the purpose of the marriage, and with the intention of returning, and who do return, as if the marriage had been contracted in this State, and their cohabitation here as man and wife is evidence of the marriage. (Stor. Confl. L. § 117; Synops. Crim. L. 171 -22; V. C. 1873, c. 192, § 3; Id. c. 105, § 2.) 3. When the Marriage abroad is, from peculiar circumstances, celebrated according to the Law of the of the Domicil, and not of the place of Contract.

Subjects resident abroad in factories, in conquered places, in barbarous or desert countries, or in countries of a different religion, as Mohammedan or Pagan, are permitted, by a sort of moral necessity, to contract marriage according to the laws of their own country; and such a marriage is valid, although not in accordance with the lex loci contractus. (Stor. Confl. L. § 118, & seq.; Catherwood v. Caslon, 13 M. & W. 264.)

5h. The Proof to be made of Marriage; W. C. 11. Proof of Marriage in Criminal Prosecutions (e. g., for Bigamy), and in civil actions for Adultery.

The uniform practice of a century has settled that, in prosecutions for bigamy, and in actions for adultery, it is necessary to prove an actual marriage, valid, or avoidable and not yet avoided. The proof must be either by some witness present at the marriage, by the marriage-register, and proof of the identity of the parties; or by the acknowledgment of the accused, or adverse party. (2 Stark. Ev. 698-'9; 2 Greenl. Ev. § 461, & seq.; Bac. Abr. Mar. & Div. (F); Morris v. Miller, 4 Burr. 2057; Birt. v. Barlow, 1 Dougl. 171; Catherwood v. Caslon, 13 M. & W. 265; Warner's Case, 2 Va. Cas. 95; Moore's Case, 9 Leigh, 639; O'Neal's Case, 17 Grat. 582; ante, p. 245, 41.) 21. Proof of Marriage in all Civil proceedings, except the action for Adultery.

In all civil proceedings, except the action for adultery, co-habitation and general reputation are sufficient evidence of the marriage; and a man who introduces a woman into society as his wife is estopped by that conduct to deny that she is so, so far as regards his liability for necessaries furnished her. (2 Greenl. Ev. § 461; Bac. Abr. Bar. & F. (H); Jackson v. Claw, 18 Johns. 346; Rice v. Efford, 3 H. & M. 230; Purcell v. Purcell, 4 H. & M. 507.) 28. Contract to Marry in futuro.

The contract to marry in futuro requires us to advert

to, (1), The doctrine as to mutuality in the contract; (2), The effect of infancy on the contract; (3), The proof of the contract to marry; (4), Time for the performance of the contract; (5), The enforcement of the contract to marry; (6), Defences to actions for breach of promise to marry; and (7), Damages for breach of promise to marry;

W. C.

1. The Mutuality of the Contract. As in all other contracts, so in contracts to marry, the obligation must be mutual. Although it appear that one party actually did promise, yet if the other do not accept the promise, there is no contract. It is not needful, however, to prove a promise or an acceptance in totidem verbis. It may be as well evidenced by the unequivocal conduct of the parties; and where the promise of the man is proved, the woman demeaning herself as if she concurred in his promise, is sufficient evidence of her promise to marry him. (1 Chit. Cont. 536-7; 1 Pars. Cont. 544.)

2. Effect of Infancy on the Contract.

The effect of infancy on the contract to marry in futuro is the same as in other contracts. The infant may avoid the contract at his pleasure, whilst it is binding on the adult. (1 Pars. Cont. 544-'5; Holt v. Ward, 2 Str. 937.)

3h. Proof of the Contract to Marry.

The proof need not be in writing. The provision of the Statute of Parol Agreements (V. C. 1873, c. 140, § 1), that no action shall be brought "upon any agreement made upon consideration of marriage," unless the agreement, or some memorandum or note thereof, be in writing, and signed by the party to be charged thereby, or his agent, is understood to refer only to marriage settlements. Where the promise, however, is to marry after the lapse of more than a year, it would doubtless be within another clause of that statute, which requires agreements not to be performed within a year to be in writing. The evidence of a contract to marry, in the nature of things, must in general be verbal only; and more than in other contracts dependent on inference from such circumstances as usually attend a matrimonial engagement, such as frequent visits, the understanding of friends and rela tives, preparations for marriage, the reception of the man by the family as a suitor, &c. (Chit. Cont. 537; 1 Pars. Cont. 545 to 547.)

4h. Time for the preformance of the contract to marry.

No precise time for the consummation of the engagement needs to have been agreed upon. Upon a general promise to marry, the law presumes that it is intended to be performed in a reasonable and convenient time. And if both parties concur in postponing it unreasonably, it may perhaps be thence concluded, in the absence of any negative evidence, that it is mutually abandoned. (Chit. Cont. 537; 1 Pars. Cont. 547.) 5h. Enforcement of Contract to Marry; W. C. 1. Specific Enforcement of Contract.

Formerly, as we have seen, the ecclesiastical courts, in England, exercised the jurisdiction to compel a party to celebrate in facie ecclesiæ a marriage which had been already contracted per verba de presenti, or per verba de futuro, if followed by consumation (ante p. 233, 1); but this jurisdiction has not existed in England since 1754 (26 Geo. II, c. 33), and seems never to have gained foothold in Virginia. Neither the Court of Equity, nor any other tribunal, has power here to enforce specific compliance with a promise to marry, the only redress being an action at law for damages for a breach of the engagement. (1 Tuck. Com. 99, B. I.)

2. Action at Law for damages for Breach of Contract.

The action at law for the breach of the promise to marry is the only remedy for such an injury. It proposes to seek compensation in damages, which, however inadequate they may be, yet constitute the sole redress to the complainant, and, what is more to be considered, the sole legal punishment to the wrongdoer, unless the female has been seduced under promise of marriage, in which case he is guilty of a felony, punishable by confinement in the penitentiary from one to ten years. (V. C. 1873, c. 187, § 16.) amount of damages is committed entirely to the discretion of the jury, subject only to such equitable control as, in extreme cases, the court may exercise through the medium of new trials. (1 Tuck. Com. 99, B. I; 1 Pars. Cont. 543; Sedgwick on Dam. 210, 368-'9.) 6h. Defences to Actions for Breach of Promise to Marry; W. C.

The

1. Existence of Legal Obstructions to the Marriage.

Thus, the prior marriage of either party, the consort being still alive and the marriage undissolved, consangunity, affinity, or any other circumstance which would be ground for avoiding the marriage, is a defence to the action for not consummating it. (1 Pars. Cont. 548.)

2. The bad Character, or lascivious Conduct of Plaintiff.

The bad character, or lascivious conduct of the plaintiff towards other persons, constitutes a sufficient reason for declining to fulfil the engagement to marry, provided those circumstances were not known to the defendant when it was contracted. Otherwise they form no defence, however they may and ought to go to lessen the damages. Evidence of reputation is receivable to prove an allegation of general bad character, but specific misconduct must be specifically proved. (Chit. Cont. 538-9; Sedgw. Dam. 369.) 3. The manifestation on the part of the plaintiff of a coarse and brutal disposition.

If the plaintiff, by his language concerning the defendant (the female), manifest such coarseness and brutality as to make it imprudent for her to commit her happiness to his keeping, it is a defence to the action, supposing her not to have been previously aware of it. (Chit. Cont. 539; 1 Pars. Cont. 549.) 4. Bad Health of the Plaintiff.

If the plaintiff's health be such as to incapacitate for the duties of marriage, or to render it unsafe or improper, and if the fact be unknown to the defendant at the time of the engagement formed, it is a sufficient answer to the action. Thus entire deafness, blindness, or other physical incapacity in the plaintiff, supervening after the promise, or afterwards becoming known to the defendant, will excuse the refusal to consummate the engagement. (Chit. Cont. 540; 1 Pars. Cont. 549-'50.)

51. Consent obtained by Mis-representation.

If the promise to marry were induced by false and fraudulent misrepresentations of any material fact of fortune, station in life, or previous conduct, or it would seem of antecedent condition, as widowed or otherwise, the promise is thereby invalidated. (Wharton v. Lewis, 1 Carr. & P. (11 E. C. L.) 529; Foote v. Hayne, Id. 545; 1 Pars. Cont. 550.) 6. Release of Promise.

The subsequent release of the promise to marry is a good defence, provided it be founded on valuable consideration, as it would be if it were a mutual release. (1 Pars. Cont. 550.)

71. Pre-engagement of Plaintiff to Another Party.

This is said to be a good defence, because the plaintiff ought not in justice to recover for a wrong which could only have been committed against him

or her in consequence of a similar injury which he or she had previously done to a third person. This, however, seems to be a remarkable extension of the doctrine of set-off, and certainly requires confirmation. (1 Pars. Cont. 550-'51.)

8'. The Death of either Party.

The breach of promise to marry so far resembles a tort (the action therefor being usually considered in pœnam), that the action is said not to survive against the promisor's personal representative, nor in favor of the promisee's, unless special damage to the promisee's estate is alleged and proved. (1 Pars. Cont. 552-3; Chamberlain v. Williamson, 2 M. & S. 408, 416.)

7. Damages for Breach of Promise to Marry.

In the action for breach of marriage-promise damages are reckoned to be peculiarly within the discretion of the jury, whose verdict the court is always reluctant to set aside on the ground of excessiveness, and especially if the defendant has aggravated the wrong done by impeaching the plaintiff's character unsuccessfully. But it is said that the woman cannot in this action properly recover for seduction, although, if the fact of seduction incidentally comes to the knowledge of the jury (as it will seldom in practice fail to do), and they are thereby led to augment the damages, it is not a ground for vacating the verdict. (1 Pars. Cont. 553; Sedgw. Dam. 369.) 3o. Modes whereby Marriage is Dissolved; W. C. 1. Death.

Marriage is dissolved either by death or by divorce. (1 Bl. Com. 440; 2 Kent's Com. 95.) 2o. Divorce.

The doctrines concerning divorce are to be traced in connexion with (1), The several kinds of divorce; (2), The causes for the several kinds of divorce; (3), The courts charged with the cognizance of divorce causes; (4), The effects of divorce; (5), The doctrine touching foreign sentences of divorce; and, (6), Sundry matrimonial causes besides divorce.

W. C.

18. The Several Kinds of Divorce; W. C.

1h. Divorce a mensa et toro.

This kind of divorce "from board and bed," merely separates the parties for an indefinite time, but always in hope of reconciliation, and without disturbing the marital relations as touching either person or property further than such separation necessarily implies.