Chapter 160139345

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Chapter NumberIV
Chapter TitleTHE ACTION FOR BRANCH OF PROMISE.
Chapter Urlhttp://nla.gov.au/nla.news-article160139345
Full Date1880-12-18
Page Number37
Corrections0
Word Count2665
IllustratedN
Last Corrected0000-00-00
Newspaper TitleAdelaide Observer (SA : 1843 - 1904)
Trove TitleSir Denis O'Donoghue. A Reminiscence of the English Bar
article text

CHAPTER IV.

TEE ACTION FOB SRBACH OF PHOMI8H.

My host began to mix for both of us.

" Would you like a little more sugar ?"

said be.

" If you please," I answered; " and I should think you could manage with a little more yourself."

*' Egad, and so I could," said he; "and how do i yon think I came te marry her ?"

Of course I did not know.

"Well, 111 tell you. You remember my great-aunt's case ?"

" I never shall forget it," I said laughing.

"No more shall I," said O'Donoghue. " Well, yon remember I told you how she introduced me to her attorney with such a full and flowing encomium on my talents, and such rosy visions of my prospectB as have kept me blushing ever

since ?

" Now, when I came to St. Edmondsbury for the next Spring ABsizes, I had scarcely unpacked my portmanteau, when that attorney appeared at my lodgings. He came to engage me on the part of a lady who found herself in the unusual position of defendant in an action for breach of promise of marriage. The plaintiff was a young man of about the same age, the son of a family in the neighbourhood, and had made the acquaintance of the defendant during his holidays from school, when the young people used frequently to meet at the houses of their respective parents. The intimacy which had thus sprung up under the parental sanction during the minority of both parties naturally developed thoughts of matrimony as that minority declined. Both parties were fairly off and so no objection was raised by the parents of either when the young lady, then only twenty years of age and ignorant of the world, accepted the offer of the young gentleman, who was very little older and not at all wiser than herself. In

an unlucky hour, however, the girl's parents resolved on a trip to Scarborough Hie following summer, and, while there, the young lady (whose affections seem never to have been seriously involved), though she formed no attachment, saw a great number of other young^men, perhaps of a superior grade in society. From the more extended experience thus derived, Bhe came to a different conclusion with respect to the merits of her inamorato by the simple process of comparison. On her return home the observations so taken were followed by a train of reflections resulting in a letter, by which she informed the young gentle man that a postponement of their in tended union would be more agreeable to her, and she hoped more beneficial to both'; that she had formed no new attachment, and regarded him with as much friendship as ever but was anxious that a hurried alliance should not be repented of at leisure.

" 5 his brought a hasty answer, couched in terms alternately amorous and indignant, and accusing the lady of exactly that form of incon staroy which she had been at the pains of deny ing by anticipation.

"Then followed a seoondletter from the Jady*' written in langnage of anoh friendship and sim plicity that I was quite touched as-I read it* assuring him that an attachment inconsistent with the one already formed had never crossed her thoughts, but that her conduct-was merely inspired by fears, arising from a. .larger know ledge, lest they might both repent entering into' so sacred and indissoluble a union attracted only by the imperfect tastes and capacities of yonth.

bo immature.

" This letter referred to and was accompanied'

by two very kind notes written by the girl's mother, one to the lad himself, and the other to his mother, both of which stated clearly that, the young lady's conduot was as spontaneous and unswayed by parental control'now as when she entered npou the engagement. The mother therefore suggested, without in any way taking, sides with her,, daughter, that perhaps the best way wonld be to let the engagement -lie loosely for awhile, so that she might have a chance, after a time, of retnrning to it with greater con fidence and liking, which perhaps she would' hardly do if she were to observe any attempt at pressure just at this moment. This plan, the mother said, appeared to her to be the most suit able, whether the girl's conduct were dictated: by principle, as she herself declared, cr were moved merely by caprice as her lover imagined.

" Nothing, of coarse, could be mare creditable to my client and her family than this corre spondence, which, however, was received on the other side with a most unbecoming temper on. the part both of the lover and his relatives.

" The attorney saw f understood the ease, and asked me if I had sufficient confidence in my self to conduct it. I told him I bad, and did not despair of a qualified success;but I took care to point out to him that, the engagement having been continued beyond the majority of the defendant, and having been, strictly speak ing, ratified by her, she bad been guilty of a breach, and the Judge would be obliged to direct the Jury to return a verdict for the plain tiff for something, and then came the diffioultyoF inducing twelve-gentlemen of average gallantry - to assess a good-looking young laidy—to say

nothing of her little fortune—at a farthing.

" This struck the attorney as being a very wise • view; but still he thought that the favourable topics in the case would euffioe, if dexterously handled, to bring about some arrangement, which Bhould prevent the gentleman being con- - soled at too. high, or the lady assessed at too low a figure.

" I fully intended to do my best to justify my great-aunt's extravagant eulogies, and to win. the confidence of the man—illi robot' et <ses triplex circa pectus erat—who had first been rash eDough to trust me with a cause on Circuit.. Moreover, I felt some inclination to aquit my self well on behalf of lady whose beauty I. believed in on the strength of my instructions.

"' There is one thing I may mention, Sir,. while I think of it,' said the attorney, as he was.

leaving; 'the plaintiff and defendant are both. likely to be in Court, from what I have heard,. and, if this proves correct, I will point them out - to you. Meantime, perhaps you will consider whether you can turn this to our advantage ?"

'"Thank you,' said I, 'I am glad you have

told me.'

" The second day of the Assizes the case was

called on.

"Of course, neither the plaintiff nor the de fendant could be examined as witnesess.*

" The plaintiff eame into Court with his rela

tives, some of whom were to be called on his b ehalf. But Yarnfortb, his counsel, sent him. away, and then proceeded, in his speech, to com ment on the want of delicacy and of modesty,, and the callousness to public opinion exhibited by the defendant, who had adopted the unusual course of mocking the sufferings of her deceived and disappointed suitor by presenting herself in > open Court.

"This attracted plenty of attention to my client, who was afterwards pointed out by the > plaintiff's witnesses and was described by counsel as4 the buxom girl in the gallery.'

" The fact of the engagement was proved by the plaintiff's mother and sisters and was also - manifested, as well as the breach of it, from the letters of the defendant, which were put in.

With seme difficulty, I put in evidence the - letters of the defendant's mother as being re

ferred in, and explanatory of, those written by - the girl herself and being addressed, contempor- ? aneously with her last one, to the plaintiff and -

his mother.

"I extracted from the plaintiffs witnesses that the plaintiff himself had come into Oourt,, and I asked whether his counsel had not sent • him away. They said he had gone away in compliance with a suggestion from some one; they did not know from whom. Yarnforth remained silent, and the laugh went against,

him.

u I then addressed the Jury, and—after play*

ing a little upon the delicacy of feeling: exhibited by the retirement of the plaintiff, in. obedience to the suggestion of his counsel, who,

with his usual liberality, had endeavoured to. impart some of his modesty to his client—I de scribed the real relationship of the party, and pointed out the distinction between the breach -, of an engagement by persons who had com menced it in mature age, and the withdrawal

scon after arriving at age from an attachment ? which was the result of youthful companionship • brought about by accident or cironmstancee. I: then explained that, if my client bad withdrawn from her engagement the very day she came of age, she would have been abso lutely unassailable by the action, and I ex

pressed sb opinion that, while her not doing so showed a genuine desire to keep faith with the plaintiff, that very fact had been rather meanly taken advantage of by him to saddle her with what might almost be called a technical liability Then I pointed out the reasonableness of the hesitation evinced by the defendant, and asked the Jnry whether, if one of their daughters had found herself similarly situated, they would not have felt bound to pay respect to her doubts,, end whether the idea would ever have occurred to them, that she had incurred a heavy legal liability by not having given form and ex pression to those doubts three or four months eailier while her friends were drinking her health on her birthday ?

"I assured the Jury of the genuineness of the reasons given by the defendant in asking for a postponement of the marriage, and proceeded to comment upon the correspondence as being singularly favourable to the young lady and her family, and expressed surprise that the defendant, if he really desired her out of pure affection, should not have listened to the wise recommendations of her mother, which I should have imagined would have been welcomed with < gratitude by any true lover with the least know ledge of a woman's heart.

"Then I remarked with much feeling upon, the solemn nature of the life-long tie which was the subject-matter of this action, and the desira bility of opportunity for more mature delibera

tion even on the part of the plaintiff himself,, who, I said, would certainly not have been served with a writ at the suit of the lady if he

had exhibited in his twenty-second year a wish: to overhatd and re-examine his amatory senti- -

ments of seventeen.

" llfy witnesses gave their evidence very well,. and I concluded with an earnest appeal to the plaintiff — which I addressed amid mueh laughter(to Yarnforth, as he had sent his client^

'Out of Court—to exhibit more manliness end ?generosity than to ask .for damages at two and twenty from a lady nearly a year younger, ?whose only fault had been that, eecladed from the world and unacquainted with sooiety, she '.'bad-been three months too late in forming a

-due estimate of the. solemnity of that relation ship which, beginning at the altar, ends only with the grave. And then I told the plaintiff that the lady paid him the compliment (which I ? had much pleasure in endorsing) of supposing < him capable, with good looks, an elegant figure,

and an independent fortune, of making an ? equally suitable match whenever he felt in

clined.

" During the delivery of these observations I -'carefully observed the demeanour of the Judge —it was Damwell who was on the Bench—and seeing that he agreed with me—for a slight nod ? had escaped him during my comments on the

letters—I took care not to overshoot the mark > so as to turn him againBt me, or to say any

thing which he would feel bound to conbit, - and I sat down with the conviction that, thongh

Z had fallen short of my own expectations, the - defendant would receive assistance from a msre

influential quarter.

"When I had finished, His Lordship turned ;• to Yarnforth and said, 'Don'c you think, Mr. " Yarnforth, that this is a case which it will be < more for the honour and comfort of both parties to settle without asking these gentlemen for a

verdict?'

"• Weli, my Lord,'said Yarnforth,'your Lord ship sees that the breach is virtually admitted.'

" ' Quite true,' said the Judge, ' but theD, when you come to the question of damages to ? be paid in compensation for that breach, there are a good many considerations whicb might . induce a settlement. I feel bound to tell you that some observations have been made by Mr. ? O'Donoghne on that subject which I shall feel - obliged to endorse if compelled to comment on

the evidence to the Jury.'

" The Jury began to lay their heads together, -and it was manifest that they had caught at the - Judge's view, which was probably identioal with

their own.

" Yarnforth asked for a minute or t so for ?consideration, during which he consulted with - his junior, whispered to the plaintiff's attorney,

and sent for the plaintiff himself.'

" I was in hopes that he would draw a Juror; hut he did not condescend to apeak to me.

" The Judge begged the Jury not to express any opinion, as it might interfere with an

< arrangement.

u The plaintiff was obstinate, and his counsel, nettled at the success with which he had been - opposed by one so little known as myself,

determined to run the risk of a reply. This he . delivered with great spirit, and as X trembled to

think, with effect. Yon may easily imagine ?the nature of his remarks, and, for that matter, -1 might have spared you so much detail about

.any own.

•• The defendant was moved to tears by Yarn Forth'a address, and I only wishod the eyes of the - Jury had wandered oftener from Yarnforth's

face to hers that they might have been moved to compassion at the sight of such beauty—for . I thought her beautiful—in such distress.

" I need not have been much afraid, however. 'Yarnforth's speech, though it made the Jury ? appear to waver, failed to carry conviction to

their minds, wniie it seemed to stereotype Barnwell's resolution to make such comments as < should reduce the damages within reasonable

limits.

" This he proceeded to do in the most busi ness-like manner, though with great modera tion, and he paid me the compliment to say that I bad spoken feelingly and with wisdozn, < and that much of what I had said deserved their

careful and respectful consideration.

" This consideration, however, the Jury did . not take long to bestow, for they communed

together in the midst of His Lordship's sum ming-up and said they were agreed upon a verdict for the plaintiff, damages one farthiDg!

" A buzz ran through the audience, which the ? reporters described as ' sensation,7 followed by a

slight attempt at applause. The plaintiff and Lis friends disappeared. Yarnforth favoured rue with a sneer. I left the Oourt, and, while they were opening the pleadings in the next ? cause, I was engaged in receiving the thanks of

the defendant's friends for the very able and delicate manner Id which I had conducted to a successful termination so difficult and distress ing a case. The attorney was not behind hand with his encomiums, and my fair client herself ? expressed her gratitude with a kind glance and

a warm pressure of the hand that made me wish I had bad tlie same chauces as the plaintiff in

"the suit.