
    Maria W. Morgan v. S. Yarborough.
    Reciprocal promises of marriage constitute a legal contract, and the party violating the contract is liable in damages. O. C. 1928.
    Promises of marriage to constitute a valid contract need not he in writing.
    To constitute a contract founded upon a promise of marriage there must have been an acceptance of the promise, but it is not indispensible that the proof of the acceptance be direct; it may he inferred.
    
      A man wlio Rad made a promise of marriage to a woman, would Re excused from a performanee of Ms promise, if she was of unchaste character, or if her general reputation was had, even without proving that such reputation was well founded, where he made the promise in ignorance of her reputation.
    APPEAL from the District Court of East Feliciana, Burke, J.
    
      Z. S. Lyons, for the plaintiff,
    contended : This is an action for a breach of promise of marriage. The plaintiff alleges, that on or about the month of December, 1.844, and at divers and sundry times, said time in said State of Louisiana,’’ the defendant undertook and faithfully promised to marry plaintiff &c. By an amended petition, allowed by court, the promise was alleged to have been reciprocally made. This amendment was properly allowed. It bases in furtherance of justice and the omission clearly a clerical error; for the form is copied from Chitty’s Pleadings. Defendant filed exceptions to the action The chief exception, and the only on.e I have time or inclination to notice,, is, “ That there is no legal cause of action known to the laws of Louisiana set forth in the petition. In support of this exception, articles 37 and 2308 of the Civil Code are relied on. The latter article provides, “ That every matrimonial agreement, (marriage contract,) must be made in writing before a notary public and two witnesses and it must be recorded. Surely, the “ matrimonial agreement” here mentioned is an entirely distinct matter from “ the matrimony, or promise, or agreement to many.” It seems clear, that this stipulation, and the subsequent prohibition in the code, has reference only to the property brought into, or acquired subsequently to, the marriage. The articles of the code, from 2309 to 2315 inclusive, all go to show this.
    That the marriage contact must be recorded, is equally obligatory ; and yet, if not recorded, it is binding as between the parties. Ford v. Ford, 2 N. S. 574. But the marriage itself may be agreed upon, contracted and entered into, and all the obligations, liabilities, and duties incurred, and visits in person, and property given without any written contact at all; as for example: 1. Mutual fidelity, support and assistance. C. C. 121. 2. The wife is bound to live with her husband. C. C. 122. 3. There exists the coramuuity of profits and gains. C. C. 2369, 2470, 2374, 2375.
    There are many other rights, both in regard to person and property, which can be claimed without any written agreement. Slaves proved to be paraphernal, and no written contract. 10 M. R. 188. Parol evidence received, when no inventory to prove that a wife brought real property into the marriage. 4 M. R. 603. The articles of the. code (C. C. 107,) and others cited by the exceptors, are merely directory; the marxlage is good, without their observance. 3 L. R. 35 ; 6 L.R. 463.
    Hence, the prohibitory enactment contained in article 2414 of the code does not sustain the view of the exceptors. Neither are they sustained by articles 2415, 2416, 2417, on which they seem to rely. We may here draw the distinction between what forms the basis, or cause of action, and what is merely incidental to it. A “ promise to marry” is one thing, and a “ marriage contract” is another. But the code contains an article which seems to place this question beyond a doubt, if any could exist in a rational mind; I refer to article 1928, No. 3. That such an action is contemplated by the code, is clear, from the foregoing extract; that the promise to many need not be in writing, and before a notary and two witnesses, seems equally clear. Besides, we have the article 2294 of the Civil Code, which, in a sweeping clause, gives the right of action to all persons who may be damaged or injured by another, and covers all “ torts” not otherwise specially provided for, in the code. Miller v. Holstein, 16 L. R. 389.
    It is upon the articles 2294 and 1924 et seq., and upon No. 3 of article 1928, that this suit is brought; and I humbly conceive, that there is a legal cause of action known to the courts of Louisiana, shown by the petition and amended petition on file in this case, — that the cause of action is set out with sufficient certainty. Code of Practice, 172, No. 3. 6 M. R. 402. 10 L. R. 219. 3 L. R. 292; 5 M. R. 7, — and that the court below did not err in overruling defendant’s exceptions.
    
      Stephen Yarborough, the defendant,
    undertook and promised to marry the plaintiff, Maria W. Morgan. This promise was accepted by plaintiff. She proceeded to New Orleans, and made arrangements for the wedding. The defendant broke and violated his promise to marry plaintiff, by marrying another lady, viz: Mrs. Buckingham, formerly Miss Bellman. The mutual promise to marry is as clearl/proven as in cases of this kind proof .can be made. Courts do not hold the parties in an action of this kind to the strictdetail proof required in ordinary monetary. contracts. But we think the proof in the reeord is abundant and to the point, and cannot be evaded.- The breach of promise, by defendant’s marrying the lady referred to, being an “ active breach,” by whieh he placed out of his power to comply with his undertaking, no putting in mora was necessary. C. C. 1925, 1926. 2 Chitty’s Plea.
    The defendant, to get rid of the consequences of his injustice, has resorted to a course, unfortunately but too common with such men, which has been signally rebuked by the verdict of a jury, and wliich it is hoped will find no favor in this honorable court. He charges upon the lady “he once was willing to make his wife !” (and attempts to support those charges by testimony,) with conduct, such as even the most abandoned of women would not be guilty of. These charges have been fully and laboriously investigated in the court below, and before a jury of the friends and neighbors of Stephen Yarborough ; and, after 'a trial of more than two weeks that jury repudiated the charges and gave a verdict of one thousand dollars damages against the defendant.
    Will this court, after the repeated declarations that the verdict of a jury will not be disturbed, unless manifestly erroneous, set aside this righteous judgment. Surely your honors will receive reasons more cogent than any contained in the labored brief of defendant. The court will observe, that the record contains all the evidence adduced on the part of defendant, both that received and that rejected by the court. A perusal of that evidence, and the rebutting testimony of the plaintiff in support of her character, must satisfy the court that the verdict of the jury should not be disturbed, and this case be sent back for another long, tedious and disagreeable investigation. The plaintiff proves an honest and irreproachable character by witnesses who knew her, and who are, many of them, well known.
    
      Muse and Merrick for defendant,
    contended: The first and the principal ground relied on in the exceptions, as the court will perceive, is this : That “ there is no legal cause of action known to the laws of Louisiana set forth in said petition.” Viewed as an action for damages resulting from the non- j performance or breach of an ordinary contract (and in this sense it is presumed ! the court will consider it, under article 87 of the Civil Code, which declares ¡ “ that the law considers marriage in no other view than as a civil contract,”) the ( original petition does not contain a single allegation, in the opinion of counsel,! whieh would, if true, constitute a legal claim for damages. There is no allega- j tion that there was any contract or mutual agreement between the parties,; which was equally binding upon both, or which gave to either the right oil judicially enforcing a performance; nor is it alleged that a performance was I ever demanded prior to the institution of the suit by the plaintiff, nor before ! the subsequent marriage of the defendant to Mrs. Buckingham, although more i than five months had elapsed from the time (December, 1844,) when it is j alleged the promise was made up to the time (May 29th, 1845,) when the ¡ marriage of the defendant to Mrs- B. took place; and there being no time \ fixed (at least none is alleged,) when the marriage to Mrs. Morgan was to be consummated, it was, of course, demandable instanter. Neither is it alleged in the plaintiff’s petition that any promise or agreement was ever made between plaintiff and defendant, clothed with the forms prescribed by the law of Louisiana for agreements upon the subject of matrimony. By article 2308 of the Civil Code it is declared, that “ every matrimonial agreement must be made by an act before a notary and two witnesses. The practice of marriage agreement under private signature is abrogated.” This provision of the code, although it is found in the title and chapter, the general dispositions of which relate to the property of the spouses, is nevertheless too broad and comprehensive in its terms to be limited and applied exclusively to their property, as is humbly conceived by defendant’s counsel. And, indeed, the reason and supposed policy of the law in requiring matrimonial agreements to be clothed in the form prescribed, would, it is believed, apply with equal if not greater foree to the marriage agreement by which the parties bind themselves to become, at a future period, the partners tor life of each other, than to the agreements which they might make relative to their property. It is not contended that a marriage agreement, in whatever form the parties may adopt, whether verbal or written, by public or private act, would not be valid when consumated by the actual Marriage and cohabitation of the parties; but, where no marriage has taken place the laws of Louisiana have provided no judicial remedy for agreements upon the subject of matrimony, whatever may have been the object of those agreements, unless they have been made in the form prescribed by article 2308 of the Civil Code. It would be difficult to conceive that the law-maker had attached greater importance to the property of the spouses than to the obligations which they enter into, by which they agree to become the partners of each other for life ; nor would it be less difficult to come to the conclusion that the vinculum legis might be formed verbally, or by act under private signature, in reference to the marriage itself, which ought, it would seem, to be regarded as the primary and principal agreement of the spouses, whilst the law refuses to recognise their agreements upon the subject of their property, which is but an incident, and secondary to the marriage agreement itself, unless made in authentic form.
    A distinction has been drawn by the learned judge who presided at the trial of this cause, between “ an action for a breach of marriage promise,” and “ an action upon a marriage contract.” In his charge to the jury (to be found at page 389 of the record,) the learned judge uses the following language, viz : “ The action here is for a breach of promise to marry, and not upon a marriage contract, which is a specific contract requiring peculiar forms and attestations of authenticity, and incidentally the objections to parol, and even beginning of proof in writing, on the same ground requiring notarial act, for it must be plain to every plain mind, that to admit no other resort but notarial act, which is acknowledged not to exist; in other words, would be to require the production of that which does not exist, and to reject the parol and other forms of writing, would be to reject the only existing testimony, and thus to deny the action.” The demand, for of course the demand, the action cannot be transacted but by evidence, and if the parol and others be rejected, and the notarial do not exist, then there is none. The production of act notarial and witnesses, are technical to a specific thing, notarial marriage contract, and touches not a contract of marriage.” Should this honorable court feel inclined to adopt the views and to recognise the distinctions of the learned judge a quo, the counsel for the defendant would most respectfully suggest, that although the plaintiff’s action “ cannot be transacted but by evidence,” (which is a proposition not controverted,) and “ that to admit no other resort but notarial act, which is acknowledged not to exist, would be to require the production of that which does not exist,” and that “to reject the parol and other forms of writing, would be to reject the only existing testimony, and thus to deny the action ;” still, the case of the present plaintiff cannot be distinguished, it is believed, in point of principle, (without, indeed, entering into that region of total abstraction and “ clairvoyance,” into which few minds are permitted to enter,) from that numerous class of litigants whose “ actions cannot be transacted but by evidence,” and whose demands not being supported by legal evidence, their actions (if not “ denied”) are not sustained. “ The action here” (being) “for a breach of promise to marry, and not upon a marriage contract, would, it is presumed, not relieve the plaintiff from the necessity of supporting her demand for damages for a breach of marriage promise, by the same evidence which would be necessary to support her notion upon a marriage contract.” The distinction, as to the evidence between an action for damages for a breach of a contract and an action upon the contract for a specific performance, has not been recognised by any previous judicial decision. Upon this point the late Judge Martin holds the following language* (4 L. R„ p. 377,) viz : “ He who claims damages for the inexecution of a contract, must prove that it was actually entered into in the same manner ae if it required the specific performance of it.” It may be proper, perhaps, to state (which this honorable court cannot fail to perceive,) that the point under consideration was not so elaborately discussed by Judge Martin, as it has been by his honor the judge a quo, and that the opinion of his honor the district judge had not been delivered at the time Judge Martin made the decision above referred to. But his honor, the judge a quo charged likewise. That “ an action for damages for; a failure to fulfil a marriage promise, or ‘ promise to many,’ is sustained and authorised by the laws of Louisiana. C. C. 2294.”
    This article of the Louisiana Code, (to be found under the head of “ Offences and Quasi Offences,”) provides as follows, viz : “ Article 2294. Every act •whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it.” This general provision of the Civil Code, which relates to quasi-offences, and will, it is presumed, be construed with reference to the subject matter treated of in the provisions which immediately follow it, | cannot certainly be applied to a breach of marriage promise, when taken in connexion with article 87 of the code, which expressly declares that “ the law # considers marriage in no other view than as a civil contract.” If, therefore, a promise to marry, or a marriage contract, be regarded as a civil contract, it .1 would seem that the rights and responsibilities of parties in relation to those ¡j contracts should be determined, not according to the provisions of the code •i upon the subject of offences and quasi-offences, under which the right of action, j if any, arises ex delicto, but according to those provisions which provide a remedy j upon contracts, and under which the right of action, Whether to enforce a specific j performance, or to recover damages for a non-performance, arises ex contractu. jj It is not pretended that the present action can be sustained (at least it was not I in the court a (quo,) under those articles of the code which provide a remedy tjapon contracts.
    This honorable court will perceive that, in the opinion of the judge a quo who presided at the time the exceptions under consideration were overruled, (the late Hon. W. D. Boyle,) the exceptions were overruled, and the action sustained under the authority of the article of the codé which relates to quasi-offences, and also under article 21 of the Civil Code, which authorises the judge to proceed and decide according to natural justice and usage, where there is “ no express law.” In the elaborate opinion of his honor, overruling the exceptions, (to be found at page 8 of the record,) the court says : “ The principle of jurisprudence recognised by all civilized nations, that courts of justice afford a remedy to every wrong is recognised by our code.’ Article 2294.”
    The proposition here laid down by the court, although it may be true as a general proposition, is certainly subject to a great many exceptions, and, in its practical application, is made to depend upon a variety of conditions which have been annexed to it by the laws of the State, and universally recognised by the courts. In the case referred to (in the 4th L. R. 377,) in which Judge Martin delivered the opinion, a part of which has already been cited, the plaintiff claimed damages for a breach of a verbal contract of sale of a tract of land: but his action was not sustained simply because the contract had not been clothed with the forms prescribed by the law for such contracts; and yet a “ wrong” had evidently been committed, and damage done to the plaintiff; at least, the verdict of the jury and the opinion of the judge a quo were in his favor. To this maybe added numerous cases in which damages are claimed, but which are not allowed, not because a wrong may not have been committed, but because the party complained of has not been “ put in mora that is, the state of facts to which the law authorizes the application of the judicial remedy, has not been presented by the party seeking redress. ' To apply, therefore, the article 2294 of the Civil Code to a case like the present, upon the ground “ that courts of justice afford a remedy to every wrong,” would be to disregard those articles of the code which expressly and positively declare the cases in which damages resultfromthe inexecution of obligations.” See C. C. art. 1924. And,although it might seem (to those who know nothing of the facts of this case,) a reproach upon our jurisprudence to say that “ for him who had violated a pledge so intimately associated with much that constitutes the great happiness of our being, there was no retribution, and that there exists no redress under our laws for the helpless and trusting victim of his faithlessness;” yet, it is a sufficient answer to this argument, it is believed, to say, that it is the part and province of the law-maker to provide a remedy, and of the “ courts of justice” to apply it. It might, indeed, seem “ a reproach upon our jurisprudence,” that there should be found in our Civil Code an article which declares that “ the law considers marriage in no other view than as a civil contractand yet, “ Sic lex scripta esl,.”
    
    The plaintiff’s demand is, it is believed, as little sanctioned by the universal sense and sentiments of the better part of society in the State of Louisiana, and especially in the community in which it originated, as it is believed to be by the laws of the State. In proof of which, it may be sufficient to observe, that the plaintiff may be regarded as the pioneer in this field of legal adventure and enterprise: no such, demand ever having been presented before this honorable court, since the organisation of the Government of Louisiana, until the present time. Whether the non-appearance of such litigants before the court of Louisiana, is to be regarded as a reflection upon the jurisprudence of the State, or as a proof that such demands are repudiated by the universal sense and feelings of the fair daughters of Louisiana, suffice it to say, that the plaintiff has been the first of her sex who has presented her bundle of love letters, claiming at the hands of the public justice, pecuniary compensation for an alleged breach of “ a promise to marry.”
    To repel her demand, the defendant has found it necessary (under the decisions of the district court,) to expose the character of the plaintiff, by the exhibition of facts, which nothing but the unquestionable sources from which they have been derived, and the unimpeached and unimpeachable character of the witnesses who have testified to those facts, would have reconciled the defendant’s counsel to the task of spreading upon the records of this or the inferior court, and not one of which had ever been exposed to the public by the defendant prior to the institution of this suit, and but for which, he, as well as his counsel, would have preferred should have passed into oblivion.
    In the investigation which is now proposed, the attention of this honorable court is prayed to the following propositions : 1st. The evidence adduced upon the pai't of the plaintiff does not establish the contract for the alleged breach of which damages are claimed. 2d. The evidence adduced upon the part of the plaintiff does not establish a breach or violation of “ a promise to marry” on the part of defendant. 3. The evidence adduced upon the part of the defendant, fully establishes the facts set forth in his answers, and which have been specially pleaded in defence of plaintiff’s demand.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff claims from the defendant $20,000 damages for a breach of promise of marriage. The defendant admits that he corresponded with the plaintiff upon- the subject of marriage, but that he desisted, and had a right to desist from his addresses, before any reciprocal engagement was made, because he found her character to be such as to render her unfit to become his wife and the step-mother of his children; that by unchaste and unladylike conduct she had fallen into disrepute.

The jury found a verdict for $1000 in favor of the plaintiff. An unsuccessful motion was made for a new trial, and the defendant has appealed.

Our attention will first be directed to the question, whether such an action can be maintained under our laws and jurisprudence. In its consideration it is not improper to notice bi-iefly the history of the law on this subject.

The usage of sponsatia or promises of marriage among the Romans was of very ancient origin. It was observed among the people of Latium. It is spoken of in the Theodosian Code, in Justinian’s, in the decree of Gratian, &c. See Merlin Repertoire, verbo Fiangailles. Pothier’s Pandects, book 23, title 1. If the promise was not fulfilled, an action was permitted. Judex quam ob rem data acceptare non esset uxor qucerebat. Si nihil justa3 causte videbatur litem pecunia sestimabat; quanti que interfuerat earn uxorem accipi aut dari, eum qui spoponduat aut qui stipulatus erat condemnabat. Ib. art. 1, See also Mackeldy, Droit Romain, 263. In his Treatise on Marriage, Pothier says that the usage of Fiancailles existed among the Greeks, and, as it would seem, among the Ancient Hebrews. Under the Spanish law we find that the ecclesiastical tribunals would take cognisance of a breach of promise, and punish the party until he consented to fulfil the promise. Partida 4, tit. 1, law vii. Ca los que prometen que casaran uno con otro, tenudos son de lo cumplir ; fueras ende si alguno dellos pusiessó ante si escusacion alguna derecha, a tal que decriesse valer. E si tat escusa non ouiesse, puedenlo apremiar per sentencia, di Santa Eglesia, fasta que lo campla.

In France, a reciproca] promise of marriage is considered as producing a reciprocal obligation to contract a marriage. But if one of the two fiances refuses to accomplish the promise, neither the ecclesiastical nor lay tribunals can constrain a specific performance. The obligation resolves itself into damages, upon which a civil tribunal can alone decide. And these damages are assessed with reference to the actual injury which the party has sustained, and not to the advantage which she has lost. Ces dommages et intéréts s’estiment en egard au prejudice reel que l’autre fiancé a pu sbuffrir, et non pas en agard & l’avantage quil put perdu. Merlin, verbo Fiancailles. See also Pothier Traite du Marriage, No. 53, &c. The former author observes, thatthe Civil Code, by its silence on the subject of Fiancailles, leave them in the general category of contracts, and that they are consequently submitted to the rules of ordinary agreements. Ib. § 11. In England, formerly, it would seem thatthe contract could be enforced in the spiritual court; and it is well settled under the common law, that an action will lie for the violation of such an executory contract per verbal de futuro, for the temporal loss to the party; and though the party had a remedy in the spiritual court. Under that system it appeal's that the man also has his action of damages for the breach of promise. Bacon’s Abridg, verbo Marriage, B.

The district judge was of opinion that a promise of marriage ought not to be placed beyond the pale of legal obligations. Although he could discover no warrant for the action in express legislation, he found it in the 21st article of the code, which declares that in civil matters Where there is no express law, the judge is bound to proceed, and decide according to equity, on the broad principle of justice embodied in the art. 2294, and in the example of other civilised nations. "We are not prepared to say that we should not have concurred with the decision of the district judge, even if there were no other reasons for maintaining it than those which he gave. But our legislation has not left this matter in doubt. The article 1928 C. C. speaks expressly of a promise of marriage. It is there treated as a contract, and a measure of damages for its breach is given.

We also concur with the district judge in the opinion that it is not necessary, for the validity of such a promise, that it should be in writing. The code prescribes that every matrimonial agreement must be made by an act before a notary and two witnesses, and that the practice of marriage agreement under private signature is abrogated. Art. 2308. We consider this as applying not to promises of marriage, but to what is called, in common parlance, a marriage contract: a contract by which the future husband and wife regulate their conjugal association in relation to property. This is obvious from the first article of the chapter in which the provision just cited is found. The promise of marriage is left, we conceive, as to the matter of form and proof, upon the footing of an ordinary agreement. Such was the case in the Roman law. Sufficit modus consensu ad constituenda sponsatia. Hinc in sponsalibus nihil interest atrum testatio interponatur, an aliquis sine scriptura spondeat. Pothier, Pandects, lib. xxiii, tit. 1, de Sponsalibus. Mackelday, Droit Remain, 302. In France, says Merlin, promises of marriage differ from marriage in this: that they may be made in the form common to all synallagmatic contracts; while the marriage can only be contracted in the presence of the proper public officers. Verbo Fiancailles, § vii. It seems that in some part of France there was formerly a statute requiring such promises to be in writing. We know of no provision of our law controlling the forms of such an agreement.

As regards the proof of the agreement, the jury was satisfied that it was made; and we think the evidence justified them in that conclusion. The repeated offers of marriage made by the defendant are conclusively shown by several letters addresed by him to the plaintiff. It is true, that an agreement to many, like any other, requires for its existence the mutual consent of the parties. There must be a promise by the one and an acceptance of that promise by the other. But it is not indispensable that the proof of acceptance should be direct. The jury had a right to infer the plaintiff’s acceptance from circumstances, such as the conduct of the parties towards each other. See Daniel v. Bowles, 2 Carr & Payne, 553.

There is no doubt that if the defendant had proved the matters set up in his answer it would have legally excused his breach of promise. What was said by a great lawgiver of ancient times is equally true in our day. In the language of Solon, “marriage shoujd be regarded as an honorable fellowship and society in order to raise subjects to the State; to make the married pair live agreeably and harmoniously together, and to give continual testimony of mutual love and tenderness to each other.” Such results could not be expected from a marriage with a woman of unchaste character; and on no principle of public policy or justice, could a man be held to a promise made to such a person. We would even go further and say, that a man who had promised marriage, should be excused from his promise if he could show that the general reputation of the other party was bad, even without proving that such general reputation was well founded ; especially if he made the promise in ignorance of that reputation.

Butin the present case the defence is not made out to that extent. Although a few persons appear to have thought unfavorably of the plaintiff, there is a great deal of testimony the other way. There was also testimony going to weaken the effect of what was said by some of the defendant’s witnesses; and it is particularly to be observed that the defendant was aware of the disparaging rumors which had been circulated about the plaintiff, and declared them unfounded. In a letter pressing his suit, he expresses a fear that she might be influenced by • rumours circulated about himself, and urges her not to regard them. “ I hope you will not listen to such advisers; you know that you have been slandered, and it only served to strengthen my affection for you. You know how to sympathise with me.”

We consider the plaintiff’s character as distinctly put at issue before the jury, and great diligence appears to have been used by the defendant to collect evidence. The testimony in this cause is extremely voluminous; it has received our careful perusal; and we do not feel authorised, after considering it minutely, to disturb the verdict, which vindicates the plaintiff’s reputation.

It is proper to observe that there were numerous exceptions to the admission of evidence, and also to the charge of the judge. Some of the former were well taken ; and there are portions of the charge which are not .free from objection. But if we were to strike from the record all the evidence unduly received, there would be still enough to sustain the verdict; and we do not think there is any reasonable ground to suppose -that the cause, if remanded, would terminate more fiivorably to the defendant.

Under the evidence, we are not prepared to say that the amount allowed by the jury is excessive.

In conclusion, we may take occasion to observe, that this is the first time we or our predecessors have been called .upon to consider an action of this kind. It is a fact creditable to our people; and we hope that such actions may not become frequent. While we are bound, under our jurisprudence and code, to recognise the right of action, we are constrained to say that a female of refined sensibility could scarcely bring herself to such a suit; and that the appeals which are usually made to juries in such cases, on the score of the wounded affections of the woman, can have little foundation in truth. Such suits are notunfrequently the mere instruments of extortion; courts and juries should, therefore, cautiously restrict relief to cases of real injustice.

Judgment affirmed, with costs.

Rost, J.

dissenting. I am of opinion, that the plaintiff has not proved the contract, for the breach of which she claims damages. Where a contract is attempted to be proved by presumptive evidence, the question whether the facts proved establish its existence, is not purely a question of fact, and the verdict of the jury has not the authority usually given to verdicts on questions of fact.

The testimony of Russell, upon which the plaintiff mainly relies, is incomplete and unsatisfactory. The plaintiff had it in her power to complete it by producing that portion of the .correspondence of the defendant to which the witness refers ; qad as she has not done so, the presumption is, that the letters, if produced, would have been to her disadvantage.

On the 27th February, 1844, no contract existed ; and she shows no communication with the defendant after that time. It appears that the defendant married another person in the month of May following, and that a few weeks before this marriage the plaintiff came to New Orleans, and told the keeper of the house where she stayed that she had come to buy her wedding dresses. This witness also states, that she bespoke rooms in the house for the celebration of the marriage. All this occurred at a suspicious time, and I attach no weight to it. I believe the plaintiff was sincere, when she said that she would not many the ignorant old fool, unless he made over to her a certain sum of money ; and that, in fact, she would not marry him even then. There is nothing in the record to satisfy me that she ever changed her mind.

I am of opinion that the case should either be decided in favor of the defendant, or remanded.  