The Washington times., 1894-04-08
=. K :e.:dant's Marriage With Mrs. Wing
Not Good Defense.
THAT ESJUDGE BRADLEY'S VIEW
Arguments by Counsel on Both Sides on the
Prayers for Instructions to the Jury-Ds-
ci.ion to Be Rendered To-morrow-Eeveral
Days of Talk in Prospect

ficiently attractive to draw out even the mem
bers of the bar to Judge Bradley's court yes
terday morning. Neither of the principals IL
the case were there. Their lawyers bristleC
with leg.l documents when they entered
while in their wake followed sundry coloret
porters laden with stacks of calf-bound
tones.
The proceedings were began by Mr.. Cal
deron Carlisle. who read to the court the
prayers of the plaintiff for instructions to the
Jury. Fourteen distinct instructions, cover
ing every possible aspect of the case, were
asked of the court. Stripped of their legal
verbiage the substance of the instructions
asked for are as follows:
That this is a suit for breach Of promise oi
marriage, and if the jury find from the evi'
dence that there were mutual promises oi
marriage between the plaintiff and the defend
ant, if the defendant was married thereafter
1t constitutes breach of promise.
II the plaintiff and defendant were found to
have had illicit intimacy before the promise
of marriage. that would constitute no defense
and if she had illicit intercourse with others
and he knew it before he made the promise II
was not defense.
senbance of marriage contract with an
understanding that there was not to be con-
tract carried out rested upon the defendant
and the jury must be convinced by prepon-
derance of the evidence that such was the
fact.
The jury must find for the plaintiff unless
they find that there was mutual agreement
not to carry out the semblance Of a contract
and find it by a preponderance OF the evil
dence: also. unless they find that the
plaintiff did not accept the promises from the
defendant and knew at the time that they
were not made in good faith, but agreed with
him that they should not be binding, and
this must be shown by preponderance OF
evidence.
If he made the promise in bad faith and
she accepted it in good faith, no defense wns
constituted thereby. In determining whether
she understood the contract to be in good
iaith the conduct of plaintiff and defendant
at and after the time of making the contract
are 10 be considered. If the promises are
found to have been repeated by him before
Mrs. Blackburn and Major Moore, the TACT Of
. secret understanding must be proved by a
preponderance OF the evidence, and the fact
of carnal knowledge between the two is not a
defense.
II the jury believe the plaintiff to be un-
chaste and that the defendant knew of her un-
chastity does not constitute defense. If the
Intimate with Rhodes. and thereafter he prom
ised to marry her, that intimacy does not
form justification for breach of contract.
The secret marriage to another after some
promises to marry and before others does not
constitute a defense, but an aggravation of
damages. That If he was married April 26,
kept that marriage secret. and therefore en-
tered into the contract, that marriage is not a
defense.
The jury are to consider all the relations of
the parties. the prospective improvement i'll
her circumstances by the promised marriage,
the circumstances of the contract and wrong
committed, and may give exemplary damages.
Announcements of the contract to third
parties. with the additional humiliation to the
plaintiff which its breach under such circum-
stances constitutes. may be considered an
aggravation OF damages. The ability or in
abilitl of the defendant to pay cannot be con-
sidered mitigating circumstance in award
ing damages.
Ii any jury finds that the plaintiff was
chaste, save with the defendant, and that the
attempt to impeach her character was not
made in good faith, but to contrive defense,
they are to consider the fact as an aggravation
of the damages.
The prayers of the defense for instruction,
which were read by Mr.. John I. Shelby. were
fewer in number. They were in substance
as follows:
Before the plaintiff can recover damages
the jury must believe that the contract was
entered into between the plaintiff and de-
iendant by which they agreed to become hus-
band and wife. If there was no actual agree
ment. statements made in the presence of
others do not constitute promise OF mar
riage. and, il made pursuant to mutual under
sanding, are not to be considered evidence
The admitted improper relations between the
plaintiff and the defendant and his support Of
her are not to be considered evidence of an
engagement.
During the argument Of Attorney Shelby,
Judge Bradley inquired the meaning Of 'lewd
aud lascivious conduct" the term used In the
prayers of the defense.
Mr.. Shelby responded that no man was
toand to marry woman of unchaste life,
ror one whose conduct was such that she
might be presumed to be willing to commit
acts of illicit intercourse if the opportunity
were offered.
Would you mean such conduct as Mr..
Julian testified top the Judge inquired.
Yes responded Mr.. Shelby, II should
think person of that character only needed
an opportunity to commit acts of unchas-
ity."
Suppose that he knew of such conduct
with five parties and knowledge OF 1t with
sixth afterward came to him. Would that
change the legal aspect of the case?" asked
the Judge.
Mr.. Shelby responded that he would not go
to that extreme; that there might be such
conduct long passed and atoned for and re-
pented of. There was a little passage be-
tween Mr.. Shelby and Mr. Wilson regarding
the part which Miss Pollard's threats should
play in the case. Mr.. Shelby said that
threats which would justify man in securing
a divorce would also justify him in breaking
contract to marry. Mr.. Wilson contended
that this rule would not apply to threats
made because of the defendants misconduct,
and because of an exhibition by him OF
purpose to evade the contract. and no threats
made after the secret marriage could Justify
a ruling for the defendant.
The argument was closed by Mr.. Wilson for
the plaintiff.
All the speeches were on the legal points in
volved in the prayers, and the counsel agreed
that in some respects the case was unique
one. The argument was significant in show
ing that the defense does not intend TO set up
as legal plea that any of the promises made
by Col. breckenridge TO Miss Pollard were
under duress exercised by her with pistol,
Judge Bradley reserved his decision on the
Instructions until Monday, although he inti-
mated that he could not grant one OF the
prayers for the plaintiff, and said in speaking
OF another prayer: Il see no reason to change
my opinion that the existing marriage at the
time he made the promise. If he made 1t. is
no defense"
The length OF the arguments was a matter
discussed By the Judge and attorneys, and
while Judge Bradley thought five hours for
side would be sufficient, the lawyers wanted
more time. No conclusion was reached.
~
McKane's Appeal Docketcd.
The appeal case Of John Y. McKane, the
G -veeend politician, from the order of Judge