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

Hart v. Bowman [1828] NSWSupC 104

criminal conversation, adultery

Supreme Court of New South Wales

Dowling J., 9 December 1828

Source: Australian, 12 December 1828

CRIM. CON.

Hart v. Bowman.

On Tuesday this case, the first of its kind in the colony, was brought on and heard before one of the Hon. Judges of the Supreme Court, Mr. Justice Dowling, and two Assessors, viz. John S. Jackson, and John Busby, Esquires.[1 ]

The case excited a vast interest; and from its commencement in the forenoon, to its conclusion about ten o'clock at night, when the Assessors declared their verdict, every obtainable seat in and about, as well as in the body of the Court, was crowded with auditors.

The damages were laid at 2000l.  The defendant continued in Court during the trial, and sat next his leading Counsel, Mr. Wentworth and Mr. Norton - Dr. Wardell, with Mr. Kerr, being retained on the side of the plaintiff.

Mr. Kerr explained the nature of the action, stating it to be an action brought by the plaintiff, Mr. Thomas Henry Hart, merchant and trader in Sydney, against the defendant, Doctor Bowman, inspector of the general hospitals in the Colony, for a criminal conversation with the plaintiff's wife; to which the defendant pleaded the general issue.

Doctor Wardell then took up the case in words pretty similar to the following:-

May it please your Honor and Gentlemen Assessors - You have heard from my learned friend the nature of the action you are called upon try on the present occasion.  Gentlemen, this is an action brought against the defendant for a criminal conversation with the plaintiff's wife.  The plaintiff is Mr. Thomas Henry Hart, a long time a resident in this Colony, and in this town - a man who, by his habits of industry and close attention to business, had amassed a comfortable property.  He was then and is now a very extensive dealer - principally in the spirit trade.  Some few years ago, three or four years it may be, the plaintiff fell into misfortune - not an embarrassment of a pecuniary nature, but a misfortune which rendered it necessary that he should absent himself from Sydney for a time.  When he did so leave Sydney, he entrusted his wife, the subject of the present action, with the exclusive management of his affairs and property.  At this period the plaintiff was in no mean circumstances - he carried on an extensive and lucrative business, and confided to the entire control of his wife all money affairs, commercial transactions, and all matters in fact in which he was at all concerned.  The plaintiff felt that he could do that; for that wife had been to him as fair as woman in the grade of wife could be - who had borne to him many children.  From this opinion of his wife, so had he acted.  If she had been a woman of abandoned character - if he had known here to be of dissolute habits - he would, of course not only have contracted his dealings, but placed some responsible person in a situation where he placed his wife.  Gentlemen, the defendant in this case, it is to be observed, is no chicken (A laugh).  He is not exactly to be considered in the hey day of life.  He had not the passions of youth to plead in his favor.  He cannot come before this Court as many might - with a plea of "Hobson's choice."  The defendant has a wife, who, as I am informed, is a very amiable woman.  He has also a family of children - a numerous offspring. - He had every possible inducement to remain at home, every reason to be satisfied with that home, and every possible reason not to wander and take advantage of the temporary absence of a husband from his wife.  During the period of the absence I have now been speaking of, this aged sinner chose to accomplish his purposes.  He at that time contrived to carry on a guilty correspondence, and to debauch the plaintiff's wife - he did that too with a great deal of art and manoeuvring, but not sufficiently so to prevent his acts being observed.

In all cases of this description it almost invariably happens that the proof is to be made out of circumstantial matter; it being hardly to be supposed that parties would contrive correspondences so very badly as to enable other persons to become the observers of their very acts of adultery.  Gentlemen, I believe you are husbands.  You must look at this case as you would look at your own case; and, in the absence of evidence, to go to the precise point, you must look at what would satisfy you, if you were told the same of your wives, as will be told you this day with respect to the defendant and the plaintiff's wife.  Gentlemen, when we hear person studiously avoid being observed visiting other persons' houses - timed too in such a way as to give rise to suspicion - that in itself is some reason for believing that a criminal intercourse is contemplated, if not already effected; and if, gentlemen, you see these cautious steps followed up - if you are told by creditable and by the best possible witnesses, that these acts gave rise to others - that the criminal parties were locked up in a room together, and so contrived the act of adultery itself, as that it could not easily be seen - carried it on too with so much caution as almost to defy the precise proof of the act being committed, but at the same time under such circumstances as to leave little doubt that a criminal intercourse had taken place --- gentlemen, that evidence will be forthcoming to-day, and if any thing farther can be considered as wanting, there will be the evidence of the wife being with child.  Of the integrity of the defendant, with respect to that matter, the expressions used by the defendant with regard to it, will be also put in evidence.  There was his conversation advising the plaintiff's wife to quit the Colony, to give birth to the pregnant child, and by keeping out of the way of curiosity of the world for awhile - make nobody the wiser in the matter.'  Gentlemen, when you hear these things, and also hear these particular expressions, you will scarcely, I think, believe that a doubt can exist as to the guilt of the defendant.  Gentlemen, I am unwilling in this case to enter into a detail of circumstances, which, perhaps, the witnesses in the box will tell, I will rather leave you to hear the detail from the mouths of the witnesses themselves, but I am sure the evidence will support the declaration.  I say I am unwilling to indulge in what is most commonly resorted to by the Advocate on occasions like these - a pathetic appeal to the human passions; but will confine myself to what is the reality of the case, and how far the plaintiff has been damnified.  The extent of his loss is difficult to reduce into pecuniary value of pounds, shillings, and pence.  If a wife be abstracted from the house of her husband, under the circumstances which have been mentioned, that loss must be excessive to the husband.  He entrusted to her the whole management of his affairs.  Any interruption in that management must be accompanied with a considerable loss. ---  Had the parties been differently situated --- if situated as many person occasionally are who come into a court of justice, and where the husband is claiming damages for the loss of the society of his wife, it would not be a case so pressing in its character upon the attention of the court, as the present one is.  Instead of being a kind and affectionate husband, had he exercised cruelty, and driven his wife from home --- if times had altered with them for the worse --- had it appeared the husband had forgotten himself, and taken up with some abandoned woman, and next turned his wife out of doors, and she had taken consolation in another, there would be a circumstance against the plaintiff; but there are matters of a strong cast to the contrary.  The plaintiff has a large family of children.  He was a kind father and a tender husband; and he and his wife were living together in the utmost felicity --in perfect harmony.  When circumstances require them to separate, the husband entrusts all he has to her sole management.  Gentlemen, if this be not a case calling on you to give exemplary damages, I am at an utter loss to know what case can.

Mrs. Jane Clark examined. - I am own sister of the plaintiff's wife.  Her christian name is Frances.  I was present at the marriage ceremony between her and the plaintiff at St. Phillip's Church, by the Rev. Mr. Cowper, about 11 years ago.  I officiated as bride's-maid on that occasion.  I witnessed them making entry of their names to the register.  They afterwards lived together as man and wife.  Plaintiff's name is Thomas Henry Hart.

Thomas Evans. - I am a labourer.  I was at work at the plaintiff's house about a year ago.  I have seen Dr. Bowman visit there several times.  I speak particularly of the month of last Sept,  I was living in the back part of the house, adjoining the staircase.  About 11 or 12 o'clock, I heard a knock at the front door; Mrs. Hart opened the door, and he passed the parlour door and went up stairs with her.  There are five rooms up stairs.  All five rooms are on the same floor.  There are two stories one above the other.  When they had been up five or ten minutes, Mrs. Clark came into the open shop where I was.  After she spoke to me she went up stairs.  I heard her making a noise in one of the five rooms.  I did not hear any one speak but her.  I was then at the bottom of the stair case.  She said Dr. Bowman was in the room, and her sister had him locked up; at the same time threatening to tell her husband of it when he came home.  A shoemaker then came in and took Mrs. Clark away.  In about ten minutes or a quarter of an hour afterwards, I saw Dr. Bowman come down stairs and leave the house the same way he had entered it.  In March last I called on Mrs. Hart for some money she owed me.  It was in the middle of the day, and Dr. Bowman was there.  I did not see Mrs. Hart.

Cross-examined. - I do not think there were any persons lodging in Mrs. Hart's at this time.  During Mr. Hart's absence, Mrs. H. was in the habit of letting her apartments to doctors of ships and strangers.  There might have been ten or a dozen lodgers at the time I speak of.  I was at work in the house three days, during which time I never saw any lodgers.  Dr. Linton might have been a lodger though.  It was the dining room at which Mrs. Clark was kicking.  There is a bed-room adjacent.  The dining room door enters into it.  I cannot say whether Dr. Bowman or Mrs. Hart were in the room at the time Mrs. Clark was kicking at the door.  When Mrs. C. was creating the noise and saying Mrs. Hart and Dr. Bowman in the room, I was six feet away.  I can take a drop of drink at any time, but I cannot say that Mrs. Clark indulges in the same habit.  I have known her ten or eleven years.

Mrs. Jane Clark re-called. - I saw Dr. Bowman at Mrs. Hart's house about fifteen months ago, when I was there.  It was rather dusk when he came.  When he came in he enquired of me for Mrs. Hart.  I was then sitting alone in the parlour.  I told him Mrs. H. was up stairs, and he then went and joined her.  I stayed where I was.  He remained with Mrs. H. for about ten minutes, when he came down stairs and Mrs. H. after him.  Mrs. H. then put on her gown and bonnet, and joining Dr. Bowman's arm, went up Pitt-street towards the race course together.  I stayed in the house until they returned, which was then quite dark.  They came back together, I opened the door, and Mrs. Hart with Dr. Bowman came in.  Dr. B. took a chair, and I blamed Mrs. Hart for stopping so long out of doors with Dr. Bowman.  Dr. B. said I had no occasion to say any thing, for that she and Mrs. Hart were two sisters, far from home, and Mrs. H. knew her own business best.  Dr. Bowman presently after this, bid Mrs. Hart good night, and went away.  A little time after that I saw Dr. Bowman from the window of my own house, go into Mrs. Hart's house.  It was about noon.  I then put on my bonnet and shawl, and went down immediately to my sister's.  I went into the shop, and thence up stairs, passed the bed-room door, which was open, and found Mrs[.] H. was not there.  I then knocked at the drawing-room door, which was locked.  Mrs. H, said who's there?  I said me.  Mrs. H. made answer, there is no entrance here for you, go down stairs.  I called out pretty loudly that she had Dr. Bowman locked up with her.  I did not see Dr. Bowman there, but the door remained closed.  I saw a man who was employed at the house in painting.  On going into the shop, I asked where Mrs Hart was? and he told me up stairs; upon which I went up.  I was very quick in putting my shawl and bonnet on, after seeing Dr. Bowman go  into Mrs. Hart's house; he could not have left there without my knowledge.  When I was making a noise at the bed-room door, Mrs. Hart called out to a man from the room window to come and take me away.  When Mr. Hart was living with Mrs. Hart at home, they lived together on very friendly terms.  They had five children, three boys and two girls; the eldest is about ten years.  The youngest is walking about.  I always thought Mr. Hart treated his wife very kindly.

Isaac Wise - I am a shoemaker.  I know Mr. Hart's house in Pitt-street.  I recollect about 10 months ago, I was passing by Mr. Hart's house, in the middle of the day, when I saw Mrs. Hart leaning against an up-stair's window, which was open, and called to me in the street to come in and take her sister away, for she was abusing her.  I went into the shop, and saw a man painting at the end of the staircase.  In enquired for Mrs. Clark.  The painter told me she was up stairs.  I went up stairs.  I there saw Mrs. Clark, who was speaking very loud, and appeared greatly vexed.  She said her sister was in the room locked up with Doctor Bowman.  I prevailed on her to come down stairs.  I went to my own house, and she went to her's.  I have seen Doctor Bowman leave Mrs. H.'s house after dark, both before and since.  It was a house of general business.  Mr. H., when he went away, traded as a general merchant.  He also kept wine vaults.  There was business carried on in the house by Mrs. H. after Mr. H. left.  The house is a large one.

Mr. Edward Francis Watson  I am clerk to the plaintiff.  I was clerk to him before he went to the Northward.  I continued in plaintiff's service about fifteen months after he went away.  It was about fifteen months after he went away.  It was about the year 1823 when I first went into Mr. H.'s service.  He was a general dealer in all sorts of merchandize  kept an inn, and had an extensive establishment.  When plaintiff left Sydney in March 1823, he left his house and property in his wife's charge, as acting manager.  I was left as clerk.  In plaintiff's absence I have frequently seen Doctor Bowman come to the house.  Once or twice he called to see Mrs. Hart; at other times he called to see some of the lodgers.  This is now between two and three years ago.  About fifteen or sixteen months ago, I recollect a person coming to the door, and giving a rap of the hand at it.  I opened it, and followed a person to some distance.  This person had every appearance of being Dr. Bowman.  Mrs. Hart called me back.  I did not see the person's face; but from his cut I am morally certain it was Doctor Bowman.  Plaintiff and his wife always appeared to me to live on easy happy terms.  They have had five children.  The youngest child is between two and three years of age.  I do not know the age of the youngest by somebody else.  (Loud laughter).  When Mrs. H. went to the Northward to see Mr. H. she did not appear to be in the family way.  About last May she went on board a vessel to go the Derwent, and then she appeared to be pregnant.  On plaintiff's return by a ship, he enquired of me of his wife, and I told him she had gone away; at which he seemed greatly surprised and irritated.

Cross-examined  I do not know plaintiff's wife to be a loose woman.  She kept a lodging and boarding house during plaintiff's absence.  I never saw any irregularities between Mrs. Hart and her lodgers.  On plaintiff hearing his wife had run away, he went to the Southward in quest of her[.]  He heard of her pregnancy, and then said he believed Doctor Bowman to be the father of the child.

Sarah Smith  I am a laundress.  I was employed by Mrs. Hart in that capacity before she went to the Derwent, now about four months ago.  Before she went to the Derwent she was in the family way.  She had been to Port Macquarie to visit her husband a few months before, and she was then pregnant.  At that time plaintiff had been a prisoner for nearly three years.  I saw Mrs. Hart when she returned from Port Macquarie.  I went to her house to get her foul linen.  At the latter end of the week I generally took back the linen after being cleansed.  On that occasion, a Saturday, I went into the shop, put my basket of clothes down close to the parlour room door, which was partly open, and then saw Dr. Bowman, who was sitting on a sofa, and Mrs Hart on a chair.  It was not quite evening.  I heard Dr. Bowman say to Mrs. Hart, "Fanny, you begin to look very big"  "you must go up the country out of the way."  "For God's sake go, for you don't know the day Hart will be up."  She said, "Dr. Bowman, you first of all wanted me to go to Port Macquarie to see my husband, now you want me to go up the country, where I know no one."  She said it was a hard trial to leave her house and her home, but she would go, as she did not care what became of her.  She said she could not keep her pregnancy any longer private.  Dr. Bowman got up and said, "For God's sake, Fanny, make all the haste you can and get away.  She said, "Dr. Bowman you have brought me to all this."  Dr. Bowman seemed very anxious that she should go.  He then went away.  Mrs. Hart did not seem pleased at seeing me.  I thought it was because she considered I had overheard the conversation.

[This witness underwent a cross examination, but without shaking her former testimony.]

Phoebe Clegg  I recollect last Sydney races. I was living servant with Mrs. Hart at that time  They took place about five months ago.  I recollect Sarah Smith, a washerwoman, coming to the house on a Saturday with some linen.  She stood by the parlour door.  Dr. Bowman and Mrs. Hart were in the parlour together at the time.  The door was partly opened.  She appeared to be listening to some conversation which was going on in the room.  I was employed as a housemaid.  I was living there at the time Mrs. Hart went to the Derwent.  She appeared to be pregnant.  I did not live in the house when Mr. Hart left Sydney.  I was employed by Mrs. Hart.  I am not living in plaintiff's family now.

Catherine McCabe, spinster  I live with my mother.  Have been in Mrs. Hart's service.  Whilst living at the house I frequently saw Dr. Bowman come there.  When he came he asked for Mrs Hart.  I did not know him personally, but he told me his name.  I have since seen the same gentleman, and know it was Dr. Bowman.  He went up stairs and stopped on the landing, while I went and told my mistress he was there.  Mrs. Hart then went out to the landing place, spoke to Dr. Bowman, and they went in together to the dining-room.  Out of the dining-room there is an inner door, which goes into the bed-room.  They shut the outer door after them.  They remained together for about an hour.  I saw Dr. Bowman come down stairs and go through the front parlour to the street door.  I let him out of the house.  It was about two months after, to the best of my knowledge, that Mrs. Hart went to the Derwent.  I accompanied her there.  While at Hobart Town my mistress had an increase of family.  She was confined to her bed.  I and my mistress had been at Hobart Town about a fortnight, when Mr. Hart came.  She was confined about five weeks after Mr. Hart's arrival there.  He did not remain in the house with her.  Mr Hart returned with Mrs. Hart to Sydney[.]  He did not see the child.  I saw the infant christened.

Mr. Terence Murray  I know more of the plaintiff's wife that I know of the plaintiff.  (Great laughter.)  The witness exclaimed I know nothing of their domestic economy, having merely been a lodger in Mr. Hart's house for a few weeks in the year 1827, during Mrs. Hart's absence.

Here a delay occurred of some minutes, owing to the absence of two witnesses, during which the learned Judge quitted the Bench, and the dense crowd which occupied the body of, and every obtainable seat in the Court, became somewhat diminished.  After a short interval, on the learned Judge re-entering the Court, and order becoming resumed, the examination of evidence was gone on with.

Doctor Bland examined  I once had a conversation with defendant relating to the subject matter of this trial  I was prevailed on to do so by Mrs. Hart, and in consideration of both parties, to prevent any expose  I told Dr. Bowman what Mrs. Hart had mentioned to me, that he was the father of the child, and that she had acquainted her husband of this and that he was determined Doctor Bowman should make reparation by maintaining the child, or that he would put the case into Dr. Wardell's hands - Dr. Bowman denied that he was the father of the child  He was a good deal agitated, and seemed greatly surprised that Mrs. Hart should have stated this  Dr. Bowman wished me to appoint some time next day to see him further on the business, and he would call on me.  I told Dr. Bowman I would not give that trouble, as I might probably be out, and would call on him  I did so  He was then less agitated  He asked me if Mrs. Hart persisted in saying the child was his  I told him that she did, and he denied it  Dr. Bowman would not come to any arrangement of the business - I always thought Mrs. Hart a kind, tender mother, and a good wife.  I have known several ladies and families of the first respectability lodge at Mrs. Hart's house, and have concluded from this that she was a very moral woman.

This was the case for the plaintiff.

Mr. Wentworth rose for the defence  Before going into the merits of the case, he, the learned Counsel, begged to submit to His Honor and the Gentlemen Assessors, an objection which had occurred to him, and which, on mooting it, he though would prove an utter poser to the plaintiff's case  His objection was this, that there had been adduced no sufficient proof of any actual marriage having taken place betwixt the plaintiff and the female who was one of the principal subjects in this action, as even admitting that marriage had been solemnized between the pair in a Church, evidence to that effect could only be secondary evidence, and inadmissible, because it did not amount to the first and best proof, in law  the production of the real original certificate of marriage.

Here Doctor Wardell rose, and was about to rejoin to the objection of his learned brother "in law" on the other side, when Mr. Justice Dowling interposing, observed it has been decided in a very recent case, that a marriage is proved by a person who was present giving viva voceevidence of the fact.  A witness had been put into the box in the early part of the present trial, and that witness upon her oath declared she was present at, and saw the marriage ceremony performed.

Mr. Wentworth then continued  May it please your Honor and Gentlemen Assessors, I certainly anticipated when my learned fried opened his case and adverted to the particular nature of the evidence he meant to adduce in support of it, that a case depending upon proof, more slender still than that adduced to day, would have been presented to the Court  But it appears I have been mistaken, and the mistake is easily accounted for  The Court will readily supply the inuendo  Of the character of these witnesses, fortunately for the defendant's case, there happen to be person in Court who will speak to that fact; and you, Gentlemen, will then be fully enabled to form a proper estimate of the degree of credit they are entitled to.

The whole case for the plaintiff, the learned Counsel continued, rested on the evidence of one witness; he meant that old harridan who swore to certain admissions made by the defendant; as respected that witness, fortunately for his client, he (Mr. W.) should be able shew that she was a woman not to be depended upon though on her oath; that she had not that striking antipathy to the playing of a fiddle in her house as she pretended to have, and he had no doubt, from the testimony of several respectable persons who had long known this woman, that she was a notoriously abandoned character  If he, the learned Counsel, were able to prove this to the satisfaction of the Court, and he was certain he could, it would easily lead the Court to an inference that she had been tampered with, and that her evidence had been bought  And if he should be enabled to satisfy the Court of this, the same inference would lead him further, and apply to all the other witnesses  That this was the fact, he had no doubt he should be able to prove; and that the whole set of witnesses on the other side had leagued together in one of the foulest conspiracies that ever was hatched against an individual in this or any other Country  Who, he would ask, were the witnesses put in the box to day?  A collection of a sister in law, a washerwoman, a discarded and lately a returned servant, a clerk, one of the prominent witnesses on the other side, and some three or four other menials, who were in a situation of life and character not very likely to turn away a good offer; but the witnesses he would bring forward, were but the witnesses who would not be tampered with, and who resisted offers of bribery to perjure themselves  [Here the learned Counsel, after commenting at considerable length upon the evidence, proceeded.]

The defence, he the learned Counsel, would set up was threefold  First, that the charge of crim. con. was wholly untrue, and that it was a conspiracy hatched together by subornation of perjury.  Secondly, that even assuming defendant to be guilty, and that he had indulged in a criminal intercourse with the plaintiff's wife  what did it amount to (he Mr. W. would ask) in comparison of the damage and loss the plaintiff had sustained?  With respect to this it was to be considered, on the one hand, that the plaintiff's wife had forgotten herself and run off; and again, that plaintiff himself had estimated his loss at so trifling a premium that without appearance of compunction he had received the woman back to his house, though conscious of her profligacy.

The learned Counsel then, with much ingenuity, and at considerable length, which our contracted limits prevent us from reporting fully, went on to draw a contrast between the character of the plaintiff, his wife, and the defendant, leaving it with the assessors to derive their own conclusions, whether or no it were probable a gentleman holding so high a situation in life as Dr. Bowman did, would descend to hold a criminal intercourse with a woman, who was notoriously known not to have confined her favors to a few.  He trusted the assessors, with their usual discrimination, and acquaintance with what witnesses were easily made to say in this country, would see that the simple circumstance of the defendant going to the plaintiff's house to visit a Doctor of a ship who was lodging there, had been made the ground work upon which a conspiracy might be built.  What he, the learned Counsel earnestly hoped, was that the gentlemen assessors would give their most particular attention to the evidence produced by the defendant, and contrast their evidence with that of the other side.  For it was upon this score, and this score alone that he could expect to combat and defeat so monstrous a conspiracy.

For the defendant Counsel called the following witnesses

James Lucas, silversmith, examined.  I was on terms of intimacy with plaintiff before he went to Port Macquarie  When he went he requested me to stay about his house, and desired me to lend Mrs. Hart every assistance in my power  While plaintiff was from Sydney, I received a letter from him  The letter now produced is part of the letter I received  I believe this to be plaintiff's hand writing  The day when I received the letter corresponded with the date of it  [The contents of the letter were to the effect, that witness should inform him whether or no his wife's conduct was proper and just  About 15 or 16 months ago, I saw Mrs. Hart dressing herself at the window of one of her lodgers' rooms  A gentleman came down stairs shortly after, and went out of the back door, but I do not know what room he came out from.

James Dillon, warehouseman to Messrs. Bunn and Co.  I have been acquainted with plaintiff for some months, having been a tenant of his  I have had conversations with plaintiff relative to his wife's late pregnancy  This was in the month of May last  He told me he had been told of the person who had seduced his wife, and expressed a determination to bring an action against him  the person then mentioned by the plaintiff is not the defendant  At that time plaintiff's wife was at the Derwent  Plaintiff went there and returned with his wife  He then told me that Doctor Bowman was the father of the child  Plaintiff afterwards told me he did not with this case to be brought into open Court  and that if Dr. Bowman would give him a sum of money to pay for the maintenance of the child, and delay his expenses to the Derwent, he would drop the case altogether.

Mr. Alexander McLeay, Colonial Secretary  An application was made to the Government for Mrs. Hart to go to visit her husband at Port Macquarie  There was another person who applied for permission for Mrs. Hart to go to the Southward  It was not Doctor Bowman who made these applications.

Mary Donnohoe  I formerly lived as servant to Mrs. Hart  fifteen months prior to the last thirteen months  I never saw her commit any improper irregularities with any one  Many gentlemen and several families lodged in Mrs Hart's house at this period.

Sarah Howard  Lived in Mrs. Hart's service fifteen months since  Several single gentlemen were lodging there at the time  I saw something improper in Mrs Hart's conduct with some of those gentlemen  One of these gentlemen went out to dine, and came home about eleven o'clock at night  He brought another gentlemen home with him  He was fresh with wine  One of the gentlemen asked me where Mrs. Hart was: and, going towards her, kissed her five or six times  On another occasion I saw another person go to Mrs. Hart's bed side, and kissing her whilst asleep  went down stairs.

Cross-examined  it is about either months ago since I was sent to the Female Factory at Parramatta  I had been confined there six months previously  The transactions I have alluded to occurred about fifteen months ago  I was sent to the factory in consequence of Mrs. Hart (my mistress) returning me into Government employ.

Peter Quigley, dealer in Sydney, deposed to his acquaintance with a woman named Sarah Smith, who had been examined as a witness in the case  Could not say whether he could believe her on her oath.

Joseph Raphael  Has been a dealer  Has now retired from the counter  (Great laughter)  Could not say whether he would believe Sarah Smith on her oath or no  Never heard her give evidence before to-day.

Eliza Green, formerly in Mrs. Hart's service  Had never seen Doctor Bowman visit Mrs. Hart  Never  Counsel  Then you may stand down.

Pat. Howard  I have lived in plaintiff's service for two years past  On one occasion I saw Mrs. Hart taking tea with a gentleman in the dining-room, at ten o'clock at night  The usual hour of taking tea is 7 o'clock  He was a visitor, and went away at half-past ten o'clock the same night  The door of the room in which they were sitting was closed  The same gentlemen has frequently dined, and taken tea with Mrs. Hart  drank wine also  The same gentleman lived a lodger in the house for five months  There was a communication leading out of Mrs. Hart's proper bed-room into this gentleman's  He at last quitted Mrs. Hart's  I have known her to pay this gentleman a visit at his own house  This visit took place twice, to my knowledge.

Cross-examined  Has seen Doctor Bowman a visitor at Mrs. Hart's house  Never saw Doctor Bowman and Mrs. Hart walk out together  Never knew them to be locked up in a room together  Never said that he had seen these things to any person whatever.

Dr. Wardell replied with much clearness and causticity  and the learned Judge having recapitulated the evidence with great particularity  the Assessors after retiring from the Court for three quarter so [sic] an hour, returned a verdict for the plaintiff, damages £50 and costs  It was then about 10 o'clock at night, and the Court broke up.

Notes

[1 ] The Australian, 9 December 1828, anticipated that this trial "will afford rare sport for the gentlemen of forensic ability, and all others the casual droppers in."

The Sydney Gazette, 17 December 1828, claimed that a jury would have reached the opposite result from that actually decided by the assessors.

Published by the Division of Law, Macquarie University