The daily gazette., 1876-12-09


Judges Comegys and Houston on the
bench.
The jury list was called after which
the case of Calvert VS.. Sutton was resum-
ed. The counsel OH both sides occupied
the eptire morning in summing up to the
jury and it was 2 p. IN. when Mr. Higgins
closed finally. The Court then took 4
recess until 3 p. m.
AFTERNOON SESSION.
Court reassembled at 5p. IN. After
disposing of some motions In different
cases, Chief Justice Comegys turned to
the Calvert-Sutton jury and after congrat-
ulating them on the near end of the case
and compllmenting counsel on both sides
for their able efforts, flc proceeded to
charge the jury as follows:
Gentlemen of the jury,--This is an ac
tion Of assumpist for the recoveryof dam
ages for the breach of an ALLEGED promise
by the defendant to marry the plaintiff,
and the declaration or statement of the
plaintiffs cause of action contains four
counts as they are called, or separate
statements of the claim of the plaintiff.In
whatever form the promise is, by those
counts or statements alleged to have beer
made, there is fiat denial by the defend
ant of those allegations by the plea CT
non assumpsit, which puts in issue every
material fact the plaintiff is bound TO
prove in the prosecution of her case; and
the plaintiff having reafiirmed her charge
by the re-acceptance of the issue tender
ed by that plea, the parties are at direct
variance or issue upon the facts alleged
in the declaration. Now the allegation
of the plaintiff is, in brief, that the de-
fendant promised to marry her, and that
upon her request to him afterwards to
fulfill his promise he refused to do so; and
the fact of such promise being denied by
the defendant and the question arising
from or growing out Of the allegation of
promise ON one side and the denial upon
the other, being one purely of fact and
not in any sense of law, it is for your de-
cislon entirely, and with which the court
has nothing to do, except so far as may
be necessary to give you instruction with
respect to the rules for your guidance.
This is an action, gentlemen, which to
the credit Of the men of our State is sell
dom brought, but its infrequency we
think is not to be referred to the unwill-
ingness of wronged women to seek re-
uIcSS tt IUC DdlluS vi ii NOuII jury Ill
cases of like kind, but because, we pre-
fer to think, there is among our people
that proper manhood and sense of right
which prompt to the repair ofsuch wrongs
in the way most agreeable to the wound
ed feelings and stained honor of the in
Jjuied one, by that last of all remedies
marriage-which though not obliterating
the fact of the past, yet SO takes from its
prominenceastOnolon renderit ruinous.
But there do arise at times, everywhere,
cases which are exceptions, cases of a
want of that sense of right and high man
hood of which W. have spoken, where
the wrong-doer refuses to make such rep
aration, and chooses rather to place him
self upon the ''perilous edge" of suit,
for the wrong done before a court and
jury.
If the testimony of the witnesses for
the plaintiff are to be believed, this is a
case of that kind; forthey have spoken to
you in what seems to us at least, very
plain language upon the facts it was nee
essary for plaintiff to prove in support of
her case.
Now what is proved or not proved in
this case we may speak of, without en-
croaching upon your province, to decide
upon the nature of such proofs. We say
then toyou that if youbelieve theplaintif7s
witnesses-her mother, sister Mrs. Mary
L. Blake, her brother and her friend Mrs.
Hannah L. Carter-there seems to have
existed in this case the usual indicia or
features of a courtship, beginning in 1869
and continuing without serious Interrupt
ton until some time in the year 1874,
when taking the testimony Of the mother
as true and to be rolled npon, they ceased
to exist. Th y all of them prove his
! constant and frequent visits to the house
ofthe plaintiff, and that to all such ap-
pearances as is common among young
people there was a courtship going on. 1t
is unnecessary to refer to their testimony
for the facts within their knowledge; they
were detailed to you by them and are
such as we may fairly, all of lis, be taken
to be the common ones in like cases.
From them you might perhaps, be justi-
fled if you believe them to be true, in
finding the fact of Il promise to marry as
alleged in the declarations; personal at
tentions OF an unremtting character, and
preparations of extra clothing indicate to
the least observant that something is GO
ing on, and to the acute perceptions of
women are plain evidence of preparation
for marriage.
But the plaintiff does not stop here and
offer no other proof, but establishes by
her mother, if you believe her testimony,
that so far back ~ the summer of 1874 the
defendant and the plaintiff had entered
into the engagement of marriage-for he
! then declared (referring to the fact of her
being then at work) that she should not
work 80 hard whenshe was his wife, then
he could maintain her without work.
Upon her cross-examination she did not
exactly adhere to her statement as to the
time of his declaration but said she knee W
it was not later than the early part of
September, because she had not laid in
her fall stock of goods for her millinery
business Andshe states further that thede-
fendan, at.other but later times recoguiz-
ed his engagement to marry the plaintiff,
Nay, in the last conversation she declares
to having had with him he admitted n
prior engagement by refusing to carry it
out. And she goes further and states (and
this is in the cross-examination to which
she was carefully and skillfully, but at the
same time very considerably subjected
by the learned counsel forthe d' ftniant,) y
that at the final meeting on the 25th of