We have now to consider, first, contracts to marry; then contracts in relation to a future marriage; then contracts in restraint of marriage; and, lastly, the contract of marriage.

Contracts to marry at a future time were once regarded by the English courts with disfavor. They "should be looked upon," says Lord Hardwicke, "with a jealous eye;" and Lord Mansfield quoted this remark with approbation. (a) 1 But it is now perfectly well settled, both in England and in this country, and indeed has been for a considerable time, that these contracts are as valid and effectual in law as any; and that, in actions upon them, damages may be recovered, not only for pecuniary loss, but for suffering and injury to condition and prospects. (b) The reason is obvious; marriages can seldom be celebrated simultaneously with betrothment, or engagement; a certain time must intervene; and it would be very unjust to leave parties who suffer by a breach of a contract of such extreme importance wholly remediless.

(a) Holcroft v. Dickinson, Carter, 238; Key v. Bradshaw, 2 Vera. 102; Wood-house v. Shepley, 2 Atk. 639; Lowe v. Peers, 4 Burr. 2280. In this last case Lord Mansfield says: "All these contracts should be looked upon (as Lord Hardwicke said in Woodhouse v. Shepley) with a jealous eye; even supposing them clear of any direct fraud." This particular phrase is not found in Lord Hardwicke's decision as reported, but the opinion may be gathered from what he says. (b) Boynton v. Kellogg, 3 Mass. 189; Paul v. Frazier, id. 71; Wightman v. Coates, 16 id. 1; Morgan v. Yarborough, 6 La. An. 817.

1 See Short v. Stotts, 68 Ind. 29, which declared that an action for breach of a marriage contract existed at common law long before the fourth year of James I.

* The promises must be reciprocal; (c) but they need not be made at the same time; for if an offer be made, though retractable until acceptance, yet if not retracted, it remains open for acceptance for a reasonable time, and when accepted the contract is complete.

An apparent exception as to this necessity of reciprocity is taken where the promise to marry is made by deed. There, as the seal implies consideration, no other is strictly necessary; but the covenantee must be ready, able, and willing to receive the covenantor in marriage. The plaintiff need not aver or prove a promise on his or her part; and if the plaintiff be a woman, she need not aver or prove an offer by her; "it is well enough without saying obtulit se at all, because she was semper parata. The man is ducere uxorem." (d) "The modesty of the sex is considered by the common law," says Lord Coke. "It can hardly be expected that a lady should say to a gentleman,'I am ready to marry you, pray marry me.' " (e) 1

A woman is doubtless bound by such a covenant as well as a man; yet it would be regarded with more suspicion; and if such an obligation were obtained by a man who gave no corresponding promise on his part, and it were obvious that he intended to bind her but leave himself at liberty, it would probably be set aside in equity. Where the promise is mutual, it was long since settled that an action for a breach of the contract may be maintained against the woman. (f)

This action cannot be maintained against an infant;2 and some question has been made whether an infant can maintain this action; because the promise of the infant being void or voidable, the contract is not mutual, and is without consideration. But in many cases an infant may bring an action for breach of contract against the adult, where the adult could not sue the infant for a breach on his or her part. It seems to * be distinctly settled, that this is so in the case of a contract to marry. (g) l

(c) Hebden v. Batter, 1 Sid. 180, 1 Lev. 147; Harrison v. Cage, Carth. 467; Stretch v. Parker, 1 Roll. Abr. 22, pl. 20.

(d) Holcroft v. Dickenson, 1 Freem. 847.

(e) Seymour v. Gartside, 2 Dow. & R. 67. See Wells v. Padgett, 8 Barb. 323. In Moritz v. Melhorn, 18 Penn. St. 881, and in Wetmore v. Wells, 1 Ohio St 26, it is decided, that where the defendant's promise is proved, the female may prove her own acts and declarations in order to show her assent. See also Morgan v. Yarborough, 6 La. An. 817.

(f) Harrison v. Cage, 1 Ld: Raym. 886; s. c. l Salk.24.

1 But the plaintiff must aver and prove her readiness and willingness to marry the defendant. Graham v. Martin, 64 Ina. 567.

2 That an infant's promise to marry is not binding, and is incapable of ratification, see Ditcham v. Worrall, 5 C. P. D. 410, and 20 Am. Law Beg. n. s. 447, and note; but a jury may determine whether language used by him after majority amounts to a ratification or a fresh promise, Northcote v. Doughty, 4 C. P. D. 385; Coxhead v. Mollis, 8 C. P. D. 439.

The very words, or time, or manner of the promise need not be proved; for it may be inferred from circumstances. It may be that this inference is sometimes made too easily, and that juries, or perhaps courts, justify the reproach, that feeble evidence is sometimes held sufficient to prove such a promise. But it must be remembered that such engagements are often, if not usually, made without witnesses, and are not often reduced to writing. A requirement of precise and direct testimony would facilitate fraud, more perhaps than in any other class of contracts, and fraud that might work extreme mischief. It has therefore been wisely decided that the contract may be inferred from the conduct of the parties, and from the circumstances which usually attend an engagement to marry; as visiting, the understanding of friends and relations, preparations for marriage, and the reception of the party by the family as a suitor.2 But it also held that preparations by the plaintiff in the absence of the defendant, and not connected with him, are inadmissible as evidence. (gg)

Where the promise by the defendant was proved, the demeanor of the plaintiff, being that of a betrothed woman, was held to be sufficient evidence of her promise. (h) And consent