The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-09-07
NEW YORK HERALD SUNDAY
the PLAINTIFF Mr. Mary Frances wade, for leave to

tne plaintiff, Mr. Mary Frances WADE TOT ieave 70
continue against the executors OF the ueceaseu'
Inc case mas already been fully published.
MI. Norton, for plaintiff in opening said:-This ID
an actioA brought by Mrs. Mary Frances waae
against Martin Kalbdeisch for a breach OF promise
Oh marriage. The contract was entered into on the
is'.n OF December, ISL 1t was renewed from time
take Place, In January or February. 1872 The
time was subsequently fixed In the fore part OF
the making of the contract aud alleges that sub
segment to the making OF the contract he ascer-
tanned that she was woman OF loose character,
and Tor that reason he refused TO carry it out.
Counsel then submitted an AFFIDAVIT Of plaintiff,
as foOws:-
State Of Nec York, County Of Kings, city Of Brooklyn
plaintiff in the entitled action that the action was
plant upon tie above named ndant on or about The
s day Of seP.emee 2 to tor the
about the 18th day Of September, ISp made with this
That on about the 18th day of October. 1872,
complaint was served herein and hat issue
on or about the si DAY Of October and that
trial BY the plaintiff and duly placed upon the calendar
dcponent further that after the Joining Of IS
nSced and placed on the M trial.
nd and o.
having first duly made and published last win and
Y Ss
WI ANA a
duly issued them BY the Surrogate OF the county Of
esS
nSs have been TAKEN to the
Mr.. Beach responded for the defence and argued
that the real question involved s OF very consider
BILE interest and is OF the first impression in this
State. 1t involves the marriage relation in very
riage relation depends upon civil contract. But
deny that 1t Is similar 10 all other contracts II
Is contract sui generis exceptional In Its charac
ter and not governed by the principles that are
attached to other civil contracts. In all It's essen
tial attributes in the Liabilities. which follow
from breach of it, it differs nom all other
1t Is far from the ordinary regulations which
apply to other civil contracts. The United
State snail pass o law imparing the validity OF
contracts. 1t has been held that marriage is not
constitution otherwise laws of the States granting
| divorces would be unconstitutional. Again, what
the e e o anS sn not Ih
erty OF man, and Its violation Is wrong done to
the person, not to the property. The evidence to
be given In mitigation OF damages is different from
what may be gwen in other cases. The defendant
may show that the plaintiff has been addicted to
the use OF intoxicating liquors. or has been Of loose
ages, the plaintiff may show that she has been
seduced under the promise OF marriage. The &C
tiOn to be sure, is for the recovery oil money, but
the contract is not one that affects the personal es
tate. The wrong done is to the feelings and the
OF the person wrOnged and the loss OF the mar.
riage. Although this marriage Is called contract,
and though it is held in this State to be based upon
contract yet submit that 1t is an exceptional con-
tract and not governed by the rules which apply to
other contracts. The action is one not based purely
upon contract, but for wrong done TO the person,
in that the feelings are injured, the affections
wounded and the pride humbed. 1t Is an action
that cannot be continued against the executors 1t
| Is q personal action which dies with the person.
1t is OF class with actions for libel SANDER and
criminal conversation. Again. If the action survives
iFpCf hn n
may be assigned. 1t may be assigned by either
party. We should be led to this extraordinary
conclusion that 1t might be assigned before breach
or after breach that upon the instant OF the
PROMISE the plaintif ought TO have assigned IL with
all it's liabilities and engagements to third party
this absurd consequence must follow, there IS no
logic or ingenuity that can escape 1t. Other abb
surd consequences follow. 1t Is continuing con-
tract. When the ceremony is performed, one
party contracts to love, cherish and protect. II
there is breach Of these Obligations, there ought
then to be an action to the wife for damages,
especially that the wife Is constituted an in
dependent personal entity, with her right OF prop
erty, why should not an action lie, II the views OF
counsel correct 1t is also well settled that the
executor administrator represents only the per-
sOnal estate OF the decedent. II the action Will
survive against them they might then, the crcum.
stances being revised, themselves bring an ctiOn
| for a breach OF promise OF marriage. 1t is well
| settled that the executor cannot recover for in.
| juries to the person, he can only bring an action
| for damages which affect the estate.
The Court reserved decision.