Evening star., 1894-04-14

statements were made by the plaintiff and
defendant in the presence of or to third
persons that they were engaged to be mar
% ruea 10 each other or that they intended to
marry each other, that such statements
were made pursuant to a prior understand
/ ing and agreement between the plaintiff
ana defendant for the purpose OF. deceiving
such third persons, and were not made in
good faith, such statements are not TO he
taken as constituting evidencing the
existence or contract to marry
The jury are instructed that the burden
or proof to establish the contract sued on
is UPON the plaintiff, and that they should
| md for the defendant, unless they believe
from all the evidence in the case that IL
was mutually agreed between the plaintiff
and the defendant that they were in fact
to be married
Even If the jury should find from the evi
dence that contract of marriage was en-
tered into between the plaintiff and the de-
| fendant yet, IL they further find from the
evider &c that prior TO that time the plain
! tin had been guilty of lewd and lascivious
/ conduct with other men, and that such ia CT
was unknown to the defendant then the
defendant was not bound by such contract
| but was by said fact of prior lewd and
lascivlous conduct, If IL had existed, re-
! leased from any obligation to marry the
plaintiff, and had the right 20 refuse TO
| perform such contract; and this is so by
reason of said fact II IL had existed
whether at the time of his refusal or not
he knew OF such prior lewd and lascivious
conduct
If the jury shall fird from the evidence
that the plaintiff had been guilty of lewd
and laseivious conduct with a man named
or called James c. Rodes, and that the de-
( fendant had condoned such acts with said
Rodes yet. If they find from the evidence
that the plaintiff had been guilty of lewd
and lascivious conduct with some other
man, the verdict must be for the defend
ant, even If the knowledge of such conduct
did not come to the defendant until after
his refusal to marry the plaintiff.
hA irnrx ffta1
there was a contract of marriage between
the plaintiff and the defendant and also
fail to find that the defendant has been re-
neved therefrom, they may, in mitigation
OF the damages, consider the PLAINTIFF S
general character. If the same was bad,
and they may also consider, for the said
purpose. the plaintiffs admitted want of
virtue. unless they believe that she was
seduced by the defendant
As to the Burden of Proof
Judge Bradley said the question was
whether there was a contract made by
the defendant with the plaintiff in good
faith on her part. Then even if there were
mental reservation on his part the con-
tract was binding. In respect to the bur
den OF proof the judge said that if the
amount and degree Of evidence necessary
to support the plaintiffs allegation was
found to exist then the burden of proof
was shifted to the defendant to establish
defense to or release from such promise
Further commenting on the Instructions
Judge Bradley said that any knowledge
the DEFENDANT might have of previous err
rors on the part of the plaintiff would be
condoned so far as he was concerned by
promise of marriage
As to any matter of defense that might
have been considered to have arisen out of
the fact that the defendant was married at
the time that any one of these were promises
made Judge Bradley read the instructions
on that point. He quoted then from A Mass
achusetts authority to the effect that the
defendant could not thus escape response
blity and that damages to the plaintiff
were not lessened by such circumstance
To be matter of defense in this case i'm
proper conduct on the plaintiffs part must
be more than mere girlish improperly.
There must be some improperly of a gross
er character than that intimated by the
deposition of Mr.. Julian, who testified TO
the mock-marriage.
Mr.. Julian, he said testified that the
plaintiff had been drinking and that he per-
formed the mock marriage ceremony be-
tween plaintiff and Owen Tinsley: that & f.
terward he or some one suggested that II
was customary for married people to retire:
that thereupon they had gone upstairs and
she had lain on the bed, and he sat down
on 1t. That Was all that occurred, so far
as the testimony disclosed. There was no
such gross improperly either In the occur
FENCES testified to by Mr.. Rozell.
As TO Damages.
If the evidence satisfied the Jury that
there was no contract OF marriage they
would not be troubled by some of the in
structions, for they would not have to con-
slider them; but if they We're satisfied that
there was such a contract, then there were
certain elements to be taken into considera-
toE in computing the amount of damages
He referred to the instructions PRAYED for
by the plaintiff and granted respecting the
injury done to the plaintiff.
Compensatory damages he said. meant
such an amount as would compensate the
plaintiff for the injury she had received
By exemplary damages was meant some
thing imposed by way of penalty for gross
wrong done by the defendant.
To sum ii all up, if they failed to find any
evidence that contract Of marriage was
made, or that II il was made. but there
were facts which relieved the defendant
from its performance, they should find a
verdict for the defendant; IL they found that
a contract was made and there were no
facts relieving the defendant from its per
formance. they should find for the defend
ant. At 3O6 pm. the jury took the case
and retired.
The Jury Retired.
At 307 o'clock the judge finished his
charge and the jury retired.
COLD WLCO he FOR COXEY.