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

Earle v Nowlan [1832] NSWSupC 28

seduction - damages, appeal against - reception of English law, bastardy

Supreme Court of New South Wales

Dowling J., 4 April 1832

Source: Sydney Gazette, 7 April 1832[1 ]

 

SEDUCTION

Earle v. Nowlan

This was an action for seducing the daughter of the plaintiff, whereby he sustained loss of services, &c. A second count in the declaration alleged that the defendant had seduced the servant of the plaintiff.

Mr. Allen opened the pleadings.

Mr. Therry stated the case to the assessors. The learned counsel said, this was an action of seduction - a description of action of rare occurrence in that Court. He would wish it were even more seldom than it was. Its infrequency might be accounted for differently. It might be that the morality of New South Wales was so pure and perfect that it did not admit many opportunities for instituting such an action; or it might be that the morality of the community was so lax and unrestrained - that adultery bringing no disgrace, and prostitution no shame - matters of this kind were not deemed to furnish a sufficient and adequate basis of complaint whereon to bring an action. Although he, like the assessors, might have a pretty strong opinion as to which construction of these two causes he would incline, that was a point which it was now immaterial to discuss: suffice it to say, that if circumstances ever did furnish grounds of just and legitimate complaint for an injury of this nature, it was in a case of such deep and aggravated wrong as would be disclosed in the present action. Before, however, he entered into a statement of the case, he ought to observe that he did hope, up to a very late period, that there would be no occasion for trying this action. It was set down for last term, but an arrangement having been entered into between the parties, that each should pay his own costs, and that the defendant should fulfil his promise to the plaintiff's daughter and marry her, the case was abandoned. Every reasonable hopes were entertained up to a late period that this arrangement would have been completed; instead of which the defendant had not only refused to fulfil his promise, but had placed himself in a situation rendering it impossible for him to do so; for, as would appear to day, he had since intermarried with another. The plaintiff and the defendant were persons in the same rank of life - settlers in the district of Hunter's River. The acquaintance between the defendant and Mary Ann Home, the plaintiff's step-daughter, commenced so far back as the year 1828, and had continued for some time, when it was broken off at the instance of the plaintiff and his wife, the mother of this unfortunate girl. In 1829 it was partially renewed, though not with the approbation of her father and mother, who, disapproving of the intimacy, forbid the defendant from coming to the house, and restricted the girl from keeping company with him. However, the acquaintance was still continued in secret, and the defendant, by means of private communications, contrived to induce her to see him, always under the assurance that he was to make her his wife; and it was upon the occasion of one of these interviews that the injury was inflicted for which the present action was brought. It was not for him (Mr. T.) to describe the artifices of this gay seducer; it was not for him to relate with "what drugs, what charms, what conjurations, and what mighty magic," he won this man's daughter; it was sufficient for him him [sic] to show that the injury was inflicted, and under such circumstances as called for the damages which the plaintiff this day sought to recover. He would state however, that in these clandestine interviews, he endeavoured to press upon the mind of his victim, to induce her to accede to his desires, that as the plaintiff was hostile to him, nothing was so calculated to make him consent to their marriage as having a child born to them. One of the devices used by him was to induce her to come and see the house of which he represented to her she was to be the future mistress, accompanied by her sisters, who were called out of the room on some pretext by two of his companions, when the defendant locked the door, and upon that occasion it was she became pregnant. That might be an act which, as the learned counsel on the other side seemed to smile, he might consider a very lenient one. He, however, viewed it very differently - he submitted it was one of the most aggravated character, to have two fellows in readiness to act as panders, to call her sisters out of the room, lock the door, the consequences of which was that in due course of time she became a mother. He would prove these facts by the evidence of the girl herself, who would state the manner in which he contrived to effect her ruin, and that the circumstances under which he was originally admitted to her society were most honourable. He would also call the nurse who attended her in her confinement, and having done so he would then leave the case in the hands of the assessors, in full confidence that they would award the full amount of the damages laid in the declaration. There was one incident, however, in this case which, from his desire to deal with it in a spirit of the utmost candour, he would fully state to the assessors. It was, that since this action had commenced, the plaintiff's daughter had borne another child to the defendant. This topic, he apprehended, would be adverted to on the other side, and occasion would be taken from it to represent the little value of a female whose virtue was so easily asaailable [sic] as to become the parent of a second child to her seducer. This was at best an ungracious expedient for the defendant to resort to for his vindication. It was an illegitimate and unfair one. Besides the consideration that his visits to her were renewed under the most solemn assurances of marriage, the Court would bear in mind that it was not the present but the past value of the unfortunate girl that they were called upon to estimate. Poor, fallen, and forlorn victim! She was no longer worth anything - worth less even than nothing. It was not their duty, however, to consider her present degraded condition. It was for the honour that had been tarnished - it was for the happiness that had fled for ever - it was for the hope, the comfort and consolation to her family, that had been blasted for ever by this despoiler of her fame, that the assessors should adjudge reparation to the plaintiff, and inflict punishment on the defendant. This mode of defence, should it be resorted to this day, was but a base and cruel aggravation of the wrongs which this young woman has already sustained - it was adding insult to injury - it was an insolent and unfeeling attempt at vindication - it was in effect to say, "True, I have seduced this girl - true, I approached her with honourable proposals, and she fell a victim to the vows which I violated; but how worthless must she be ---- how unworthy of reparation at your hands - how weak her virtue, when, after she had borne me one child, she allowed me tn [sic] become the father of a second!" This was the base defence which he anticipated such a defendant as he had to deal with would instruct his counsel this day to resort to. But he was sure the assessors would not be duped by a device that was as shallow as it was mean. They would contemplate that young woman when she was a worthy, moral member of her family - a credit to herself - a consolation to her parents - and a virtuous example to her sisters; and they would scout the suggestion of the defendant, as they would reprobate his conduct who first

 

"Plucked the fair flower, and rifled all its sweetness. Then flung it, like a loathsome weed, away."

 

They would not, at the bidding of the defendant, fling this young woman, with her two helpless babes that she had borne him, destitute on the world, for scorn "to point its slow and moving finger" at her and them". They would feel, in short, that such a defence was no better than the treatment of a highwaymen to the person he had plundered. He had first stolen the precious jewel of her reputation, and then upbraided her for wanting that which he had robbed her of. Such a defence, he was convinced, would find no favour in their eyes; ---and, under al the circumstances of this case, he felt that if all the damages claimed in the declaration were awarded to the plaintiff, they would not compensate him beyond the measure of his injury, or punish the defendant beyond the enormity of his guilt.

The learned counsel then called.

Mary Ann Home, who entered the box with a child in her arms. The substance of the evidence given by this witness was pretty much to the effect states by Mr. Therry in his opening. She said she was twenty years of age, and became acquainted with the defendant in the year 1828, at the house of the plaintiff, who kept an inn at Patrick's Plains. The intimacy was disapproved of by the plaintiff and the mother of the witness, and discontinued openly, but carried on clandestinely. Witness and the defendant used to have frequent meetings on the banks of the river, on all of which occasions he promised to marry her, and urged that the only means of obtaining the plaintiff's consent to their union was by having a child born to them; she resisted his advances for a long time, but at length was overcome; this was on the banks of the river; the next occasion was in the house of the defendant, where she went, at his request, in company with her two sisters; they were called out of the room by a friend of the defendant's, and on that occasion witness became pregnant; the child - a boy - was born early in the year 1830; the defendant promised to marry her, both during her pregnancy and after the child was born; he did not keep his promise and an action was brought, but abandoned in consequence of the defendant renewing his promise; he was to receive some cattle and a piece of land from the plaintiff when he married her; during that negociation, [sic] the banns were published twice; the defendant went to Windsor to see his brother, and on his return he refused to keep his engagement and marry witness; his excuse was that the land was barren and good for nothing; the defendant has married another woman.

This witness underwent a long and severe cross-examination by Mr. Wentworth, the main object of which was to show that she was seduced by the plaintiff before her acquaintance with the defendant commenced; that the plaintiff had, in fact, pandered to the defendant, and brought the present action to put money in his pocket, and that the defendant would have married the girl had the plaintiff fulfilled his part of the contract by delivering the writings of the piece of land promised as a dowry; that he refused to do so till after the marriage, but that, from his general character, the defendant could not trust him.

Catherine Hunt proved that she attended Mary Ann Home in her confinement in the year 1830; has no doubt that the defendant is the father of the child.

This was the plaintiff's case.

Mr. Wentworth said, he was satisfied that the assessors would come to a decision in this case, not from the eloquent statement of the learned counsel, but that they would form their judgment on the facts disclosed in the evidence before them; - and, first, he would remark, that the learned gentleman had fallen into an error throughout his observations. He had argued this case as if it were rather an action for a breach of promise of marriage brought by this young woman, which it was not, than an action for the loss of services, which it really was. Now, the loss of service was the real gist of an action of this sort; and it was the value of that loss to the plaintiff they were called upon to estimate, and not any injury that might be alleged  to have been sustained by the "unfortunate girl," as she was frequently called in the speech of Mr. Therry. Having called the attention of the assessors to the real nature of this action, and the legal question before them, he would next remind them of the manner in which it was sought to be sustained. It was sustained by one witness only, and that witness the plaintiff's own daughter - the "unfortunate girl" herself; a witness whose mind was poisoned against the defendant - cherishing a bitter and unconcealed hate towards him - having an interest too, for her own sake, in giving the worst colour to the conduct of the defendant; - it was with feelings such as these, aggravated and embittered by the circumstance of the defendant having since married another woman, that this witness came into the box. At one time a person in her situation was held to be an incompetent witness; and her testimony under any circumstances, especially under the present, should be received with the greatest qualification and distrust. This, then, was the sole witness to sustain this case. Why were not other members of the family called? Her sisters had been subpoenaed on the part of the defendant, but owing to some irregularity in the service of the subpoenas they had not attended, and the defendant was forced to go to trial with this disadvantage. However, the case, as it had been made out on the other side, was one of so trivial a nature, that, if a verdict were to be given at all for the plaintiff, the smallest coin in the realm would more than satisfy the justice of it. What could be more imprudent - what more incautious - what, in short, could be more inviting to the defendant to act as he had done than the conduct of the plaintiff's daughter? Upon her own showing she encouraged the visits of this young man, between whom and herself there was only a difference in age of two years - gave him secret interviews - and renewed these interviews even after he had made a violent assault upon her. In a few days even after his assault, she consented to see him again at the other side of the river - more removed from her father's house - where the bush was not so cleared, and where they would be less liable to interruption. Why the most ordinary capacity must anticipate that what did happen would happen. Looking at the youthful age of the parties, the nature of their acquaintance (commencing at a pothouse kept by the plaintiff), the encouragement given to the defendant by this young girl, there was nothing more natural or less surprising that the should take advantage of the opportunities afforded him. He (Mr. W.) would not say it was right in him to do so, but, with due allowances for flesh and blood and the opportunities afforded to this young man, he only did what very many in similar situations would have done. At all events, this was assuredly no case for aggravated damages. The conduct of the plaintiff's daughter, first meeting the defendant in the bush - repeating that meeting after an assault committed upon her - then visiting him in a cellar, showed no great regard for her chastity. The learned gentleman (Mr. T.) found it difficult to get over this part of the case, and he attributed it to the want of education of the lady. Well, if she was to have the benefit of the want of education, his client should share it with her, and the blame attributable to him was to receive a proportionate diminution on that account. He next adverted to the conduct of the plaintiff, who did not appear to have much regard to his daughter's morals, if one may judge from his own. He called the attention of the assessors to the kicking and kissing match that took place in his house. The daughter described this as sky-larking. He cared not for her construction of it; but it did appear that he attempted to kiss the girl, and tripped her up, because she would not allow him. He also animadverted on his gross impropriety in permitting the defendant to sleep in his own house with his daughter in her bedroom, whilst he and his wife slept in an adjoining room in the same house. His whole conduct showed that if he was not himself her seducer, he was at least a pander to her shame; but he would find that although he might be so, the tribunal to which he had that day appealed would not be a pander to his shameless conduct, by filling his pockets at the expence [sic] of the defendant. Indeed, it was the avarice of this plaintiff more, perhaps, than any thing else that prevented the marriage of these parties; for if he had only advanced the property and executed the requisite deeds, as he had promised, these parties, it is probable, would be now united in marriage. The learned gentleman on the other side let out, no doubt because he was aware the he (Mr. W.) knew it, that this girl had a second child. The declaration contained two counts, both much alike, and both charging only for one child; he was surprised not to find the second count charging for the second child. (A laugh). The assessors must perceive that neither this lady nor her worthy father were very sensitive on the score of her virtue, when they permitted this connexion to be renewed. The learned gentleman on the other side selected this as a very pathetic part of the case, but, notwithstanding his florid eloquence, he could not share in the sympathy - the acting did not move him - and he was not mover to the taking out his pocket-handkerchief and paying to the description of her sufferings the tribute of a tear. Her past value was what they were told they were to consider; for this action, it would appear, was brought not so much to compensate the plaintiff as to reprove the past, to amend the present, and to advance the future morality of the colony. He was satisfied the assessors would not be influenced by these extraneous considerations, but that they would put a right value on the loss of this girl's services, and that that value would be extremely small. The learned counsel concluded an eloquent address by dwelling upon the humble rank of the parties - the venial transgression of the defendant, under the circumstances of encouragement he received both from the daughter and her father - and that, more than either to the daughter or the defendant, the calamity that had happened was referable to the plaintiff, who should not be permitted to recover compensation for a misfortune which his own misconduct had created.

No witnesses were called in behalf of the defendant.

The learned Judge, in summing up the evidence, requested the assessors to leave out of their consideration every inflammatory topic, tending to excite their feelings and pervert their judgment, which had been and apply their minds calmly, coolly, and temperately to a consideration of the facts of the case, as they had been laid before them in evidence. The first question was - "Had the defendant seduced the girl, whereby the plaintiff had lost the benefit of her services?" This was the foundation of action s of this nature; because, even a father, bringing an action for the seduction of his own daughter, must prove a right of service, however slight. True, the parties were in an humble station of life; but, at the same time, it should be borne in mind that they had feelings which might be affected, one way or the other, by the manner in which the verdict should be pronounced. His Honor regretted much the line of defence which had been adopted by the defendant; inasmuch as, there was not a tittle of evidence to sustain those imputations against the plaintiff, which, if true, would cover him with deserved odium, and render him an unfit member of any society. They would, therefore, leave those imputations entirely out of consideration. But although the action was brought for loss of services, that loss was not to be estimated by the express value of those services, but by the loss of that society and comfort, from having well-ordered and virtuous children about him, which the plaintiff had sustained. In estimating the amount of damages, a variety of circumstances ought to be taken into consideration. If a young woman voluntarily surrendered her chastity to a man, undoubtedly they were not to give such serious damages as when, after a series of years and active vigilance, she became the victim of an artful seducer. Here the parties were in the same situation of life. That also was a circumstance to be taken into consideration; because when a rich man, by acts of liberality, an imposing appearance, and a variety of other circumstances which such a man knew how to turn to his advantage, induced a poor woman to surrender her chastity, that certainly was a case of greater turpitude than where the parties were in the same condition of life, where opportunities of meeting were frequent, and where young people, being frequently brought together, were thrown off their guard. At the same time, the assessors would bear in mind that the plaintiff had been at some expense in maintaining the defendant's child - particularly in this country, where there were no Bastardy Laws, and therefore no means of obliging the defendant to maintain his own children - a defect which, His Honor hoped, the Legislature would yet see the necessity of providing for. The learned Judge having minutely recapitulated the whole of the evidence,

The Assessors found a verdict for the plaintiff, damages £100.

Counsel for the plaintiff, Mr. Therry; for the defendant, Mr. Wentworth.

 

Forbes C.J., Stephen and Dowling JJ, 25 June 1832

Source: Sydney Herald, 2 July 1832[2 ]

 

Earle v. Nowlan. - This was an action brought last term by plaintiff as the guardian of Mary Ann Holmes, for the loss of her services, she having been seduced by defendant.  A verdict was found for defendant, damages, £100.  Mr. Wentworth now moved for a new trial, on the ground, 1st. of excessive damages; 2nd of the misdirection of the learned Judge at the time of trial, in calling the Assessors' attention to the fact that there were no laws in this Colony for the maintenance of bastards, and therefore plaintiff would have to maintain the two children of Mary Ann Holmes; 3rd that the learned Judge, adverting and directing the Assessors' attention to these facts, without telling them that it was not to be taken into consideration in the verdict they might find, might have had considerable effect in the finding of such verdict.  Mr. Therry opposed the motion.  The Chief Justice, in pronouncing his opinion, observed, that the first point had been very properly abandoned.  With respect to the other points, he did not find that the case had been so put on reference to His Honor's notes, who tried the case, he had merely drawn their attention to the difference existing between the laws in England and this Colony, in reference to the laws of bastards, but it did not follow that the Assessors could have been taken these observations into their consideration, by the verdict which they found.  He thought justice had been done - the verdict was moderate, and he was of opinion the verdict should not be disturbed. -  Judge Stephens was of the same opinion.  Judge Dowling observed, that if every indiscreet word that dropped from a Judge during the course of a long summing up, was to be the ground for a new trial, almost every case would have to be brought again and again before the Court.  He could not say the damages were excessive, and he saw no reason why the verdict should be disturbed.  Motion refused.

 

Notes

[1 ] See also Sydney Herald, 9 April 1832; Australian, 6 April 1832.

[2 ] This was recorded by Dowling J. in Proceedings of the Supreme Court of New South Wales, Vol. 72, Archives Office of New South Wales, 2/3255, pp 76-77.  He recorded the decision as follows: "The Court were of opinion that the Judge was justified in incidentally remarking to the Jury that in this Colony there were no bastard laws, although such an observation might influence the damages.  Rule Refused."

Published by the Division of Law, Macquarie University