Whitcomb v. Wolcott , 21 Vt. 368 ( 1849 )

The opinion of the court was delivered by

Redfield, J.

It is claimed, on the part of the defendant in this case, that the testimony given in the court below, was insufficient to found a verdict upon, and that the jury should have been told to find for the defendant. It is urged, in support of this view, that the same thing is virtually decided in Munson v. Hastings, 12 Vt. 346. I think, perhaps, that, first and last, that case has been as much misunderstood, as any one in our reports. The decision, in the supreme court, goes upon an entire’ misapprehension of what was intended by the bill of exceptions, which was allowed in the county court. But perhaps that misapprehension was a natural one. The charge of the court is not very clearly expressed, and is a great deal too minute, in attempting to aid the jury in weighing the evidence. And although I was present at the trial in the county court, and drew up the bill of exceptions, I became satisfied, in the supreme court, that the case was liable to be misunderstood, and did not regret, at all, that a new trial was granted.

But the bill of exceptions being published entire in the reports, many of the profession, perhaps most of them, now understand the case as it was intended to be understood, and therefore infer, from a new trial being granted, that such evidence is incompetent to found a verdict upon, and consequently improper to go to the jury. But this court do not understand, that any such decision was ever made by us. The opinion of the learned judge, in that case, is not based upon any such view of the case. All that this court there decide is, that attentions, merely, on the part of an unmarried man to an unmarried woman, do not constitute a marriage contract; and that the mere fact, that they are long continued, or that the neighbors suppose such a contract must exist, adds nothing to their intrinsic weight. The learned judge says, “ The law has not determined, that any particular period of courtship shall be evidence of a marriage contract”; — and farther, “That nothing need be added, as to the probable opinion and belief of third persons. It is clear, that to allow such opinions to influence the finding of this contract, as between the direct parties to it, would be giving place to a principle, which is wholly inadmissible in other cases.” It is very obvious these are the grounds, upon which the new trial was there awarded, and equally obvious, that if the grounds existed, they were sufficient. It is hardly necessary for me to disclaim any such intentions, by what is said in the bill of exceptions. But, taking the bill of exceptions, as it was intended to be understood, this court would then have been agreed to affirm the judgment, and are now of the same opinion.

The idea, that, in the trial of a case of this kind, all attentions on the part of the man, all intimacy between the parties, in short, all circumstantial evidence, is to be excluded from the consideration of the jury, involves an absurdity; almost. If a case were to be tried in that mode, it would become next to impossible for the jury to determine what weight was due to the positive, direct evidence of a contract of marriage between the parties, — whether it were serious, or mere matter of banter and badinage, which is not uncommon among young people, and is sometimes, perhaps, carried to the extent of performing the actual ceremony of marriage in sport merely. And if circumstances before the actual contract were to be excluded, so should they, by parity of reasoning, after the contract; and it would then become difficult, or impossible, to determine how far the parties relied upon the contract, or whether they did not, in fact, mutually abandon it, and thus impliedly release each other from its obligation.

And if circumstantial evidence, of the character of mere attentions, is to be received in trials of this character, I do not see, but it must rest with the jury to determine its force and weight, unless this court are prepared to adopt the conclusion of the tribunal, which determined, that circumstantial evidence was proper, and important, to corroborate positive and direct evidence, but good for nothing else ! We do not suppose, that any such conclusion is fairly deducible from any reported case. But it may be true, that mere attentions do not constitute a contract of marriage; and ordinarily, where nothing else is shown, it will excite suspicion, that no such contract did exist. But these are all questions of fact merely, to be determined by the jury. And in the present case there was evidence, beyond that of these mere circumstances, which, if it gained credit with the jury, must have been of a very satisfactory character. We see no ground whatever for a new trial, so far as this part of the case is concerned.

It is perhaps hardly necessary to allude, in detail, to the authorities on this point. Since the time of Hutton v. Mansell, 6 Mod. 172, — S. C., 3 Salk. 10, — it has always been held, that the promise on the part of the woman, whether she were plaintiff or defendant, might be inferred from her mere “ countenance of the promise” of the man, or her “ behaving herself, so as if she agreed to the matter” ; or, as is said in Salkeld, “her carrying herself, as one consenting and approving.” And in a note to Irving v. Greenwood, 1 Car. & P. 350, [11 E. C. L. 413,] it is said, no more evidence of the promise on the part of the woman is, in practice, ever given. The sanie is held by Best, Ch. J., in Daniel v. Bowles, 2 Car. & P. 555, [12 E. C. L. 258.] In reason it is certainly difficult to perceive, why any distinction can be made, as to the kind of proof required to make out the promise on the one part, or the other, although in degree it might require much more to prove the defendant’s promise, than that of the plaintiff. Such is clearly the view taken of the subject by the elementary writers. 2 Stark. Ev. 706. “ In an action for breach of promise of marriage, evidence is either, first, express, or, second, is from the nature of the case presumptive.” And the same rule is recognized in Southard v. Rexford, 6 Cow. 254, Wightman v. Coates, 15 Mass. 1, and in all the American cases, which have fallen under my notice, or of which I can obtain any knowledge. And what to my own mind is perfectly satisfactory is, that no case can be found, where the contrary rule is in the least countenanced, unless it be the case of Munson v. Hastings; nor in practice, until since the decision of that case, have I ever known any such rule seriously insisted upon. We have sufficiently shown, that no such rule is there laid ¿own, or intended to be established.

In regard to the motion in arrest of judgment, for the insufficiency of one count in the declaration, such is no doubt the English rule, unless in some way it is made to appear, that the jury formed the verdict upon the necessary facts, as alleged in the good counts. The rule itself is one, which it is not easy to justify to the ordinary sense of justice, or to reconcile with that other presumption, by which we treat all proceedings as being regular, and upon good ground, unless the contrary is made to appear. Why, in a criminal case, even where life is concerned, one good count is sufficient! to sustain a verdict of guilty, amid a multitude of bad counts, and in a civil action, where a few cents only are at stake, one bad count and twenty good ones are not sufficient to maintain a general verdict, are questions, which no man can answer, even to his own mind. The truth is, that this rule is one of the ludicrous absurdities of the system of special pleading, which have exposed the system itself to the jeering and contempt of so many sensible men, and made it an object of scorn to the legislatures of so many of the American states, when it really is, in the main, a wise and rational study, calculated to aid both court and counsel in coming at the truth of a case, and often at great saving of time and 'expense to the parties. But such absurd abuses, as the one above alluded to, and some others of a like character, which might be named, have exposed it to very severe and often very just strictures.

The rule has not been followed in Connecticut, or South Carolina, we believe, and in the modern English practice is shorn of much of its absurdity, by awarding, where it can be done, in such cases,, a venire de novo, which is always the true course, where judgment is arrested in the course of trials of fact. But in the court of error this cannot so well be done, and hence the very general practice has been, in this state, to arrest the judgment in ioto, sending both parties out of court, without costs. See, upon this subject, Trevor v. Wall, 1 T. R. 151, where it is held, that a venire facias de novo cannot be awarded in a court of error ; Holt v. Scholefeld, 6 T. R. 691, where judgment was arrested in toto, and an award of a venire de novo refused; Anger v. Wilkins, Barnes 478, where a venire facias was awarded, on payment of costs, which is there said to be done “ according to an ancient rule of court.” Such is certainly a reasonable and sensible^course, and is perhaps more generally followed, where the motion in arrest is tried in the same court, where the verdict is taken; but the more general practice now is, to allow the plaintiff to have his verdict upon the good counts, when, from the minutes taken at the trial, it appears, that sufficient facts were shown to entitle the plaintiff to a verdict upon the good counts. 1 Chit. PI. 396 and notes.

It clearly appears by the minutes taken at the trial in this case, that only the three first counts, which are confessedly good, were read to the jury, and that the jury received evidence, and were by the court expressly required to find the fact, of a promise on the part of the plaintiff, — which is the defect complained of in the count objected to. We deem the remarks made in a former case upon this subject, — Wood v. Scott, 13 Vt. 47, — equally applicable to the present. Judgment affirmed.