BROKEN ENGAGEMENT.

Dominion, Volume 4, Issue 933, 28 September 1910, Page 6

BROKEN ENGAGEMENT.

UNUSUAL ACTION FAILS. RING NEED NOT BE RETURNED. . HEATED LAWYERS. -V. ; Finality was,reached yesterday in tho adjourned civil ease, in which Frederick College, tailor's cutter, sued Sarah Colien, boaxdingliouse-keeper,'-for the- return of an engagement ring,. or, in the alternative, 'its-value,-..£22. Mr. C.-B. Dix appeared for plaintiff, and Mr. A. H. Hindmarsh- . was for defendant. Plaintiff's evidence had already been heard,, and his Worship (Mr. W. R. Haselden) ■'had reserved'decision on a nonsuit point raised by.counsel for the defence. , In giving his decision on the point; yesterday "morning,; l£r. Haselden said:—; "The plaintiff. claims; the return of a .vin's or its alleged value, .£22. ;It is admitted by the plaintiff that-he. gave the ring to the defendant as what is known as an engagement ring, "and that he' and the defendant were at the time engaged to be married. .;•' The. plaintiff says' he , broke off the.engagement:for good cause, and alleges very serious misconduct on the part of the defendant. At. my suggestion evidence was not-given as to the alleged'cause for breaking off the engagement. \I- though-.it better to ; first .endeavour to" try" the action, without the introduction of this part of the case. The. defendant' moved for a nonsuit, on the ground that the ring was a gift, perfected by delivery, .and- that' the plaintiff could: under ho circumstances; recover. There is very little authority on the point.. ■ .; In "Chitty on .Contracts" , the. author says:.".lt ,has. been said that, presents made' in contemplation .of a 'marriage that does not take place ought to be returned,, and though there' is no reported case in which an action ; has been held, folic -for such presents, "■ it is .'submitted, though with some dbubt.'that they would be.' recoverable as. gifts upon, a .'condition subsequent,- .not fulfilled, the. more espcci-; ally, if they should happen to be family jewels." or;, the like.". If. this view/be correct,'it would'seem .that it would ap-' ,ply:: to 'a case. of : rescission by. consent; that .a 'donor...might' waive a.brealch of: promise and sue-for return of the. pre-; .sonts' only;' and' that; third'parties' might, recover, presents :.so,'.given. 1 A donor, in' default ..wbuld'stand' in- the position .of one who; ;by his.own.a'ct, had made, the fulfilment of. the' condition impossible. If : . the"" gifts- should; be : things'- quae-'in ip'sousu eonsurhuntur, 'an intention.would be' : imputcd that the /donor; should' take absolutely. ' , -'\:,-, ; ';.'.,.V. ! ;;! ■■':' '-./■.•.•" : : --;.'-'- i : ~'. '. "As-'the ,: case,'stands, at .present,'' continued the judgment,, "the plaintiff is' in' the position of-.a-donor, in default,, but he. alleges .;that: he ..can; adduce' evidence to "show ;' that he is hot in default. "• ;: To nonsuit ':the. plaintiff 'now would, be; to say in effect that under'no circumstances .could gifts /made;-.in, contemplation:;., of, j, marriage i be. recovered; and : ,that., would be,stating, the law too broadly. : ? ..r:must therefore reserve the nonsuit.point until after the : plaintiff Has called all' the. eyii i dence he'-desires:to' adduce.''; -';.;•..;:;; ;_■'

'■ Evidence Objected to- ; ,;..- "; : i ■•'.! Further.hearing of: the' ; case .was", then set down',for the.afternoon,, when ,coun : ; iel for. plaintiff-called ;':.,; v •''.'•■•. ■'•'.• ■■"-'■' • Julia Brown, married woman,Vwho saidshe /had .-known >.Miss' ,:.Cohen for. > nearly two/years. •:.:",;.:;;:/'. V-: ; ':-.: :■:';.•:"'.:'- - v >:/:. ,'-. : Mr. Dix: on'.one pco'asion'.cbme to -you-about ;a- child? •■:, .' ■..?'■':*'.;; ■' : ;''■:.'• ',' Mr.i.Hindmarshi.l.objeot. to this evi- :l de'hce ;'.<;."This; is.'/not a .breach'of promise case;- ahd>l 'object-'to ' these'.^attacks',-to bl»ck«h"' any ; .client's';, character.", //you know- what so'rt;ot man the'plaintiff is--?- ' 'Mk Dix: Don't pointatme.Vib'.:;'.":•; Mr.''Hmdmarsb.:, You .have-seen V.-' this man's. letters, '■' your - Worship,''- and -, you , know-'what sort of manheis. ' v ■:- : ' ' ' .VHiv. Dix:; I" amCg'oing ./to -snow;'what, sort of woman, she ; is.'- • ' : .:.: ' His.: .Worship-: Very well, you,: should' •keep, cboll.:-"/*: .<'?''■'':. •.:';:'/'::'' /:;'-;;■''.'\'.' ;; j -\'Continuing'his V objection,-;Mr, : ;;:sind;, ; ; marsh:'contended that the evidence -.was "■ iri'elovant./'Where/.was;a,;mat^er y like this; going; torend?; iThe charaefeVof'the'vmosto virtuous girl,miglit ;be.assailed in ..thismanner:- .< She could be: 6ued ; by. a man for, ■ say,'-, .£2 ■•'worth.' -,'of. presents',' and; in '.the open court he'-could-.asperse her'/'characr.'

His Worship quoted a hypothetical 'case of a woman wholly, abandoned defrauding a.- man. ■' On '} account of. plaintiff's'.contention:, in,; the 'present, case, ,the/evidence would have to be heard. 'Til each,special, case .'■ the ' magistrate-.- could- judge ' as'. to', ■what course :was to be .followed.' • '"■■'■ "' :;'';■: '■/Mr.; Hindmarsh,' said: she /'would /have' something to say. of,'plaintiff's'character later /on. -In".the ''meantime,':; what: .he complained .of j was .'that-'oh : . ah"; ordinary, application/for an/adjournment when-he (Mir.. Hindmarsh): was. only": 'represented' by; a clerk that, counsel''for .plaintiff had .mentioned a 'serious matter, fendant..' •'■ ; S; : /.:' : y' -'J?;'.?::' ';/,;':!' ; /'v"-

■;■''. '::';.: ; A Heated 'Discussion'!;'".;' :>- .: Then- followed a. heated discussion; beV tween;' counsel :,in which .MrV-Dix:'denied mentioning'!-'the,-: matter, except: /in"; Mr.; Hindmarsh's presences and stated that .'if Mr. Hindmarsh would say. outside what he was now -- saying*-* he:.-.(Mr.;, Dix)' :. r would know:how.'to ,:deal;.with;him.:;.',-;■'::/.:; i\ Mr.' Hindmarsh':'l.will:6ay it;outside";' I will say: it 'forty times. •'.-. His -Worship isaid iths Evidence'., would have* to'be heard. : ';V .-:;.- • ::.■'■:,<■■' ■";,-; . Continuing her .evidence,-Mrs;, Browii, said that, on one -occasion defendant, .had risked, her to adopt : ,a: child,, but' witness; had refused."; :- ::;; /\^/ : :y '>::■; ' : '■■,': ',"'.," ■: Mr. Hindmarsh: Now,- you've: been in. gaol; Mrs. Brown, haven't .you? -:-r:-f ■£' /Witness: No:-:-/■.,.;:.:':/;;-.,;•:■/;':/-:/••.')''':■;"-:■ •;■ '.Mr.' Hindmarsh:' Will you swear, that? ■■ Witness: No, I won't swear it, '-'-:-:

When Mr.; Hindmarsh had-completed his: cross-examination'' plaintiff's : . casei .was closed.-Mr. Hindmarsh -intimated':'.that if. necessary ho would put defendant -into the .witness-box,, but, ; in; reviewing '.the-plaintiff's-evidence, he; contended that such a course-. w-as : :n'ot; necessary. •■:■. v. Judgment .was then given, for defendant .without, costs, '; hisj .Worship : 'remarking, "Every opportunity}, has .been given •;to' plaintiff to prove ; the allegation" which';his. counsel ' deliberately made against 'defendant. ..Such proof: as.Vh'e' has','give"n rests solely on- ;the;. evidence o; of y :Mrs. Brown,- and that;evidence.'.does .not' carryconviction to my mind;; ■ 'Moreover, "it stops far, short- of what ; was:-, the,.' .most serious allegation.; made -against defendant: ;v .-'••'• '- ~-- ; ••..'■' ■'-..;-.::.;.-':;, : /.p-';.' ' The magistrate, continuing, said that: plaintiff's: case: rested on what had happened years -before,, and on account of the community- to which both/, parties' /.be-' longed,' and'of the business positions held by' defendant and her relatives; he' was inclined to think; that.plaintiff must have been,aware- of.-it, and .that was, not, the reason the engagement' was broken .off. His Worship-held that'plaintiff had. not proved what it was necessary to prove,in order to sustain;-'this"-very; unusual ac-' tion. - ; '■■-.-' -'. -',' ■■'■/ ■'■ :',