COURTING AND THE COURTS. BY ALBERT W. GAINES, Of the Chattanooga, Tennessee, Bar. IT does not occur to young people engaged in that most charmingly fascinating oc cupation—courting—generally looked upon as an interesting and entertaining pastime, that "old father antic, the law," has anything to do with the matter or any right to inter fere—in short, courts are presumed to have nothing to do with courting. But the truth is that, contrary to these pre sumptions, courtship often involves serious questions of the law, and, notwithstanding the poet's sentiment that "Love rules the Court, the Camp, the Grove, And men below, and saints above," Cupid is frequently summoned before The mis to receive the sentence of that stern Goddess of Justice. If the courtship results in marriage, a pure question of fact arises, namely, Is marriage a failure? But, if the courtship does not reach as far as the altar; if, after engagement or conduct on the part of one or both of the parties from which an engagement may be inferred, one or the other breaches the con tract, a liability to the other arises. Although in early times in England spe cific performance of a contract to marry was decreed by the spiritual courts, compelling a celebration m facie ccclcsiae, now, since Lord Hardwicke's Act, the only remedy is by suit for damages. Ever since Margaret Gardyner and her daughter, Alice, brought what is reputed to have been the first breach of promise suit against John Keche of Yppswych, showing that he, the said John Keche, had received a sum of money on condition of his marry ing the aforesaid Alice, and that he had mar ried Joan Bloys, "ageyne all good reason
and conscience," breach of promise suits have been recognized among all Englishspeaking peoples. Lord Holt enforced it at Common Law, holding that "the wounded spirit, the unmerited disgrace, and the prob able solitude, which would be the probable consequence of desertion after a long court ship, were considered to be as legitimate claims for pecuniary damages as the loss of reputation by slander or the wounded pride in slight assaults and batteries." These matrimonial contracts are sui gen eris. No grim-visaged lawyer draws up a formal contract to be executed; no notary pries into the intents and purposes of the parties and certifies the same under his offi cial seal; no go-between Pandarus is present to hold the hands of Troilus and Cresida and solemnly pronounce:
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"A bargain made; seal it, seal it; I'll be the witness." % • No—in the vine-clad arbor, or behind the protecting screens of parlor walls, in some shady nook, or in the dim moonlight deep down some lonely dell, "far sunken from the healthy breath of morn and eve's- one star," there these engagements are softly whis pered and the contract sealed with a kiss. For these reasons, v/hile the making of the contract is a question of proof, it need not be proved in totidem verbis, and is often in ferred from the actions, language and con duct of the parties, and it is difficult to tell under what circumstances the court would be justified in finding that a promise had been made. Many a young man, not fatally bent on matrimony, would sometimes be surprised to find that his language, intended only as a compliment to some charming dam
