Daly v. McDonald ( 1855 )

Ellsworth, J.

We do not see any error of the court, in the manner in which they left the cause to the determination of the jury. It was altogether a question of fact, and they found, as they had a right to find, that the defendant had promised to marry the plaintiff, as she had averred, in her declaration. But we are constrained to think that the court mistook, in ruling out the evidence of the defendant, which bore upon the issue. To prove the promise to marry, or to render it most probable, and natural, that there was such a. promise, the plaintiff testified to the circumstance that the defendant visited her, in the first instance, at his special and formal request; a request, communicated to her through their mutual friend, Daniel Duffy, who professed to act in the affair under authority from the defendant. To meet this proof, and do away whatever of importance the plaintiff attached to the manner of. their first acquaintance; to show that he did not visit her, under any request from himself, but directly the reverse; that Duffy had requested him, as from her, to make the visits which he did make, he offered to prove these several facts to the jury. The precise objection which was made to this proof, and the objection which prevailed with the court, was, that there was no proof that Duffy was the authorized agent of the plaintiff, to bear to the defendant the request. Now, it seems to us, that the genuineness of this authority was not necessary; the object not 'being to prove the point of legal authority in Duffy, but what he told the defendant, as coming from the plaintiff, and the motive of the defendant’s visiting the plaintiff, as he had done. The defendant denied that he intended, or ever promised, to marry the plaintiff, and he wished only to show how he came to be in her society, from which she inferred so much. How important to the issue the evidence was, we are not called to decide. It was objected to, on another ground, and that ground is not, in our view, capable of being maintained. Besides, if the evidence of the plaintiff was admissible, and important to her claim, the evidence of the defendant was equally important to him.

For these reasons, we advise a new trial.

In this opinion the other judges concurred, except Waite, C. J., who was disqualified. •

A new trial to be granted.