Opinion
03-26-1812
Milstead v. Redman
Wirt, for the plaintiff in error. No counsel on the other side.
[Syllabus Material]
The declaration in this case was in the following words; " Jane Redman complains of Joseph Milstead, in custody, & c. for that, on the day of, in the year of our Lord, in the Parish of, and County aforesaid, he, the said Joseph Milstead, then being sole and unmarried, in consideration that the said Jane, she being also then sole and unmarried, at the special instance of the defendant, had then and there agreed and undertaken, and faithfully promised the said defendant, that she, the said Jane, the plaintiff, would take the said defendant to be her husband within the space of months then next following, he, the said defendant, undertook and then and there faithfully promised the said plaintiff, Jane, that he the said Joseph, the defendant, would take to his wife the said Jane, the plaintiff, within the space of months, then next following; and the said Jane, the plaintiff, confiding in the said promise and undertakings of the said defendant, hath always, from thence hitherto, refused to contract matrimony with any other man whatsoever, and still remains, and is sole and unmarried, and always, from the time of making the promises and undertakings aforesaid, for the space of months, then next following, and always from thence afterwards hitherto, she, the said plaintiff, being sole and unmarried, was, and is ready to take to her husband the said defendant, and very often within that time, offered to take, to be her husband, the said defendant; yet the said defendant, not in the least regarding his many promises or oaths, but contriving, and fraudulently has deceived the said plaintiff, and within the time aforesaid, nor at any time since, hath the said defendant taken to wife the said plaintiff, although often required so to do, but he wholly hath refused, and still doth refuse to take her, the plaintiff, to wife, whereby she, the plaintiff, is damaged one thousand dollars, and therefore she sues."
Plea the general issue.
In the County Court of Amherst, in which the suit was instituted, the defendant obtained a continuance at his costs in November, 1805. A verdict was found for the plaintiff in March, 1806, for one thousand dollars damages; whereupon a new trial was granted the defendant, upon condition of his paying the costs of that trial. At May term following, the cause was again continued on his motion, and at his costs. At August term he moved for a further continuance, on the following grounds, to wit; " that Mary Deversier was a material witness for his defence, and that he could not go to trial without her testimony; also, that Thomas Coleman was a material witness in this case; that he could not go safely to trial without his evidence; that they were served with a subpoena in this case to this term by the defendant, who had given the subpoena to the sheriff, but that the same was given back to him to serve at the sheriff's request; and they did, on the back, acknowledge the same; which was admitted before the Court by the plaintiff; and the defendant was sworn in Court, and on oath stated the above facts; also John Deversier, husband to the said Mary, being sworn, stated on oath, the said Mary was so ill with a bad fever, she was unable to attend Court, and that this was the reason she did not attend." The Court overruled the motion; to which opinion the defendant excepted. Another verdict was then found for the plaintiff, assessing his damages to 750 dollars. Judgment was entered accordingly; which being affirmed by the Superior Court of law, the defendant obtained a writ of supersedeas from a judge of this Court.
The following errors were assigned in the petition. First, that the declaration does not set out a cause of action. The action purports to be one for a breach of marriage promise: but, by reason of the blanks in the declaration, nothing is so definitely charged as to present a cause of action.
1. The promise is laid to marry the plaintiff within [blank] months: and the declaration proceeds to state, that the plaintiff remained sole from the time of the promise aforesaid for [blank] months: but there is nothing to identify the two periods; not even the formal particle " said:" and hence it results, that there is no breach of promise laid in the declaration.
2. This action will lie in three cases only; 1st. Where the promise is not restricted to a marriage within a given period; in which case the law construes it to mean a reasonable period; 2dly. Where the promise is to marry within a limited time; in which case the action lies as soon as the time expires; 3dly. Where, upon either of those promises, the defendant marries another; in which case the action lies immediately on the event of such marriage. Here the declaration does not pretend to make the first case, of a promise to marry within a reasonable time. It does not pretend either to make the third case, of a marriage to another; and, for ought that appears to the contrary, the promise may still be executed. It attempts to make the second case, of a promise to marry within a limited time; but there is no express averment that the time has expired; nor is there any thing which, by grammatical construction presents a necessary inference that the time has expired although, if there were such inference, it is presumed that would not supply the place of a direct and positive averment. The time being blank, and the defendant still not charged to be married, there is not only nothing on the face of the declaration, to show the promise broken, but nothing to show that it may not yet be fulfilled.
Secondly, the petitioner having, before the inferior County Court, brought himself strictly within the rule of law, was entitled to a continuance; and the denial of a hearing on his evidence, was a denial of one of the first privileges of a free man, as secured by the bills of rights.
Affirmed Judgment.
Wirt, for the plaintiff in error.
No counsel on the other side.
OPINION
Thursday, March 26th, the Court affirmed the judgment.