The ground upon which this application is made, is, that illegal testimony was given at the trial. This was an action for the breach of a contract of marriage, and the judge admitted evidénce of declarations made by the plaintiff herself to third persons, a long time before suit brought, to prove the mutuality of the engagement.
In general it may be observed, that all the rules of evidence depend upon the nature of the case and the facts which are to be proved; and the principles to be observed in admitting or rejecting testimony, must, in some measure, be accommodated to the particular circumstances which are in issue, taking care, however, to adhere, as far as possible, to general rules of law. The case before us seéms to be one of that description, in which a strict application of the general rule, that a party’s own declaration shall never be admitted to support the action, would be attended with inconvenience and -injustice. This action is founded upon a promise of marriage by the defendant, and a subsequent breach of this engagement; and the law requires, what in itself is indeed highly reasonable, that it should be made to appear that the plaintiff was willing to marry the defendant, or, in other words, that there was an actual and mutual contract subsisting between the parties, and not a mere offer on the part of the defendant, which the plaintiff might be at liberty to accept or reject. The obligation must be mutual, or it is not a contract. The declaration, therefore, always states mutual promises, and they must be proved as
Unquestionably the present case is at least as strong as that which has been referred to. What a woman expressly says cannot, upon principle, be distinguished from those acts •which were held not merely to be admissible, but “ sufficient evidence ” of a promise by_her. It is surely “ countenancing" and “behaving as if she had agreed to the matter,” and, in our opinion, is loss equivocal evidence of her having assented to the defendant’s proffer of marriage. Mere exterior conduct and behavior may be ambiguous; it may be misunderstood; it may be insincere on the part of the woman; but declarations and acknowledgments by her, to other persons, that she was engaged, are certain, unequivocal and obligatory. That the language comes from herself, ■is no "stronger an objection than it would be to conduct and behavior which proceed equally from the same source.
Let men be cautious in making no promises, except such as they intend to perform, or for the non-performance of which they shall be able to assign a sufficient reason, and they will be perfectly safe; the other sex, if evidence of this kind is excluded, will not be upon the same, or an equal footing. We are therefore of opinion with the judge who tried the cause, that such evidence was admissible, and the rule for a new trial must therefore be discharged.*
Rule discharged.
*.
In this action, evidence of an express promise not required, hut may he inferred from circumstances usually accompanying such a relation between the parties. Wighinumy. Coates, IS Mass. Rep. 1.