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Decisions of the Superior Courts of New South Wales, 1788-1899

Bland v. Drake [1818] NSWKR 3; [1818] NSWSupC 3

[criminal conversation (adultery)]

Supreme Court
Field J., 3 March 1818
Source: Sydney Gazette, 7 March 1818 [1]

This was an action for criminal conversation of the defendant, with the plaintiff's wife. Mr. Garling appeared as the plaintiff's Solicitor; and stated the circumstances of the case to be added as follow: Mrs. Bland, who is the daughter of a respectable Gentleman engaged in Missionary labours, was married to the plaintiff about a twelve month since, and had continued to live with him in the most cordial habits of domestic felicity until the month of November last; when that felicity was totally destroyed by the ungenerous and unprincipled conduct of a defendant, introducing her from the arms of a husband who had upon all occasions since their union treated her with the utmost tenderness, and who had every reason to be assured that this regard was mutual.
Mr. Drake who is an officer in the East India Company's service, arrived here in the Chapman, by which ship he was proceeding to Bengal. The officers and crew of the Chapman, it will be recollected, were under the necessity of undergoing frequent examinations before the Hon Judge Advocates and Magistrates, on the subject of the cruelty is charged against some of them during her passage hither; and the vicinity of Mr. Bland's residence to the place where the investigation was held, was stated to have produced the intimacy between them, which had terminated so unhappily. Mr. Bland, the son of an eminent physician of London lately deceased, is a Surgeon of the Navy; and Mr. Drake being an officer also, a very slight introduction was needful to a friendly intercourse; and Mr. Drake found himself accommodated in the opportunity of occasionally sojourning during his necessary hours of attendance on the investigation, at the house of a friend to whom his visits were highly acceptable. The plaintiff had never entertained the slightest suspicion of Mrs. B's infidelity, nor could he scarcely, under any, circumstances, have entered into a belief that a person treated by him as Mr. Drake had been could have so violated all the laws of hospitable friendship, as to have unfeelingly availed himself of a generous confidence - to plant thorns within the bosom - a dagger in the very heart of an unsuspecting friend.
It happened that late in the month of November, the defendant was at Parramatta on a visit to some of Mr. Bland's friends, and that Mrs. B was of the party. Upon this occasion she wrote to her husband, in Sydney, a letter informing him, she was going with a very respectable party to visit the place called New Jerusalem; and in this letter made use of none but the most affectionate language. Mr. Drake was of the party; but no person present saw any attention passed from the defendant to Mrs. B. that could give rise to a suspicion, which, from her general deportment, it would have been impossible to entertain of her.
On the 24th of November, Mrs. B. returned to Sydney in a chaise with the defendant; upon which occasion her husband remonstrated with her on the impropriety of exposing herself, however innocently, to possible severity of remark: in which Mrs. B. appeared most willingly to acquiesce; but the plaintiff's attendance at Parramatta being requisite on that day, he had the mortification to learn upon his return the day following, that Mr. Drake had been in the house, and with Mrs. Bland, the whole of that night from 11 until day light.
On the plaintiff's return, Mrs. B. appeared to be somewhat confused in her manner; and from several remarks which fell from her, and which seemed rather to challenge the attention of her husband, he began to entertain some very unpleasant apprehensions, which he at once determined upon having decided; and the enquiry terminated in the perfect exposition of a criminal intercourse, which immediately separated the wife from the husband, who in the first paroxysm of rage sent messages to Mr. D. which were not answered in the mode demanded but stamped the conviction of Mr. D's consciousness of his crime.
Mr. B. determining to adopt every course which the law afforded for punishing the destroyer of his domestic comfort, commenced an action against him for the sum of £3000 but the defendant secreted himself; and could not be brought forward; however, during this period of his concealment, a letter was found in the hollow of a tree to which he had been traced, which was directed to Mr. Bland, and sworn to be in the defendants hand-writing, replete with the most injurious and insulting ribaldry on the subject of the disaster of which he had been himself the author, and which could only be looked upon as a growth and unfeeling attempt to heap the most injurious insult upon the most afflicting of injuries.
The Court, upon a very close and positive establishment of the plaintiff's case, gave him a verdict, Damages £2000; which, as the defendant was absent, he having gone away in the Chapman, the Honorable Judge (Field) observed, as recoverable in any of His Majesty's Courts in England or elsewhere; recommending at the same time that the insulting epistle found in the hollow of the tree, and directed by the defendant to the plaintiff, might be forwarded to India for the purpose of informing the proper officers of the conduct of Mr. Richard Drake, while in this Colony.

Note

[1] This is one of few sexual tort actions taken in the first 50 years in New South Wales. Actions for seduction of a daughter or female servant were rare, while those for criminal conversation were even more unusual. See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, 9/2215 (no. 70).

Published by the Division of Law, Macquarie University