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

Miller v Brett [1832] NSWSupC 41

breach of promise of marriage - reception of English law, marriage - infancy

Supreme Court of New South Wales

Stephen J., 18 June 1832

Source: Sydney Herald, 21 June 1832[1 ]


Breach of marriage promise. - Miller v. Brett -

This was an action brought by plaintiff's guardian against the defendant, to recover compensation in damages for a breach of marriage promise.  Damages were laid at £1000.

The defendant pleaded the general issue.

Mr. Wentworth appeared for the plaintiff, Mr. McDowall for defendant.

Mr. Wentworth addressed the Jury as follows:-

May it please your Honor, and gentlemen of the Jury - This is an action brought by the guardian of Miss Rebecca Miller, she not being twenty-one years of age, against the defendant, to recover compensation in damages for a breach of promise of marriage.  The breach is set forth in a single count in the declaration, to which the defendant has pleaded the general issue, by which he denies that he made any such promise; the issue now to be tried is, whether he did or did not make any such promise.  The plaintiff is the daughter of a respectable baker on a large scale, resident at Parramatta; the defendant carries on trade as a publican, in George-street, Sydney, and also an extensive business as a wine and spirit merchant.  The acquaintance between the parties commenced so far back as the 28th Nov. 1830, on which occasion the defendant was first introduced by Mr. and Mrs. Wyer, this acquaintance was not resumed till twelve months after this visit.  On the second visit, which took place in 1831, it was clear that plaintiff had made a strong impression on defendant's mind, for immediately after dinner he asked permission to pay his addresses to the young lady; it was  therefore obviously ``love at first sight."  The guardian did not immediately concede to his request, but said he would pause and consider, and if the defendant would call in a week, he would give him an answer.  On the 13th Nov. - 31, defendant repeated his visit, and went in company with Mr. Jilks, and Mr. and Mrs. Wyer, in the mean time the guardian had made enquiries which proved satisfactory, gave his formal consent, and defendant was received as the young lady's lover.  On the 20th of the same month he paid another visit, in company with Mr. and Mrs. Jilks, when defendant was so attentive and pressing, that he completely gained the affection of the plaintiff, and a formal proposal was made on the 27th of the same month, the guardian gave his consent, and it was settled that the marriage should take place at the commencement of the new year; in the mean time visit after visit took place, and, of course, the affection become more firmly rooted.  On the 22nd Dec. an annoymous [sic] letter was sent to the guardian or Jilks, which stated that defendant was a married man at home, and had three children; a strict enquiry was consequently made, when it proved to be the result of malice, and without the least foundation.  The report had no effect in breaking off the match, it only suspended the interviews; he would call their attention particularly to this circumstance, as it would, doubtless, be one feature set up for the defendant to give up his suit.  [Mr. W. here read the letter, defendant stated he was happy the enquiries made had proved satisfactory, he felt chagrined that his name should be banded about, but he hoped that sort of thing was now put an end to.  He could not dine with them on Christmas-day, it being a busy time with him, but he would the first day after; he also sent his love to Rebecca, meaning plaintiff.]

Gentlemen, continued Mr. W., it is clear he did not disapprove of these enquiries, but was pleased that they terminated so favorably; he had promised to dine with them on Christmas-day, but business prevented.  I shall prove that on New year's day he did visit them, and carried with him a variety of rings, and fitted one on the young lady's finger, and all preliminaries being settled, it was agreed that they should be married the week after.  Under these circumstances, what must have been the astonishment of the young lady and her family, to have received the following letter six days afterwards, declining to be allied to their family, but without assigning any reason.  The letter is dated the 6th January, 1832, in which defendant deeply regrets and severely felt the necessity of declining an alliance with their family, intending to live in a state of single blessedness which would, no doubt, gratify the malignancy of a disappointed woman, at the same time he felt the same love for Rebecca he always had done, and should still entertain.

Gentlemen, see this fickle swain fitting on the ring, putting the parties to the expense of wedding dresses, &c., and six days after breaking off the match, but with the cunning of a fox, expressing his extreme regret, &c.

These are plain circumstances which I shall prove to you in evidence, and I am at a loss what line of defence can be set up, I dare say there will be a good deal of wit, but no solid reason, which will avail him very little, and if he attempts to insinuate anything against the character of the young lady, it will avail him still less.  Gentlemen, I shall throw no kind of romance into this case; here are persons in the middle walk of life, and they have a Jury of their Peers to decide upon the case, and teach young men, if they will proceed thus far, they should proceed a little farther.  I hope, gentlemen, you will make this defendant pay liberally for his freak, and in justice you ought to make him do so, even if he should begin the world again with very little money.  I am sure, gentlemen, you will pronounce such a verdict as the case requires.

Mr. George Jilks proved sundry visits of defendant to plaintiff, and his acknowledging his intention to marry plaintiff after the letter was written charging him with having a wife and family in England.

Mrs. Jilks proved, that some time last year she dined, in company with her husband and Miss Miller, at defendant's house, after dinner witness and Miss Miller retired, Mr. Brett followed, and having seated himself beside Miss Miller, said, ``If you will have me for a husband I will have you for a wife;" Miss M. replied, she was not of age, and therefore could not answer the question properly; Mr. Brett then, taking hold on her hand, said ``here's my hand and here's my heart."  Mrs. Jilks also proved that the wedding dresses had been prepared.

Mrs. Wyer knew defendant used to visit plaintiff, always thought as a friend, did not attach anything of a more tender nature to it.

Mr. George Paul endeavored [sic] to prove that, defendant's business was a losing concern, but could say not anything relative to his affairs since March last twelve months.

This was plaintiff's case.

Mr. McDowall addressed the Jury for the defendant.  From the talent arraigned against him on the other side, he approached the case with considerable apprehension.   These were cases that ought to be seldom brought and sparingly encouraged, and which a sensative [sic] mind always shrunk from being made a party to.  He was no convert to the doctrine of broken hearts, he believed them to exist only in poetry, yet he did believe, and was firmly persuaded that there was, in woman, with all her softness, a spirit so proud, that rather than seek through all the ramifications of a Court of Justice for pecuniary recommence for wounded feelings, ``she would die the death" - he spoke of a pure minded woman.  He would call their attention to defendant's letters as abundant proof of his justification.  No evidence had been adduced that defendant was in a situation to pay damage, or that the young lady's wounded feelings required damages, he would call their attention to the business like manner in which the whole affair was conducted, after dinner, and perhaps late after dinner, when Mr. Brett was, no doubt, elevated with his own wine, and with the company of Mrs. Jilks and Miss Bennett he made proposals, and the most curious he ever heard - ``If you will take me for a husband, I'll take you for a wife; here's my hand and here's my heart;" but the young lady immediately states that she had no power to give her consent, but referred him to her guardian.  He wished to cast no imputation upon the young lady, but Mr. Wentworth had stated she came into that Court, not for recompense for her wounded feelings, but the loss of an establishment; but the Gentlemen of the Jury would remember, there were twenty-five young men in Sydney to one young woman, therefore she could have sustained no loss.  He felt satisfied that if they found verdict for the plaintiff, the utmost would be one shilling, to teach persons who meddled in marriage speculations, that when they fail, they are not to drag parties before a Court of Justice to have their feelings analysed and affections weighed, and to mete out in the balance the exact sum requisite to assuage wounded feelings; he relied upon a verdict, to discourage such experiments, and prove to the world how highly they disapproved of the present attempt.

No witnesses were called for the defendant.

The learned Judge summed up, and the Jury, after a short absence, returned into Court, and found a verdict for plaintiff.  Damages, £100.


Stephen J., 18 June 1832

Source: Australian, 22 June 1832[2 ]


The learned Judge put the case to the Jury, on the facts in evidence, to say whether or no, first, - there had been a promise of marriage made by the defendant, and secondly, if he had broken such promise.  In the event of their concluding in the affirmative, which the learned Judge fully anticipated, they would next take into their consideration the situation of both parties in life, and the pecuniary circumstances of the defendant, in particular, as to apportioning the amount of damages.  Promising marriage to a female of virtue and the[n] he wantonly violates that promise, his Honor considered was one of the extremest injuries which man could inflict upon the other sex; and for such a wrong, the law had wisely furnished a remedy.  To what extent the plaintiff was entitled, it would be for the Gentlemen of the Jury to determine.

The Jury retired, and after an absence of about twenty minutes, returned into Court, finding a verdict for the Plaintiff, damages £100. 

Throughout the whole of this trial, which lasted only about three hours and a half, the Court was unusually thronged; and inside the bar crowded to excess.  We have rarely seen a case considered with more temper, on both sides.  Mr Wentworth's opening was particularly calm, perspicuous, and concise.  Mr M'Dowell is certainly a fluent speaker, and well calculated to cut a respectable figure at the bar, after a few years reading and practise.



[1 ] See also Sydney Gazette, 21 June 1832; Australian, 22 June 1832.

Viscount Goderich told Governor Bourke in 1832 that there was no need to decide whether the Marriage Act of 2 Geo applies in New South Wales, because the Legislative Council has power to pass the colony's own Act: Goderich to Bourke, 25 December 1832, Historical Records of Australia, Series 1, Vol. 16, p. 833.

[2 ] As part of its lengthy account of the trial, the Australian, 22 June 1832, gave the fullest account of the judge's charge to the jury, as follows.

Published by the Division of Law, Macquarie University