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

Ward v. Karnes [1824] NSWKR 5; [1824] NSWSupC 26

seduction - personal torts- assessment of damages - rape

Supreme Court of New South Wales 
Forbes C.J., 24 December 1824
Source: Australian, 30 December 1824
Alternative source: Sydney Gazette, 30 December 1824 [1]

The plaintiff in this case sought to recover damages for the loss of his daughter's services. The damages were laid at one thousand pounds. [2]

On behalf of the plaintiff, who was represented to be a respectable farmer residing at Minto, at which place also the defendant was possessed of considerable property; - the following statement was made:- "In the month of February, 1823, the plaintiff embarked for England, leaving his daughter (the subject of the present action) in charge of his family and concerns, during his absence. At the time of his departure no intimacy subsisted between the defendant and any part of the plaintiff's family. Immediately after he contrived to become acquainted with, and commenced paying his addresses to the daughter, then little more than thirteen years of age; addresses which indicated the most honorable intentions. For a period of eight months was he unremitting in his assiduities, at the same time respectful, and becoming in his behaviour, - conducting himself as a respectable man should towards a respectable female. Lulled into a fancied security she at length permitted herself to be overcome by his repeated importunities, and in an unguarded hour, yielded up her virtue to the seductive wiles of her betrayer. Such circumstances would be proved as would of themselves shew the nature of his base, his dastardly conduct. At a time too when he should have been the protector of the unfortunate girl, he was seeking how he should bring inevitable ruin on her, how he should brand her with infamy and degradation; it would be proved, that under a promise of marriage, he effected his diabolical object. The pregnancy of the girl, and the subsequent birth of a child, were the fruits of their illicit intercourse. Her accouchement took place in September last. Unmindful of his former promises, and taking advantage of the illness of the unhappy object of his criminal passion, he within a month married another. The court would have to consider, in the first place, the expense the plaintiff had been put to on his daughter's account, which would be shewn amounted to more than fifty pounds; it would also consider the disgrace which had been planted on the plaintiff and his family, and the injury likely to accrue by such an example to the younger branches of his family; and lastly, what would be most deserving its attention, the ruin of the girl herself. These were circumstances loudly calling for damages; - considering that the defendant was a man of considerable property, one thousand pounds would not be more than a proper and just compensation. Notwithstanding the nature of the defence intended to be set up on the opposite side, viz. "the general conduct of the plaintiff and his daughter;" it need only be said that they were dared to impeach the conduct of either. If both the one and the other should be fairly set before the court, and it would be shewn that the demeanor of the girl was that of a modest, discreet, prudent female."

Mary Anne Ward being sworn, said, I am fifteen years of age. In the month of February my father left this country; I had charge of the family during his absence, consisting of my mother, a brother, aged twelve years, and a sister, ten years old. I know William Karnes; he is a neighbour; he lives within a quarter of a mile of my father's farm; I did not know him before my father left the country; he commenced his visits very soon after; he paid particular attention to me; he was at the house sometimes twice a day - always once, I always thought his intentions honorable; he always behaved respectful; my impression was that he meant to marry me; he paid his addresses to me for eight months before the unfortunate affair took place; he was frequently solicitous on the subject before; I always resisted; was induced to comply from a belief that he meant to make me his wife; I consider that we are both equals; informed my mother of my pregnancy in two months after; I went with my mother and Mrs. Brady, a midwife, to Mr. Karnes's house; I did not go in; understood he told my mother he would marry me; he came, but very seldom, after this to our house: he was forbade by my mother; I never sent to him on any occasion; he always came without sending for. Cross examined by Mr. Wentworth. - We walked out together sometimes into the bush; I never went to his house alone; I know Mary Milton; did not trust her with all my secrets; never sent old John with messages to Mr. Karnes; I do not know Charles Taylor; never heard he was sent to the Coal River [3] on my account; I may have heard his name; I never allowed any person to take improper liberties with me in my life; never allowed Mr. Karnes, until the time when I became pregnant by him; I was my father's confidential servant; I milked the cows, made butter, and did the work of the house; my father returned from England in July; I was then very far advanced in pregnancy; he paid one pound to the midwife; provided every thing that was necessary for me; has paid 15s. per week for my lodging at Mr. Fisher's, in Clarence-street; I live there now; the baby is a girl, and is still living; I will swear that it is Mr. Karnes's child; my mother gets drunk when she can get liquor, on that account my father gave me the sole charge; when my mother was intoxicated I had no restraint - of course I could follow my own inclination; our private intercourse took place in the bush; this practice was continued after my pregnancy; he visited occasionally at the house until with two months of my delivery; my mother did not always see him; he came at night; I live at Fisher's now; I went up the country for a fortnight to see my friends; did not go because I was turned out of Fisher's.

Robert Bishop - I lived five years in Mr. Ward's family; was there when he went to England; have heard Mrs. Ward and Mary Anne send old John to desire Mr. Karnes to come to tea; two or three times; may be more; defendant was at Mr. Ward's house before he went to England; Mary Anne was always well behaved; my impression was, that he meant to marry her; heard Mr. Karnes say, as we were returning from Liverpool, that he believed Mrs. Ward thought he meant to take advantage of Mary Anne, but he had too much respect for the family; this was 5 or 6 months before he heard she was pregnant; defendant did not come to the house on account of the abuse he received from Mrs. Ward; Mr. Ward returned 4 months since; believes Mr. Karnes has property; has cattle near the Mountains; whenever he went on a journey he always came to take his leave of Mary Anne; knows she visited at Mr. Crisp's; has heard that the mother of Mary Anne was not Ward's wife; never heard him say he would strip Karnes of his last bullock; never heard him say Mary Anne was not his daughter; never saw any alteration in the behaviour of the defendant after the discovery.The evidence of John Tacoe went to corroborate the statement of the last witness. His definition of the term "fresh," excited some amusement in the court. He conceived a man to be only fresh, while he could stand; and drunk when he could not stand.The case on behalf of the plaintiff having closed, Mr. Wentworth submitted that the plaintiff had misconceived the form of action. The proper declaration should be for a trespass vi et armis, and not a trespass on the case; he admitted that the present form was laid down in 6. East; but it had been overruled by a stronger case; decided by Lord Ellenborough and Mr. Justice Lawrence, contrary to the dictum of Mr. Justice Buller. Several cases were cited by the learned Gentleman in illustration of this position; on which ground he objected to the present mode of proceeding, as informal.The Chief Justice observed, that he was not prepared to decide such a point at the time; and as the case had gone so far, it would be advisable to proceed, and reserve the point. Mr. Wentworth then said he would go into the merits of the defence; and commenced by remarking, that the Gentleman employed on the other side had led him to expect that a formidable host of evidence would have been brought forward in support of this very flagrant case, as it had been termed by him at the outset of his harangue; but so far from that, the only witness from whom he could have hoped to derive support, had been completely contradicted, in many material points, by the very next witness. The daughters evidence had been completely invalidated, by Bishops; their case had broken under them. The contradictory statements which had been given, could not be accidental, for they were the leading feature throughout all the adverse testimony. He should be able to prove, and that satisfactorily, he hoped, that his client had been pestered by this girl, and her mother, into the seduction complained of; that instead of being the seducer, he had been seduced. - He should prove that the grossest indecencies had been practised under the very eye of the mother, and consequently by her sanction; that Mr. Karnes had been, in a moment of delirium, drawn into the commission of an act which was obviously a snare laid for him; and for which, such enormous damages were now claimed. He should be able to throw a new light upon the face of the proceeding, and lay bare, to the court, the motives which had actuated the plaintiff on this occasion. He would show the spirit that had urged the plaintiff to undertake a prosecution; and that his propelling motive was compounded of avarice and revenge. The tirade that had fallen from the Gentleman on the other side, upon the dishonour attaching to the plaintiff and his family, was in the highest degree farcical. This man, himself, had been the first to pander to his own dishonor. This man who then came forward to claim damages for the seduction of his daughter, had himself bartered - sold - another of his daughters; had been instrumental in violating her chastity; had placed her in the very jaws of the lion - and yet he now dared to come into that court to complain - of what? Why, of his client having done that when he was absent; which, had he been in the country at the time, his client would have had no difficulty in accomplishing with his perfect concurrence. What evidence was there here to support his claim for redress - the testimony of a girl who had given her evidence in that box with a degree of hardihood and effrontery, seldom, he believed, witnessed in any court. She had undergone a scrutinizing examination, without eliciting a blush - she had given her testimony in a manner that could only have arisen from the good tutorage she had received. She evinced a boldness, which he should not have been able, though used to courts of law, to have maintained in such a situation. But where, he would ask, were the proofs of that boasted respectability on the part of the plaintiff, or his family. If he mistook not, he had already given the court an insight into the plaintiff's iniquitous conduct; from which a sample of his respectability might be deduced; he would prove, too, that the girl herself had been previously violated; he would not say with her consent; for it was at the early age of eight years. Though he was far from imputing blame to the girl on this account, (since it was her misfortune - not her fault) yet what man he would ask was there that would feel repugnance at the idea of making her his wife. Under these circumstances, the injury done to her reputation by a second violation of her chastity, could be but trifling, compared with what it would have been had not such an event occurred. He would proceed to call his witness, of whom the first was, Mary Anne Brady, the midwife: - she stated that she never drank spirits - she would not for the world drink a glass; at least not oftener than once in a quarter of a year. She should indeed tell the court nothing but the truth; for she had no idea of selling her soul to the devil, for any body. All the incidents in the former part of the evidence were recapitulated by this witness; and she farther stated, that she believed the girl had been violated by a man named Charles Taylor, who was sent to the Coal River on that charge. She knew Mr. Karnes to be a man possessed of considerable property.The next witness was John Taylor, otherwise "Old John;" he stated that he had been sent with the compliments of the ladies, requesting Mr. Karnes company to tea; this occurred twice, he was sure, and it might have been twenty times; they always expressed dissatisfaction when he did not come; he believed Mary Anne was "so much in love, that she could hardly live;" he did not perceive any material alteration in the frequency of his visits after the pregnancy was publicly known; did not think he was there oftener than on[c]e a week, at any time; he did not know that Mrs. Ward would abuse every body when she was drunk; she had abused him often - never heard her abuse Mr[.] Karnes.Alex. Maguire and John Graham, deposed to Mr. Karnes indifference, at all times, with regard to the girl; that she forced herself into his company against the defendant's wishes.Mr. Thomas Rose, of Sydney, is guardian to the defendant, was present at his marriage in September last, with Elizabeth Graham, went by desire of the defendant to Mr. Ward to make an offer of just reparation; he offered to refer it to arbitration: this was refused by the plaintiff; had been told by him, the day previous, that the mother of Mary Anne was not his wife, he had brought his real wife from England with him, in the ship Prince Regent; does not think Mr. Karnes has the property stated; has not, to his belief, above 200 head of cattle; he owes to the amount of near £200.

Mr. Robert Howe [4] - remembered Mr. Ward coming to his office before he went to England, in order to have an advertisement inserted in the Sydney paper, cautioning persons against giving credit to his wife, as he then called her. On his return he was surprised at Mr. Ward inserting another advertisement, stating the said woman was not his wife: this advertisement was read to the court.

Mr. Carter, the Master in Chancery, stated, that Mr. Ward came from England in the ship with him, as did his wife and daughter. On the passage they put into Bahia. A day or two previous to resuming their voyage, Mr. Ward took his daughter on shore, where she remained until the ship was weighing anchor, when Mrs. Ward, in great distress, presented herself before the captain and gentlemen passengers, stating that her husband had left her daughter on board an American vessel, which she pointed out, and begging them to assist her in recovering the girl - they accordingly went in quest of her, and found her on board the American vessel; she expressed unwillingness to leave it; but afterwards consented to return; she acknowledged she had been debauched while on board. The father, this witness observed, evinced extreme apathy, and threw cold water over their proposals of endeavouring to recover the daughter; it was his belief that the father had sold the girl; that he had received compensation for her violation.The evidence for the defendant here closed. A few remarks were made in behalf of the plaintiff.

The Chief Justice, in reviewing the case, took occasion to observe, that it did not appear to him that the character of the girl, generally, was marked by any great irregularities, nor that the defendant had been seduced. On the contrary the fact of seduction on his part was admitted. The character of the father certainly did not appear in the clearest point of view; his conduct at Bahia was highly reprehensible, therefore the injury to his feelings and to his honor, could not be very great; [5] the girl was the principal object, and the expense and disbursements of the father. The infant was living, and certainly was an incumbrance upon the mother, for which some allowance should be made. The defendant was not a poor man; but that was not a reason why an unreasonable sum should be awarded. There could be no doubt that the father had incurred expense on his daughter's account. It was for the court to take all these circumstances into their consideration, and taking a calm retrospection of the case, to give such damages as they conceived the justice of the case required. - Verdict for the plaintiff - £17 with costs. This trial lasted eight hours.

 

Notes

[1] The source of this report is the Australian of 30 December 1824. The case was also reported by the Sydney Gazette on the same day; it spelt the defendant's name "Kearns". The Gazette notes that Garling and Rowe appeared for the plaintiff, and W.C. Wentworth for the defendant.

[2] This was not the first seduction action in New South Wales. For a discussion of Sutton v. Humphreys (1806) and reference to other cases of that period, see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, 97-99.

[3] Newcastle, a penal settlement.

[4] Editor of the Sydney Gazette.

[5] The Sydney Gazette, 30 December 1824, p. 3, col. 1 put this as follows: the Chief Justice "reprobating most strongly the inhuman and unnatural behaviour of the plaintiff in the instance given to the Court by Mr. Carter (unparalleled in this Colony)". As is sometimes the case with the Gazette's reports, it is impossible to know how much of this view was that of the Gazette and how much that of Forbes C.J.

 

Published by the Division of Law, Macquarie University