The Sun.
London, England, 1812-08-14 00:00:00

SCOTLAND.

-7'rnirET or SESS:ON, SECOND DIVISION.

TIOGG V. GOW.

. •
This was an action of damages for breach of
.of marline. The pursue r is a young
lady, who carried on business as a.marituainaker;
aw, the &fender is a well known teacher of
music in Edinburgh. In summer 1809, the de-
fender, who had been for some tge on terms of
intimacy in the fa.-Wily of the pursner, fnade pro,
osals of marriage to her, and, after a course of
most aaidous and unremitting dttentiou, at
length obtained her consent. 'At that period, the:
defender was a whin:Ter, and bad a family of
grown up ChiAdien,,and it was alleged by the pur-
suer, that, toithe sarnples which both she and.
her sister repeatedly expressed, as to how they
might stand affected to the step be meant to take,
Mr. Gott' uniformly replied, that his circmnstances
were such as to enable him to, provide, for his fa-
_ fully, if they should disapprove t-j.,tlt'e match, but
that he was persuaded they never would 6bject to
any arrangement which was essential to his hap
piness ; and, for a period of a year and a half, the
intimacy was continued, while both parties Visited,
and were invited out together by their anutual
friends_, -and the pursuer had not the slightest
reason to Suppose, that any or Mr. Go:l°s fa-
mily would-be displeased at the prospect of a nearer
alliance.,

Dining all this time, a correspondence, by let-
ters, was occasionally kept, up, of that free and .
unreserved 'nature which was warranted by the
prospect of the speedy union of the parties.
- in the course of November 1810, however, the
pursuer observed 'an alteration in the conduct of
the defender, acid at last, upon the 25th day of that
month, she received a letter from him, setting
forth, that he found his children Were displeased
with the idea of his marriage again; and'that up-
on this account, he 'must .renouncetli- pretensions
s .• •
to her hand.
On receiving this letter, in whieb,.. as stated,
the defender made the opposition of his family a
pretext for violating the engageinents which had
proceeded so great a length, a farther correspon-
dence ensued, in which the pursuer's father took
a share, the issue of Nbith confirmed the parties
Of the resolution of the defender not to celebrate
the marriage. The pursuer then, in consequence,
resolved to appeal to a Court of juStice; for the
only redress which remained on what she con-
' sidered so wanton and unprovoked an outrage on
her feelings and happiness, 40 an action' was
accordingly raised against ar.-tow, concluding
for damages. _
In defence, against this action, it was stated,
by the Counsel for Mr. Gow', that he makes
his bread by playing and teaching the violin.
—About three years ago, his wire died, leav-
ing him, though not much advanced in years,
the father of a family, grown and growing up to.
the age of men and women. As his time is occu-
pied in teaching during the day, and his business
requires him during the evenings of winter, gene-
rally for Many days in the week, to be absentfrom
his own house, and sometimes at a considerable
distance, he resolved to marry, as soon as was
consistent with a due respect the memory of his
deceased wife.
He had previously been acquainted with Miss
Mary.Hogge the pursuer, who, having received as
good an education as her father's circumstances
would admit, had-been established as a mantoa-
maker in Edinburgh, for some years, aad he ob-
tained leave to pay his addresses to her.
Miring -the friendly intercourse which follow-
ed, one of the principal objects, on the part of
the -pursuer, was to conciliate the. esteem of the
Oefender's ,children, and the 'defender solemnly
avers, that be neither prOmiseehherenarriage, nor
gave her reason to supposeeleethe was about to
ask her in marriage, upon any. other terms, or
with any other view than that she should prove
an useful Mother to his children.. She herself
seemed equally aware that this was a point of in-
- diepeusable importance ; and accordingly, the at-
tention of -both was directed to that object for
some time: 'ln the course of their correspond-
- eece; however,. an accident happened, which, if
it -did not altogether put an end to' any hopes of
that kind, ,at least renderer' theire extremely dis-
tant,and uncertain.—The pursuer's. brother, John
Hogg,. had paid his addresses to the defender's
daughter, and, after a very Slight • acquaintaSce,
he abruptly prOposed that they should solemnise
their enarryge, without ever informing the de-
fender or any of her relations. Indeed, he went
so far as to attempt to cerry'her- out of the de-
fender's house.
This necessarily put •an end to all friendly corn-
meecation between the' two families • but -the
t:efender, whe; Was quite aware that the pursuer
could not approve of any' such measure, did' not
despair, for,some time, of reconciling his children
to her. ThiS, however, he at . last found alto-
gether impossible,eand -he thought it his duty to
Mention the matter to the pursuer, in order.that
she might be fully aware of the turn which mat-
ters 'had taken ; and if she thought it unwise to
keep up the correspondence any longer with the
defender, that she might break it off. The de-
- fender did -not make his addresses to any other
lady, nor did upon his part altogether despair of
accomplishing an union with the pursuer ; but he
thought it .right to inform her hoW he.. stood in
order that she might judge for herself, and either
Freak off or. continue the_ correspondence with
hiah .In answer, she gave him to understand, she
never considered the consent-of his family as in-
dispensably. necessary for- their union ; that she
and the defender might make themselves extreme-
ly hupy without any communication with his
children e- and she insisted that be should proceed
,i 6 sole-Tie-else the marriage immediately; and it ap-
rearieg to the defender that this would be Abele-
doithi'glthe duty to his family, and as he could not
help entertaining. great doubts" whether any union'
formed iii such circumstances could be happy, he
declined further correspondence. The -r`efences,
therefore, were—lst, it is not true that the de-
tender ever gained the affeetions of the pnreuer
. under promise of marriage, and afterwards cause

re used to fulfil englttemcnt ; The t
defender never intere,anged promise of marriag&
witli-the pursuer -3dlv, 'the libel .is alto-
gether irrelevant.--$t is not even libelled that any
consequences foll6wed upon- the allt:Ted promise
of marriage, and therefore it was perfectly:cola-
.
peteot for either party to resile
.therefrom, rebith,
rote cis.
In answering these defences, and narrative of
the defeqder, the pursuer referred tck he corrc-,
spondence Width had taken ,place be“.;.e.cti the ,
parties, and which would at once shes how far
the defence was well founded flat the &deader
never gained the pursuer's affection . untier.pro,
misc. of Marriage. The words of the delenclees
first-letter are conclusive of this pail of the gaes7,
tion. The words are, " 1 entrusted Mrs.
message to you, which, if delivered, you
may "think indecorous ; first, as
.being too soon
after my loss ; and, secondly, in trusting it to any
person.— --Now, what other construction can be
put upon•this letter than that it, was. an offer of
marriage ? and the fact is ,abundantly plain, that
fir. Gow- had previously secured free access-to the
family_ and house of the pursuer, and was at li-
belly to. begin his courtship to her whenever, he
pleased. "The corresponde*T. which followed this
letter affords the most. distinct and unequivocal
proof of an offer of marriage ; and an offer which,
if it *as once accepted, the defender could not
retract, trom,without subjecting himself to all the
damage lie, might occasion by his inconstancy.
The prod is, in the wlioe tenor of the evidence, ,
'and in all the circumstances of-the case in the
style and tenor of the whole letrers produced,
wherein Mr. Gov iddresses the pursuer in the
tenderest style of affection ; and the facts
_which
these letter§ establish, as. to the defender's visits
to the parents and relations of the pursuer ;'their
cons,ant solitary walks and appoint rents , , ,
gagnig her, witnout her knowledge, to dine and,
visit at his intimate friends'; and,, in short, the
strain, bene, and character of their intercourse,
from the time that the first letter • was dispatched
and answered..

But the defender, -although, he admits an en-
gagement, says it was qualified and conditional—
that he was engaged to marry the pursuer, in so,
far as his own will and power went; but that he
was not to fulfil the engagethent unless he got the
consent of his children. Man' instances have oc-
curred of marriage's being prevented for want of
consent of parents, butthis is supposed to be the
very first time that such-a proceeding, on the part
of a father too, who. had. made his own fortune,
end on avhom .his family were entirely dependent,
was suspended on the consent of his children. It
is not presumable that the pursuer could.ever have
admitted Mr. Gow's addresses upon such an un-
derstanding.. That she was to receive him as her
lover, and permit the whole' world. to be specta-
tors of their growing intimacy, in the mere hope
and contingent expectation that if she could con-
trivo to make ,herself agreeable to his children,
she might at last be promoted to the honour of
being his wifeee-is too absurd to be listened to for
a moment. No such arrangement ever could be
proposed by any man of common sense to a wo-
man whom he thought of Marrying ; and there
is no woman, and no father of a woman, wio
would ever, look upon the author of such a pro-
posal but with that resentment and disdain which
the bare mention of it must excite in the minds
of all to whom it is stated'. Such, however, the
Eroposition,,, Mr. Gow says, was deliberately
made by him to a person of whom be still conti-
nues to speak in terms of the utmost respect and
esteem, and was eagerly acceded to by her and
all the members of her family !' and of this he
offers not a shadow of proof, direct or indirect.
But the defender attributes the failure of the '
riegociation betwixt him and the pursuer to ano-
ther circumstance, viz. that the pursuer's.brother
had paid his addresses to one of his daughters,
but that the young lady was not disposed to
make him the return which he desired, and that
he' thought fit to make an outrageous attempt to
carry her out of the defender's house by force." '
In justice to her own cause, a 5 well as the character
of her brother, so grossly, wantonly, and unjustly
attacked, in a pleading relative to 'a case in' which
he is not a party, an explanation of this is 'ne-
cessary..
It is true; that in the course of the perpetual
intercourse .which -.the defender encouraged, and
even invited, between" the pursuer's brother and,
his family; an attachment took placebetWeenlim
and his daughter—his addresses were favourably
received—and in July, 1810, he obtained her per-
mission to apply to her father for his consent' to
their union. A letter, bearing date ca. July,
1810, written by the young lady to the pursuer's
brother, demonstrates pretty clearly the terms on
which they were at this period. ,On the 29th
July, the pursuer's brother spoke to the defender
on the subject, and after some difficulties stated
by, him as to the awkwardness of the double con-
nexion between the families; they were at last
got over, and Mr. Gow declared himself,satisfied.
On the following day, however; proposals in
writing were sent the defender from another gen--
tlenian, 'and the young lady having: been left to
her own choice, after writing two very angry
letters to the pursuer's brother, accepted the lat-
ter °NT. But this affair eras not, as the de-
fender states, 'the cause of the rupture betwixt
him &Aid the pursuer. This affair. took place in.
July, and the letter from the defender to, the pur-
suer, in whith, for the first time, he corainun)cates
his intentions to withdraw from his-engagements,
is not, written till the month of November, that
is, four months afterwards.
Upon the whole, then, the pursuer submitted,
that so far as the conduct of the defender is Con-
cerned, there is not a single circumstance stated
by him in alleviation of his proceedings towards
her, but what is proved to be false by evidence
which canpot be resisted.. That he
,repeatedly
promised her marriage—that mutual engagements
passed between them in that view—no person who
reads the 'letters in process can for one moment
doubt. The same..evidence proves, too, that-when
he receded from these engagements, he had re-
course to a pretext destitute of even the shadow
of a foundation--e-covering. himself under a mean
and untrue statement, that he had only informed

ram iv or a re-iolritinii ...bvtir.,ll. they
were acquatntded, as is most clearly establi-,heif
(even by the letters of C4.t)w) four itionths
['More..

The case came originally bertire Lord Ne‘rton,
ordinary, who, on 13th June 111, m'onounced
the folto*.ving interlocutor The Lord Ordi-
nary having beard counsel for the parties at great
length, on the grounds of the libel, defences, and
writing produced, repels flit.: defences, and finds
the defender liable• in damages to the pursuer ;
modifies the same to five hundred pounds sterling-,
and deeerns ; and finds the defender further liable
in expenses." - • •
Both parties submitted this judgment to review
in mutual representatiotis ;. but, in the incan time,
Lord Ne-,Vton havin4 died, the cause was remitted'
to Lord Woodhouselee, who on advising these re-
presentations, pronounced an interlocutor, " find-
,ing the 'defender liable. 'in damages ; lint in re-
spect of the whole circumstances of the case, mo-
dified the sum of damages to 3901. sterling,'and
expellees of process ;" and in so far altered Lord
Newton's interlocutor.

Along with this judgment, the Lord Ordinary
was also pleased to return into process the follow-
ing note, containing the reasons of. deliverance :
" I regard this case as somewhat particular in its '
nature, and differing considerably from the cafe
of a matrimonial engagement violated by one of
the parties, from a change of 'affection, self-in-
terested.. motives, r or . motives -of Mere caprice,
where damages are due as a solativin to the other
party, and 'in some Measures in peeiium .of the
fault`of the failure. In the present case, the de-
fender's breach of engagement dok not. seem to
have arisen from a change of affection,: from sel-
fish purposes, or from motives of pure caprice, but
solely front the strong repugnance (reasotrablb. or
unreasonable) of the defender's family to the
match, Which left him only a ezoiceletwen two
gTeat evils, either to break his engagement, or to
come to a rupture with all his children, whiCh a
worthy parent will consider as a great Jnisfoi tune ;
and the defender appears to have chosen what ap-
peared to him the lesser evil of the': two. lu this
case, therefore, I cannot allow any thing to the
penal consideration, but must,simply regard -the
pursuer's soLtium arid, even on that pointlicon-;
sider this case as di&rent from the ordinary •
cases„ of the kind, where the party complaining
has suffered an injury in • point of character,
which may happen, even from labidriuut incurred,
and, which will, therefore; justly enter' in the
estimate of solatiu*, but here there is no such
These judgements were submitted to the review
of the Court by both parties, in mutual reclaiming
igetitions, in which the defender, after recapitu-
lating his former statements, endeavoured to show,
by long and ingenious arguments, that this action
could not be entertained in point of law ; that the
7;pursuer had suffered no patrimonial loss in con-
sequence of the notoriety of the courtship; that
her reputation is altogether unblemished ; and
that it will not be alleged that the defender has not,
on every occasion, both before and since the com-
mencement of the action, treated her with every:
possible degree of respect, and which her conduct
and character so justly merited. •
As to the amount of the damage, the defender
submitted that the sum awarded was more than a
person in the pursuer's situation in life was -en-
titled to expect, or the_ defender bound to, pay.—
The deferider is a musician, whose income depends
on his violin; or rather upon -the public taste for
his rauSic ; he has a family to provide for, and in
these circumstances he submitted, that 3001. was.
much aboVe.any loss the pursuer could qualify, ac-
cerding to her own -view of the. case, anti-also'
much above what the defender's circumstances
can afford.

The objections, in point of law, to :the compe-
tency of the action, and the damages sustained,
Were most ably answered by the Counsel for the pur-
suer; and as to the amount of the damages, he sub-.;
rnitted. the discussion must, be necessarily short in-
dec).. The eminence, the success, the prudence; and
economy, of Mr. Nathaniel Go};, are matters of
public notoriety to every inhabitant of Edinburgh ;
nor is it any thing less then preposterous for him
to represent hitnself as a poor musician, depend-
ing for his daily subsistence on his violin, or rather
on the precarious favour aid admiration of the
public. If Mr. Gow were to be divorced froth his
violin to-morrow,, he would retire with a very
,•
handsome fortune, and the pursuer could instruct,
that his income, for several years back, -has not
fallen short of 20001. per annum. In such cir-
cumstances, it is altogether ludicrous to speak of
the defender's inability to pay-more than 3001.—
One who has destroyed the happiness and prospe •
rity of a whole life, certainly has no reason to
complain ii he is ordained to atone for it by paying
even tie income of a single year.
Upon advising this case, their Lordships were
nearly unanimous in opinion that the action was
competent. It had been admitted '(it was ob.-,
served) that such actions were competent and
common in' England, and were we, it was asked,
to be told, in the nineteenth century, that what
was considered as a most grievous injury-in Ene;
land, should not be considered so in Scotland
A person_was liable to damages if he trespassed
on the property "Of another—if he inflicted a biow
iri the heat of paision, or if, by a few hasty t,;-
presaions, be inanred in any manner, the charac-
ter and good fame of another—and shall a person
not equally be liable in damages, where; by
train of assiduous ettentions, he gains the heart-
and affections of a yonng unsuspecting- femnle,
and then, by Whim or caprice, or •any unfounded
motive, 'deserts her, leaving her a prey to the
intenseness of 'mental anguish, 'borne down,
by the weight of Shaine, regret, and mortifiCa-
•tion, which must folloW the sudden destrectiola
of hopes so long cherished and so artfully excited :?•
Notwithstanding, a female in such circumstances
may be the most innocent of persom, yet the very
notoriety of the _adventure avast be regarded as a
misfortune to her, both in a moral and patrimonial
point of view, and there is a -certain degree of la-
bkdriunz inseparable from the idea of a young wo-
man having been jilted or deserted by' a men—
and with the careless, the
,rash, the ignorant and
uncharitable (that is the great majority of the