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Breach of

3rd paragraph amounted to £1000, the whole of which was contract to required for such expenses.

contribute to the expenses of floating a company.

Claim for compound interest.

Defence.

8. The defendant, on or about the 28th August, 1871, paid the plaintiffs £350, and on or about the 6th March, 1872, £150; but, although all conditions have been performed and all times have elapsed and all things have been done and happened necessary to entitle the plaintiffs to be paid the whole of the said £1000, yet the defendant has not paid to the plaintiffs the remaining £500, nor any part thereof.

9. Accounts have been rendered by the plaintiffs to the defendant half-yearly, charging him with the said £500 and interest thereon, with half-yearly rests, which by agreement and by the course of dealing between the plaintiffs and the defendant, the defendant is liable to pay.

The plaintiffs claim :

£658 158., together with interest thereon at 5 per cent. per annum from the 30th June, 1877 (the date of the issuing of the writ), until judgment.

Statement of Defence.

1. The defendant denies the allegations in paragraphs 1, 2, and 3 of the statement of claim. The facts as to the matters therein referred to are as follows: In the year 1871, the defendant agreed to become a member of a syndicate then being formed by the plaintiffs for the purpose of sending certain ships to load guano at or near the coast of P., upon the express condition, amongst others, that the defendant should not be liable to any extent beyond the sum of £500.

2. The defendant denies the allegations in paragraph 4 of the statement of claim. If any of the matters therein alleged be true, the defendant had never any notice or knowledge thereof.

3. The defendant denies the allegations of paragraphs 5, 6, and 7 of the statement of claim. If any of the matters therein alleged are true, the defendant never had any notice or knowledge thereof.

4. The payments of £350 and £150 referred to in the 8th paragraph of the statement of claim were made in pursuance of the agreement mentioned in paragraph 1 of this defence, and

not otherwise. Except as aforesaid, the defendant denies the Defence. allegations of paragraph 8 of the statement of claim.

5. The defendant denies the allegations of paragraph 9 of

the statement of claim.

6. The alleged cause of action did not accrue within six years Statute of before the commencement of this action.

Reply.

1. The plaintiffs join issue upon the statement of defence. 2. In further reply to paragraph 6 of the statement of defence, the plaintiffs say that within six years before the commencement of this action, the defendant made an acknowledgment by part payment, and by a letter signed by the defendant, that the plaintiff's cause of action was in existence and unsatisfied.

Limitations.

Reply.

Breach of Promise of Marriage («).

Claim by Plaintiff for Breach of Promise to Marry.

1. The plaintiff resides at defendant is a law stationer in

and is a spinster. The Breach of Street.

promise to marry.

Promise to marry need not be evidenced by writing.

(a) A promise to marry on which an action is based, need not be evidenced by any writing, and may be proved entirely by parol, though it is well to remember that by the 32 & 33 Vict. c. 68, s. 2, it is provided that "no plaintiff in any action for breach of promise of marriage shall recover a verdict unless his or her testimony shall be corroborated by some other material evidence in support of such promise." As to what amounts to corroboration within this section, see Bessela v. Stern, 46 L. J. 467. An infant may sue in such an action, but is not liable to be sued. (Holt v. Ward, 2 Str. 937.) The action falls within plaintiff the rule actio personalis moritur cum persona, and cannot be maintained essential. by an executor or administrator. (Chamberlain v. Williamson, 2 M. & S. 408.)

Corrobora

tion of

The averments in the claim are generally very simple. There is first a Averments statement of the agreement to marry, and then in another paragraph a in the statement of a breach of such promise, as that the defendant had married statement another, or that the time agreed on for the marriage had elapsed, and the of claim. defendant refused to complete the contract, or that a reasonable time had elapsed. The claim will also generally contain an averment as to the anguish endured by the plaintiff, and the loss and damage she has suf

fered, but this averment is not essential. The jury in assessing damages Measure of may take into account the position in life and means of the defendant, damages. and also the injury to the plaintiff's feelings. (Smith v. Woodfine,

1 C. B. N. S. 660; Berry v. Da Costa, L. R. 1 C. P. 331.)

Breach of promise to

marry.

when a defence.

2. On or about the 25th of December, 1876, the defendant asked the plaintiff to become his wife, and upon her consent, the plaintiff and the defendant agreed to marry each other, and the plaintiff has always been ready and willing to marry the defendant.

3. The defendant has, however, refused to perform his said agreement, and has married another person.

4. Alternatively, the plaintiff says that she and the defendant agreed to marry one another within a reasonable time, and a reasonable time in that behalf had before this action elapsed, and the plaintiff had been always willing to marry the defendant, yet the defendant has refused to marry the plaintiff.

The plaintiff claims £500 damages.

Statement of Defence.

1. The defendant does not admit that he asked the plaintiff to become his wife, or that she consented thereto, or that the

Among the defences that may be set up are: 1. That the defendant never promised to marry the plaintiff; 2. That he promised conditionally, and the condition has not yet been fulfilled; 3. That since the promise the defendant has discovered that the plaintiff has been guilty of Immorality gross immorality or depraved conduct, of which he or she was ignorant of plaintiff, at the time of the engagement (Irving v. Greenwood, 1 C. & P. 350); 4. That the plaintiff has been guilty of material misrepresentation as to the real circumstances of his or her family, and his or her previous life (Wharton v. Lewis, 1 C. & P. 529); 5. That the plaintiff has exonerated When an the defendant from his or her promise. Such an exoneration may be exoneration implied from the demeanour and conduct of the parties. The total cessaby the tion of intercourse and correspondence for two or three years is evidence plaintiff for the jury on a plea of exoneration, although on the last occasion they will be were seen together the plaintiff refused to give up the defendant's implied. letters, saying it would be like giving him up altogether. (Davis v. Bomford, 6 H. & N. 245.) 6. The Statute of Limitations, which, in the case of this action, is a bar after the lapse of six years from the promise. It has been decided, however, that bodily infirmity supervening after the promise and rendering it dangerous to the defendant's life to marry, is no answer to an action for breach of promise to marry (Hall v. Wright, E. B. & E. 746, 765); so on the authority of the last case, insanity in the this action. plaintiff existing unknown to the defendant previously to his promise, was held to be no defence (Baker v. Cartwright, 10 C. B. N. S. 124); so a pre-contract on the part of the plaintiff to marry another person, which the plaintiff concealed from the defendant at the time of his promise, is no defence to the action without fraud (Beechey v. Brown, E. B. & E. 796); so it is no defence that the defendant is a married man, and was married when he promised, provided the plaintiff was ignorant of the fact. (Millward v. Littlewood, 5 Exch. 775.)

What will not constitute a

defence to

plaintiff and defendant agreed to marry each other as respectively and alternatively alleged in the 2nd and 4th paragraphs of the plaintiff's statement of claim, or that they ever agreed to marry each other.

2. The defendant further says, that even if he did agree to marry the plaintiff as alleged, such agreement was by mutual consent of the plaintiff and defendant, and before any breach thereof, rescinded.

Breach of Promise to Marry, and Breach of Special

Agreement (a).

of claim. Breach of

marry.

1. Previously to the date of the agreement next herein- Statement after mentioned, the plaintiff and defendant had agreed to marry one another, and by an agreement bearing date the promise to 17th of December, 1872, and to which the plaintiff craves leave to refer as part of this statement, the defendant agreed with the plaintiff to become his lawful wife on or before the 1st of January, 1875, or in default thereof and by way of compensation to the plaintiff, and in consideration of his agreeing to wait until the death of her parents to make the defendant his lawful wife, to pay to the plaintiff the one-third of any properties or moneys which she (the defendant) might receive under the will of her parents, jointly or separately.

2. By the said agreement, and for the considerations aforesaid, the defendant further agreed to pay to the plaintiff an annuity of £20 per annum, commencing from the year 1875, the said annuity to be doubled each year until the defendant should become the lawful wife of the plaintiff.

3. Before the commencement of this action, the defendant received, under the will of her parents, jointly and separately, certain properties and moneys.

4. The plaintiff has always been ready and willing to marry the defendant, yet the defendant has neglected and refused to marry the plaintiff, or to pay him the said one-third as agreed, and the annuity for the year 1876, or either of them.

(a) The statement of claim and statement of defence here set out are taken from the pleadings in Heap v. Marris, 46 L. J. 76. The statement of defence is scarcely a model so far as brevity of statement is concerned ; but the Court refused to strike it out as embarrassing, and it is thought it may usefully be given as showing the greater latitude of statement allowed when a merely equitable defence is pleaded.

P

Statement

of defence. Undue influence.

The plaintiff claims :

£

as damages for the non-payment of the one-third of such properties and moneys and of the said annuity; or in the alternative, damages for breach of said promise to marry.

Statement of Defence (a).

1. The defendant admits that in the year 1872, she signed a memorandum of agreement between herself and the plaintiff. The defendant says she never made any agreement with the plaintiff relating to the claim of the plaintiff set out in his statement of claim other than by the said memorandum of agreement.

2. The defendant does not admit that the terms of the said memorandum of agreement are set out in the 1st and 2nd paragraphs of the statement of claim, or either of them.

3. As to the claim of the plaintiff to one third portion of whatever properties or moneys she might receive or has received under the will of her parents, jointly or separately, and to the annuity as set forth in his statement of claim, the defendant says that if the said memorandum of agreement is such as is set out in the 1st or 2nd paragraphs, or either of them, in the statement of claim, the said memorandum of agreement was signed or entered into by her under the circumstances hereinafter set forth in the next nine successive paragraphs.

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4. The defendant is the only child of the late Mr. gentleman of wealth and position, and has always during the lifetime of her parents, resided with them in L-shire. Her mother died in the month of October, 1873, and her father in the month of July, 1875. The defendant was, as the plaintiff ever since the year 1859 well knew, wholly dependent upon her father in his lifetime for her maintenance, and after his death for such provision as he might make for her by will or otherwise.

5. In the year 1855, the plaintiff, who then resided at L., and whose position in life was much inferior to the defendant's, and who knew that the defendant's father was a gentleman of

(a) See note, p. 209, as to this form.

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