her bond, the court ordered it to be delivered up to be cancelled. "Bonds of this sort," observed Lord Chancellor Hardwicke, given when the parents are living, are liable to great fraud and abuse; and to decree in favour of such a bond would be a great encouragement to persons to lie upon the catch to procure unequal marriages, against the consent of parents; they dare not solemnize the marriage in the lifetime of the parent, but only engage the affection, and draw the unfortunate person into a bond to forfeit their whole fortune; it is of very dangerous consequence, and tends to bring great misfortunes on families. It tends to encourage disobedience to parents, and indeed is a fraud and imposition on the parent, though there is no actual fraud between the parties. In this case the daughter lived with her father, and was dependent on him for her portion, and he considered her as a child to be advanced; and although a parent has no power by law to prevent the marriage of a child of full age, yet it is expected that she should take his consent and approbation. It is therefore a fraud on the father, who thinks his child has submitted to his opinion of the match, and so makes a provision for her, to advance her in marriage which, had he known of the bond, he would have not done, or might have done in such a manner as would have prevented the marriage." (t)

Bonds of this description given under such circumstances, ought indeed, it is submitted, to be held utterly void at law as well as in equity, as contrary to public policy. They appear, in the first place, to be in restraint of marriage, inasmuch as the union of the parties is postponed for an uncertain indefinite period, which may last the whole of their lives, or at all events long enough to prevent the marriage from being followed by the procreation of children; (u) and secondly, it tends to make children disregard their first duties to their parents, teaches them to desire and hope for the DEATH of the latter, rather than for their "length of days," encourages the purchase and sale of women, and degrades marriage, which ought to be founded on personal attachment, and the purest and most disinterested motives, to a mere mercenary speculation.

CONTRACTS of BETROTHMENT.

A betrothment is a mutual contract between a man and a woman for a future marriage between them. (v) Every marriage is preceded

(t) Woodhouse v. Shepley, 2 Atk. 539. Cock v. Richards, 10 Ves. 437. Drury v. Hooke, 1 Vern. 411.

(u) See Hartley v. Rice, 10 East 22, ante, 571. (v) Sponsalia sunt mentio et repromissio futu rarum nuptiarum. Dig. lib. 23. tit. 1, l. 1.

by an express or implied contract of this description, as a wedding cannot be agreed upon and celebrated at one and the same instant. Betrothments have consequently universally prevailed at all times and in all ages. (x) In Egypt," the parents may betroth their daughter to whom they please, without her consent, if she has not arrived at the age of puberty, but after she has attained that age, she may choose a husband for herself, and appoint any man to arrange and effect her marriage." (y) A betrothment in foreign countries is frequently fortified by oaths and vows pronounced in the presence of the ministers of religion. Amongst the Moslems it is customary to read aloud an appropriate chapter of the Koran at the time of the making of the contract; and amongst Romanists the exchange of the mutual promises of marriage is frequently accompanied by forms and solemnities similar to those which surround the marriage contract itself. The mutual promises are made in the face of the church; the blessing is pronounced by the priest, and costly presents are exchanged. To render a betrothment valid the parties must not be within the prohibited degrees of consanguinity, or lie under any of those impediments which in the ecclesiastical and civil law render a marriage void ab initio. If either of them are married at the time of the betrothment the contract is void; but the married party will not in our own law be permitted to take advantage of his own wrong, and set up the previous marriage or a previous engagement, as an answer to an action for damages for his breach of contract. "Such a disability as consanguinity within the Levitical degrees might be pleaded, or it might be given in evidence upon non-assumpsit pleaded. Pre-contract is a disability, but it will not avoid the performance of your promise, because it proceeds. from your own act." (z) If any married man, moreover, represents himself to be single and induces a woman to betroth herself to him upon the faith of his representation, a special action on the case for the deceit lies against him at the common law.

Contracts to marry at a future time were at one period of our legal history looked upon with great suspicion and dislike, and the courts seem to have been disposed to consider them void as contrary to the public policy of the law. "All such contracts," observes Lord Mansfield, "ought to be looked upon, as Lord Hardwick said in the case of Woodhouse v. Shepley, with a jealous eye. They are liable to many mischiefs and many dangerous consequences. When persons of different sexes,

(x) Genesis, ch. 29 v. 18, 19. Ciero 1, de divinat. Moris fuit veteribus stipulari et spondere sibi uxores futuras. Dig. lib. 23, tit. 2,

1. 2.

(y) Lane's Modern Egyptians, (Marriage.) (2) Harrison v. Cage, Raym. 387.

PP

attached to each other, and thus contracting to marry each other, do not marry immediately, there is always some reason or other against it: as disapprobation of friends and relations, inequality of circumstances, or the like. Both sides ought to continue free, otherwise such contracts may be greatly abused; as by putting women's virtue in danger by too much confidence in men; or by young men living with women without being married." (a) As the marriage cannot, however, be celebrated the very instant it is agreed upon, it would be a hard case if one of the parties, relying upon the plighted faith of the other, was to incur expense in anticipation of the fulfilment of the engagement, and not be entitled to recover damages for the injury he had sustained by the breach of it; and it has long been held that such contracts fairly entered into without fraud and deception on either side, are as valid and effectual in law as any other contracts; (b) and that actions are maintainable upon them not only for the recovery of any pecuniary damage that the parties may have sustained, but for an ample compensation for the misery and injury to their prospects and situation in life resulting from the breach of them.

Every contract of betrothment is founded upon a mutuality of obligation and liability, and when mutual covenants are entered into between a man and a woman to marry each other by a day named, the covenant of the one party is the foundation for the covenant of the other, and therefore, if the deed is founded on the common liability of both, it must be executed by both before any one of them can be made liable upon it. (c) Covenants of this description constitute mutual conditions to be performed at the same time, so that if one party was ready and offered to perform the contract, and the other neglected or refused, the party that was ready and offered has fulfilled his or her engagement, and may maintain an action for the default of the other. (d)

A covenant to marry generally without specification of time, is a covenant to marry within a reasonable period after request, and if the covenantor is required by the covenantee to fulfil the covenant, and neglects so to do within a reasonable period, he is liable to an action at the suit of the latter for the recovery of such damages as may have been sustained by the breach of contract.

Mutual promises of marriage.-A betrothment by simple contract is founded upon mutual promises to marry at a future period, and is perfected

(a) Lowe v. Peers, 4 Burr. 2230. Key v. Bradshaw, 2 Vern. 102.

(b) Peck v. Ingram, Styles, 263, 273. Baker v. Smith, ib. 295, 303, 304. Burrell v. Strong,

1 Freem. 66. Holder v. Dickeson, ib. 94; 3 Keb. 148, s. c. Cork v. Baker, 1 Str. 32.

(c) Ante, 185, 244.

(d) Ante, 202.

and made binding by the bare consent of the parties, (e) the promise of the one party to marry being the consideration for the promise of the other. The contract must be obligatory on both parties at the same instant, so that each may have an action upon it, or it will bind neither. "If the woman's promise does not bind, the man's promise is but nudum pactum, and therefore it is actionable either on both sides or on neither side. (ƒ) "It is essential," observes Pothier, "to the validity of a contract of betrothment that the engagement should be reciprocal. Therefore, where the advocate-general in the cause of the Lord Desportes, produced a note signed by the said lord, and conceived in these terms: 'I promise to Mademoiselle Bourderet to marry her; it was held that the note was void, and did not create any obligation, because there was no reciprocal promise on the part of the said lady, who had only ex post facto placed her signature to the note in the absence of the said Lord Desportes." The mutual promises must, undoubtedly, as the one is the foundation of the other, strictly and technically speaking, be made at the same time. But in our own law, an offer or promise of marriage, sent by post, or left at a lady's residence for her consideration, is deemed to be continually renewed until she has had an opportunity of accepting or rejecting it; (ante, 37;) and the moment it is accepted the mutual promises are in contemplation of law then exchanged between the parties, and the liability at once attaches.

And if a man makes an express offer, or promise of marriage, to a woman, the acceptance thereof by the latter, and the promise made by her in return, may, so far as it is necessary to be proved, in order to enable her to sustain an action against the man for a breach of his engagement, be established through the medium of her conduct and actions at the time, as well as by express words. If there be an express promise by the man, and it appears that the woman countenanced it, and by her actions at that time behaved herself so as if she agreed to the matter, though there be no actual promise, yet that shall be sufficient evidence of a promise on her side." (g) Therefore, where a gentleman asked for and obtained the consent of the parents to his marriage with their daughter, and the young lady stood in the room within the hearing of the parties, and made no objection to the match, it was held that her silence under such circumstances, afforded as cogent evidence of her assent as an express

affirmative. (h) But if the woman is the defendant in the action, and is herself sued for a breach of promise of marriage, the promise must then be strictly proved, and nothing short of an express promise on her part will suffice to sustain the action.

Authentication of the contract.-We have already seen (ante, 95) that mutual promises of marriage do not come within the fourth section of the Statute of Frauds, which requires "agreements in consideration of marriage," to be put into writing and signed by the party to be charged therewith. That section has been held to extend only to agreements to pay marriage portions, and not to contracts to marry. (i) Oral engagements and promises to marry will consequently sustain an action, unless the marriage is limited to take place upwards of a year from the making of the contract. (k)

No STAMP is required upon any contract of this description, as previously mentioned, (ante, 130,) inasmuch as the value of it is not measureable by any pecuniary standard.

A man, who was paying particular attentions to a young girl, was asked by the father of the latter, after one of his visits, what his intentions were? and he replied, "I have pledged my honour to marry the girl in a month after Christmas," and it was held that this declaration to the father, who had a right to make the inquiry, and to receive a true and correct answer, taken in connexion with the visits to the house, and the conduct of the young people towards each other, was sufficient evidence of a promise of marriage. (1)

Time of performance.-The common law does not altogether discountenance long engagements to be married. If parties are young, and circumstances exist showing that the period during which they had agreed to remain single was not unreasonably long, the contract is binding upon them; but if they are advanced in years, and the marriage is appointed to take place at a remote and unreasonably long period of time, the contract would be voidable at the option of either of the parties as being in restraint of matrimony. (m) If no time is fixed and agreed upon for the performance of the contract, it is in contemplation of law a contract to marry within a reasonable period after request. (n) Either of the parties,

(h) Daniel v. Bowles, 2 C. & P. 553. Il n'est pas toujours necessaire que ce consentement soit exprès. Lorsq'un pere fiànce sa fille à quelqu'un, la fille, qui est présent, et qui ne contredit à ce que fait son père, censèe consentir tacitement aux fiancailles. Poth. Mariage, Part 2, ch. 1, No. 30. Quae patris voluntati non repugnat, consentire intelligitur. Dig. lib. 23, tit. 1,

1. 12.

(i) Cork v. Baker, 1 Str. 33. Holt, C. J., Harrison v. Cage, 1 Raym. 388.

(k) Ante, 97.

(1) Potter v. Deboos, 1 Stark. 82. (m) Hartley v. Rice, 10 East, 24. (n) Phillips v. Crutchley, 3 C. & P. 178. Harrison v. Cage, Raym. 386.