Logan v. Gray

1 Tapp. Rep. 69

• Court: Belmont County Court of Common Pleas
• Decided: November 15, 1816
• Status: Published

Opinion

President.

As to the 1st point: the evidence goes to prove a promise of marriage, generally. The inclination of my mind is, that such evidence will not support a count in which the promise is laid either to marry on request or at any particular time; but that the proof must strictly conform to the allegation ; the cause may progress, however, and we will reserve this point, if counsel think proper to move it hereafter.

As to the 2nd. point: I am of opinion that the evidence is admissible. The general rule of law is, undoubtedly, as stated by Mr. Wright: in order to let in evidence of special damage, it must be averred in the declaration ; but this kind of action, and this kind of evidence, may form a reasonable exception to the general rule; for in this form of action it would seem difficult to prove that, in point of fact, the defendant was the father of the plaintiff’s child; and I do not understand that it is attempted to be so proven. That she had a child, and that the defendant treated the child as his own, may be given in evidence to prove the intimacy of the parties, the extent to which her affections were engaged by his attentions; and it seems as apposite as evidence of his conversations and conduct in other respects toward her and her friends. Perhaps even a promise of marriage may be implied from a combination of such circumstances. If it might be so implied, then, surely, the evidence is admissible under a general count, to prove an implied promise.

There is much less doubt on the third point; for the fact, to be proven, can only be proven by parole evidence. The question is not whether persons of the names of A. B. and C. D. intermarried on a given day; you might produce a record of the marriage of Robert Gray, and be no nearer proof of the fact of this defendant’s marriage than you would be without the record. The question is, did this defendant marry at a particular time F It is a question of identity, to the proof of which a record in the usual form does not reach, and which can only be answered by those who were eye witnesses of the ceremony, or were in a situation to know the fact. Suppose that no record had been made of this marriage F The persou who performs the ceremony had neglected his duty; but the marriage remains valid, and susceptible of proof.

The defendant then proceeded with his evidence.

Yerdict for the plaintiff, 81000 damages.

The defendant gave notice of appeal. The point reserved was not moved. Judge Alexander did not sit on the trial, the defendant being a connection of his.