INTERESTING BREACH OF FROM SE CASE.

Greymouth Evening Star, Volume XXXI, 25 November 1901, Page 4

INTERESTING BREACH OF FROM SE CASE.

A Returned Trooper as Defendant.

A sympathetic Jury for the Soldier

Dunedin, November 21.

A breach of promise case engaged the attention of Mr Justice Williams and a fury of four to day. The parties were Miss Mark of Alexandra, and Trooper Culling, of the First Now Zealand Contingent. Plaintiff's case, as stated, was that the parties became engaged at Alexandra prior to defendant leaving there to join the First Contingent in camp at Wellington. He pressed for an engagement, which she accepted. Ho wrote to her from various places in Africa, expressing himself in most affectionate terms, and concluding with “ Yours for ever, and until death.” He got into the thick of the lighting from the very start, and was alongside young Booth, of Oamaru, when the latter was killed by a shell. He marched wit i French to relieve Kimberley, then became ill, and was invalided home. As soon as lie arrived he wired plaintiff, and immediately made for Alexandra, where the two were greatly affected on meeting. Defendant, then, it is stated, agreed .0 marry the plaintiff, but he went away, and failed to return The defence set up was that the defendant never promised to marry the girl, and if he did promise to marry before the breach he had become afflicted with a dangerous bodily disease or infirmity as a result of injuries received in South Africa, and by reason thereof it would be a grave danger to his health and life to enter the marriage state. Plaintiff’s solicitor characterised the latter part as an unfair defence to put in months after the case was set down for trial. 1

His Honor thought that it was not a fair defence to the action.

Mr Fraser (defendant’s solicitor) “Would you rule that, your Honor, in view of the fact that the decision in Hall v. Wright is absolutely discredited in Pollock on Contract. His Honour—“l think there is another way of upholding that decision, for reason other than given by the Judge. My view is this : A promise to marry is not a promise to carry out the duties of the marriage state at all. It is a contract to enter into a valid contract. When that valid contract is entered into, the promise has been performed, and there is no further obligation on either party under the original promise to marry. For instance, suppose there is a promise to marry. The marriage ceremony is performed. There is nothing invalid in the performance of the marriage ceremony if the parties are single, and there is nothing to prevent" a valid contract of marriage being created by the marriage ceremony. Then as soon as the marriage ceremony is performed, there is no further obligation under the prior promise to marry. As soon as the marriage ceremony is performed, either party could leave the other at the church door and go away completely, and there would bo no broach of promise to marry. The contract here of which there is a breach, is a contract to enter into a valid cmtract of marriage. This does not prevent him from entering into a valid contract of marriage.” Mr Fraser—“No, of course. A man could do that on bis death bed.” His Honour —“Just so. I think the reasoning is unanswerable.” Mr Fraser said that of course she could move for her conjugal rights separately. His Honour—“That is another matter.” Mr Fraser said that was so, but in deference to bis Honour’s views he would not urge the matter furiher. The Plaintiff said that she was twentytour years of age. She denied that during Culling’s absence she walked out with anybody else, and she never said that Culling was no boy of hers. She did not lead the life of a nun while Culling was away, hut she did not allow young follows to see her home or anything of that sort. When Culling offered her marriage he put a Boer ring on her finger and said, "‘That is the engagement ring, and also a memento of the war.” She went to a solicitor to please herself, not under pres--' sure from her sister. She did not know there was any illness except weakness through fever. If told that medical men of position said that to marry would be to risk the defendant’s life, she would not

want to marry him. If he were an invalid, penniless, and dependent on charity, she would still marry him if she liked him. She would not marry him if it was to be at the expense of his health. Dra DeLautour, Thomas, Burns, and Coughtry testified that Culling was stifferftora the effects of the campaign, being m such a condition from neurasthenia that it would be highly imprudent for him to marry in his present slate.

The jury returned a verdict for the defendant.