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MISS QUIRK'S CLAIM.

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MISS QUIRK'S CLAIM. JR-TANT RULING IN ACT!ON FOR SPECIAL DAMAGES. Today Mr, Justice Lush delivered his reserved judgment in'the action brought by Miss M- M, Quirk, a London milliner, igalmt Sir Grjttith Thorn a- as executor • rt Mr, Arthur William Thomas. who ''èa.5 said to have made a promise to marry the plaintiff. The parties lived at Swansea and Isouth, and met. in 189H, when promise; was alleged to have been mad e aud rts- iDØed, They met again in 190'). and anajtner prom;??. was toon •■•aid to :t8Yt; fe been made. The plaintiff's- allegations ot were denied, and it was pleaded that there was no legal cause for action- The, jury found that the deceased gentleman promised to marry the plaintifl, and as- sessed the damages at. £ :>50. Mr. Waugb, K.C and Mr. J, J) Crawford, appeared for the plaintiff, and Mr. B. Lailey. K.C., ancj Mr. J. H. Wattsi o: the, defendant- Mr. Lailey, for the defendant, argued that iijie only point that remained was whether, corroboratiou being assumed, j dlC action lay in point of lav." in view of Arthur Thomas's death. He contended that the action did not lie, on the ground that undor no circumstances could such ih action be maintained ngaitist the executors, and, further, on the narrower ground that there was, in this case, no c\ idence of special damage fit for* the consideration of the jury. Mr. Waugh, for the plaintiff, contended that the action did lie, and could be, maintained, and that there was evidence. ■tf "of special damage, the jury having foupd that the plaintiff gai-e up her business at the request of the defendant in conaidera- i lion of the promise to marry. His Lordship, giving judgment, said there were three questions 01 law raised j in this rase., viz., w heth er an action would lie against the executrix of the deceased to recover special damage caused oy the breach during the lifetime of de- ceased of a promise to marry the plain- cifi ii so was the damage special daiiia-e; and whether there was any evidence of such damage at all. 3 he plaintiff had been carrying on a profitable millinery business, she said, and her case tlas that on June bth, 19U1, iu consideration of the deceased promising to take care of her at>d eventually to marry her she gave up her business. (.k1 the whole, he thoughf that there wast just, sufficient evidence to justify ..him leaving the question to the jury. An act ion tor breach of pr,) mi-ze. did not lie against the executor of a deceased man. and it bad never been actually held that in a I .•a?" tike the present the plaintiff was en- titled to succeed. His Lordship had to consider whether i such an action as this could be brought j to recover special damages such as j r the plaintiff alleged. She had proved an executor did not represent the person, but only the property of the testator, and he was. only answerable for testator's acts iti respect of his estate. The real ques- tio was That were the obligations which affe" t r-dtbe estate of a;pers«ni who was in ¡ the position of the deceascl, inasmuch as there was no obligation aflectiog the pro- perty of either party in a contract to i marry. He failed to see how the fact, tizal one of the parties had suffered p(,uD¡),rt I 16?7s or damage could impo-e a liability f on the executor or party who broke it. As an executor did not represent the plaintiff or hi* testa;or, h" "dS not con- cerned in the. breach by the testator of tnv of his personal obligations. What- ever the damage might be, the contract rould not be stated in the way plaintiff had presented it. A contract by a roan J to marry is. not a contract of a commer- cial character, but was founded on a mutual agreemen'. and it is impossible to treat the plaintiff and the deo-pased as if I were entered into a commercial or I' business transaction when they made the contract. His Lordship felt himself compelled to fay that a pecuniary loss sustained by a R oman in up employment or busi-j aess in contemplation or marriage or any similar loss could not. in his judgment. ,-)e propertly treated as spccial damage ■ o'lowirsr from th- breach of promise of marriage The plaintiff had not sued for! a breach of a contract to take care of her, end she could not have done so. I The fact wa? that th? pIaintiEF.under ? th" gui r?e of fimm i«r special damage, wa? ''eaHy kjng' to recover part of the Tdinarv p??mplary damages vhicb the jury could have given her if the deceased 11 had lived- Under tbew circumstances hp entered i'idemAtit for the defendants. Addr^sning Mr. Lailey. his Lordship in- I quired it b" asked for costs. Mr. Lailey said he asked for th usual ■>ider. H« thought it quite possible that nothing more might happen, but ther, might be an appeal, and therefore he desired the ii.-ial, order. His Lordship: Very well. Mr. Crawford: I ask for a stay in order that we may the questions raised J i.q -the judgment. His Lordship: Yes. I shall grant it. Mr. Lailey: Ofcourse, on the usnal undertaking. Mr. Crawford: It is a case out f)f fhe ordinary, and 1 ask for an order for a ist-ay of execution without the usual under- taking. It is a ver-v-pxtriordinaty case. Has Lordship: I hare held that the defendant could not have been sued, and I row! give effect to it. My inclination is that plaintiff deposit in court, pending an appeal, and I will make the stay ufsconditioBal- Mr. Crawford asked for a fortnight to I consider the matter. His Lordship: Yes. There will be judgment for defendant in costs, and a wtay of execution for 14 days, and if at the end of 11 days the plaintiff gives notices of appeal and pays .£30 into court, thle stay will be continued.

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