venience of the student: 1 Blackstone's Commentaries 422-466; 2 Kent's Commentaries, Lectures, 26-32; Reeve's Domestic Relations; Schouler's Domestic Relations; Bingham's Infancy and Coverture; Browne's Domestic Relations; Bishop's Marriage, Divorce and Separation; Schouler's Husband and Wife; Wood's Master and Servant; Field's Law of Infants. Reference will be made in the present treatise to these authorities, and to such leading cases as best express the general doctrine upon these various topics. Where possible the students should read the cases and examine such of the above authorities as may be accessible.

PART I.

HUSBAND AND WIFE.

CHAPTER I.

OF THE CREATION OF THE MARITAL RELATION.

Sec. 283. MARRIAGE DEFINED.-Marriage is sometimes spoken of as a contract, made in due form of law, by which a man and a woman reciprocally engage to live with each other during their joint lives, and to discharge toward each other the duties imposed by law on the relation of husband and wife.*

Our law, says Blackstone, considers marriage in no other light than as a civil contract. It treats an unlawful marriage not as a sin, but merely as a civil inconvenience. The law treats marriage as it does all other contracts, allowing it to be good and valid in all cases where the parties at the time of making it were, first, willing to contract; secondly, able to contract, and third, did contract, with the proper forms and solemnities required by law. (1 Com. 433.)

Sec. 284. NATURE OF THE CONTRACT.Though marriage is considered as a civil contract, it has some incidents which make of it a particular species of contract, or, rather, a "domestic relation resulting from

*Bouv. Law Dic., "Marriage;" Schoul. Dom. Rel., Sec. 12.

contract." Thus the promise to marry is not within the statute of frauds, and need not be stamped when in writing. No bill in equity or other proceeding lies to compel the specific performance of the promise, though damages may be recovered for the breach. So contracts in restraint of marriage and in procuration of marriage are void, as against the policy of the law. The relation, though formed by mutual consent, cannot be thus dissevered; parties once married can only be separated by death, or a solemn divorce granted by the general or special ordinance of the legislature. The capacity of the contracting parties is more carefully regulated than in other species of contracts.*

Sec. 285. THE EXECUTORY AGREEMENT TO MARRY.-The agreement to marry is quite distinct in its nature and consequences from that natural consent to present marriage which results in the marital status. It is a mere executory contract founded upon a consideration, which consideration in most cases. is the mutual promises of the parties, and is governed largely by the same rules as other contracts. It differs from other contracts because the parties must be persons competent to enter into the contract of marriage

*Cooley's Bl. Com. I, 433n; Schoul. Dom. Rel., Sec. 13.

"Marriage is the union of one man and one woman so long as they both shall live, to the exclusion of all others, by an obligation which during that time the parties cannot, of their own volition and act, dissolve, but which can be dissolved only by authority of the state." (Perkins, J., in Roche v. Washington, 19 Ind.

and must act in good faith, and without deception or fraud. So ill conduct in one of the parties promised or engaged to marry, of a nature, and to a degree not quite definable, yet far less than would be required for a divorce after marriage, will justify the other in breaking the contract.*

The contract to marry must be mutual, that is, there must have been an intention to enter into an agreement, as by an offer and acceptance. But this contract may be proven from the circumstances usually attending an engagement, and the acceptance may be implied. The contract is not within the statute of frauds, and is valid though not to be performed within a year. Mutual promises are sufficient consideration, but a con'tract founded upon an immoral consideration would be void. This contract, when properly made between capable parties, is binding, and either party has an action for damages against the party refusing to carry out the contract.†

Sec. 286. SAME SUBJECT-BREACH OF PROMISE.-The well-known and much-abused action of breach of promise results from the failure of one of the parties to fulfill the executory agreement to marry. The action is sustainable by a man against a woman,

*The contract to marry is the mutual agreement of a man and woman to become husband and wife. It precedes marriage, is not a part of the marriage, and has no effect upon its validity. (Bishop, Mar. & Div., Sec. 82.)

†4 Mo. App. 99; 53 Mass. 25; Cooley, Bl. Com. I, 433n, and cases there cited. Wetmore v. Mell, 1 Ohio St. 26.

but it is usually the woman that asks this pecuniary consolation. (1 Salk. 24; 5 Mod. 511.)

The party ready to perform may request performance, and offer to perform the contract before bringing the action. But this is not necessary on the part of the woman if a time has been fixed for carrying out the agreement, or a reasonable time has elapsed since the mutual promises, and she is ready and willing. (64 Ind. 567; Turner v. Baskin, 2 West. L. M. 98; 11 Ala. 35.) The fact that the party in default is incapable of carrying out the agreement, as where already married, is no defense, if the plaintiff was ignorant of that fact when the promise was made. (106 Mass. 339.) And the injured party may sue at once without waiting for the time of performance, or make any offer or demand. (27 Mich. 217.) But where the incapacity to perform the agreement is known to both parties before the making of the agreement, neither party is actionable. (63 Ill. 99.) So where both parties are ignorant of the incapacity, or it arises, without fault, after the agreement, as mental incapacity, the contract is void. (Chitty on Cont. 795.)

Sec. 287.

SAME

SUBJECT-EXCUSING

THE BREACH OF CONTRACT.-If a promises to marry a woman, having reason to suppose the intended is chaste, and she encourages him so to believe, when in reality she is not, it is such a fraud as will justify a refusal to perform the contract. (3 Bing. (N. C.) 54; 112 Pa. St. 44.)

If parties release each other from the engagement