Sec 324

A person who, knowing himself to be incapable of marriage by reason of a prior marriage on his part, of which the woman to whom he is engaged was ignorant at the time of the engagement, is liable to an action for damages for breach of promise,3 though the more proper form of action would be an action for deceit. As death of either engaging party is a bar to such a suit, the executor of a deceased party acquires no right, and is exposed to no liability even when the breach of promise was before death.4 - In such suits the defendant cannot object that performance of the engagement was not demanded from him by the other party.5 - Whether a subsequently ac-. cruing incapacity to marry is defence to an engagement to marry was mooted in England in a case in which the Queen's Incapacity for marriage a defence to an engagement to marry.

1 L. 12, sec 6, D. de usu et habit. (7, 8); L. 48, pr. D. locati (19, 2); and other passages cited in Mommsen, op. cit. 82.

2 See infra, sec 848.

3 Wild v. Harris, 7 C. B. 999; Millward v. Littlewood, 5 Ex. 775; and cases cited infra, sec 575, 606.

4 Chamberlain v. Williamson, 2 M. & S. 408.

5 Infra, sec 575, 606.

Bench was equally divided, and in which a majority of four to three in the Exchequer Chaber held that bodily disease making a man unfit for marriage is not a defence to a suit for breach of promise.1 It was not a condition, so it was ruled, to the marriage contract that there should be a state of health "as makes it not improper to marry." The conclusion of the majority rests on two positions: - first, that the defendant's bad health made marriage not impossible, but only imprudent; secondly, that the social position incident to marriage, is a primary object with a woman in marrying, and that a person promising to give this position to a woman would be bound to make the promise good, though he failed in other qualifications. As to the first position it may be observed that, if "imprudence" is a defence to a suit for breach of promise of marriage, then there are few suits of this class that could be maintained. But supposing it should appear, as a matter of fact, that the defendant was physically impotent, is the promise one he ought to perform, and for non-performance of which he should be compelled to pay damages ? On this point, Mr. Pollock2 justly observes, that "it cannot be maintained, except against the common understanding of mankind, and the general treatment of marriage by the law of England, that the acquisition of legal or social position by marriage is a principal or independent object of the contract. Unless it can be so considered, the reason cannot stand with the principle affirmed in Geipal v. Smith,3 that when the main part of a contract has become impossible by an excepted cause, it must be treated as having become impossible altogether. The decision itself can be reviewed only by a court of ultimate appeal; but it is so much against the tendency of the later cases that it is now of little or no authority beyond the point actually decided, which, for the obvious reasons indicated in some of the judgments, is not at all likely to recur." To this, it may be added, that if impotency is a ground for annulling a marriage, no engagement to marry should be held binding on a person who after the engagement turns out to be impotent, or whose health is such that marriage would be likely to have a physical action destructive of life. A icoman would not be bound by a promise to marry under such circumstances; it is hard to see why a man should be held bound if it should appear as a matter of fact, that his life would be imperilled by sexual-cohabitation, or if sexual cohabitation was impossible to him. Of course, a party who entered into an engagement of marriage cognizant of such circumstances would be liable in an action of deceit.1

1Hall v. Wright, E. B. & E. 746; 29 L. J. Q. B. 43.

2 3d ed. 393.

3 L. R. 7 Q. B. 404.