From the Supreme Court Vault: 1889’s Sordid Case of a Marriage Promise Breached

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By Paul Gregoire and Ugur Nedim

In mid-1879, Sydney bar licensee William Callaghan asked his hotel employee Louisa Maria Tranter to marry him, and she accepted. The proposal came about half a year after Callaghan’s first wife had passed away.

In a letter to Ms Tranter dated 19 July 1881, Callaghan wrote, “Do not believe I shall marry anybody else; it is only a question of time.”

But after Mr Callaghan discovered that Ms Tranter had engaged in the act of “criminal intercourse” in the licensee’s own room at his hotel in June 1882, he told his then fiancée that their engagement was over.

However, Callaghan and Tranter continued their close association after this. And the licensee kept writing letters to his former fiancée, which contained “loving terms”, although nothing more than what could imply she was still his mistress.

The pair visited England in 1884, at which time Tranter was given the responsibility of looking after Callaghan’s daughter. He paid her £100, which he later claimed was also to ensure Tranter remained in England and tore up all his letters. But, this never happened.

Ms Tranter subsequently lodged a claim to sue Callaghan for breach of a promise of marriage. And the matter was heard before a four person jury in the NSW Supreme Court over several days in June 1889. Then NSW Chief Justice Sir Frederick Darley presided over the case.

A breach of contract

Abolished in most jurisdictions around the world these days, a breach of promise or a breach of contract to marry is a common law tort: a civil wrong that has caused an individual some form of injury, which leaves the person who produced it liable.

From the Middle Ages up until early last century, a man’s promise to marry a woman was considered a legally binding contract. And if the man pulled out of the proposed marriage, he could be sued. However, for the most part, this was not the case if it was the woman rescinding on the contract.

A damage awarded to a plaintiff in a case of a broken marriage promise was referred to as heart balm. However, even if it was proven that a valid engagement had been broken, there were valid reasons for doing this, which included an act of infidelity.

Although, courts became increasingly reluctant to intervene in people’s personal relationships. And reflecting this change in attitude, a 1976 amendment bill inserted section 111A into the Marriage Act 1961 (Cth), which abolished the ability to bring cases involving breaches of marriage promises.

The case for the defence

Tranter filed for £2,000 in damages over the broken promise. While Callaghan filed pleas stating that he had “ascertained certain damaging facts” about the plaintiff after the alleged proposal had been made, and that Tranter had already accepted £200 in lieu of not mounting court action.

Ms Tranter was the only witness called in support of her case. She finished her testimony on 13 June 1889, which was the second day of hearings. And Callaghan’s lawyer Mr O’Mara then began calling a number of witnesses to the stand, who had quite a bit to say in regard to the plaintiff’s character.

Second to take the stand was the defendant himself. Callaghan related that he’d employed Tranter as a salaried barmaid or housekeeper at a number of Sydney establishments, where he’d been licensee. This relationship first began in March 1878.

Callaghan claimed that although he’d never said Tranter could use his last name, he’d learnt that she had. And he explained that while they were in England, she’d given the £100 payment to her poor family, so Callaghan then had to give her a further £40 so she could return to this country.

On the third day of hearings, NSW police sergeant Carbery said he’d been called to the International Hotel in 1887 – where the plaintiff was employed by the defendant – and the barman asked him to remove the inebriated Tranter who’d smashed up the bar.

Former Coffee Palace Hotel business owner Eliza Johnstone told the court that one evening Tranter checked in with a man – not Callaghan – in mid-1887. She spent the night with him, and when he left, Tranter asked to change rooms as the man that she referred to as her husband had gone to sea.

Former proprietor of the Steam Packet Hotel James Madin gave evidence that Tranter worked for him in 1881. However, after about three months, he recalled that he increasingly found her intoxicated, and he finally had to sack her after he found her engaged in an immoral act.

In defence character

On 17 June, the final day of hearings, more defence witnesses gave further accounts of Ms Tranter acting in a drunk and disruptive manner. And waiter James William Coller remembered Tranter behaving violently towards Callaghan at the National Hotel on one occasion.

Tranter was then called to the stand to reply to the defence’s case. She straight out denied the accusation of being unfaithful to Callaghan in 1881, as she claimed she’d never acted in this manner prior to 1882. And she went on to deny the other statements made about her untoward conduct.

The sixth NSW Chief Justice

In summing up, Chief Justice Darley made clear that it was deeply regrettable that the time of the jury members – and indeed, the state’s highest court – had been taken up for almost four days with this matter, when there were much more important cases to be heard.

The judge said that if even half the evidence regarding Ms Tranter was true, then she “was one of the most abandoned of her sex”. And he thought that the members of the jury would hardly be too sympathetic towards either the plaintiff or the defendant.

His Honour further set out that while there was evidence of a promise of marriage, and a long period between 1879 and mid-1882 when this contract could have been fulfilled, there was no evidence of a breach of contract.

And the justice added that it was up to the jury to consider the plaintiff’s immoral conduct, the alleged rescission of the contract, and the claim of the defendant that between mid-1882 and 1888 Tranter had acted with the understanding that the marriage proposal had been revoked.

The verdict is final

At 2.55 pm on 17 June 1889, the jury retired to consider the case. And at 4.15 pm, they returned with a verdict for the plaintiff to be awarded £200. Mr O’Mara applied for a stay of execution based on the ground that the verdict was against the weight of the evidence.

“I do not think the verdict is likely to be disturbed on that ground,” Chief Justice Darley replied. “There is evidence both ways, and there is no point of law that I am aware of. I cannot stay in execution.”

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