SUPREME COURT.

Otago Witness, Issue 2437, 28 November 1900, Page 29

SUPREME COURT.

CIVIL SITTINGS. ' Tuesday, November, 20. (Before his Honor Mr Justice Williams.) ■THOMSON- V. MUBCOTT. Claim £1000, damages for breach of -promise of marriage. Mr Sim appeared for the plaintiff, Jane Hamilton Thomson, of Dunedin, school teacher, and Mr Fraser ior the defendant, William Murcott, surveyor, of New Plymouth. The plaintiff's, case havingjieen. closed at the previous sitting. Mr Fraser moved for a nonsuit on the groiuzd that the plaintiff could not succeed in her present action. The statement of claim alleged that the 'plaintiff and the defendant agreed to marry, but no date was fixed. The t agreement to fix a date in April was admitted on>the pleadings. It was m evidence that the defendant was unable to carry out his contract in the month of April. His Honor: They agreed to extend the time. That is what -the letters show. Mr Fraser: Practically it amounts to that, or a fresh contract. 'His Honor: Time was not of the' essence of the contract. Mr Fraser : No, sir. Ever since then he has been ready and willing to many her, and there has been jig refusal to many her — no tender on her part of a demand for a fixed date on which they should marry. The conditions thai she wishes to annex to the contract are sucli a'< she has no light to annex. That is to say, lov« does not enter into the contract. His Honor : Did she annex conditions ? Shu . wants to know if she is the first in his affections. Mr Fraser :„ She refuses to marry him unlesj convinced that she' is. His Honor : WhatT gather is that she wanted an assurance that she**was the first in his affections, and that there was nobody else before her. She wanted thafc-assurance, to which she was entitled. She does not say that she will not many him unless so assured. _ " Mr Fraser said she refused to marry him until he gave her that assurance. She was, of course, entitled to it as. between man and' woman, but not as the foundation of an action for breach at promise. Suppose he had said she was not the first in his affections, she coiilcl- not found an action on that." . • - s His Honor: She wanted to know that before she made up her mind. - Mr Fraser: And then she got the answer. His Honor : If she' got the 'answer "No " it would still be open to her as "a matter of contract to say, " Very well, I will hold you to your bond." ' * , Mr Fraser : She got the answer " Yes." His Honor: Yes, and she held him to his bond. Mr Fraser: But there was no refusal 'on his part .to marry her. He said lie would be down, in December or Januaiy. I mention this point now, but do not prppose to argue it, because I do not suppose your Honor would take ths c»se from the jury, and I merely ask leave to move later on. , His Honor: Yes, I will give yovi leave to move. 1 have not heard what Mr Sim. has to" say about it, but my view at present is that in order to find for the plaintiff the jm-y would have to be satisfied that the letter of September 5, as construed by the light of what took place previously, was a refusal to marry. If .the jury find that, I think the plaintiff is entitled to recover. If they do not then the defendant is not entitled to recover. I ha.ye not heard what Mr Sim has to say, but my present impression is that the- jury would have to find! that in order to find for the plaintiff. However, there will be argument later on, and in the , meantime I reserve leave to move. - Mr Fraser then proceeded to open the case for ihe defendant. He was sure the jury would realise the importance of the matter to his client,' and not grudge him some of the patient attention they paid to his friend on the precding day. He would be as brief as possible, but rr the same t^me he owed a duty to his cJiVj . which, he must discharge. In the first place b s wished to say it was deeply to be regretted thai, the case ever came into, court. Breach o£ promise- cases were sometimes unavoidable/and! perfectly excusable — in cases, for instance, of seduction, where a man refused to compensate a girl for the wrong done to her or to marry her. Then if the girl couldl summon up the courage to do it waa a right and proper thing to bring such a man to the bar of justice. But every- rightthinking person must be amazed that 'this case . had been brought before a jury. This girl, who occupied a good social position — a better social position, probably, than that of the defendant, though he was a surveyor — had a father, a mother, and sisters ; and against her character he (Mr Fraser) had said nothing, neither did he desire to say anything. But he would say this : that he could nofc'imagine any girl in Miss Thomson's position coming into court under the circumstances simply for the sordid motive of money. Think of it! Pounds, shillings, and pence ! Would not any of the jurymen who hac 1 sisters of their own blush * with shame if one of these sisters or any other relative took the step that Miss Thomson had taken? Mr 'Sim had brought much of the correspondence before the court. He (Mr Fraser) would produce other letters, and was surprised that the plaintiff, with a knowledge of what she had written, should have forced this^case intc* the court with the hope of putting a few sovereigns into her pocket. She herself had # said that was the motive. Revenge might 'enter into it, perhaps. He did not know. She had, however, by her action, brought misery upon two families. Yesterday he listened for nearly foui hours to his friend's attack upon Murcott. Probably he (Mr Fraser) was more uncomfortable than his client was as the speech went on, because Mnrcott was somewhat deaf and much of the invective passed over his head. But he was not going to adopt the same tactics.

The' other side might "be withotit shame. Murcott ■was not. He felt de"eply the disgrace of the position. The idea, of publishing the letters in detail — giving them publicity -which even caused a " gag " in the theatre on the previous night-^was most repellant to him. He teK that he had not be<m well treated, and that feeling was justified. If this girl wanted money, what right had she to flash a writ on liini without asking what reparation he was jprepared to make ? In addition there were grave and undeserved imputations upon Ms character. Learned counsel on the other side 3iad taken full advantage of his position and '<oi the fact that his client was. a woman. Symrpathy generally wont out' to the woman in ■■these cases. After the one-sided view of the case put before them on Monday, the jury might have felt sympathy clouding their judgment. Well, he would make no appeal to ,-their sympathy, but instead would ask them to consider the matter from a common-sense point of view. The defendant . would be put into the witness-box, and, after seeing both ' the principals under examination', the jury j would have^nq, doubt as> to,. where .the., brains j -of the case 1 wer e:; . : ;t They Had -seen the 'jjlain tiff-, j in the box "and ''■would, have' noticed her demeanour — composed, smart, very^Jgnart. She was no mere girl. Thirty-three summers had passed over her head. She had had her experiences of engagements made and broken, • and ,was ' perfectly, well able to take caxe of herself so far as this case was concerned. To give the, jury! a true idea of the case, it was necessary ,to give portions of the earlier correspondence, and these would show .the relations between the parties and the circumstances Tinder which the letters were written. The plaintiff, started her correspondence in the present year on January 2, and it was kept going hot and strong en both sides all through that month. The letters written by the plaintiff were written soon r after she had seen the defendant, so that she r had no opportunity of altering her opinion of him, save by correspondence, and not irom his verbal utterances to her or from his treatment of her. In her first letter, the plaintiff said: "I am' not the least afraid of taking you for my partner and companion through life. You are a good man, and I will be happy to take you, and I will be happy if my sisters get a similar chance. I fully believe, Willie, you are a" pure man, and that is the secret' of my great trust in you, so I am looking forward to the days when we shall be iappily united in wedlock. ' That was the opinion '-the plaintiff had formed of the man. 'He was gpod and pure and everything, he ought to be. " Yes, my dearest boy, your mother and il felt your absence early this morning, when, if you had been here, there would have been a 'cup of tea 'coming in. There was a Mss, too, j though" Bfot.-irbni you; but I Sid not hear the expression, ' Are you not frightened?* 1 although il hear it/ in my mind, but I will hear it when jyou come 'back 4 and what*will it be then? " ■ Then,- there was always some allusion to pressure of marriage. ■:'-" Old' Mr. M— — has been here this morning," and- wanted to' know when the business would be brought off. .- - . "He 'said, '2 hope it will not, be put off _ till May,' land, I said, 'I hope it will be then or never.' flTour mother had a good laugh at the old man's i-emarks, but he was quite right. . . . Ido ilove you, Willie, and I do not care who knows 'I do. There cannot be too much love between ■us. ' On January 4 she said: "I do miss you bo much, and shall look forward'to the pleasure of meeting you again, for I do not care how Boon the time comes for'our marriage, when, I ieel sure, '.we' shall be very Happy." Then, on Monday his' learned friend had spoken ' of ■ the conceit of the man, -and referred to^ him as * <l Lothario"ffom" >; the 'back blocks " and as a" ladykiller. Well, the* lady had a'good opinion of herself too, on- that"* score honours - 'fwere easy; ' Plaintiff said^ "Do- you -know what Mrs L said to me yesterday?- That 1 had been truer than most "girls would have 'been,' and had had great patience. Yes, Willie, iso I have. I have the greatest confidence in you. . . You have won my greatest love, and ■ i trust you will ever keep it." It was not the" "flefendant's fault he did not keep it. On [January 12 plaintiff wrote thanking him for his ,i;houghtfulness, and referring to two days he •3iad had to spend in Wellington, she remarked : )" I do wish you had spent the extra time with inz, for though we were very. 'happy, I could {have endured a lot more of thejtease you were. •STever mind, dearest boy, you, are the same to ■me and more ever..you were, and I will ,try to be. good and kind/—t he word,,. kind " was; j-uiideflined— it always was in letters of this |kind — >f to you when -the happy day conies.' I 'hope you will have patience",- and, oh ! -what a [Teward you will get." But he did jiot get his reward." '"The last two nights I have been completely off "my sleep." . If it was any satisfaction to the plaintiff to Tinpw it, Bhehad cost the defendant some sleepless "nights, i lam always thinking of you', and lam missing you very much,' especially first thing in-^the, ii-orning, when I got a loving embrace and a nice cup of tea, _and the last thing at night, when various performances took place.". Constant references were made to' the intimacy- between the parties. There were several Teferences .to the morning cup of - . tea that defendant used -to take into her while she ,was staying at his lather's house, waking her up "for the purpose of giving it to her. She also said : " Now, my dearest Willie, I think I have given you' an account of .most lam doing. I tarnt am good and ikue to you, notwithstanding meeting one or 'iwp of my admirers. I. think you can trust me (after what I told you of -last year's experience. IC remained firm and true to you then, and will So so now. . . . With fondest, dearest, and truest love, and many kisses and loving embraces, I will say good-night." Then there was We conversation about furniture. In another {.letter plaintiff said : " I wonder how you will seel once you are married— -the honeymoon over, and you -will have to leave me behind. Never dearest Willie, I will make the best of What corh.es. I was dreaming last night that nve were actually married, and ' happy ' was jaot the name for both of us. You said, ' Oh, . Jiang it all, I wish J had been married long ago.' \X saw you plainly, and I felt your loving lrisses Jinto the bargain, but -awakened to find it was v>nly a dream. . . You seem, to miss bringing that morning cup of tea. Yes, I miss it ,too, especially the loving kiss that came Ayith St. But never mind, my dearest boy, if ail goes well we will not'be long separated now, and, oh, (What a time we -will have.'"' All t]je letters, the C'ury would see, werl couched in terms ' of-* the (deepest affection.^ They were written shortly fifter the plaintiff'and the defendant had parted nnd she had formed her estimate of his character. On January 27 she wrote another long letter — she wrote long letters at all times, — and said: "If possible, let me know by the end of when you can get away, and I will fix ,ihfi date. . . . Mind, there is to be no drifting into May, as I would not be married then 'on any account.'- He would not read the whole nf that letter, because he could not do it. Mr Sim: Do not be troubled by excessive modesty at this stage, pray. Mr Fraser : I am not going to read it. Mr Sim: You had better read your client's letter, too. iL Fraser: I have not got it. liir, Sim: Your client began the discussion. He ought to be ashamed of himself to drag it np, arid so ought you. Mr Fraser: If there has been anything suppressed in the correspondence given to me by hry friend it is his fault. I ha\e not found a lingle line in my client's letters that he should tiot have written. Mr Sim said if his Honor would look at Mur-

cott' s correspondence — the passages were marked in blue — of the 18th January and the 2nd February, it would be seen who began the discussion. His Honor said ho did not know what learned counsel were talking about. What was the reference. Mr Sim, in an undertone which was audible to the court and the press, explained the reference alluded to. Mr Fraser said the jury would have an opportunity of seeing the letters. Then, in later letters, plaintiff urged the defendant to write open on all matters, and, Heaven knew, they did write openly. In the letter of February 18 she said : " I often think of you in the early morning -when you were so found of having a little time to yourself, and you did not do so badly either." Writing on the 25th February she spoke of her father's regard for him. On the 2nd March she said: "I have not the slightest doubt you will do .all in your po A-er to make me as happy as I have been in the past. . . . Do not be afraid to 'speak plainly, and I will do so too if need be." On the 11th March she wrote : " I know you are likely to be away from home a good deal, but if necessary I will camp out with you." 'It was impossible, however, that that could have been done. It took the dfifendant days to reach his camp, which was about 17 miles into the bush, where it would have been impossible to take a woman. " Speaking of your wishing for 18 months' mojre freedom hurts me very much indeed, Willie, but I .know it was not said from any unkind .motive. . . . You were delighted to make- the arrangements you did, and I was pleased to think we were to be so soon' "united, . as it is time we were married if it is ever to come off". . . . My j love for you was well tested last year under adverse circumstances, and I am glad .J le- j mained true to you. I fully realise would be lonely for me, but 1 have realised it- all along, j It would need" to be something stronger than that to make me draw out of "the contract now." j It was peculiar that a girl should use such a word as " contract " in her letters. On March 12 the defendant wrote that he did not see hi 3 way clear to fix a date, as he wished to keep his work moving. He also said : " I know that in the future my advice to those about to marry I will be ' Don't.' " He also said he would carry out his promise, as he was in honour bound to do so. While writing what .might be called business letters he still recognised that they were on the same terms. His letter might appear cold — a letter that -would sting most women if no explanation was given. But it did not do bo in the case of the plaintiff, because she understood him, and made up her mind that nothing but " infidelity or disgrace " would break their engagement. On March 26 plaintiff said her confidence was unbroken but a little shaken. "My dearest boy, I am still the same to you as when I parted from you. I have offered to meet you in every way, except that I was not satisfied to wait another 18 months for you/ On April 11 plaintiff wrote: " In the past your actions have been all that became a man." That letter was important, because in it she accepted his explanation of the delay as quite satisfactory, and also his expressions of regret tor having treated her so badly. "At the same time I have been put in -a very foolish position, and not only '.me, but the whole iamlly." The jury would also' hear defendant's ■ explanation of the dela/, arid they would come to the conclusion that it was morally impossible for him to come down. He was not on the permanent staff' of the Survey department. He was. an extra hand. He was put4here specially to do Crown ..survey work. The Land Board was urging the department to have the work done, and defendant had to put in every ayail--able day of good weather on the- job. He wasaiiXious to put good work in, in order" to make " his position secure, and to let the department ' see the class of work he could do. He could ' not get "a way,, with out breaking up liis party, and saw no prospect of getting another good party, together. He recognised it was not a case of his future wife Joeing unhappy unShe had a happy tome. She had all she wanted. There was no urgency for marriage, and he wrote to put it off and he would come down when he could, and she took it in perfect good .faith. During the interval, however, there had been a somewhat ill-advised interference by the father. Of course, his learned friend would say it was a proper position for the father to take up to look after his daughter's welfare, but still that held good in some cases rather more than others. In this case the parties were of full age. The lady was perfectly well able to look after herself in correspondence or otherwise, and the fathe 1 ' somewhat rushed i into the matter, and a number of telegrams he I sent were not very judicious."- On the 27th March Mr Thomson tel egraphed : '• '" Name the day, -Willie. Many friends asking me." Surely, there was no necessity to telegraph. It was a stupid sort of telegram to send through the hands of the operators in the telegraph office. Mr Thomson also telegraphed : " Why no reply? -Kindly reply." Defendant was somewhat nettled at receiving these wires — perhaps he should not have been so, — and he replied shortly. Then, on the 14th April, Mr Thomson wrote at length to the defendant, showing he was agreeable to what defendant had said, and recognised it was inevitable. On April 30 the plaintiff herself wrote in somewhat the same attain. In -the meantime — on the 18th, — the delehdant had written, complaining of the father telegraphing, and putting a somewhat natural' construction on his action. However, -in her letter of the 30th the plaintiff repudiated any ictea of pressure of marriage, said she ha"d not been a burden on lier parents, and wanted him to^come to see her at his earliest convenience. " Please let me know at once when you are likely to be in Dunedin." But, of course, lie could not leave his work. If he could have have come to Dunedin for an interview he could have come for the wedding. Then, ou 'May 14,-. plaintiff wrote acknowledging a letter defendant had sent on May 9. In that letter the defendant wrote very frankly, and said he had grown a little cooler. It was an effect absence had upon him. Mr Sim : Absence and the other girl. Mr Fraser: No; the temperature was high at Hampden, but cooled down at New Plyrmmth. It was quite understandable. Mr Sim; -He said it was the other girl. Mr Fra.eer : His words are that " perhaps H was the other giri." In- his letter, he said: " This is a pretty straight letter, and perhaps I should, have written to you about this other girli .... I think it is only right I should tell ypu ; but do not think A am trying to br|eak off engagement to marry the girl. . . . Whether you get married under the circumstances or not I leave to you, for you know my feelings; but, outside that, rather than that" you .should go back to school, I should certainly say ' marry,' only you may not agree with me on that point." That showed the man's true feelings and true attitude to tlie girl. How could his learned friend say the defendant was shuffling? He said plainly: " Katlier than that you should go back to school, I should certainly say ' marry.' " That was to say, "Rathei than that you should go back to school I would "advise you to marry me," and he added " only you may not agree with me on that point." Where was the shuffle there? It would have caused many girls to say, " I will have no more of it." It ■was a letter which would have made any self-respect-ing girl feel annoyed; but the effect- of it on

the plaintiff was that, like the limpets on the rock, she only clung the closer. It was highly honourable for defendant to say that he left it to the plaintiff to say whether, under the circumstances, they should get married. It was, no doubt, a clumsy letter, but it was not written as a love letter for a jury. Had he been wiser he might have had some pretty letters, full of higher sentiments. No; he wrote in a straightforward, plain way, and now he got the worst of it. He had no breach of promise case in his eye, neither did he keep any copies of his letters. If the jury compared the beautiful sentiments in the lady's letters with the clumsy blunders in the defendant's, they would not have to dig deep to get the true meaning. Was it not the defendant's duty, if his affections wandered, to „ tell her so before marriage rather than after? The plainti9! and her people 'hsn pet about to bring further pressure upon the defendant. The plaintiff and her father went Lo Hampden, where the defendant's father and mother, both about 70 years of age, lived. They went there and played on the old people with e^ery possible art that they could bring to bear. She was a very clever girl, and did the most of it. The , two got the parents strung up to such a pitch with the girl's representations cf the defendant's conduct that they nearly brought about what they were after, which was this: They tried to get the old people lo take up the position that if 1 the defendant did not marry the girl they were done with him — a wicked thing to do. Why should they have endeavoured to niake a permanent breach between an only son and his father and mother ? it was a very wrong thing to do, and counsel aid not hesitate to say so. .They got the father and mother to write letters to their son, on the representations made by the girl. Learned counsel had not seen these letters, and did not know what they contained, but he would guarantee they got the poor old lady \to write in the jr.ost brokenhearted strain- to the son, telling him that he ■was, acting dishonestly, and uiat if he did not marry the girl he would regret it all his life. But he (Mr Fraser) had got plaintiff's letters to the mother, and he was going to put them in. He had had about »nough Cnristian piety and lesignation in this matter. He was talking to twelve square men, and he was not going to injure his client's case because he talked a little plain. Ho said that they had no right to go to the father and mother. No honourable man or self-respecting girl would have gone to them. Ho had brought down Major Murcott, the defendant's father, in order 15> put him. into the box, and ie would tell the jury- how Mr Thomson and the lady came to his place, what arguments were brought to bear, and also that he was perfectly satisfied with his bon's conduct, aftei hearing his explanation. Counsel next rfad extracts from the letters written by Miss Thomson to Mrs 11l these letters the writer kept on rubbing it into defendant for having told a lie. 'What was this lie? The man had made an arrangement, and could not carry it out. This he himself called telling a iie, and the. plaintiff took up the saying and kept on reproaching him for l>mg. "She also said in this lottrr: '"I shall rever again have anything more to say to him. All the same, his villainous conduct is a mysteTy, and I am pure his God will punisn him sooner or later, for wrong-doing cannot escape. ' V.l. ere was his villainy? He said: " "Wait till Christmas— three months,— and I will marry you." In another letter the plaintiff -wrote: " I wilt mawy no man unless be declaies his love ior me, and me alone." Mr Sim: And the defendant did declare it. Mr Fraser : Yes, he said she was the girl for him. Then her next love letter was a writ. Mr Sim : Oh, no.Mr Fraser: Yes; .the next love letter was written by Mr Sim, and was headed, " Victoria, by the grace of G-od. ' Mr Sim : You aie not stating the iacts correctly. There was a letter. j.n August asking - him to say when, and he shuffled, and then the writ came. Mr Fraser: Well, we will hear about the shuffling. Continuing, counsel called attention to the business-like character of the plaintiff's letters, their wording giving the idea that she was writing with the statement of claim in the impending breach of promise case before her. Then, on August 13, plaintiff wrote: " Now, Willie, my patience is exhausted. If you are going to marry me, I must know when without delay." She did not say, '" If you are going'to marry me, I must insist on your marrying me by October, November, or December.'' All she said was: "If you are going to marry me, I must know when." She was quite satisfied with the fixing of a date, and if she had been told a date she would have been satisfied. That was the last love letter the plaintiff wrote. The lettei of the sth of September was a most important one, because upoa it was founded the issue' of the writ. Much had been made of this letter, which had been termed a shuffling letter and a justification for the subsequent issue of the writ on the 9th of October. That was the letter in which defendant said : " You are the one." Here was a poor fellow, honestly expecting a satisfactory letter from the plaintiff in September, and, instead of that, she was going back to old things. In that letter of the sth of September the defendant also said he did not expect to get down before December or January ( meaning that he would marry then. The letter wound up with kindest love and best wishes. The plaintiff, however, did not reply to that letter. His learned friend re,- . plied on the 9th of October with a writ. The plaintiff was not satisfied with the letter. Then , why did she not write and say to the defendant : " Your letters are too vaguo. Are you prepared to marry me in January? If not, the engagement is off, and I claim compensation." The present proceedings could have been avoided by a letter or even a telegram from the plaintiff. How his learned friend, in the face of the letter of the sth of September, could hope to secure a verdict, was a perfect mystery to him. Mr Sim: That may be want of intelligence on your part. Mr Fraser said he had enough intelligence to understand a square position and a square letter; and he submitted that the jury would come to no other conclusion than that the letter of the sth of September was an honest letter. If they did not think it was an honest letter, let them find against the defendant. But if they did think so, they could not find against him. William Henry 'Murcott, the defendant, said, in the course of evidence, that after he became engaged 'to the plaintiff the second time it was agreed between them that they should tell each other everything freely in their correspondence. If the plaintiff saw anybody she liked better than him, she was to let him know, and if he saw anybody he liked better than her he was to let her know. She, however, said she did not think she would ever meet anybody she liked better, and Tie also said he did npt think he would ever meet anyone he liked better than the plaintiff. After the issue of the writ he telegraphed to the plaintiff asking her if she would kindly let him know when it would be convenient for him to see her. Plaintiff telegraphed back: "Will consult my solicitor 1 first." After defendant canie to Hanipden his mother told the plaintiff that he Was ready and willing to marry plaintiff. He never told plaintiff in January that he had £800. He was blowed if he knew how much he had. He might have had J-600 or £700. His salary was £210 a yeai and allowances. He got his wedding clothes in May or June. In September he got another suit on the off chance of getting married. He did not think the case would ccme to court. Mr Sim: You admit during 1899 that your

conduct towards the plaintiff had "been very bad. Witness : If it is in the letter, I admit it. You wrote to her very lovingly during January, but you begai. to cool off towards February, did you not? — Yes. I did not cool off in February. "When did you begin to have these mild flirtations with this other girl? Immediately after you got back to New Plymouth? — I don't know in what month they began. They began by the Bth of February?— Not that I am aware of. [ You admit that your correspondence^ had become cooler in June, and the reason was that you had become entangled with this other girl?— No. Did you carry on with her at all? — No. Kiss her? — I have kissed her. | Put your arm round her waist? — Yes, I put my arm round her waist. Anything further than that? — No. You say in your letter you hsve gone further v/ith her than you have with the plaintiff? — I did not mean anything by that. Then you put things in your letter that you do not mean? — I put a lot of things in that I did not mean. | Do you admit after your attention has been drawn to these letters, that your affection had begun to cool off by the end of February? — I don't think I began to cool off till after April. How many young ladies aie there altogether that you have had what we will call flirtations with? — I have not flirted with any; We will call" it flirtation — ' innocent fun," you call it. — Innocent fun with one. We have got three already. His Honor: I understand he 'says these young ladies were struck upon him. Mr Sim said defendant confessed to having innocent fun with a number of young ladies. Later on counsel elicited the fact that one of the young ladies that defendant had referred to in his letters war. a hospital nurse, one was a lady he had met at a regatta,, and one was a lady who had got struck on defendant. Defendant, in reply to Mr Sim, said he did not think he had treated the plaintiff fairly. .Mr Fraser: What do you mean by that? Witness: In not coming down in April and fulfilling my promise. lam very sorry for that ;• but unforeseen circumstances prevented me from coming down. You say the blame cf the delay is on your side Is that what you mean? — Yes. You admit that you kissed one girl ? — Yes, I did. I don't think you are to blame for that. — (Laughter.) You put your arm. round another one's -waist. - Mr Sim: That was the same one. Mr Fraser: You did not put that in your letter? - Witness : No. , It shows you have a little discretion. Did this girl know you were engaged? — Yes, she did. Were you trying to shuffle out of marrying the girl? — No; I have' not been trying to shuffle out. Have you been trying to avoid marrying her ? — No. William Murcott, grazier, of Hampden, and father of the defendant, also gave evidence. Mr Fraser, in addressing the jury, said in cases of this kind they had almost a public duty to perform. They should discountenance this abominable kind of litigation. If that ccurt was going to be turned into a court of appeal by the maidenhood of this city in their love affairs, all he could say was that he was very sorry for the women growing up in our midst. It was a class of action almost next door to a blackmail action ; and if the • jury were going to countenance cases of this kind and give heavy damages where none were proved, it would be,, he submitted, a most unfortunate* thing in the interests of the "whole community. The damage the lady had sustained in this case was practically nil. What damage she had sustained was "damage that could not be taken into consideration. For that she hacJ to thank herself. He hoped and trusted that this would be the last case of the kind in that court. The case was ill-advised, unwholesome, and nasty. Whose fault was it that he (counsel) was there? Why was there no letter written by the plaintiff before the writ? Why d'ld she not write a letter demanding condensation from the defendant, so that he might have had a chance of being done with the case. Counsel felt certain that the jury would reprobate conduct of this kind. Mr Sim, in reply, said his friend talked about this case being a nasty one, but -no nastiness had been introduced into it at aIL • His friend had referred several times in a mysterious way to a letter written by the plaintiff. When the jury saw the letters and snw how the matter was brought un by the defendant himself, they would see there was nothing in it at all. His friend hnd buzzed round this little patch of delicacy like a blow-fly round a dung heap. But. this had had absolutely nothing whatever to do with the rase. . It had been a deliberate attempt on the tiart of counsel for the defendant to nreindice the jury a<iainst the plaintiff His Honor reserved his summi'ie; up until the next morning, and the court adjourned at 5.20 p.m. Wednesday. November 21. Mr Sim asked his Honor for a direction as to the law in the case. He "submitted— and he asked his Honour to direct the jury accordingly—that, there was a breach of the contract in April. It was admitted there was the express and definite agreement between the parties that the marriage should be celebrated in April, even if the defendant had to give up his billet, and in the course of the correspondence between them the plaintiff said: This marriage must take place in April. Mind, there must not be any putting off till May," and the defendant assented to that. Defendant, however, refused to carry it out, and telegraphed on the 6th April saying he was not coming, and he did not come. There was, therefore, a breach of "the contract, and he would ask his Honor to direct the jury to that effect. Then, with regard to another pomt — viz., that the parties should be married at the earliest possible date thereafter, he submitted the evidence showed there was also a breach of that, and he would ask his Honor to . direct the jury accordingly. As a matter of fact, the only question for the jury was the question of damages. , . , His Honor said he did not take tiuit yiew at all. Assuming that 'time was the essence of 'tlie contract, Still defendant had' the whole 'of April to perform it in. In fact, it was contemplated that the marriage was to be celebrated on the last day in April. At the beginning of April defendant wrote that he could not come down to Dunedin, and explained why, and in April before the time fixed for the celebration plaintiff accepted that explanation, and exonerated him from coming down. There could be no breach of contract before the end of April, for it was understood between the parties that the marriage would not take place in April, but they treated themselves as an engaged cottple, and they were engaged to be married within a reasonable time. If either party called pn. the other to fix the time and the other party refused, then 'the contract could be treated as broken. Assuming that time was the essence of contract, he did not think there was a breach of the contract to marry in April, for both 'parties consented that the marriage was not to take place in April. That was the course he would take in addressing the jury. Proceeding to address the jury, his Honor said there were two questions for them to consider: Did the defendant bieak his contract, and, if he did break

his contract, wnat damages was the plaintifS entitled to recover? He would Jnot detain; them long, because their decision must turn! upon a careful consideration of the correspondence between the parties. The verbal evidence given in court bore f to some extent on the issues they had to decide, but to ai comparatively small extent. It would be better for the gentlemen of the jury to consider the correspondence carefully in the seclusion! of their room than that he should read to them scraps out of it. Their attention ha<J • been called by counsel to those portions whicht they would have especially to decide. Ha, would therefore confine himself to giving af v short history of the case. After having doneT so, his Honor said that what the jury had ta _ determine was whether defendant's letter of September 20 — the last one prior to the issue of the writ — taken, not by itself, but in conjunction with the whole of the jprevious cor- ,. respondence, with the whole of the case, waa one that plaintiff was justified in taking as » refusal ,on the part of defendant to perform? his contract to niarry. If she was justified? in taking that as a refusal to marry, then defendant, had broken his contract, and plaintiff; was entitled to recover damages. If she waa not justified in taking it as a refusal, than he (his Honor) was of opinion that there couldbe no action for breach of contract. The Foreman of the Jury said one of the jurymen would like to know whether they coukltake into consideration the fact that the defendant was ■willing to marry her, even xo-day ? His Honor: Well, hardly. He says he is willing to marry her. Of course, you can take that as an element of the evidence, and you. can make what you like of it, but the point to determine is this : Taking all the evidence, was the plaintiff -justified, looking afc the letter, of the sth September, which defendant wrote to .the plaintiff^in answer to her letter of the 13tfe August, in considering it really as a "to marry within a reasonable time ? Of course, she had a right to call on him to name a time. The jury retired at 11.15 a.m., taking- with, them, to assist them to arrive at a verdict, the_ whole of the correspondence which had passed?' between the parties. At 3.35 p.m. his Honor po ; nted out that ifc was over four hours since the jury retired. It might be they were going through the correspondence or it might be they had agreed to differ. At any rate, under the act it was right to approach them to see.if they were likely to come to a verdict, and he would direct thft. registrar to inquire. The registrar inquired, and reported to his Honor that the jury wanted a. short* time longer to see if they were likely to be unanimous. At 4.55 p.m. his Honor was informed by tha registrar that the jury had a three-fourths verdict, but they were likely to become.unanimous, and. it was resolved to give them further time. The Jury came into court ai five minutes past 5 o'clock with a verdict for the plaintiff for £275. Judgment was entered up for plaintiff for £275 damages; £15 15s for one and a-half day 3 extra ; costs as per scale ; disbursements and; " witnesses' expenses to be fixed by the registrar %. leave reserved to the defendant to move for a nonsuit; s^ay of execution for 14 days; if within that time -the mOney is brought into court further stay until motion is disposed of.