The herald., 1894-04-08
A Rather Dry Session of the
Court.
Prayers of Plaintiff and Defendant
for Instructions.
Judge Bradley Hears Them and Fakes
Them Under Advisamsnt-Argu-
ments Before the Jury to
Begin Monday.

principals was there, although theil
lawyers bristled with legal documents,
while in their wake followed sundry
colored porters laden with stacks o.
bound volumes.
The proceedings were begun by Mr..
Carlisle, who said that in the prayer OF
the plaintiff for instructions to the jury,
IA distinct instructions, covering every
possible aspect of the case were asked
of the court. Stripped OF their legal
verbiage, the substance of the instruc'
tions asked for were as follows:
That this is a suit of breach Of prom
ise of marriage, and If the jury finds
evidence that there was a mutual prom
Use OF marriage between plaintiff and
defendant, and If the defendant was
married thereafter, it constitutes q
breach of promise. II plaintiff and de-
fendant are found to have had illicit
intimacy before the promise of mar
riage, that would constitute no defense,
and If the plaintiff had illicit intercourse
with others. and defendant knew it be-
fore he made the promise, it was no de-
tense. The burden Of proof that there
was semblRnce of q maErisge contract,
with the understanding that il was
not to be o contract carried out, rested
upon the defendant, and the jury must be
convinced by a preponderence of evil
dence that euch was the fact. The Jury
must find for plaintiff, unless they find
that there was mutual agreement not
to carry out the eembance OF contract
and to find it by preponderance OF evil
dence. The conduct OF plaintiff and de-
fendant after making the contract was
to be considered. If promises are found
to have been repeated by him before
Mrs. Blackburn and Major Moore, the
fact OF q secret understanding must be
proved by preponderence of evidence,
and the fact of carnal knowledge be-
tween the two ia not defense. The
secret marriage TO another after the
same promises to marry and before
others, does not constitute q defense,
but an aggravation of damages. II the
jury finds that the plaintiff was chaste.
save with the defendant, and that at
tempts to impeach her character were
made, not in good faith, but to coRtrive |
a defense, they are to consider the fact |
as sn aggravaCion Of damages.
The prayers of the defense for instruc-
tions, which were read by Mr.. Shelby, |
were fewer in number. They were in |
substance as follows: Before the plain.
tiff can recover damages. the jury must |
belieVe. that % -ooAt-aoO--wzs rIiUureu into
between the plaintiff and defendant by
which they agreed to become husband
and wife. If there was no actual agree
ment, statements made in the presence
of others do not constitute a promise OF
marriage, and ii made pursuant to
mutual understanding. are not to be
considered evidence. The admitted inn
proper relations between the plaintiff
and the defendant aud his support OF
her are not to be considered evidence OF
an agreement of marriage.
The burden of proof of the engage
ment rests on the plaintiff. The deien-
dant having been married on April 90,
1893, an agreement made to marry there
after is void. If the jury finds that q
contract to marry was entered into. and
if they further believe that the plaintiff
was guilty of laecivious conduct with
other men, such fact being unknown
to the defendant, he was by it realeased
from his obligation to carry out the con-
tract, and this is so whether at the time
of his refusal he knew of such conduct
or not. If the jury 6nds that there was
a contract to marry and the plaintiff, by
threats or conduct, made the defendant
believe his life Was In danger from her,
he was excused from fulfilling the con.
tract, but find that the plaintiff was not
without fault with other men, the ver-
dict should be for the defendant even il
he knew of her fault.
The first argument for the plaintiff
was made by Attorney w. G.. Johnson,
and Mr.. Shelby followed with the open
ing argument for the defense.
During the argument of Attorney
Shelby, Judge Bradley inquired the
meaning of "lewd and lascivious con-
duct" the terms used in the prayers Of
the defense. Mr.. Shelby responded that
no man waa bound to marry woman of
unchaste life, nor one whose conduct
was such that she might be presumed to
be willing to commit the action OF illicit
intercourse if the opportunity WAS Of
fered.
"Would you mean such conduct as
Mr.. Julian testified to?" the Judge in.
quired.
"Yes," responded Mr.. Shelby.
''Do you think person of that char
acter only needed an opportunity 20
commit acts of unchastity ?"
"Yes."
''Suppose that he knew of such con-
duct with five parties and the knowl-
edge of it with q sixth afterwards came
to be known, would that change the
legal aepect of the case ?" asked the
judge.
Mr.. Shelby replied that he would not
90 to that extreme; that there might be
such conduct long past and atoned foI
and repented of.
There was little passage between
Mr.. Shelby aud Mr.. Wilson regarding
the part which Miss Pollard's threats
which would justify man in securing q
divorce would also justify him in break
| ing q contract to marry.
Mr.. Wilson contended thGt this rule
would not apply in the case because o.
the defendants misconduct and be-
cause OF the exhibition by him of .
purpose to avoid contract, and that nc
threats made after che second marriage
could Justify ruling for the defendant
The argument was closed by Mr.. Will
son for the plaintiff. All the speeches
were on the legal points involved in tht
prayers and the counsel agreed that il
some respects the case was d unique one
The argument was significant in show
ing that the defense does not intend tC
set up as legal plea that any of thu
promises made by Colonel Breckinridgt
to Miss Pollard were under duress exer-
cised by her with pistol,
Judge Bradley reserved his decision
on the constructions until Monday
although be intmated that he coulC
grant one Of the prayers for the plaintiff