False and injurious language used by plaintiff concerning defendant is a good defence. (x) So bad health, if such as to incapacitate from marriage, or render it unsafe or improper. (y) 2

(u) Foulkes v. Sellway, 3 Esp. 236. See also, Morgan v. Yarborough, 5 La. An. 416.

(v) Baddeley v. Mortlock, Holt, 161.

(w) Irving v. Greenwood, 1 C. & P. 850. This was an action of assumpsit on a promise of marriage. The promise and the breach were clearly made out. But the defendant, to bar the action, gave evidence to show that he eventually broke off the match, because he found that the plaintiff was with child by another man. It was admitted, that, after the promise, the plaintiff had had a child, but it was contended that the defendant was its father. Abbott, C. J., in his summing up to the jury, said: "If you think that the defendant was not the father of the child, he is entitled to your verdict; for if any man, who has made a promise of marriage, discovers that the person he has promised to marry is with child by another man, he is justified in breaking such promise; and if any man has been paying his addresses to one that he supposes to be a modest person, and afterwards discovers her to be a loose and immodest woman, he is justified in breaking any promise of marriage that he may have made to her; but to entitle a defendant to a verdict on that ground, the jury must be satisfied that the plaintiff was a loose and immodest woman, and that the defendant broke his promise on that account; and they must also be satisfied that the defendant did not know her character at the time of the making of the promise; for if a man knowingly promise to marry such a person, he is bound to do so." In Bench v. Merrick, 1 Car. & K. 468, it was proved, that the plaintiff had had a child some ten years before the promise, and had since sustained an irreproachable character. Atcherly, Serj., before whom the case was tried, said: "The great question in this case will be, whether you believe that, in the month of February, 1843, the defendant knew the history of the plaintiff in regard to this child. If he did not know it, however great a severity it may be on a woman to rake up the transaction of by-gone times, the defendant's second plea will be sustained, and on that plea the defendant will be entitled to the verdict There is no imputation whatever on the character of the plaintiff except the transaction of 1881. If the defendant, in your opinion, has not established his defence, there will then be the question of damages; and in that case, in consequence of the misfortune (calling it by no harsher name) in 1831, the plaintiff cannot be said to be entitled to so large a compensation as one on whose reputation no imputation had ever rested. From this we must infer that if the defendant did know this fact when he made the promise which he had broken, still the fact, though no defence, would go to lessen the damages. See also, Boynton v. Kellogg, 3 Mass. 189; Palmer v. Andrews, 7 Wend. 142.

(x) Leeds v. Cook, 4 Esp. 266.

(y) Atchinson v. Baker, Peake, Ad. Cas. 108, 124. In this case the plaintiff was a widower upwards of forty years of age, and the defendant a widow about the same age; when the promise was made, the plaintiff was apparently in good health, but the defendant alter wards discovered that he had an abscess in his breast, and for that reason refused to marry him. Lord Kenyon said, that if

1 Sprague v. Craig, 51 Ill. 288.

2 The having an incurable disease may be shown in mitigation of damages. Sprague v. Craig, 51 Ill. 288. But mere incompatibility of temperament or tastes is no defence. Coolidge v. Neat, 129 Mass. 146.

But a plea of the bad health of the defendant, taking place subsequently * to the promise, has been held to be no an- swer to an action for a breach of promise. (z) Entire deafness or blindness, or other important physical incapacity, occurring after the promise, might be a good defence at law; (a) 1 so would the disposal of her property without the consent of the defendant, and in a manner injurious to his interests. (b) It has been said, also, that if a widow conceals her previous marriage, and betroths herself as a virgin, this would be a fraud, and would avoid the contract. (c) It is going quite far to consider this fact alone as constituting a fraud, but it could seldom occur but under circumstances which would probably determine the character of the concealment; and if this were fraudulent, it must of course have the usual effect of fraud upon the contract; for if obtained by fraud, whatever that fraud may be, the contract is void. A dissolution of the contract by mutual consent would of course be a sufficient defence, but it must be a real and honest consent. (d) 2 But a pre-engagement by the defendant is no sufficient defence, (e) nor is the fact that the defendant was married at the time of the promise,3 but the plaintiff may bring an action immediately upon discovery. (f) Perhaps it ought to be a the condition of the parties was changed after the time of making the contract, it was a good cause for either party to break off the connection; that Lord Mansfield had held, that if, after a man had made a contract of marriage, the woman's character turned out to be different from what he had reason to think it was, he might refuse to marry her without being liable to an action, and whether the infirmity was bodily or mental the reason was the same; it would be most mischievous to compel parties to marry who could never live happily together. The plaintiff was nonsuited, on the ground of a variance; but afterwards brought a fresh action, and rebutted the defendant's testimony as to the abscess, and recovered £4,000 on proof that the defendant had promised to settle £6,000 of her fortune on him, and the residue, £18,000, on herself. A motion was then made for a new trial, on the ground of excessive damages, but the cause was compromised. See also, Baker v. Cartwright, 100 Eng. C. L. 124, as to insanity of the plaintiff before the promise was entered into.