BREACH OF PROMISE CASE.

Grey River Argus, Volume XII, Issue 1144, 28 March 1872, Page 2

BREACH OF PROMISE CASE.

The case: of Mauhsell v. Cassius was commenced iv the Supreme Court, Melbourne, on the 14th instant, before his Honor Chief Justice Stawell and a special jury of twelve. The plaintiff, Miss Phoebe Msninsell, daughter of Mr" C. Maunsell, solicitor^ of Melbourne, claims L5OOO damages from the defendant, Mr Michael Albert Cassius, merchant, of Hokitika, for breach of,; promise of {marriage. The defendant pleaded that a reasonable time for the .marriage had not elapsed before the action wa3 commenced ; that, before the expiry of the said reasonable time, he became and still is prevented by the will of Qod, to wit, parmanent illness, hap pening after the agreement,. from marrying the plaintiff ; and that the agreement was made subject to the condition that, if the defendant should be unable to marry the plaintiff in consequence of illness, he should be exonerated from fulfilling the said agreement. Mr Billing, Mr Fellows, and Mr Box for the plaintiff ; Mr Ireland, Q. 0., Mr Higinbotham, and Mr Williams for the defendant. The plaintiff, who is twenty-six years old, is tall, ladylike, and well educated, with pleasing features. The defendant, who is evidently about forty years of age* is a tall, intelligent, and gentlemanlylooking man. Mr Billing, in opening the case for the plaintiff, said the -defendant's pleas were legally bad. The plaintiff, -whose father was at one time a solicitor with a considerable practice in Dublin, came out to Melbourne in 1867. She became engaged to defendant while on a, visit in 1871 to the house of her brother, Dr Maunsell, surgeon-superintendent of the Hokitika Hospital, New Zealand. The defendant, who was the treasurer of the hospital, was acquainted with her brother, and thus became acquainted with her. The defendant proposed marriage on 13 th May, 1871, and was accepted by plaintiff, it being arranged between ; them that the marriage should take place in Melbourne. On the sth of June she left for Melbourne, and on the 25th of that month the defendant wrote to the plaintiff's father informing him of the engagement. The 'plaintiff's father replied on the 7th of July, giving his cordial consent to the union, "and on the 26th the defendant wrote to Mr Maunsell, thanking him for his letter, and reiterating his joy at the contemplated union. .On the 18th of August defendant came to Melbourne, and put himself into communication with plaintiff and her family, and it was arranged between them that the marriage should take place in a fortnight. Soon after the arrangement defendant went co Tasmania, and the marriage was postponed till his return. Oa hia return,, he appeared to be vacillating, and again postponed the marriage till the Ist October ; but, before that date arrived, he refused to marry the plaintiff at all. On the 28th September, he wrote to plaintiff as follows;— ".My Darling Phoebe.— After a sleepless and most wretched niglit, I have determined to not see you again for the present, anyhow till I learn from you that you are sufficiently caltned to receive me. Haviug gradually allowed a feeling of mistrust, of doubt, of want of confidence in myself, to take possession- of my body and soul, I cannot shake off the" grave apprehension as to our intended union proving a source of misery to both of us. Being in a state bordering on mental derangement, I must not be expected to reason calmly >ith you to-day of the prudence of the course I feel in honor bound to adopt. All I might say in justification would not, I fear, secure me your forgiveness ; still I dare to crave your pardon. 1 have that confidence in the generosity of your heart that I dare not doubt that you will not only forgive me the grave injury I have done you through my rashness and thoughtlessness, but that you will acknowledge, after : calm reflection, that no other course was left to me but the one lam pursuing now. I will do anything you may bid me to atone for my conduct, for which people unacquainted with the painful circumstances of the case will blame me more than I deserve. But you, you will take my part at all hazards; you wjill not allow me to he blamed ruthlessly, because you alone know the real motives which are actuating me. In any case Itst me entreat you not to despair. Indeed, I hope that time will bring its own cure, and although I am not frightened that- you will ever forget me, I hope the love you bore me will turn into everlasting friendship rather than into hatred, the which I certainly richly deserve. My feelings are. overpowering me, I cannot continue this anylonger. I am swooning- at the idea of the consternation this note will cause you. . . .. . I had. written thus far early this morning, intending to send you this horrid missive not later than at nine o'clock. 1 have been fighting with myself ever sinee — one moment; feeling inclined to toiir into atoms this note and throw myself at yonr-ifeet, the next moment reason tells me to adhere to my first resolution. .Reason is right.' I 'feel it. And at the risk of causing unspeakable pain, for a while at, any rate, I succumb to the voice of reason, and ani deaf to the voice of my heart. , May. God ever bless you.— M. C" • In consequence of the breach of the agreement to, marry, the plaintiff's health had been seriously affected, and she had suffered immense anguish. The defendant was a very wealthy man in New Zealand, being the. proprietor of bank and mining shares, and much real property. He (Mr Billing) trusted the jury's verdict would teach him to behave better when next he paid addressee , to a young lady. . : ; •.::■••-... Phoebe Maunsoll, the plaintiff, deposed: I reside at. St. Kilda. -Visited my brother at Hokitika in the beginning of 1870. , There became acquainted with Mr Cassius, the defendant. He visited my brother's house a year and four months till about April, 1871. My brother then got married, and I went to stay at Mrs Harvey's, the wife of the District Judge. The defendant called there every day. In May I purposed leaving Mrs Harvey's to return to Melbourne. The defendant , knew 1 \va3 leaving. On the llth of that ! month he asked me to be his wife! I said " I would." He said the marriage would come off in two months. Left Hokitika oh 6th June and arrived on the 12th. Defendant arrived here on the 19th of August. He came to see me the day he arrived. , When 4 he had been hero a few days, he said we were to be married in about a fortnight' from that time. Saw him every day. : Before the fortnight elapsed, he told me had to go to Tasmania

on business, that he would; take me with him, and that we should: be married; on ,the;morning of his "departure. I said; I would be ready. "On the day after this conversation he said he had changed his mind about tailing me to Tasmania. I told him I would not consent to his going without me. He said lie must go or lose bin money, and that the marriage should come off after his return from Tiismania. I told him I had no faith in his promises.' He went, and returned on the 15th September. I think T- wrote a letter ,on the. 2nd October--" My . dearest Michaei-^I write to know will you conic to see me to-morrow morning at ten o'clock. I Bhall try to get up and see you. Oh, Michael, ray heart is breaking. Pray that I may have strength to bear my fate. ..... Oh, my dearest Michael, I shudder at the -thought of when you must leave. ......... . . . ... As i lie in bed I hear the people in the street laughing. They seem to bo mocking me in my misery. I fancied all night I heard you. walking before the house. Let me know how you are to-day. . . . You have been cruel to me in gaining my love, but I forgive you because I know you did it .thoughtlessly. . : „ . . . You often told me you would not be satisfied unless you were loved -intensely. You got your wish, and, God help me, I. can never change. . . . . If ever you want anyone to take care of yo*u summon me, and I shall go to you, for remember that once- I was to be your wife, and I shall never belong to. anyone else.. .... Oh, Michael; how I love and pity you. Write and comfort me, and let me know how you are. . . I believe now jthat you .will always love me. . .-.'". Yours always, Phoebe. Even now, I have' not realised that ;.we are separated, for I listen thinking I shall hear you knock at the door." ■ " Plaintiff : I wrote those letters when I was out of my. senses., Ido not think I really forgave him. Was out of my senses a long time. Did not show my letters to my mother before I sent them. (Looks at letter.) That is in defendant's handwriting. I receivedit. •■- ■'■"■ . Letter read as follows :—; : :^ " Tuesday, 3rd October.— Prince of ' Wales Hotel, My dearest Phcsbe— Judge of my surprise ! I had gone this morning early to town, in order ... to keep my appointment with you. ■■*■ I was^ served with a writ on your part for a breach of promise. Although lam quite certain in my mind that your father has taken this unwise step without your kuowledge and authority, I wish you to confirm me in this belief and assure me that you, never consented to this affair being taken into court and before , the world. . . . . I shall of course be compelled ■■■. ,; . to infer that you not only have ceased to love me, but in reality aever did love me. This latter thought almost maddens me. . ... Nothing but death will make me cease to love you. .... M. 0." .. . ...:•: . ... „ ,;,..- To Mr Ireland : That is in my handwriting, and was written in reply to his last." r Letter read as follows :— "My dearest Michael— l am going out of my mind. I had no idea papa was so angry He never told me what lie was going to do. Oh Michael, lam afraid of papa. You .know the position Tarn in here, but you niust'keep my -secret. I know that he will be cruel" "to "me^if^l "go against him. . . ; ,\ ■-.- lam at his mercy. If i thought that I could leave this immediately I would. dare him, but he would be cruel to me lam afraid. . . I would like to brave papa out! Shall Ido so and will you protect me ? If yoii love me you will do soj and then I shall defy papa, and write a letter to that effect. Oh Michael, have you mercy on me 1 If I defy papa I think he. will turn me put, and where am Ito go to ?. . But you must never,let it be known about papa. Write to hie now; Yours always— Phosbe. " Letter read as follows, from the defendant:- . " October 24, 1871. My dearest Phcebe —Unlike yon : in your last letter of 18th instant, wherein you^addressed me for the first time simply as Michael, I say, unlike you, I address you as formerly, my dearest Phoebe, because you are still all that tp me, notwithstanding your expressed determination of following the course determined on by your father. . .'. lamas miserable as a human being can be. . .. , ; . . . ...'"■. . I ani reduced to walking up and down night after night opposite your windows, and dare not make the customary inquiries from the young abigail. : . . . .A trial sach as this must for ever cause you and me .to; become estranged. And Jw cnuld it be : othervrae. . . if you appear against me in" a court of justice to claim sordid monetary compensation for injuries done to your feelings ! '. . . . This trial will acquire for both of us ah unenviable notoriety, a notoriety auch as any modest woman should shrink from. .'..,. ...... Are you prepared, to , expose yourself . . . . to the impertinences of a crossexamining counsel for the sake of getting some pitiful money compensation awarded ? Phoebe, I do not believe you will dp this, and I .will not believe niy eye-sight when I see you in the witiies^-box. , . . > ' A daughter who lias !:. arrived at , jth©.. : age of discretion like you : should ; decide for ' herself \yhethershe shpuid'bemadeatQol of, even by a father, more particularly by: an inconsiderate father.- -w < .- . - My: motives in asking, you for^ release were honorable. . .' . T lii "order to satisfy your vengeance, you want.me to parade my sufferings and my moral and bodily ailments, before the impertinent stare : of the" Vulgar eye." - ... Plaintiff: The defendant frightened me about this action. I would nave married him if he had been twice as ill. . He had gained my ; affections ; but he .thougHt _by. his letters to fnghten me from going into court. He wrote to hie^osayit was not modest for me to do so. Mr Ireland : Was it modest to proclaim your desire to marry a man in. the state of health defendant was in ? - Plaintiff : Idp not think there was im-r modesty in it. :' ; " Mr Ireland : You might as well buy a" doll in Bourke street and marry it. : On .the. second day, of the trial, the cross-examination of Miss Maunsell by Mr Ireland was proceeded with. The plaintiff further deposed : The defendant's letter of the 25th of October r in which he said that his medical adviser, gave him hopes that he would be ] sufficiently recovered to marry in six months, and offered to renew the engagement, I gave to my father to. give, to :my attorney. I repeal -that I was out of my senses when I wrote : my?jlater, letters toj defendant. His letters used to drive me out of my

mind; Ido not think I should be held responsible; for my letters to him. The defendant extracted them from me fcr subsequent use. I think it was very wrong for the defendant to take advantage of a woman in a wrong state of mind. But he would send Jietter after, Jejktor.^l | - was caught in a trap, I may sayr I did not hand over all his . letters * to my^ attorney. v In ; his letters to me he professed ; 10ve; ,...-. I believed it thep,jrtit I don't now. My mamma did. not read n»y letters to him, though she saw me writing them, and v used to be angry with me for writing. I was in such a state of mind that she did not like to stop my writing to him. My mother knew, I; hajl written defendant after the writ was served, but did not know what the letter contained; ; She did not like to thwart me in anything. -The defendant used to come about the house every evening and throw pebbles at my window, and call out tome. Mamma went down one night and told him not to do so again. ' He did that within & Week ago ; came throwing up pebbles at my window and annoying me. My mother told" me that when she was standing at the garden gate one night he came up.and asked about me. „ ; Mr Ireland : Still you pressed him; to . marry you?. . .. .■ * Plaintiff : I did not press him to marry me. When he said he would, marry -me} I was agreeable. , He asked me in June if 1 would have him in the state he was my and % I said, l would; that I would take care of him, and that I would have him if he was twice as bad, „ , Mr Ireland: But, knowing the nature of his ailment, what onearth pressed you to marry him? : : ■;.•;•.,■■. . : ;," y Plaintiißf : - J did. not press him. He pressed me. I would have married him, because, he said he w ould devote his life to make me happy. ; ... Mr Ireland : But you knew he could not. Didn't you know he was not fit to marry'?.- ■ - -•■ : * '"■■ '■■■..■•---;> Plaintiff: I did not understand. He said his health was all right, that we could be very happy. When he came over from New Zealand he told me Dr James had said his health was all right; that we could be happy. :. I was willing to marry him oa the 3rd October, after the writ was served, for he had gained my affections. ■-.' Mr Ireland : Whether he was all wrong <pr not? • : v Yes;' *: ; '' - r ;; ; ' Mr ; Ireland : You have brought your, action against a man unfit to marry. Plaintiff : Why did; vhe- gain my affec--tions. I could not bear tho separation., • LMr Ireland : And you believed you could live as man and wife ? - '-, f >■ Plaintiff :. I did not understand. (Looks at letter, dated 12th. J une.) : That is my handwriting. ' '''''■' '*'" Extract read aa follows^— , , ;c V, . . "My dearest Michael—Your letter ha? " indeed -quite bewildered me', as I hacl looked on you as almost faultless. Your confessions have not changed my feelings towards you. I have no feeling of anggr or indignation, but great love which wUt last all my life. It would break my^ heart to part with you*. I phy you yer^ s much.I am glad you seem to be repentant.' . Even the very thought or possibility; o£ my not seeing you again haamademe feel . quite ill. I long for your first letter. We must always be very fond of each other under the circumstances, and never neglectful as i loiig & we are spared, and -I hope sincerely that both, of us may think v more of our heavenly home (which we foiget.we are all fast approaching) than we have hitherto done; . . \.'V . \ |.. Yours, 'ever affectionate, Php3bb Mau^» sell." „. ' .'•'■ *;,". . : '■ '.' ';: '.-", t . .. , „.,y ; Mr Ireland : You knew whatwas the matter with defendant when you r penned these lines, aud yet you would have had him! Plaintiff : Yes ; I cared for him so much. Mr Ireland addressed the jury for the defence. The plaintiff, he said, was doubtedly an affectionate yoa^ig perSOi?|' and it was a melancholy exhibition. to see her put into the witness, box and ■ pUu^tl to listen to all the outpourings of her heart being read in a public court, for no other purpose than to get money. for_ her fatlief.' She" had never brought thfe' action. His instructions 'from his client were to treat her with very great consideration, and he had endeavored to; do so. But it must heve been perfectly manifest from her demeanor that she was not there as a voluntary witness; that she was acting under orders, and had been dragged there against her will. Afiier entering into the engagement with plaintiff the defendant had become aware thfl^A unfit to marry, and he^cime to the conclusion that a breach on his-part of the agreement would be more,honorable than an observance of it. And so would the jury probably think. It was rather singular that the plaintiff's brother, Dr Maunsell, who was the defendant* . medical adviser in New Zealand had : n6t been questioned when in the witness-box by the other side as to 'defendant's state of health. He was merely asked' as %) defendant's property, which had been sufficient to induce Mr Maunsell to, place, hia daughter in, the witness-bbxr The' defendant having J adopted the only . honorable- course, .opeaqo.tpj-jyhiin.^^ breakings .off ..the, engagewwt^,pflghi. he to have followed it .up Ending a blank cheque^plaintiff'for her to fill up ? - He (Mr Ireland) believed that a cheque ; for * aii adequate amount wouH have entirely- solaced' all tlie^family ■except the plaintiff ; he certainly did not believe any; amount of money Would have solaced ier.. • ■ . . , .-, , . r ~/-.- r - : , , r „ , vs On the third day of the hearing of the case, the first witness called for the defence Wa3>T- : ■:-. ;.",!, ■ Michael Cassius, the defendant,; iwho deposed : I am a merchant at Hokitik^ 1 Became acquainted with the plamtiff there about eighteen months ago.- $Dii;h6, beginning of May laat I proposed marriag^ to her, and she accepted the prpposal; fn, June she left for Melbourne. !Thwe' . ; weeks after I left^for Tasmania. , Daring the time I was under the medical treatment of Dr ; James. In consequence of what he told me I wrote to the plaintiff the letter of the 28th September, withdrawing from the engagement. "■'■ Daily letters weir^ exchanged between us. -«!«:■ reply to tlie letter namtd she summoned' me to see her. That letter has been in. Saw her on the 30th at h,er fathers house. We were both iv a diatrtlss| state of mind. The usual protestationk^ affection passed between us. She^.^ quested me again to see her on 4ihe 3rd October at her house. Was on my way to keep this' appointment when; I \ was served; with this writ.' Beturiiedi tolmy lodgings, aud wrote the letter to her that

has been pat in. Was much surprised at the servioe of the writ, as in my previous interview nothing had been Baid about any such action. She replied, again asking me to call, and I did. That letter has been read. In the conversation, farther protestations of affection passed; Asked her about the writ, and she said her mother had told her that her father had taken out the writ. Told her, on 30th September, in as delicate a manner as I could, the cause that prevented me making her my wife. She ' said she was willing to wait. Ten or twelve months ago, I commenced suffering from stricture, and the doctors then said . it was gout in the bladder. Consulted Dr Maunsell. He did not tell me what was really the matter with me. Consulted Dr Beaney. In consequence of what he told me I wrote her again proposing marriage in six months. I never repudiated that offer, which was made on the 25th of October. Received her last letter on the 18th of October. Had several interviews with her atter the writ was served, but this action was only talked of twice. One of these occasions I have already related; the other was on the 30th of October, when she said her friends forced her to go on with the action, and she could not go against them. When I saw her after the 29th of September she was very distressed, but she was by no means out of her mind. Was quite ready to many her, if I was competent, up to the time I saw her in the witness-box. And even now I believe the least explanation would mend matters. In reply to my letter of the 25th October my attorney got a letter from her attorney accepting under certain conditions, fhat letter was read on Saturday. Believe Mr Maunßell was aware I visited his daughter after the service of the writ. Have also consulted Drs Qirdlestone and Fisher at the advice of my solicitor. But I was thoroughly satisfied with Dr Beaney's treatment. To Mr Billing: After the writ was served I proposed to marry plaintiff, both verbally and in writing. Did not offer to marry her unconditionally. Always said I would as soon as the state^f my health permitted. Did not answer her solicitors letter. I have expressed a willingnesss to make a settlement on my wife P according to my means. I was never spoken to about a settlement on plaintiff except by her cad of a brother. He and his father were the cause of this action. 1 Did not know what ailed me when I proposed. Wrote a letter, which was delivered into her hands on the steamer she left New, Zealand in for Melbourne. The letter was written on the sth June. Mr Billing : Did you tell her in that letter that "you.were "to that extent an infirm man that no- wife of mine can ever be a mother," and ask hgr if she thought " that the physical impossibility of our ever having a family together will be an impediment to onr mutual happiness ?" Defendant: Tes. But I was then only uncertain about the state of my health. In that letter I abked her to send me a telegram if she would have me with all my imperfections. . But after that my health got much worse. My .health, in fact, was like a barometer. When I felt well, I was hopeful; when sick, depressed. Recollect going to Tasmania from Melbourne in the beginning of 'September last. There was never a positive day fixed for the marriage. Never told Dr Maunsell I was in perfect health. After I came to Melbourne in August, I bought furniture, a carriage, and horses with a view to my marriage. Sold them shortly after the writ was served.! To Mr Ireland: I shall not take costs from plaintiff if I win the case. Dr Beaney, F.R.0.5., and a legally qualified medical practitioner, deposed ; Have examined defendant and ascertained that he is very unwell. The sickness renders him incapable of consummating marriage. I believe he can be cured, bat it will take time. Marriage now would probably injure his physical arid mental health. Think he might safely get married in six or twelve months. ■ Drs Girdlestone and Fisher corroborated the evidence of the previous witness. This closed the case for the defence. Dr Maunsell, plaintiff's brother, was re-called by Mr Fellows, and deposed : I attended defendant in New Zealand in May, 1870. Prescribed for him. He only consulted me twice. Treated him for mere debility. In three or four weeksVtime he got all right. Mr Iceland addressed the jury for the defence. He described the action as a -^oastly attempt to extort money on the part of the plaintiff's friends. The plaintiff was not a free agent. The action was commenced without her knowledge or authority, and, if she won the ease, not. a penny of the damages would go to her. He (Mr Ireland) believed that even now the marriage of plaintiff and defendant was by no means improbable. Mr Billing, in addressing the jury for the plaintiff, characterised the defence as a wretched, abominable, and disgusting one, merely put forward to save the defttjajKnt's pocket.* If the jury awarded damages, the plaintiff would receive erery penny, being above the age of tweotyrone. Her father did not want a penny of it; he only wanted to protect his daughter from the dastardly wrongs inflicted on her by defendant. The defendant's pleas had been disproved by his own' 'evidence. He had pleaded that permanent illness prevented him from fulfilling the, engagement. The medical evidence he had adduced was that the fllness was only temporary. As to the first plea that a reasonable time had not elapsed .to carry out the agreement, the defendant's letter of the 28th September waft • clear breach. And he maintained that the defendant's letter of June, written in New Zealand in less thau a month alter the engagement, in which he told plaintiff that no wife of his could ever nave a family, was pretty clear proof that h6 knew what was the matter with him when he proposed. . Hjs Honor, in summing up, said that it seemed to him that the Bole question to consider was— whether a reasonable time had elapsed before the action was brought? In almost all: cases of this class of which heJiad had' experience, proof of chango of affection on the part of the defendants war brought forward. It was generally proved that they had proposed to some other person. In those casesj the conrts lud been relieved from a pressing difficulty which had appeared in this case. He did not believe, the, present defendant would have made proposals to anyone 'else, and he believed that both parties still maintained an affection for each other. The

defendant was undoubtedly ill. When did thai illness commence? It was his b randen duty to tell the person he proposed to marry what were his impressions on the matter. If he was aware of the nature of his illnesß at the time he proposed marriage and was accepted, he should not have proposed, and he should now abide the consequences. The jury were to consider these things, and. also whether the defendant had broken off the match for other motives than those connected with his health ; and he (his Honor) thpught the evidence would con r vince them that the defendant had no other motives. In his letter of June, the defendant told plaintiff that his wife would never become a mother. It was a great pity that the whole of that letter had not been read, as the. jury would have then been able to judge if the context was at all explanatory. It was an important question for the jury to consider whether the defendant in that letter really conveyed to the plaintiff, who evidently was a young lady of a very affectionate and susceptible temperament, all he thought about his health. Then there was the question to be considered— did she consider his letter of the 28th September as finally breaking off the engagement ? It was in evidence that, on the 30th of that month, she told him she was willing to wait. That was the day the writ was taken out. If the jury were satisfied defendant's ailment was only temporary, curable in a reasonable time, the question then arose- whether a reasonable time had been allowed. He might here state with regard to such cases as these, that he did not think the conduct of the plaintiffs in bringing them was at all immodest. But a case in which the plaintiff came to ask for damages from the defendant for breach of an agreement which defendant was ready to fulfil until prevented by an act of God, was scarcely within the usual category. If this marriage had been solemnised under the circumstances, the Supreme Court could have annulled it. Should more time have been allowed defendant before the issue of the writ? That, he repeated, was the simple question on the first plea. Defendant's medical advisers seemed to be hopeful of his condition. The second plea was, that defendant wa3 prevented from marrying by pormanent illness. That would be a good plea if the illness was permanent, not if it was only temporary. All the evidence was that it was only temporary. There was no evidence to sustain the third plea also, that the, agreement was made subject to the state of defendant's health. The fourth plea was that there was no breach, and the jury's decision on the first would guide them to a decision on that. The real question was included in the first and fourth pleas. On the second and third he would direct them to find for the plaintiff. Apart from the jury's verdict on the second, he would ask them to find whether the defendant's ailment was permanent or temporary. If it was temporary only they would find for the plaintiff. Then as to the damages. The defendant being afflicted as he was, what did they really think plaintiff had lost by his withdrawal from the engagement 1 The jury retired, and after about two hours' deliberation, returned with a verdict for the plaintiff, damages L 350. They also found that defendant's ailment was temporary. ,