135-NLR-NLR-V-17-MISI-NONO-v.-ARNOLIS.pdf
Present : Lascelles C.J. and De Sampayo A.J.
MISI NONO AENOLIS.
158—D. C. Galle, 12,143.
, Written promise of marriage—Notice to the registrar of marriages—.Marriage Ordinance, 1907.
A notice of marriage given to a registrar of marriages does notamount to a written promise of marriage within the meaning oisection 21 of the Marriage Ordinance, 1907.
fjpHE facta are set out in the judgment.
A. Si. V. Jayewardene, for defendant, appellant.
E. W. Jayewardene, for plaintiff, respondent.
Uitr. adv. viilt.
July 14, 1914. Lascelles C.J.—
This is an action for damages for breach of promise to marry,,the decision of which turns on the question whether a notice. ofmarriage given by the defendant to a registrar of marriages amounts
1914.
LaSO£2L£E9
C.J.
Mi&i Nonath.AmoHe
( 426 )
to “ a promise of marriage " within the meaning of section 21 ofthe Marriage Registration Ordinance, 1907. The material part ofthe section is as follows : —
“ Provided that no action shall lie for the recovery of damagesfor breach of promise of marriage, unless such promiseof marriage shall have been made in writing.1’
This rule, it may be noticed, is far more stringent than the Englishrule (Evidence Further Amendment Act, 1869, section 2), whichmerely requires the testimony of the plaintiff to be corroboratedby other material evidence in support of defendant's promise. Itis also the inevitable result of the provision in our Ordinance thatcases of great hardship must occur, cases where a promise to marryon the part of the defendant can be proved up to the hilt, butwhere the plaintiff is, nevertheless, unable to recover damages forwant of a promise in writing on the part of the defendant. Thepresent is such a case. On the evidence in the record no jury orJudge, if not fettered by the rule to which I have referred, wouldhesitate in finding that the defendant had promised to marry theplaintiff. The only question is whether the fact that the defendantgave to the registrar notice of his intention to marry the plaintiffsatisfies the requirements of the Ordinance as to the promise ofmarriage having been made in writing. The learned District Judgein his judgment states that “ a notice of marriage has hithertobeen regarded as sufficient promise in writing to support an action."No case to this effect has been cited to us.
A " promise " means something in the shape of an engagement'from one person to another to do or not to do a specified thing.The statutory notice of an intended marriage is equivalent to thepublication of banns. The notice is given, or the banns are published,in order to give an opportunity for objections to the legality of the .,intended marriage. It is true that notice of an intended marriageis naturally given after a mutual promise to marry has been made.But the act of giving notice of marriage or of causing the banns tobe published cannot, even on the most elastic construction of theterm, be held to amount to a promise of marriage made in writing.The conception of an engagement or promise has no place in suchan act.
The authorities do not support the plaintiff's contention. InBeling v. Vethecan 1 Layard C.J. inclined to the opinion that thepromise to marry must itself be made in writing, and that it wasnot enough that there should be a verbal promise corroborated bydocumentary evidence written by the party sought to be bound bythe verbal promise. In Jayasinghe v. Perera 2 a different view wast^ken. It was held that a letter written by the defendant to the .plaintiff amounting to an unqualified admission under the hand of
*1 A. C. R. t:
* 9 N.L. R. 62.
( 427 )
tiie defendant of the existence of his promise to marry the plaintiffwas a compliance with the Ordinance. The decision in. this casehas not been accepted entirely without question ; but 1 think,if I-may respectfully say so, that the decision arrived at is quiteright. The letter addressed by the defendant to the plaintiffamounted to a repetition in writing of a prior verbal promise. Itwas not the less a promise in writing to marry because a verbalpromise haclv already been given. But I do not think that theprinciple on -which that case was decided can be carried any furtherwithout straining the language of the Ordinance to the breakingpoint.
The present case is unquestionably a hard one. But hard casesare the inevitable result of a law which, in a transaction where thepromise is not ordinarily made in writing, lays down as a rigidand inflexible rule that the promise, in order to found an action,must be in writing. Belief against the hardship of such a rule-must come from the Legislature, not from the Courts.
The judgment of the District Court must be set aside, and theplaintiff’s action dismissed. With regard to costs, I cannot refusethe appellant the costs of his successful appeal, but I would ordereach side to pay their own costs in the District Court.
De Sampayo A.J.—I agree.
– Set aside.
1914v
LaSOEUjES
C.J.
MiHNonav. Amolis