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

Cook v McIntosh [1836] NSWSupC 9


Supreme Court of New South Wales

Dowling J., 22 February 1836

Source: Sydney Gazette, 1 March 1836[ 1]

Before Mr. Justice Dowling, and Messrs. Manning and Shadforth assessors.

Cook v. McIntosh. - This was an action for seduction.  The damages were laid at £500.

Mr. S. Stephen opened the case; observing in the course of his speech, that the assessors were not to compute the damages in this case, only by the situation of the defendant.  They would consider the disgrace upon his family, and the loss of reputation by the unfortunate girl.  He then proceeded to call witnesses.-

Martha Cook.  I shall be fourteen years of age on the 16th of next May; I am the daughter of Martin Cook of Lane Cove; I reside there; I have seven sisters and two brothers; I am the eldest my youngest sister is about two years old; my eldest brother is nine years of age; I know R. Macintosh; he lives up that way two miles and a half from this place; He has a farm and is a married man, but I cannot say how long before this occurrence took place;  In July last I was going from the house to the water hole which is about a mile distant from the house, where I met the defendant; I have met him before, but was not intimately acquainted we had never spoken further than saying ``good morning".  He said he wanted to speak with me, and I told him I could not stop but must be off with the water; he said ``oh wait a moment you are not in such a hurry, when I said that my mother was waiting for the water to make tea; He said ``never mind" I want and must speak to you; it was about four or five o'clock, (here the witness detailed the particulars of the outrage complained of, and described herself as enceinte, in consequence she underwent a long cross examination, which elicited nothing contradictory of what she had already stated.

- Macansall.  I am a landholder, and have cause to know the defendant, who lives at Lane Cove by the water side, about a mile and a half from Cook; I can't speak as to his property, but I think he has ten, fifteen, or twenty acres of land and a house.

By the Court.  He is about twenty six or twenty-seven years of age.

Thomas Pearson.  I live at Lane Cove and know the defendant by sight; I cannot say whether he has any property at Lane Cove or any where else; I read in the newspapers that he had sold all his property.

Thomas Bevan.  I live at Lane Cove; I know that defendant is possessed of boats, horse, drays, and other property.

Cross-examined.  I have lived at Lane Cove for two years, and have known all the family; I never heard any thing against the character of Martha Cook; I cannot say what goes on day and night in their house.

Edward Ryan lives at Lance Cove, but cannot speak as to the defendant's property.  Could not say that he had property in George Street, but had heard so.

The case for the plaintiff, closed here.

Mr. Kerr on the part of the defendant contended that this action had been prematurely brought, and stated that he would shew that the plaintiff's family were altogether most disreputable, and could suffer no injury of the kind his learned friend Mr. Stephen had so dwelt upon - the action having been brought solely to get off the payment of a note of hand for £17 drawn by the plaintiff in favour of the defendant, which was now due.  The case was too paltry, he considered, to call for any damages at the hands of the Jury, and he was satisfied if any were given they would be the lowest possible, which would be quite sufficient compensation for the injury done to this disreputable and abandoned family.

Margaret Burn, residing in Market-street, where she keeps a shop, was called to speak as to the general character of the plaintiff's family, but simply stated that she had seen the plaintiff drunk.

Robert Pimble; has been district constable at Lane Cove for ten years, and know the plaintiff during that period; know that he liked a drop like a good many more; had been frequently at Plaintiff's house, and once apprehended a runaway there; could say nothing against his industry; plaintiff was a sawyer and had a large family.  Knew the Defendant, but could not speak as to his property; knew that he had a place by the water side, but did not know if he had any farms; heard that he advertised some for sale.  Thought that the plaintiff had bought a house from the defendant for which he gave a note of hand; thought these two notes from the plaintiff to the defendant nearly due.

The learned Judge put the case to the assessors, who found for the plaintiff, damages £50.

Counsel for the plaintiff, Messrs Stephen and Foster; for the defendant Mr. Kerr.



[1 ] See also Sydney Herald, 25 February 1836.

See also Australian, 23 February 1836 (calling it Crook v. McIntise), which includes the following: ``It would be edifying to some of these lawless country squire'eens, to use an Irishism, had they been listening to Mr. Justice Dowling's charge; and it would also show to him that I reckless of planting a wound on the feelings of the parent which the grave alone can remedy, that by endeavouring to set up such a defence as that sought tobe set up in this action, and which called for the merited censure of the judge - that he only adds to his infamy; a man may be a little mellow, said his Honor, but that will nor divest him of his natural feelings."

Published by the Division of Law, Macquarie University