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Colonial Cases

Johnstone v. Cumins, 1840

[breach of promise of marriage]

Johnstone v. Cumins

Supreme Court, Bombay
11 February 1840
Source: The Bombay Times, 22 February 1840





 Breach of Promise of Marriage.





   Counsel for Plaintiff, Messrs. Howard and Burgess.

   Attorney for Plaintiff, Mr. Ayrton.

   Counsel for Defendant, Messrs. Campbell & Dickinson.

   Attorney for Defendant, Mr. Leech.

   Mr. Burgess opened the pleadings.  It was a case of assumpsit, to which defendant pleaded non assumpsit.

   Mr. Dickinson moved that all the witnesses be ordered out of the Court.  The witnesses were then removed.

   Mr. Howard stated the case.  The plaintiff, an interesting young woman had come to this country with Mrs. Colonel Pottinger not two years ago.  In consequence of illness she removed to the house of a respectable man named Shaugnessy, a conductor in the Commissariat, where she recovered her health.  During her residence there, about the 18th of October last, the defendant J. A. Cummins, whose name as contractor for certain supplies, was known to Mr. Shaugnessy, sought his acquaintance and asked to be introduced to Miss Johnston.  The introduction took place.  The defendant who expressed himself delighted with the person and manners of the plaintiff, visited daily for a week, and then asked permission to pay his addresses.  Having obtained her consent, he soon became her declared lover, and during 6 weeks every preparation was made for the marriage.  Presents of rings and jewellery were made by the defendant, and the wedding dress bought.  The 8th of January was fixed as the day, and a wedding trip fixed to Candhalla.

   About the 8th of December the defendant suddenly broke off his visits.  Mr. Shaugnessy some days after inquired from him the cause of his extraordinary conduct, when he declared that he had changed his mind in consequence of letters he had received from home.  Those letters were never produced.  In compliance with Mr. Shauhnessy's request the defendant wrote to him an explanatory letter, completely exonerating Miss Johnstone from all blame, and placing her character beyond all reproach.  Miss Johnstone's health was of course affected.  By the advice of her friends application was made to an Attorney, who wrote to the defendant for an explanation, and compensation; this letter was answered by another Attorney acting on behalf odf the defendant, in which an attempt was made to treat the whole matter as a jest, and the defendant pretended not to know what he had done, altho' he had persuaded Miss Johnstone to write to Mrs. Colonel Pottinger to break her engagement with that Lady.  Proof would be brought forward that the defendant was possessed of property, and the plaintiff therefore brought forward this action, with the hope that the Court would cause adequate damages to be awarded to her, for the injury she had received.

   First evidence.  Conductor Shaughnessy Commissariat department, sworn and examined by Mr. Burgess.

   States his name to be Patrick Shaughnessy, is acquainted with the Plaintiff Miss Johnstone since October last, when Mr. Cumins came to him in the Deputy Commissary general's office, at which time he asked witness if a person named Miss Johnstone resided in his house, which was answered in the affirmative.  Mr. Cumins said he had heard a great deal of Miss. J. and wished witness to introduce him to her: witness asked him if he had seen her, he said oh yes, I have both seen her and heard much of her, and am prepossessed in her favor and desirous to visit her; he further said that witness was at liberty to make enquiries as to his character.  As he seemed determined on the point, witness told him he had no objection to his visiting at his house, when Mr. Cumins proposed to visit witness and take tea the next Sunday evening; he accordingly came to witness' house on the evening just mentioned and was introduced to Miss Johnstone, as also to Mrs. Shaughnessy, neither of whom knew him. 

   Mr. C. stayed to tea, there was nothing remarkable in his behaviour, but he said, on my accompanying him a short way from the house, that his ideas of Miss J. wert confirmed, and expressed a wish to follow the matter up, from which I inferred his intention was to propose marriage to Miss J. - Witness observed to him that precipitancy in such matters did not look well.  Mr. C.'s behaviour towards Miss J. was kind and attentive.  Witness means to say, that in Mr. C.'s visits to his house, his conversation was almost wholly addressed to Miss J. - Mr. Cumins came again the next evening and his behaviour was similar to that on his first visit; indeed he shewed Miss J. every possible attention, it was in fact quite remarkable, it was not of the nature he observed towards Mrs. Shaughnessy; - he looked pleased, and there was every appearance that he was courting Miss J.  On a third visit he again expressed his sense of Miss J.'s attractions and seemed very unsettled, and most anxious to have the matter brought to a conclusion. - Witness referred Mr. C. to Mrs. S., as he did not wish to interfere in the matter, at the same time witness told him he had no objection to the course Mr. C. was pursuing, and had nothing to urge against Mr. C.'s character.

   The result of this courtship elicited a proposal of marriage to Miss J. - Mr. C. told witness he had done so - this occurred about the end of October, and Mr. C. said Miss J. had accepted his proposal, mentioning that all his anxieties were removed, and that they had agreed to be married in the first week in January.  Subsequent to Mr. C.'s proposal being accepted, the wedding dress was ordered, and every thing went on smoothly up to the 8th December, when Mr. C. visited Miss J. on the evening of that day and renewed his attentions to her, but since that day (Sunday) he never entered witness' house. - Witness saw him a few days after his last visit, when Mr. C. said he would call that evening.  Witness told him of Miss J.'s distressed state of mind owing to his apparent neglect in not visiting her; - Witness afterwards saw him and on speaking to Mr. C. on the subject of his engagement with Miss J. he evinced considerable reluctance to enter upon it and expressed that a change had taken place in his sentiments towards Miss J. - Witness could not believe him - he reasoned with Mr. C., when he replied, he would think of the matter, but witness from the tenor of his conversation was at a loss what to make of it. -

   Witness then went to a friend employed in the Adjutant General's Office, a Mr. Smith, and mentioned the change which had taken place in Mr. C.'s conduct towards Miss J. - Witness again saw Mr. C. some days after the above occurrence, when in the course of conversation, he said he must break off the match - this was about a fortnight after one of his visits, or about the middle of December. - Witness again consulted with Mr. Smith, and subsequently conferred with Mr. C. representing to him the impropriety of his conduct towards Miss J. - On asking him why he hesitated to give the written explanation  asked for, he gave witness evasive answers, and when again pressed for the explanation in writing, for which witness intimated his intention of visiting him at his house, he attempted to put him off by saying he was going that evening to Tannah, where witness said he would accompany him.  -

   He mentioned to witness while at his house, that he had met a person on his return home that evening, who had informed him that witness intended to enter an action against him on Miss J.'s account. - Witness replied, that should Miss J. be inclined to enter an action against M r. C. there was quite enough living evidence to prove the breach of his promise of marriage to her.  Mr. C. then alluded to certain letters he said he had received from home by the overland mail which rendered it impossible his re-entering the marriage state.  Mr. C. subsequently addressed witness the required letter (Witness produces letter, which is read.)

My dear Sir,

   After the attention I have paid Miss Johnstone for some time back, I think it incumbent on me to offer you (as guardian to that young lady) some explanation  for my being now obliged to discontinue that attention - That any idle stories that might have been in circulation injurious to her character is not the cause, I am confident you must be already aware of,  as I for a moment would not give them the slightest credence, and from what I have seen, a more amiable young person it would be difficult to meet with.

   On the arrival of the last overland mail I received a communication from England of a nature to prevent the possibility of my entering into any matrimonial engagement.  As the circumstances I allude to are of a private nature, an d relate solely to my own family, I do not consider it correct to allude to them here, but if you will kindly favour me with a call I will be happy to lay the whole matter before you, when I feel confident you will agree with me as to the propriety of my ceasing to visit Miss Johnstone on the terms I formerly did.

   To describe to you, my dear Sir, the present agitated state of my feelings, would be in vain for me to attempt, but I beg of you to believe that I sincerely regret that circumstances, such as I have already alluded to, should have ever transpired to preclude the fulfillment of the honourable intentions I entertained towards Miss Johnstone - her welfare shall ever be uppermost in my thoughts, and should an opportunity ever occur in which I can serve her interest, nothing in life will give me a greater happiness than to do so.

   I have now in conclusion only to solicit the favour of your kindly interposing to represent the unfortunate affair in so favourable a manner to Miss Johnstone as to induce her forgiveness, and that she will hereafter receive me as a sincere friend and well wisher.

Yours faithfully, JAS. CUMINS.

14th Decr. 1839.


   Witness knows Mr. C.'s hand writing from having seen his signature attached to receipts for payments to him. - Witness frequently saw Mr. C. after the letter was sent, but not to speak to him, he referred me to Mr. Brown about his family affairs. 

   Besides the marriage dresses, certain articles of jewellery were presented by Mr. C. to Miss J. - Mr. C. questioned witness, and asked his advice about the wedding dress and trinkets, but witness told him he would not interfere in such matters - witness heard the Defendant speak about some rings, which he said he did not think pretty enough; - the wedding ring was rather too large (a laugh). The marriage was talked over in witness' presence, and after some discussion it was at length agreed to take place at St. Thomas' Cathedral - Mr. C. wished to be married at the Scotch Church, to which Miss J. objected, saying she did  not understand its ceremonials.  Mr. C. wished to be married in the Scotch church, observing, there was less trouble about it, and said there were difficulties in the obtaining a licence from the Church of England ecclesiastical authorities - Witness denied it, when Mr. C. proposed his accompanying him to procure one.  Witness does not recollect the particular day fixed for the marriage.  Mr. C. told witness they were to be married the first week in January - Mrs. Shaughnessy was to accompany the married couple to Kandalla - witness can not state exact day of marriage.  Miss J. was placed in witness' house at the instance of Colonel Pottinger's lady.

   The Plaintiff on being fully satisfied of the Defendant's deception, became much depressed in spirits and suffering severely in mind, continued for a long time an invalid, whilst the Defendant with the utmost malice and effrontery attempted to justify himself to his friends by giving out that he had heard something  of Miss Johnstone, which would have induced him to have changed his mind even at the church-door; the Plaintiff was then hesitating upon wheat course she should pursue, but on hearing this, it at once rendered it necessary that she should vindicate her character by adopting legal proceedings.

   It only remained for the Plaintiff to wait patiently until the time fixed for the marriage had passed over, when her attorney addressed to Mr. Cumins the following letter.

COURT HOUSE, 10th January 1840.


        I am instructed by Miss Johnstone to address you, in consequence of your having failed to fulfil your engagement with her, but you must be so well aware of the extent of the injury you have inflicted by your breach of faith, aggravated by the statements you have publicly made in attempting to palliate it, that I think it unnecessary to enter further upon the subject.

   I have therefore only to require you to make a public admission of your being exclusively in fault, and of Miss Johnstone being entirely irreproachable, coupled with a sufficient compensation for the damage she has sustained in her peace of mind, personal health and future prospects.

   Requesting the favor of an immediate reply.

   I am, Sir, &c.  (Signed) A. S. AYRTON.


   To the above no answer was for some time received, and the present action was therefore commenced, after which the following reply was forwarded by the Defendant's attorney.

Bombay, 15th January 1840

... A. S. AYRTON, Esquire,

Attorney for Miss Johnstone.

   SIR, - Mr. Cumins desires me to acknowledge your letters of the 10th and 13th instant, which he would have acknowledged before this, had he not thought their subject a jest, however improper it would be to make such a subject a matter of jesting.  Mr. Cumins desires me to say that nothing could give him more pain than to have his conduct in this matter so misconstrued as it has been, and he is much annoyed at its being for a moment imagined, that his occasional visits at the house of Mr. Shaughnessy, where Miss Johnstone was a guest, were attributed to any motive other than one of mere civility to Mr. Shaughnessy's family.  The indecency of Mr. Cumins paying, as well as the indelicacy which would have resulted from Miss Johnstone's receiving his addresses, while in mourning for his first wife, and within three months of her death, Mr. Cummins considered would have been a sufficient guarantee that his visits meant nothing more than mere civility, and the moment he was led to believe that they were supposed to have any other motive, he discontinued them. 

   Some time afterwards, Mr. Shaughnessy informed him that a report had reached the ears of the Lady with whom Miss Johnstone came to India, that it had been Mr. Cumin's intention  to ally himself in marriage with her, and that ill natured people had assigned as a reason  for the discontinuance of Mr. Cumin's attention, that reports prejudicial to Miss Johnstone's character were in circulation, and as it was desirable to remove the impression  from the Lady's mind, that Mr. Shaughnessy requested Mr. Cumins to write to him to express his belief in Miss Johnstone's rectitude of conduct.  Mr. Shaughnessy accordingly wrote a letter addressed to himself, which Mr. Cumins signed, and in which he expressed (what was really the truth) that he never placed the slightest reliance on such rumours, and did not for a moment hesitate to express his conviction of the purity of Miss Johnstone's life and character.

   With regard to your demand for compensation for what you describe as the damage sustained by Miss Johnstone in peace of mind, personal health, and prospects, Mr. Cumins desires me to say that he is at a loss to know to what these terms apply, and therefore finds a difficulty in replying to them, since he cannot discover how his having visited half a dozen times during one month at the house where Miss Johnstone was a guest, and as he was informed at the time, engaged to be married to another individual, could have caused all this mischief, or how pecuniary compensation to Miss Johnstone could mend her error in misinterpreting Mr. Cumins' intentions.

   Mr. Cumins desires me now to say, that his meeting such a demand otherwise than with a denial, would be an admission of his having acted wrong, instead of which, conscious of the rectitude of his motives, he desires me distinctly to say that he will make no compensation to Miss Johnstone for what is her own misconstruction, in attributing visits which Mr. Cumins meant for mere civility to others, to a warmer feeling to herself, a feeling which Mr. Cumins desires me to say, with every respect  for Miss Johnstone, he never felt towards her.

I am, Sir, &c., (Signed) G. WILLIAMS LEECH, Solr. Supreme Court.

   Cross-examined by Mr. Dickinson. - Witness has known Miss J. since September 1838. - Knows Mrs. Pottinger, but not the Colonel - did not know Mrs. P. before her last arrival in India.  Miss J. was lady's maid to Mrs. P. and accompanied her from England.  Miss J. being poorly, witness's wife asked Mrs. P. to allow her to visit her house for a change of air and the recovery of her health - witness thinks she came there in September 1838 - he did not know her previously - Miss J. came to witness' house as a friend, and he was not to receive any compensation for her board &c.  Witness permitted her to reside in his house on account of Mrs. P.'s recommendation - Miss J. is a pretty, interesting woman - the matter of her residing in my house was arranged by Mrs. P with my Wife - Miss J. recovered from her illness after coming to reside in witness' house - witness formerly lived at Poona but removed to Bombay in Decr. 1839. Mrs. Pottinger came from Sinde in May last.  Witness recollects it was in Decr. 1838 he came to Bombay - knew Miss J. at Poona, she was then in delicate health - she had a severe fit of illness there but subsequently recovered.

   Witness first knew Mr. C. after he arrived in Bombay in Decr. 1838 - never knew Mr. C. to come to witness' house, but had spoken to him frequently on points of duty - knew hjis character from having served in the same Regiment with him - knows nothing wrong whatever with respect to his character, and on his requesting to be introduced to Miss J. certainly thought him a fit person to be united to her; witness entertained a favorable opinion of Mr. C. and introduced him to Miss J. which led to his paying his addresses to her - on his introduction to Miss J. witness conceived that he had requested it to court her - thinks Miss J.'s character, from what witness has seen and heard of her, to be very good, and did not think he was acting improperly when he introduced Mr. C. to Miss J. - Witness did not let Miss J. know of the conversation which had passed between him and Mr. C.

   When witness stated that he did not like the matter at all with respect to Mr. C.'s introduction to Miss J., he meant so much only as had reference to his own convenience - he had n o thought but that the match would be a good one.  (Here some badinage was bantered between Counsel and witness, the former complimenting the latter as being a handsome man, which compliment witness returned to Mr. D.)   Knew that Mr. C. had been married and that he was now a widower - witness observed his change of dress about the time Defendant first spoke to him.  On the Sunday evening Mr. C. came to witness' house, there was no one present besides witness' family.  Mr. C. behaved himself in a very correct manner, witness had no idea that he was possessed of deceit, told his wife (Mrs. S.) what Mr. C. had said to witness - thinks Mr. C. is about 30 years of age, does not keep a  diary, but has a retentive memory - Mr. C. was respectfully distant to Miss J. on his first visit, but was warm in his expression of her to me when walking out with him - Witness  does not see company, being too much engaged, but admits he made an exception  in favor of Mr. Cumins. -

   Many persons were in the habit of calling at witness' house, and when Mr. C. was present Mr. and Mrs. Mahony called in one evening and took tea - it was generally known that Mr. C. was about to marry Miss L. - Witness knows Mr. Tant and is aware he paid his addresses to Miss J. as she acknowledged that he was her accepted admirer - never learned from Mrs. Pottinger that Mr. Tant was Miss J.'s admirer - but has heard Miss J. say so.

   The wedding dress was made up after Mrs. P. proceeded to Guzerat - Miss J. purchased the dresses in company of Mrs. S. - Did not know what wages Miss J. received from Mrs. P. - She received none while residing at witness' house.  Miss J. is not possessed of a fortune - she paid for the dresses from money she received from Mr. C. - Mr. C. often came and drank tea at witness' house, immediately after which he went away - Witness asked Mr. C. to shew him the letters he had received from England, oln which he shewed him one from his sister and asked witness if he ever saw such beautiful writing, witness said it was certainly very pretty, on which Mr. C. folded it up and put it away (a laugh).  Witness is not subject to palpitations of the heart. - Witness was not authorized by Miss J. to ask for any explanation of the conduct of Mr. C. -

   Mr. C. wrote witness two paras of a letter (already read) and at his request added two more to it.  On the evening previous to his writing the letter he said he did not know how to dictate it - Witness replied, surely your own conscience will dictate the expression  of your feelings, in consequence of which he penned the first two paras of that letter which was never seen  wither by Miss J. or Mr. S. - Witness sent the letter back to Mr. C. with a note - Here the Chief Justice and Counsel argued regarding the identification  of the note, his Lordship's opinion being, that on any question arising out of its perusal by the parties concerned in the trial it ought to be put in evidence, which the learned Counsel expressed his reluctance to so.)  Witness is not quite certain whether he shewed the note to Mrs. S. but her informed her of its contents.  Witness sent Mr. C. a paper of his drawing up without consulting Miss J. - The letter just shewn me is the reply to such communication - Wirness had paid money for Miss J. on account of this action; witness is a Roman Catholic, considered Mr. C. a Protestant, witness never met him at the Roman Catholic Chapel, and says he himself has not attended there of late.

Re-examined by Mr. Burgess.

  The letter shewn me is in Mr. C.'s hand writing - the match between Miss J. and Mr. Tant was broken off owing to some unpleasant correspondence which passed between them, and from hear say, witness was led to believe Mr. Tant's addresses to Miss J. were encouraged by Mrs. Pottinger.  Mrs. P. takes a great interest in Miss J.'s welfare.  Mr. C. is considered to be a man of property, and witness has heard it said he was worth Rs. 75,000.

   Mrs. Shaughnessy sworn and examined by Mr. Howard.

   States she is the wife of the last witness, knows Miss J. who resides at her house, since she came there in May last, knows Mr. C., he visited at her house, which he continued, and spoke to witness regarding Miss J. - this was in October last.  When in conversation with me Mr. C. desired me to make his sentiments known to Miss J., that is, he wished witness to encourage him in his addresses to Miss J. which was consented to - Mr. C. made a proposal of marriage to Miss J., of which circumstances both Mr. C. and Miss J. informed her: this occurred in November last - the day of their marriage was fixed to take place on the 9th, but was afterwards altered to the 8th January - both parties made witness acquainted with all particulars - they were to be married in St. Thomas' cathedral, after which they would proceed to Kundalla - the wedding dress was provided and paid for with Mr. C.'s money - witness was present when the purchases were made and paid for, knows that Miss J. communicated to Mrs. Pottinger her intention to marry Mr. C.

Cross-examined by Mr. Dickinson.

   Before witness saw Mr. C. she approved of his visiting her house because her husband desired it.  Mr. C. paid his first visit on a Sunday - did not think it right to say to Miss J. that an enemy was in camp.  Did not say much to Miss J. about Mr. C.'s visits, but hinted that from their frequency his intentions were easily seen through, as regarded her.  Mr. C. deputed me as his agent to be allowed to propose to Miss J., who said she had no objection to receive his visits if he was a respectable man.  Miss J. received Rs. 100 from Mr. C. and some jewellery, such as ear rings &c.  Has known many young ladies here, but never was a Match-maker - had no partiality for Mr. C. but thought he would be a good match for Miss J.  Dies now know what religion Mr. C. professes but has heard he was a Roman Catholic - is not in the habit of making inquires about any person's religion.  Witness is a Roman Catholic; - has heard of Bishop Prendergast, and knows a Mr. Flynn, he never made any charge against witness to Dr. Prendergast; - does not now attend mass, and is not e excommunicated; witness' name was Flynn before her marriage to Mr. Shaughnessy; - her former husband died in 1828, knew Mr. S. in 1824, and was married to him about 10 years ago.  Witness says she was married to Mr. S. after 1828.  Mr. Flynn, my former husband, came out bin 1815.  I accompanied him.  (The Court here interfered to ascertain the object of such questions being put to the witness, observing that they could be of no utility, since there could be no doubt as to her respectability.

   Mr. George B. Smith sworn and examined by Mr. Burgess.  Says he knows M r. C. who lives at the Race course in a very handsome house as good as any on the island.  Mr. C. does not keep horses but keeps a mare, and has a manufactory of saddlery &c. adjoining his house.  Mr. C. told witness that his house had cost him Rupees 20,000; has known the Defendant some time, believes he has been in this country about 8 years, and he appears to have been a thriving man for the last 3 years; he was a soldier in the Artillery and had the situation of clerk in the office of the Ordnance Assistant, he never bore a commission.

   Hormnosjee Eduljee sworn and examined by Mr. Howard.

   Says he is a clerk in the Deputy Commissary General's office, knows Mr. C., he holds a contract from Government and received payment for his supplies from the Commissariat Department, which amounts to about Rupees 8000 per mensem.  Knows this to be the case from passing his bills.

   Cross examined by Mr. Dickinson. - The bills alluded to are for Saddlery supplied by Mr. C. by contract, the profit being in some measure regulated by the price of leather.  Mr. C. is bound to make the supplies required be leather at what price it may.

   No Witnesses were called on behalf of the defendant.

   The Court then proceeded to deliberate for some time, after which

   The Chief Justice pronounced its judgment.  Many of the observations during the trial appeared to be addressed to the character of the Plaintiff, against which nothing was brought forward.  The Witnesses for the Plaintiff, both highly respectable ones, and who had conducted themselves towards her with good feeling and kindness, had proved her case, which was also corroborated by the letter of the defendant.  Yet there appeared to be a willingness to bring forward accusations, on the part of the defence, and if they could be established on any solid ground no doubt they would have been.

   On the contrary every thing that had been done, tended to place the character of the plaintiff in a good light.  The defendant had gone forward of his own accord, and sought to gain the plaintiff's affections, and had made an offer of marriage, not hastily nor rashly but after due caution on the score of precipitancy from the first Witness; he persisted, and having  during 6 weeks continued his proposals, then abruptly broke off the contract.  He had not been allowed at first to visit at the house of Mr. Shaughnessy without being known to him, as he and the Witness had been members of the same respectable Corps, and in the course of business the witness Shaughnessy must have heard of his character. 

   The reputation of the Plaintiff had come out of the trial intact; nothing has been brought against it.  The Court therefore taking the whole of the case into consideration, and having also before it, that the Plaintiff had been a lady's maid, had come to a decision to award damages to the amount of 2,000 Rupees.

   The PUISNE JUDGE, Sir Henry Roper, then explained his opinion, that awarding damages in such a case was never satisfactory, and that actions of that nature were always, if they could by possibility be settled otherwise, best avoided.  Whatever ground the defendant had for resting upon his letter of apology to Mr. Shaugnessy, was altogether destroyed by the subsequent letter, written as it appeared by his Attorney under his directions.  He (Sir H. R.) could not find expressions to describe his disgust at that communication, which was wholly at variance with the facts proved, and with the admissions of the former letter.  He had not dared to bring forward any aspersions on the character of the Plaintiff, but he seemed to be withheld from doing so solely by the conviction of his inability to substantiate them.  The reply was however couched in terms calculated to be most offensive, and the Court was bound to express its reprobation of such conduct, by proportionate damages - and at the same time taking the situation in life of the plaintiff into consideration, had come to the verdict already pronounced.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School