
    *George Wetmore v. Anne Mell.
    Where an act of a party is admissible in evidence, his declarations, at the time, explanatory of that act, are also admissible, as a part of the res gestas.
    
    Where A’s promise to marry B. is shown, evidence that B. had received A’s attentions for four years, and prepared for marriage by procuring bedding, etc., and of B’s statements to her sister, at the time, explanatory of such acts of preparation, is competent to show her acceptance of such promise.
    Declarations of the party, made after suit brought, or after a rupture between the parties, would be clearly inadmissible, but it will not be presumed that the court below admitted such declarations, unless it appear from the bill of exceptions.
    This is a writ of error to the Court of Common Pleas of Mahoning county, reserved to the late Court in Bank.
    The plaintiff below declares for a breach of defendant’s promise to marry her; to which a plea of the general issue is interposed, and at the May term, 1851, of said court, the cause was submitted to a jury, who returned a verdict in favor of the plaintiff for the sum of $1,458. The defendant moved for a new trial, for the following reasons:
    First. That the court erred in charging the jury that the plaintiff could give in evidence her own declarations to prove the mutuality of the marriage contract, claimed by the plaintiff in the case, or a contract on her part.
    Second. That the verdict of the jury is against the law and evidence in the case.
    Third. Because the damages are excessive.
    Which motion was overruled by the court. And the plaintiff having remitted $658 of the verdict, judgment was rendered in favor of plaintiff for $800 and costs.
    The bill of exceptions shows that the plaintiff, “ to maintain the issue on her part, introduced, together with other facts, evidence tending to show that the defendant had kept her company from three to four years, that the plaintiff and defendant were mutually attached to each other, and that the plaintiff had made some preparations for marriage, by getting bedding, etc.; and then the plaintiff offered evidence of her own declarations made to her sister during the preparations, in the absence of the defendant, in order to show the *mutuality of the contract, the plaintiff’s counsel
    claiming that, from the facts and circumstances proven, a promise on the part of the defendant might be inferred. The defendant, by his counsel, objected to the declarations of the plaintiff, for any purpose. But the court overruled the objection and admitted the declarations of the plaintiff, not for the purpose of proving the contract of marriage, but for the purpose, if the jury were satisfied that a contract had been proven on the part of the defendant, of showing the mutuality of the contract.”
    Upon which the defendant below has assigned the following errors :
    I. That the court erred in permitting said evidence to go to the wry-
    II. That the judgment is manifestly against the evidence in the ease.
    III. The judgment was for plaintiff when it should have been for defendant.
    
      Wilson & Church and John Hutchins for plaintiff in error.
    
      
      Birchard, J. L. Banney, and Newton & Estep for defendant in error.
   Corwin, J.

As the evidence on the trial below is not presented in the- record, the second error assigned presents no question for our consideration.

The third error assigned depends upon the determination of the first, no other exception to the judgment being taken, and we are brought to the question, whether the court' erred in admitting the declarations of the plaintiffs, under the circumstances, and for the purposes stated in the bill of exceptions.

It is undoubtedly true, as a general rule of evidence, that the statements of a party in regard to the subject-matter of his own suit are inadmissible, unless introduced by his adversary ; but this rule is necessarily subject to many exceptions, and the admission or rejection of such testimony must in some measure depond upon and be governed by the nature of the case, and of the facts to be proven. Thus, it has been ^frequently held, that when one enters into land, in order to take advantage of a forfeiture, to foreclose a mortgage, to defeat a disseisin, or the like; or where one changes his residence, or is upon a journey, or leaves his home, or returns thither, or remains abroad, or secretes himself, or does any act material to be understood, his declarations, made at the time of the transaction, and expressive of its character, motive or object, are regarded as “verbal acts, indicating a present purpose and intention,” and are therefore admitted in proof, like any other material facts, leaving their effect to be governed by other rules of evidence. 1 Greenl. Ev., see. 108, and authorities there cited. So the state of mind, sentiments, or disposition of a person, at any particular period may be ascertained from his declarations and conversations at that time. 2 Hill. 248, 257.

And no objection can exist to the'admissibility of such evidoncer so long as the statements and declarations thus introduced, are concomitant with, and explanatory of, the act or occurrence to which they relate. In Sessions v. Little, 9 N. H. 271, it is held that, 11 where evidence of an act done by a party is admissible, his declarations made at the time, having a tendency to elucidate or give character to the act, and which may derive a degree of credit from the act itself, are also admissible as part of the res gestee.” But the reason of this rule by no means applies to such statements as are merely narrative of a past occurrence, and they are clearly inadmissible.

In the case under consideration, the plaintiff’s acts of preparation for the marriage were not objected to, and were properly admitted as evidence of her acceptance of defendant’s promise to marry her. And why exclude her statements at the time, explanatory of such acts of preparation ? The latter are no more likely to bo deceptive than the former, but are the more reliable and satisfactory, because they are a distinct, express, and binding admission of what would only be otherwise ascertained by inference from unexplained acts.

*Such statements, if made, after a rupture between the parties, for obvious reasons, would be inadmissible, but the plaintiff in error has not shown by his bill of exceptions that the declarations so admitted, were made at such a time, or under such circumstances, and in the absence of such showing we will not presume that the court below admitted such improper declarations. We can only correct such errors as are made to appear.

It is contended by counsel for plaintiff in error, that the statements of the party were admitted by the court to show the “ mutuality of the contract,” and that as mutuality is an essential element of every contract, evidence to establish the mutuality is evidence to establish the contract itself, and that it was therefore improperly admitted. The language by which the object of the evidence is expressed in the bill of exceptions may not be of the happiest selection, but the principle involved is quite clearly shown, and we do not stop to deal with the words in which it is set forth. The defendant’s promise was shown by other distinct facts and cirstanees, and it was proposed to show plaintiff’s acceptance of it, by her preparation for marriage, together with her statements to her sister, explanatory thereof, and for this purpose only was the evidence admitted by the court. The eases of Hutton v. Mansell, 6 Mod. 172, and Peppinger v. Low, 1 Halst. 384, are in point, and fully sustain the decision of the court below. The rule of evidence there established for this description of cases is so reasonable in itself, and the reasons by which it is maintained are so consistent with the habits and customs of society, and the obvious proprieties of life, and have for so long a time secured the sanction and apr proval of courts of justice, that we are unwilling to disturb it. And when we consider the peculiar nature of the oontract thus sought to be established, and tho circumstances of secrecy and confidence ■with, which it is usually made and observed in civilized life, such acts and declarations as were admitted in evidence in this case are frequently the only, and ordinarily the best and most satisfactory evidence of the ^existence of such an engagement. We are unanimous in the opinion that there was no error in the ruling of the court below, and its judgment is therefore affirmed with costs.

Ranney, J., having been of counsel, did not sit in this case.  