A bare offer of marriage is not a defence to a prosecution for seduction ; it must be accepted ; State v. Wise, 32 Or. 50 Pac. 800; but the contrary was held in Com. v. Wright (Ky.) 27 S. W. 815, which is said to be the only case sustaining that view; 57 Alb. L. J. 51. The general rule is undoubt edly that nothing short of actual marriage is a bar ; State v. Thompson, 79 Ia. 703, 45 N. W. 293; State v. Brandenburg, 118 Mo. 181, 23 S. W. 1080, 40 Am. St. Rep. 362 ; People v. Samonset, 97 Cal. 448, 32 Pac. 520.
If after the engagement either party is guilty of gross misconduct, inconsistent with the character which he or she was fairly presumed to possess, the other party will be released ; 4 Esp. 256 ; but mutual im prorcrieties and lewdness between the parties will not be allowed to bar the action or to go in mitigation or aggravation of damages; Johnson v. Smith, 3 Pittsb. 184 ; or excuse the performance of the contract; Powell v. Moeller, 107 Mo. 471, 18 S. W, 884. If the engagement is made without any agreement respecting the woman's property, and she afterwards disposes of any considerable por tion of it without her intended husband's knowledge and consent, or if she insist upon having her property settled to her own sepa rate use, it is said that this will justify him in breaking off the engagement ; Add. Contr. 1201. So, if the situation and position of either of the parties as regards his or her fitness for the marriage relation is material ly and permanently altered for the worse (whether with or without the fault of such party) after the engagement, this will re lease the other party. Thus, if one of the parties is attacked by blindness, or by an in curable disease, or any malady calculated permanently to impair and weaken the con stitution, this will dispense with the per formance of the contract on the part of the other party; Add. Contr. 1199; Pothier, Tr. du Mar. no. 1, 60, 61, 63. (In 1 Abb. App. Dec. 282, it was held that evidence that the plaintiff drank intoxicating liquors to excess was not admissible as a defence.) Whether it will also constitute a defence for the party afflicted, is a question of much difficulty. In 1 E. B. & E. 746, 765, where it appeared that the defendant since the engagement had become afflicted with consumption, whereby he was rendered incapable of marriage with out great danger of his life, it was held, by six judges against five, that this consti tuted no defence; though it seemed to be agreed that it would have been a good de fence for the other party.
It is a defence that the woman had be come a confined invalid, but only after a rea sonable waiting; Travis v. Schnebly, 68 Wash. 1, 122 Pac. 316, 40 L. R. A. (N. S.) 585, Ann. Cas. 1913E, 914; or has contracted a venereal disease after the promise, or be fore it, and it was unknown to the other party ; Smith v. Compton, 67 N. J. L. 548, 52 Atl. 386, 58 L. R. A. 480; Shackleford v. Hamilton, 93 Ky. 80, 19 S. W. 5, 15 L. R. A. 531, 40 Am. St. Rep. 166; or that such disease, supposed to be cured, had broken out again; Gardner v. Arnett (Ky.) 50 S. W. 840; or that the condition of both ties had changed so that marriage would endanger their life or health ; Sanders v. Coleman, 97 Va. 690, 34 S. E. 621, 47 L. R. A. 581; that the woman was unnecessarily op erated on, rendering her incapable of child bearing ; Edmonds v. Hughes, 115 Ky. 561, 74 S. W. 283; or that she bad tuberculosis ; Lemke v. Franzenburg (Ia.) 141 N. W. 332; but ill health of the woman, known to the man at the time of the engagement, is no de fence; id.
The common opinion that an agreement to marry between persons incapable of form ing a valid marriage is necessarily void, is erroneous. If the disability pertains only to one of the parties, and the other party was ignorant of it at the time of the engagement, it will constitute no defence for the former. Thus, if a man who already has a wife liv ing makes a promise of marriage to another woman who is ignorant of the former mar riage, he will be liable in damages for a breach of his promise, although' a perform ance is impossible; Leake, Contr. 597; 2 C. & P. 553; Kelley v. Riley, 106 Mass. 339, 8 Am. Rep. 336. Otherwise, if, the woman knew, at the time the engagement was en tered into, that the man was married; Noice v. 39 N. J. L. 133, 23 Am. Rep. 213; Paddock v. Robinson, 63 Ill. 99, 14 Am. Rep. 112; Carter v. Rinker, 174 Fed. 882; or had reason to know; id. Knowledge that the man was married, obtained by the woman subsequently to the engagement to marry, is not a defence, but may go in mitigation of damages; Coover v. Davenport, 1 Heisk. (Tenn.) 368, 2 Am. Rep. 706.