Laws

Infancy cannot be considered Post Date: Sun, 27 Jul 2008 17:21:43 +0000
Separate trials will be ordered when a count for breach of promise of marriage is joined with money count S 4 II I PARTIES Infant S An infant, by his guardian or next friend, may maintain an action against an adult for breach of promis e He can, however, as a defendant, plead the fact of infancy, and avoid the contract and consequences thereof 5 Man or Woman as Plaintiff -The action may be maintained by either the man or the woman against the one guilty of the breac H 6 1 Maxwell v McBrayer, 61 N Car 527; Price v Cox, 83 N Car 261 Pennsylvania In an early case in Pennsylvania, the remedy given by at- tachment was held applicable to a suit for damages for breach of promise to marr Y Caldwell v Spillman, 7 WeSt L J (Ohio) 149 West VirginiaUnder the provi- sions of the Code of West Virginia, authorizing a suit by attachment to recover damages for any wrong, the attachment was sustaine d McKinsey v Squires, 32 W Va 41 2 Clark v Johnson, 32 Mich 262; Perry v Orr, 35 N J L 295; Malone v Ryan, 14 RI 614; Conlon v Cas- sidy, 17 RI 518 Seduction and Abandonment. "If a man promises to marry a woman, and at the same time or afterwards seduces her by the influence of such promise, and then seeks to avoid the promise by attempting to run away, with in- tent to abandon heRand refuses to marry her, his original promise was a fraud and he can be htld to bai L" Perry v Orr, 35 N J L 295 3 Greenup v Stoker, 7 111 688 4 Frean v Watley, 4 F F 1038 Annuity for Support of Chil d The court, in an action for breach of prom- ise, refused to add a count for non- payment of an annuity for the support of a chil d Sherratt v Webster, 9 Ju R, N S 629, 8 L T, N S 254 Payment of Money Part of Original Con- tra Ct " A petition alleging breach of a promise of marriage, and that to induce plaintiff to enter into the contract, defendant represented him- self as possessed of certain property, and had promised as a condition prece- dent and a part of the contract to give her a certain sum of money and a secured note, and would then marry her in a reasonable time, is not suscep- tible to a motion to separately state and number, but states but one cause of action breach of the marriage contra Ct" Cuyahoga Common Pleas, 1879; Palton v Barchand, 2 Clev e Rep (Ohio) 57 5 Frost v Vought, 37 Mich 65; Feibel v Obersky, 13 Abb Pr, N S ( N Y Supreme Ct)4O2, note; Rush v Wick, 31 Ohio St 521; Hale v Ruthven, 20 L T, N S 404 Defense in Supreme Court. Infancy cannot be considered as an element of defense when suggested for the first time in the Supreme Court.

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Hovey v Page, 55 Post Date: Sun, 27 Jul 2008 17:09:52 +0000
Smith v Braun, 37 La An N 225 6 The following English cases are Husban d In jurisdictions where the woman is seized of her sep- arate property in her own right the husband is not a necessary party to the actio N 1 Personal Eepresentative S An executor or administrator cannot maintain an action for a breach of promise of marriage to the testator, or intestate, where no special damage is allowe d The maxim actio personalis moritur cum persona applie S 2 Whether such an action will survive against the personal representatives or the promisor, even where special damages are alleged and proved, seems to be doubtfu L 3 the only ones found in the reports by the writer where the usual situation was reversed and the woman became the Defendant Leeds v Cook, 4 Es P 166; Baddeleyz'. Mortlock, Holt N p Paternity of Child and "Alimon Y" In Louisiana it is held that a woman cannot, in an action for a breach of promise, cumulate with her main ac- tion a prayer for the recognition of the defendant as the father of a child, the birth of which resulted from an al- leged seduction under a promise of marriage, or for "alimony" for the support of such child; such demands must be enforced in separate suit S Smith v Braun, 37 La An N 225 1 Shuler v Millsaps, 71 N Car 297 2 Boor v Lowrey, 103 Ind 468; Hovey v Page, 55 Me 142; Stebbins v Palmer, I Pic K (Mas S) 71, n A M De C 146; Smith v Sherman, 4 Cus H (Mas S) 408; Wade v Kalbfleisch, 58 N Y 281, 16 Abb Pr, N S ( N Y) 104, 17 A M Rep 250; Connecticut, etc, RCo v Bliss, 24 Vt 413; Grubb v Suit, 32 Gratt ( Va) 203; Chamber- lain -v Williamson, 2 M S 408 3 See Lattimore v Simmons, 13 S R(Pa) 183; Grubb v Suit, 32 Gratt ( Va) 203 In Weeks v Mays, 87 Tenn 442, it was held that such an action abated on defendant's death, and could not be revived against his personal repre- sentative S Birth of Chil d An allegation that after such alleged promise of marriage the deceased promisee had a child born to her out of wedlock, now liv- ing, and that the promisor is the father of such child, would only in- crease the damages on the ground of injury to the character, and not to the estat e Hovey v Page, 55 Me 142 Ante-nuptial Contra Ct If an action for a breach of promise of marriage will survive against the executor of the promisor, where special damage is alleged, an allegation of special dam- ages for not executing an ante-nuptial contract which is within the statute of frauds is not sufficient to bring the case within the rul e Chase v Fitz, 132 Mas S 359 Damage to Propert Y An allegation of special damage which would cause the action to survive must be of dam- age to the property, and not to the person merely, and such as would be sufficient of itself to sustain a suit. Hovey v Page, 55 Me 142 Intermarriage of Parties Equivalent to Deat H " An action for breach of promise to marry is personal, and dy- ing with the person; it does not sur- vive after death of plaintiff Mar- riage of the parties as effectually kills the action as death; therefore, after marriage of plaintiff and defendant, counsel for defendant cannot prosecute the action for fee S Public policy and the whole spirit of our legislation, in encouragement of marriage, as well as strict law, forbid the further prosecu- tion of the suit for such purpos e" Harris v Tison, 63 Ga 629, 36 A M Rep 126 North Carolina A statute of North Carolina provided that upon the death of any person all demands whatso- ever, and rights to prosecute and de- fend any action or special proceeding existing in favor of or against such person, except as hereinafter provid- ed, should survive to and a Ganst the executor, administrator, or collector of his estat e The exceptions were causes of action for libel, slander, false imprisonment, etc; breach of promise of marriage not being men- tione d Under this statute it was held that the action did not abate on ac- count of the death of the Defendant Shuler v Millsaps, 71 N Car 297 Iv ALLEGATIONS OF COMPLAINT OR DECLAEATION 1 Marriageable Ag e In an action for a breach of a marriage contract, th; complaint need not aver that the parties were of a marriageable age when the alleged contract was made, as the presumption is, until the contrary is shown, that they were competent to con- tra Ct 1 2 Mutual Promis e In order to sustain the action, however, the complaint must allege that the promise was mutua L 2 3 Time and Plac e The time and place of the promised mar- riage need not necessarily be averred in the complaint, but when pleaded they must conform to the proof 3 But in a later case in the same court, the court, although sustaining the former decision, per Ruffin, J, said: " We feel ourselves bound by that decision; though were it an open question, we are inclined to think we should hold differently in a case like that and the present one, in which no special damages were laid in the com- plaint.

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Atchison v Baker, Peake's Ad Post Date: Sun, 27 Jul 2008 16:54:36 +0000
" Allen v Baker, 86 N Car 94, 41 A M Rep 444 1 Jones -v Layman, 123 Ind 569; Glasscock v Shell, 57 Tex 215 2 Roper v Clay, 18 Mo 383 But in this case the court held that a failure to allege that the promise was mutual could not be availed of after verdict, although it would have been fatal on demurreRForm Sufficient. An allegation that " the defendant entered into a con- tract with her by which it was agreed by and between them both that they would get married," though not in the usual form, sufficiently alleges that the promise was mutua L Gates v McKinney,48 Ind 562, 17 A M Rep 768 Identity of Partie S Where the names of plaintiff and defendant were given in full in the caption and commence- ment of the complaint, but in a para- graph of the complaint the plaintiff was identified as "she" and "her," without reference to the caption held, that as to the identity of the parties, the paragraph sufficiently averred a promise to marry each otheRGates v McKinney, 48 Ind 562, 17 A M Rep 768 Date Blan K "An allegation that plaintiff and defendant, on the day of Apri L 1886, agreed to marry one another," alleges a contract re- ciprocal as between the partie S Jones v Layman, 123 Ind 571 Maturing of Mutual Promis e A com- plaint in an action for breach of promise of marriage alleged that "on October ist, 1885, in consideration that the plaintiff, being unmarried, at the request of the defendant promised to marry him, the defendant promised to marry the plaintiff on or about April 30th, 1886" Held, that the complaint was sufficient, and not open to the ob- jection that there were no mutual promises maturing at the same ti Me Adams v Byerly, 123 Ind 368 Promissor a Married Ma N A com- plaint, in an action for breach of promise of marriage, alleged that, the plaintiff being sole and unmarried, and competent to contract to marry, and the defendant representing himself to be sole and unmarried, and competent to contract to marry, the latter, in con- sideration of the plaintiff's promise to marry him, promised the plaintiff to marry heRIt then averred that the plaintiff, confiding in such representa- tion and promise, continued and still was unmarried; and that she had no knowledge or information to lead her to believe that the promise and repre- sentations of the defendant were false or fraudulent; and it averred that the said representations were false and fraudulent, and made with the inten- tion to deceive; that the defendant then was, and still continues to be, a married man, and that his promise to marry was fraudulent and to the plaintiff's damag e Held, that the complaint stated sufficiently the de- fendant's promise to marry, and his representation that he was unmarried and competent to marry the plaintiff; and that it was unnecessary to allege that he knew his representation to be untru e Blattmacher v Saal, 29 Barb 3 Martin v Patton, I Litt (Ky) 234; Atchison v Baker, Peake's Ad d Ca S 103 4 Condition S When a condition is attached to'and forms part of the original promise, such condition and its performance must be set forth in the pleadin g 1 5 Breach Request for Performanc e Where the original contract was to marry on a day certain, which has expired ; * or when no time was fixed and a reasonable time has expired ; 3 or when the defendant is not in a condition to perform, by reason of his own fault; 4 or if it is expressly stipulated between the parties; or if, from the nature of the contract itself, the plaintiff is General Promis e A declaration stat- ing a general promise will not be sup- ported by evidence of a promise to marry after a future uncertain event. Atchison v Baker, Peake's Ad d Ca S 103 Time Specifie d An allegation of a promise to marry at a specified time, or on the happening of a certain event, will not be supported by evi- dence of a promise to marry on re- quest after a reasonable ti Me Clark v Pendleton, 20 Con N 505 Time Fixed by Agreement Subsequent to Original Contra Ct Allegations that on a day named each party mutually promised "to marry the other there- after, to wit, in a reasonable time; that subsequently they agreed to marry as aforesaid thereafter, to wit, November I4th, 1878," avers a prom- ise to marry on the last-named dat e Haymond v Saucer, 84 Ind3 Talk not Amounting to Agreement.

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When the time Post Date: Sun, 27 Jul 2008 16:42:34 +0000
It is otherwise when the subsequent interview does not reach the solemnity of an agreement. The original prom- ise then remains a promise to marry on request after a reasonable time, and is rightly so pleade d Clark v Pendle- ton, 20 Con N 505 When a Specified Thing is Don e When the promise is made to be per- formed when a specified work is com- pleted, but no time is stated for its completion, the law implies a reason- able ti Me This fact would support the averment "within a reasonable ti Me" Bennett v Beam, 42 Mich 346, 36 A M Rep 442 Videlicet. When the time at which the promise was to be fulfilled, and the time of the tender of marriage, and of the refusal, are laid under a videlicet, the dates need not be proved as lai d For example: Under such a state of the pleading, it was shown that the de- fendant promised to marry the plain- tiff in the following spring, after the former should return from a contem- plated trip, at which time he expected to have his house finishe d Held, al- though no day was fixed for the mar- riage, such proof would sustain a ver- dict for the plaintiff, under a count to marry on request, or within a reason- able time, or generally; but would be more applicable to the count to marry in a reasonable ti Me Prescott v Guyler, 32 111 312 1 Cole v Cottingham, 8 C p 75 Delicate Health Recover Y Where it is alleged, at the time of a promise to marry, that the man was in delicate health, and the performance was made conditional on his recovery, it wil? not be presumed that any considerable de- lay was contemplated, and the petition is not open to the objection that the promise averred was in restraint of marriag e McConahey v Griffey, 2 Iowa 564 Condition Embodied in the La W A condition or stipulation fully embodied in the law, controlling the contract, need not be averre d Waters v Bristol, 26 Con N 398 2 Graham v Martin, 64 Ind 568 3 Turner v Baskin, 2 WeSt L M (Ohio) 98 This rule, however, is different where the male party is plaintiff Turner v Baskin, 2 WeSt L M (Ohio) 98 4 In most cases of this description the complaint avers that the de- fendant has married anotheRKing v Kersey, 2 Ind 402; Graham v Martin, 64 Ind 567, Hunter v Hat- field, 68 Ind 416; Lahey v Knott, 8 Oregon 198; Short v Stone, 8 QB 358, 3 d L 580, 10 JuR245, 15 L J QB 143- In such a case it is not necessary to allege even the lapse of a reasonable ti Me Caines v Smit H 15 M W 189, 3 d L 462, 15 L J Exc H 1 06 entitled to notice or a request to perform, no averment of a re- quest for the defendant to consummate the engagement is neces- sar Y 1 If, however, the declaration avers a promise to marry on request,* a special request ought to be averre d Readiness to Perfor M An allegation of the readiness of the plain- tiff to fulfil the marriage promise is material, 3 except where the declaration or complaint alleges that defendant at the time of the engagement was already married to another; then an allegation of a present readiness to perform is unnecessar Y 4 The want of such an averment, however, may be cured by verdi Ct 5 6 Damages Considered under General Issu e In an action for breach of promise to marry, it is necessary that the facts which are relied upon as elements of plaintiff's damage be set out.

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When evidence of seduction Post Date: Sun, 27 Jul 2008 16:27:58 +0000
6 Fairly Arising from Breac H Damages recoverable without special allegation, and therefore included in the general issue, must be such as can fairly be considered to arise from the breach itself 7 7 Seduction Evidence when not Pleade d That general allegations of the promise to marry and its breach will permit evidence of seduction under the promise, is supported by the weight of au- thorit Y 8 3 Graham v Martin, 64 Ind 567; Hunter v Hatfield, 68 Ind 416; Martin v Patton, i Litt (Ky) 233, 234 Where the precise time of marriage is not agreed upon, the law construes it to be a promise to marry in a reasonable time, upon request; and the plaintiff must allege and prove, not only that the defendant did not marry her, but also that she was will- ing and offered to marry him, and that he refused her before the suit was brought. Cole v Holliday, 4 Mo App 94 4 Wild v Harris, 7 CB 999, 7 d L 114, 13 JuR961, 18 L J C p 297; Millward v Littlewood, 5 Exc H 775; 20 L J Exc H 2 5 Hunter v Hatfield, 68 Ind 416 6 Glasscock v Shell, 57 Tex 215 Nominal Damage S If specific facts are not alleged, upon objection made in the proper time and manner, the plaintiff will be entitled to nominal damages onl Y Glasscock v Shell, 57 Tex 215 7 Goddard v Westcott, 82 Mich 1 80 Time and Expense in Preparatio N Such are, loss of time and expenses incurred in preparation for marriag e Smith v Sherman, 4 Cus H (Mas S) 408; Goddard v Westcott,82 Michi So Worldly Advantage Permanent Home Affection S The money value or worldly advantages of a marriage which would have given plaintiff a permanent home and an advantageous establishment, and, if her affections are in fact implicated, the injury to her affections, may be considered as additional elements of damage under the general issu e Harrison v Swift, 13 Allen (Mas S) 144; Dupont v Mc- Adow, 6 Mont 226 Humiliation, Contempt, Mortification, Mental Sufferin g There may also be taken into consideration under this issue any humiliation, contempt, or mortification the plaintiff may have suffered in the circles wherein he or she moved, by reason of such breach of contract, Harrison v Swift, 13 Allen (Mas S) 144; Goddard v West- cott, 82 Mich 180; and also mental suffering occasioned by the breach of the contract, Goddard v Westcott, 82 Mich 180; Tyler v Salley, 82 Me 130 Healt H The right to recover for injury to the plaintiff's health, without special averment, is questione d For the affirmative view, see Goddard v Westcott, 82 Mich 180; Bedell v Powell, 13 Barb ( N Y) 183 Contra, Tyler S Salley, 82 Me 128 It is otherwise when pleaded spe- ciall Y Schmidt v Durnham, 46 Min N 227 3 Tubbs v Van Kleek, 12 111 447; Special Averment. When evidence of seduction is not admitted under the general averments mentioned, it is permitted under a special allegatio N 1 8 Special Damage S Special damages cannot be recovered in an action for the breach of the contract unless they are alleged in the complaint.

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Seduction is evidence tending Post Date: Sun, 27 Jul 2008 16:14:53 +0000
8 Punitive, Exemplary, or Vindictive Damage S Nor can punitive, exem- plary, or vindictive damages be recovered unless specially pleade d 3 Whalen v Layman, 2 Blackf (Ind) 194, 18 A M De C 157, overruled in Gates v McKinney, 48 Ind 562, 17 A M Rep 768; King v Kersey, 2 Ind 402; Paul v Frazier, 3 Mas S 71, 3 A M De C 95; Sherman v Rawson, 102 Mas S 395; Kelley v Riley, 106 Mas S 339, 8 A M Rep 336; Green v Spencer, 3 Mo 318; Wells v Padgett, 8 Barb ( N Y) 323; Jennette v Sulli- van, 63 Hun ( N Y) 361; Matthews v Cribbett, II Ohio St 330; Conn v Wilson, 2 Overt. (Tenn) 233, 5 A M De C 663 Contra, Gates v McKin- ney, 48 Ind 562, 17 A M Rep 768; Felger v Etzell, 75 Ind 417; Burk v Shain, 5 Ky 341, 5 A M De C 616; Tyler v Salley, 82 Me 128; Weaver v Bachert, 2 Pa St 80, 44 A M De C 159; Baldy v Stratton, n Pa St 316; Espy v Jones, 37 Ala 379 Evidence of Agreement. Seduction is evidence tending to show the agree- ment in controvers Y McConahey v Griffey, 82 Iowa 564 Wrongful Act Resulting from Promis e It is evidence of the wrongful act of the defendant resulting from the promise and the breac H Lowden v Morrison, 36 111 App 495 Proof of Violatio N It is proof of violation of his promise by the defend- ant.

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In an action for breach Post Date: Sun, 27 Jul 2008 16:01:37 +0000
Dent v Pickens, 34 W Va 240 Distinctio N In commenting upon the decisions in Pennsylvania, in the case of Sherman v Rawson, 102 Mas S 400, Colt, J,said: " The lastdecision in Pennsylvania, while it follows Weaver v Bachert, 2 Pa St 80 (44 A M De C 159), in the doctrine that seduction cannot be given in evidence, still states the rule that all the circumstances at- tending the breach before, at the time, and after, may be given in evidence in aggravation of damage S" Better Practice to Plea d The lower court, undei general allegations in the complaint, instructed the jury " that if the defendant seduced the plaintiff under promise of marriage, and if the charges against her" (speciallypleaded in the answer) "were not proved," such seduction might properly be con- sidered as enhancing the damages, etc In the appellate court, Lyon, J, said: " The authorities seem to sustain the instruction as correct in the law ; but we think the better practice is to re- quire that the seduction should be al- leged in the complaint before any evidence thereof (if duly objected to) is receive d" Leavitt v CutleR37 1 Smith v Braun, 37 La An N 225; Boynton v Kellogg, 3 Mas S 189; Shea- han z/ Barry, 27 Mich 217; Daggett v Wallace, 75 Tex 352; Leavitt v Cut- ler, 37 Wi S 46 Shooting of Defendant Such an alle- gation in the complaint does not open the door for the defendant to show that after his marriage to another the plaintiff sought him out and shot hi M Schmidt v Durnham, 46 Min N 227 2 Lindley v Dempsey, 45 Ind 246 Variance between Summons and Dec- laratio N Where a declaration for breach of promise of marriage alleged that the defendant promised to marry the plaintiff on request, and that the plaintiff afterwards, on the 2oth day of November, 1849, requested the de- fendant to marry her, and the sum- mons merely required the defendant to appear, etc, and answer in a plea of the case on contract for breach of promise of marriage with the plaintiff, when she was sole and unmarried in the year 1849 held, that the sum- mons did not give to the defendant the same information which the dec- laration gave more at large, nor did it contain the substance thereof, and that this was sufficient cause to abate the writ Grant v Durgin, 45 N H 167 3 Wanton or Maliciou S To open the door for such damages, the breach must appear wanton or malicious, or it must appear that the defendant un- 9 Varianc e An immaterial variance will be disregarded or an amendment allowe d 1 v ANSWER OR PLEA] ALLEGATIONS AND PROOF L General Denia L In an action for breach of a marriage contract, where the answer is a general denial, the defendant may not only prove that no contract was made, but may introduce in evidence all matters which go in mitigation of damage S 2 necessarily wounded the feelings or injured the reputation of the plaintiff; and this must appear from the plead- in g Dupont v McAdow, 6 Mont 226 There must be more than a refu- sal, without sufficient legal excuse, to carry out the contract, before exem- plary damages will be allowed, and the facts warranting the same must be pleade d Goddard z Westcott, 82 Mich 1 80 1 Ti Me In Hearing v Van Fleet, 71 Hun ( N Y) 137, the complaint al- leged the promise to have been made in August, and the evidence disclosed several promises; the time was held immaterial, and the court refused to instruct the jury that no recovery could be had if the contract was not made in AuguSt The promises declared on were, first, to marry on request; secondly, the like assignment for breach that the defendant had married another; thirdly, to marry within a reasonable time; and lastly, to marry generall Y The proof was, that the defendant had said that he would marry the plaintiff in Jul Y Held, that the plain- tiff could recover on the last count. Phillips v Crutchley, i M p 239, 3 C p 178 Request, General Promis e " Qutzre, whether a declaration alleging a prom- ise to marry on request will be sup- ported by evidence of a promise to marry generall Y" Logan v Gray, Tappan (Ohio) 69 Amendment. In an action for breach of promise to marry, the declaration alleged a promise to marry at a time elapsed, and -the evidence showed a promise to marry at a time not elapsed, and a renunciation by the defendant of such promis e Held, that the dec- laration might be amended at the tria L Donoghue v Marshall, 32 L T.

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Where every material fact set Post Date: Sun, 27 Jul 2008 15:50:20 +0000
, N S 310 2 Walker v Johnson, 6 Ind App 600; Mobin v Webster, 129 Ind 430; Morris v Graves, 2 Ind 354; Goddard v Westcott, 82 Mich 180 Adulter Y An act of adultery by plaintiff, committed more than twenty- five years before, previous to a former marriage, and while plaintiff was very young, has been admitted under the general issu e Tomkins v Wadley, 3 Thom P C ( N Y)424 Excessive Use of Intoxicants has been shown under this issu e Button v McCauley, i Abb App De C ( N Y) 282 Fraud Disability of Plaintiff Evi- dence that the plaintiff had a tumor and was consequently unable to carry out such a contract at that time with- out a fraud or injury to the defend- ant, has been admitted under the general issu e Goddard v Westcott, 82 Mich 180 Grounds of OffeRUnder the general issue in such an action, in offering evidence in mitigation of damages, the defendant is not bound to declare that he offers it for that purpos e If the evidence is competent for any purpose, although incompetent for other purposes, it is error to reject it. Button -v McCauley, i N Y Ct App De C 282 Lewd Condu Ct Evidence of the plaintiff's lewd conduct is admissible under the general issue; but an un- successful attempt to show the plain- tiff's unchaste conduct may enhance damage S Kniffen v McConnell, 30 N Y 285; Butler v Eschleman, 18 111 44; Sprague v Craig, 51 II I 288 Rescissio N In an action for breach of promise to marry, evidence of a mutual rescission of the contract prior to the alleged breach is admis- sible under the answer of general denia L Shellenbarger v Blake, 67 Ind 75 Adding the Ple A Leave to add a plea that the plaintiff had released the defendant from his promise was re- fused; evidence in support of the plea was received in mitigation of damages onl Y Dennis v, McKenzie, 24 L T, N S 363- Striking out. Where every material fact set up in a paragraph of an answer may be given in evidence under the answer of general denial, which is also pleaded, the striking out of such paragraph is a harmless erroR1 2 Frau d Generally, where fraud is relied upon in bar of the action, the specific facts constituting the fraud must be allege d* 3 Bad Character of Plaintiff A GENERALL Y A plea set- ting forth the unchastity and bad character of the plaintiff, unknown to the defendant at the time of the promise, constitutes a good defense; 3 and the same rule concerning the character of the plaintiff, whether specially pleaded or shown upon the general issue, prevails concerning his or her conduct subsequent to the engagement and before the alleged breac H 4 b EFFECT OF THE ALLEGATION S A defendant who wantonly and in bad faith, or for the purpose of injuring the plaintiff's character, and with no reasonable expectation that his allegations can be established, sets up in his pleadings, as a defense, the bad character or unchastity of the plaintiff, and fails to prove it, takes the chance of a reaction upon himself in the calculation of damage S 5 But when such charges are made in good faith, and 2 Coble v Eltzroth, 125 Ind 429; Bell v Eaton, 28 Ind 468 Prior and Existing Agreement with AnotheRA plea that "before and at the time of the agreement the plain- tiff and A had agreed to marry one another, which agreement was in full force, as the plaintiff knew, but of which the defendant was ignorant; and that though the plaintiff ought fully to have disclosed the same to the defendant before the agreement, and though he would not have made the agreement had the same been dis- closed to him before, the plaintiff, at the time of the agreement, withheld and concealed the same from the de- fendant, and he made the agreement while he was wholly ignorant of the same," is a bad plea, there being no express allegation of frau d Beechey v Brown, E L, B L E L 796, 6 Ju R, N S 345, 29 L J QB 105, 8 W R292 Former Insanit Y No fraud being alleged, a plea that the woman had been previously confined in an asylum as a lunatic is ba d Baker v Cart- wright, 7 Ju R, N S 1247, 30 L J C P 364, 10 CB, N S 124 3 Bench v Merrick, I C K 463; Baddeley v Mortlock, Holt N p 151; Denslovv v Van Horn, 16 Iowa 476 It is otherwise where the party is fully informed of the character of the person to whom he makes the prom- is e Kelley v Highfield, 15 Oregon 277 4 Snowman v Wardell, 32 Me 275; Jones v James, 16 W R762, 18 L T, N S 243 Unchaste and Immora L The allega- tion of the answer was that "the plaintiff is an unchaste and immoral woma N" This was held a sufficient allegation to support evidence that plaintiff frequented assignation houses and practised prostitution, and that she lived with a certain woman at a certain place and at a time when said woman kept a house of assignation and prostitutio N Hunter S Hatfield, 68 Ind 416 Scandalou S In such cases an aver- ment in the answer that plaintiff has led a profligate life, " that she has frequently been committed by police magistrates, and that she has sought to mask her identity by various aliases," is relevant and not scandal- ou S Keegan v Sage, 31 Abb N Ca S ( N Y C PL) 54- 5 Denslow v Van Horn, 16 Iowa 476; Davis v Slagle, 27 Mo 600; Chel- lis v Chapman, 125 N Y 214; Simpson v Black, 27 Wi S 206; Reed v Clark, 47Cal194 An allegation of the nature under with a reasonable cause to believe them true, no such danger in law exist S 1 It seems this defense is available under the general issue, at least in mitigation ; 2 but all such charges against the plaintiff, made in the answer, are presumptively fals e 3 4 Want of Affectio N Under a plea that the plaintiff has not now, and never had, any affection for the defendant, the plaintiff may testify that she was attached to the defendant, before evi- dence has been adduced to sustain the averment.

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An answer setting forth Post Date: Sun, 27 Jul 2008 15:32:23 +0000
4 5 Plaintiffs Refusa L A plea that, the defendant being then sole and unmarried, and ready to marry the plaintiff, the plaintiff then and there refused, and up to the time of the commencement of the action continued to refuse to marry the defendant, has on demurrer received the sanction of court as presenting a good defens e 5 6 Unreasonable Condition S A plea admitting the promise and alleging that the plaintiff refused to fulfil hers/except on new and unreasonable conditions, presents a good defens e Evidence in support of such a plea, however, can be /admitted under a general denia L 6 consideration is made in bad faith when the only evidence of the fact offered by the defendant is his own criminal conduct with the plaintiff Kelly v Highfield, 15 Oregon 277 1 Powers v Wheatley, 45Cal113: Fidler v McKinley, 21 111 308; Kantz- ler v Grant, 2 111 App 236; Hunter v Hatfield, 68 Ind 416; White v Thomas, 12 Ohio St 312; Leavitt v Cutler, 37 Wi S 46 The fact that such a defense is set up in the answer is not sufficient of itself to aggravate the damages; the jury must be satisfied that the charge was made dishonestly or in bad fait H Alberts v Albertz, 78 Wi S 72 Quare, does it make any difference in such cases whether the charge is made by plea or notice, or orally in court ? White v Thomas, 12 Ohio St 312 2 See v, Answer or Plea Allega- tions and Proof , note 2, supr A 3 Leavitt v Cutler, 37 Wi S 46 4 Chellis v Chapman (Supreme Ct), 7 N Y Supp 78 5 Liefmann v Soloman, 7 Abb Pr ( N Y SupeRCt) 409, not e Quare, does such a plea cover more than a general denial? See the posi- tion of the attorney for appellant in the last-cited action; also Kelly v Renfro, 9 Ala 325 Letter in Evidenc e The defendant pleaded that he was ready and willing to marry the plaintiff, but she had re- fuse d This could not be supported by a letter, which he had sent to the plaintiff's attorney before action, of- fering marriage, which letter or con- tents had not been communicated to the plaintiff until after the action was commenced, when she refused to marry the Defendant It was also held that plaintiff's attorney was not guilty of dereliction of duty in not staying the issuing of the writ until he had communicated with his client. Dennis v M'Kenzie, 24 L T, N S 363- 6 Hook v George, 108 Mas S 324 In the case cited, the portion of the plea referred to read as follows: "That he did not refuse to marry the plaintiff, but was ready and willing, and before said action was commenced, offered to fulfil said promise, and tendered performance thereof; but the plaintiff unreasonably refused to fulfil said promise on her part; that the plaintiff refused to fulfil and consum- mate said promise on her part, except on terms and conditions which were un- reasonable and no part of the original agreement, and which could not fairly be required of or complied with by the defendant; that the defendant provided a suitable house and place of residence, and the plaintiff refused 7 Statute of Limitation S The statute of limitations must be pleaded in bar, unless the complaint or declaration shows upon its face that a sufficient time has elapsed to bar the cause of action, and also the nonexistence of any grounds of avoidanc e 1 8 Striking out. An answer setting forth a proper affirmative defense will not be stricken out on motion, though it may be insufficient on demurreR2 V I DEFAULT S Where the defendant is in default, the plaintiff is entitled to such a recovery as her evidence may authorize and warrant.

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Langdon v Judges, 76 Mich Post Date: Sun, 27 Jul 2008 15:21:25 +0000
In other words, the plaintiff must " prove u P" 3 VI I INSTRUCTION S The charge to the jury should apply to the allegations and proof in each case, and the proper rule for the measure of damages should be give N 4 to go there to reside or to marry the defendant if he intended or proposed to go there and reside; that the plain- tiff refused to marry the defendant if he took his own daughter, being a girl of tender years, to wit, of fifteen years of age, to reside with him, or kept her in his family; and that the plain- tiff was otherwise unreasonable in the interposition of claims and demands which were no part of the original promise, and required that defendant should comply with them as conditions of her fulfilment of her part of the promise or agreement; and so the defendant says that he was always ready and willing to fulfil the promise made by him, but the plaintiff was unwilling to fulfil the promise made by he R" The objection on the part of the plaintiff, disclosed by the evidence, to the place of residence selected by the defendant, was that she did not want to live in the same town with defendant's first wife, from whom he had been divorce d Under the above plea, it was held erroneous to instruct the jury that if the defendant promised to marry the plaintiff and failed to ful- fil his promise, the burden was on him to justify his failure on the grounds he allege d The plea, in fact, amounted to no more than a general denia L 1 Collins v Mack, 31 Ark 684 2 Mabin v Webster, 129 Ind 430 3 Ames v Brinsden, 25 Ka N 746 Kansas Statut e A section of the Civil Code of Kansas provided that "every material allegation of the pe- tition not controverted by the answer shall, for the purpose of the action, be taken as tru e Allegations of value or of amount of damages shall not be considered as true, by failure to con- trovert them, but this shall not apply to the amount claimed in actions on contract, express or implied, for the recovery of money onl Y" Under this provision, in sustaining a judgment for five thousand dollars, in an action for an alleged breach of promise, as upon a default, without the introduction of any evidence, Valentine, J, said, " We think the statute is wron g" Cole v Hoeburg, 36 Ka N 271 4 Glasscock v Shell, 57 Tex 215 If the judge in charging the jury advises them, without omission or in- distinctness, of all the elements proper for their consideration in assessing damages, his refusal to give greater prominence to a particular part of the case by adding, at the request of the defendant, a special instruction that they are to consider the pecuniary means of both parties (of which evi- dence has been given), affords no ground of exceptio N Grant v Willey, 101 Mas S 356 In an action for a breach of promise of marriage, where the record dis- closes no evidence tending to show any improper motive on the part of the defendant in entering into the alleged contract of marriage with the plaintiff, it is prejudicial error for the court to instruct the jury that a "man who enters into a contract of marriage with improper motives, and then ruthlessly and unjustifiably breaks it off, does a wrong to the woman for which she is entitled to exemplary damages," as such instruc- tion assumes and intimates to the jury that there was evidence tending to show improper motive S Moore v Hopkins, 83Cal270 VII I VEEDICT For M A verdict finding the defendant guilty, and assessing the damages, is responsive to the issue and sustains a judgment for the plaintiff 1 When the petition fails to set forth a good cause of action, and this defect is not cured by the answer, a verdict upon these issues will be set asid e Fible v Caplinger, 13B Mo N (Ky) 463- L DEFINITIO N Bribery was originally the receiving or offering any undue reward by or to any person whomsoever whose ordi- nary profession or business related to the administration of public justice, in order to influence his behavior in office and to incline him to act contrary to his duty and the known rules of honesty and integrit Y 1 The term now extends further, and includes many other classes of officers besides judicial, applying both to actor and receiver, and extending to voters, cabinet ministers, legislators, sheriffs, and other S 2 I I JURISDICTIO N The jurisdiction in cases of bribery depends largely on statutory regulations ; in some states courts of record tak cognizance of the offense, 3 while in others a justice of the peace is given this jurisdictio N 4 Whether the federal courts have cog- nizance depends on whether or not the indictment charges an of- fense under the United States statute S 5 1 Bouvier Law Diet See A M offering an internal revenue officer a Eng Ency C of Law, title BRIBER Y bribe to set fire to a distillery situated 2 Whart. CR L , 1858 within the limits of a state is not cog- 3 The circuit courts of Michigan nizable by the federal court, since have power to punish, as for a con- there are no common-law offenses tempt of court, any person guilty of against the United States; and Rev an attempt to bring about by bribery a StatU S, 5451, which makes it a disagreement of the jury in a pending crime to offer to bribe an officer of suit. Langdon v Judges, 76 Mich 358 the United States with intent to in- 4 A justice of the peace may take fluence him to do or omit to do any act cognizance of an offense of bribery in violation of his lawful duty, applies under the Arkansas statut e Watson only to acts within the official func- v State, 29 Ark 299 tions of the officer S U S v Gibson, 5 United State S An indictment for 47 Fed Rep 833 II I INDICTMENT 1 At Common La W The indictment for the common-law offense of bribery should allege all the facts relating to the giving or taking of the bribe, and should set out the official character of one of the partie S The act of giving or taking it should also be described, and there should be proper introductory and concluding averment S 1 2 Attempt to Brib e An indictment for attempt to bribe should follow about the same form and be governed by the' same rules as for the substantive offense of bribery, save that, of course, the words "offer," "solicit," "attempt," etc, should be used in place of the words " give," "accept," etc 2 Since the offer to bribe completes this offense, 3 there need be no averment of any agree- ment or understanding made or had, 4 nor of the completion of the act for which the bribe was offere d 5 In this article both of- fenses are for the most part treated togetheR6 3 Under Statutes A GENERALL Y The indictment for bribery is usually drawn under a statute ; 7 and it is then sufficient to charge the offense in substantial compliance with the language used in the statute defining it.

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