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Decisions of the Superior Courts of New South Wales, 1788-1899

Cox v Payne [1825] NSWSupC 17

breach of promise of marriage

Supreme Court of New South Wales

Forbes C.J., 17 May 1825

Source: Australian, 19 May 1825

 

(Breach of Promise of Marriage.)

 

This was an action for breach of Promise of Marriage.[1 ]  Mr. Wentworth stated the Case as follows.  The action was brought in the name of Miss Cox's Father, who is a tradesman residing near the old Government wharf in Macquarie-place; and the Defendant is Captain Payne, lately engaged in maritime affairs, but now carrying on business as brewer and vintner in George-street.  In the early part of the year 1822, the defendant became intimate with the family of the plaintiff; his attentions were attracted by the plaintiff, a young lady then about 16 years of age, and possessing some attractions.  The defendant became more frequent in his visits; and ultimately disclosed the [s]entiments of his mind to the parents of the young lady; he solicited their permission to pay his addresses to the plaintiff; declared his views as being the most honourable; and expressed an hope of being allied to the family.  This request was acceded to by the plaintiff's family; and was afterwards admitted as the suitor of the young lady; however on one occasion it appears that some misunderstanding arose between the lovers, in consequence of the defendant having come to the plaintiff's house (at a very late hour one evening, when the whole of the family had retired to bed, with the exception of the plaintiff and a female servant) in a state of intoxication; this method of behaviour was strongly reprobated by the plaintiff, at the time, who entreated of the defendant, that if he could not select any hours, but those, to come there, he had better stop away; but this, it will be proved, was a slight difference, which existed but a very short space of time.  Some letlers [sic] passed between them, which had the result, if possible, of increasing their affection.  However, it appeared, that some letters had been received by the young lady, from a young man of respectable connexions, containing proposals of marriage.  The learned Counsel was prepared to hear of some letters which the plaintiff might have written to the defendant, wherein some ambiguity of expression, would be construed into a meaning contrary to what was intended.  The learned Counsel then proceeded to read several letters which had passed between the plaintiff and defendant, couched in terms of the strongest affection.

The learned Counsel concluded, by calling upon the Jury to award liberal damages.

Mrs. Foster examined - I know the plaintiff, and remember her living in her father's house in the early part of 1822; the defendant was in the habit of going backwards and forwards to the house; knows that an intimacy subsisted between them; remembers Captain Payne writing a letter to her, but cannot say what the words were, but believes it contained a promise of marriage.

Elizabeth Cox - I am sister of the plaintiff, I never saw the defendant write, but I have seen his letters frequently (a letter was here shewn to the witness); I remember that letter having been received by my sister about three years ago; it contained a promise of marriage; the defendant visited the house in the character of my sistes's [sic] lover; his addresses were approved of by my father and mother; I never heard Mr. Payne assign any reason for protracting the match; it is now abou [sic] 12 months ago, or rather more since the defendant went to sea; I was present on one occasion when a promise of marriage was made; I am not in the habit of being in my sister's room, where Mr. P. used to be; I remember in the month of March a quarrel having taken place between them, but do not know what it was about; cannot say that plaintiff wrote any letters to defendant in consequence of that quarrel; witness believes there was a coolness, but the matter was made up again; plaintiff and defendant were intimate until the moth [sic] of July; remembers another quarrel having taken place between them, from the months of April and July, defendant having come to the house one evening very late, and in a state of intoxication; plaintiff reprobated him for such impropriety of conduct; plaintiff wrote a note upon the subject to defendant, but witness did not see it; witness remembers another letter having been sent by her sister, but cannot say what it contained; but knows it was in consequence of her being offended; remembers defendant writing a note to her sister in the month of July; I know that my sister lost some letters out of a box, which was kept on a table, by the window; my father has a man in his employ in the name of Armstrong; I know that the quarrel was entirely made up; I remember on one evening that plaintiff and defendant were not friends; when the latter told me he would marry my sister when he left off the sea; defendant hoped that his eyes might drop out of his head, if he did not; witness cannot recollect the date, nor remember defendant having made any other promise.

Cross-examined ---- Cannot say how many quarrels arose between the plaintiff and defendant; the first quarrel was a long time ago; recollects a quarrel between the months of April and July; it was in consequence of defendant having come to her father's house in a state of intoxication; cannot tell how long it is since the last quarrel; there have been three quarrels; one of which was concerning a Mrs. Leverton; remembers sister having begged pardon, for what she had said in first letter; knows sister's hand-writing (some letters were here shewn to the witness); they are the hand-writing of the plaintiff; never heard sister say in what manner those letters were disposed of; she had said that they were lost, and could not tell how.  Mrs. Frazier has walked out with plaintiff; does not know that her sister at any time met with the present wife of the defendant, in the street; it is now three years since the plaintiff and defendant first became acquainted; never heard sister say that she would be revenged on the defendant; it is now about six months ago since witness lost some letters; among them were some from a second lover; does not know they are shortly to be married; or that the damages sought for by this action, are to be her marriage portion.

Re-examined --- The plaintiff never to witness's knowledge gave the second lover any encouragement; he is very intimate with the family; does not know that she prefers him to the defendant; was not in Sydney when plaintiff and defendant became acquainted.

Matthew Bacon examined ---- I am acquainted with defendant's hand-writing; I was his partner (a letter was here handed to the witness); if the signature was attached to the letter I should say it was the hand-writing of defendant; witness has seen but little of his writing; principally the signatures.

Mr. Redman ---- Knows the defendant, he has been in the habit of visiting his house; never proposed to him to marry one of his daughters; knows the defendant since he came into the Country; does not know that the defendant is married, never asked him.

Mr. Todhunter ---- I have been intimate with the plaintiff's family for a considerable time past; observed the progress of the courtship, between plaintiff and defendant; always considered that the latter frequented the house as the lover of the young lady; it was generally understood that proposals of marriage had been made by the defendant to the friends of the plaintiff; knows of some letters having passed between them; plaintiff wished witness to write some letters for her, which he did; one of them contained a remonstrance against his improper conduct, on one occasion; it was worded in rather a harsh manner, but were both friends after; defendant continued his visits at the house; remembers plaintiff having said that some letters had been lost, but she could not tell which way; plaintiff lost a letter which had been written to defendant, in consequence of his going to Mrs. Leverton, in the month of April or May, but did not write it herself; after those letters had been sent then both parties were again reconciled.

Cross-examined ---- The reconciliation which took place was after writing the first letter, now more than 18 months since, it might be two years; defendant paid his attentions to plaintiff, until his return from sea, about 14 months ago; plaintiff never told him, that she intended to decline any further acquaintance with defendant.

Mrs. Beckett examined ---- I was present at a conversation which took place in Mr. Cooper's house, between Mrs. C. and the defendant; the former enquired of the defendant, as to his motives for deceiving the young lady, when he answered, that promises and pie crusts were made to be broke.

John Williams examined ---- I know the defendant; always considered him as a man in very good circumstances; have heard him say, that he would leave off going to sea, when he became independent; defendant has a capital farm at Port Dalrymple, worth £1700; a mill at Curryjong Brush; also, a fine house, situate in George-street, the rental of which, is £100 per annum; witness should suppose defendant worth £5000.

Cross-examined ---- Does not know, but that the property might be mortgaged, only judges from appearances.

Re-examined ---- Defendant carries on a considerable trade; should not suppose that such an extensive business could be carried on without a large capital; witness does not know but that the money might have been borrowed.

The case for the plaintiff here closed.

The defence made by defendant's Counsel, Dr. Wardell,[2 ] was three-fold.  First, he endeavoured to shew the plaintiff had in her letters released the defendant from his promise of marriage.  Secondly, that the plaintiff in having obtained a new suitor, had evidently sustained no injury.  And thirdly, that the plaintiff had kept improper company; and so far justified the defection of the defendant.  He contended also, that promises of marriage were commonly proved very easily; while on the other hand when a release from such promises took place, it could scarcely be known by any one save the parties themselves; he therefore trusted the Court would consider the slightest proof of a release of the defendant's promise of marriage in the present instance to be sufficient; the proofs he should offer to establish that point, were contained in the plaintiff's letters; letters were then read, in which the writer used expressions similar to these: "that she would never trouble him (the defendant) more, that she never had said, she would force him to keep his promise."  The Counsel then read extracts from letters addressed to the plaintiff, by a Mr. Sutor; one of which had been accompanied hy [sic] a present of two mountain parrots; the donor described one of the parrots as being able to sing "My heart with love is beating."  He said also, that he hoped when next they met, he should receive from herself reciprocal declarations of affection.  In the second letter he mentioned he had availed himself of another opportunity of broaching his love, &c. &c..  The plaintiff was not entitled to damages, continued the Counsel, because she had encouraged the second lover; it appeared it was all the same to the plaintiff whom she married!  Sutor was as good as the other.

After addressing the Jury at considerable length, the learned Counsel proceeded to call

Francis Mitchell ---- I know that the plaintiff is acquainted with Mr. D. Sutor; some presents and letters were brought to me, which I forwarded to the plaintiff, which she kept for six weeks, and then returned them: witness is not aware that plaintiff is shortly to be married; never knew that he received any encouragement from plaintiff.

Armstrong examined ---- I remember the defendant; I have taken a great number of notes from the plaintiff to defendant; my Mistress threatened to punish me if I carried any more; I cannot say when that was; Mrs. Cox and the servant girl threw some stones at me, on one occasion, for taking some letters; heard of his Mistress speak concerning a marriage which was to take place between plaintiff and Mr. Sutor.

Mr. Wentworth replied.

The Judge summed up[3 ] --- and the Jury returned a Verdict of One Hundred Pounds.

 

Notes

[1 ] The case was reported by the Sydney Gazette on 19 May 1825.  That newspaper could not refrain from sniggering over the facts (at p. 2 col. 4).  It is no coincidence that Wentworth represented Sarah Cox, as she was pregnant with his child by this time: see J Ritchie, The Wentworths Father and Son, Miegunyah, Melbourne, 1997, 211-213.

For discussion of a breach of promise of marriage case a generation earlier, Sutton v. Humphreys (1806), see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 97-99.

[2 ] According to the Sydney Gazette, 19 May 1825, Mr. Norton, a solicitor, assisted Dr Wardell.

[3 ] According to the Sydney Gazette, 19 May 1825, Forbes C.J. ``stated, in his opinion, that a promise had been duly and deliberately given, with the consent of the parents".

Published by the Division of Law, Macquarie University