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

Laurie v. Beilby [1837] NSWSupC 17

seduction - trespass, elements - damages, appeal against jury's assessment, criminal conversation, breach of promise of marriage

Supreme Court of New South Wales

Dowling A.C.J., 17 March 1837

Source: Sydney Herald, 20 March, 1837[1 ]

Laurie v. Beilby. - This was an action brought by the plaintiff, a Commission Agent, to recover compensation in damages for the loss of this daughter's services, in consequence of her seduction by the defendant, Charles Frederic Beilby, of George street. - Damages laid at £1000.

The case presented no feature of peculiar public interest.  At the time the alleged intercourse took place, it appeared that the plaintiff's daughter and the defendant were minors.  The intimacy was know, for a long time, to the plaintiff, but he never acquainted the father of the defendant with the fact.  Upon this circumstance much stress was laid by the defendant's counsel, and also by the learned Judge.  There was no living evidence of the alleged intercourse; and the fact of its having taken place at all, rested upon the sole testimony of the plaintiff's daughter.  In this respect, the case is without precedent.

The learned Judge, after stating of the jury that this was the first time, in the course of his experience, that an action for seduction was brought before the appearance of a living witness, called their attention to the averments in the declaration, and put it to them to say whether those averments had been sustained by the evidence.  The only proof of the fact stated before them, consisted of the evidence of the young woman herself.  According to her testimony, the last intercourse that had taken place between her and the defendant, was so far back as the month of November.  Now, it would, said His Honor, have been desirable that the testimony of some medical man should have been produced to prove that she was really in that state which the plaintiff alleged had been the cause of damage sustained by him, owing to casual illness and her consequent incapacity to discharge her domestic duties.  It should be remembered that this was not an action brought by the girl herself, for breach of promise of marriage - if any such promise had been given, and was afterwards broken, she had still her remedy against the defendant, who was now no longer a minor.  It was an action brought be the girl's father, for damages sustained by him, in consequence of the alleged seduction of his daughter; and it was for the jury to consider whether, under all the circumstances elicited in evidence, he had sustained any damage, or whether he came into Court so free from blame himself, as to claim any serious compensation at the hands of a Jury.  One important fact was, that the plaintiff appeared to have known of the acquaintance for months; yet although he was perfectly cognizant of the inequality of circumstances between himself and the plaintiff's father, he never acquainted the latter with what was going on under his own eye.  His Honor held that it was not necessary, in order to sustain an action of this nature, that a living witness of the alleged intercourse should have appeared.  The question for the Jury was, did the defendant debauch the plaintiff's daughter, as alleged? and if, upon the testimony of the girl herself, they were satisfied of that fact, what was the conduct of the plaintiff himself, throughout the whole progress of the transaction? and what damages had he really sustained?[2 ]

The Jury retired for about a quarter of an hour, and returned a verdict for the plaintiff. Damages - One Farthing.

The Attorney-General applied to his Honor to certify that it was a proper action to be brought, in order to secure the costs for the plaintiff, but the learned Judge refused to do so, as he considered the action had been too prematurely brought; it should not have been commenced until there had been a living witness of the intercourse having taken place.

Counsel for the plaintiff, the Attorney-General and Mr. Windeyer; for the defendant, Mr. Foster.

 

Dowling A.C.J., and Burton and Kinchela JJ, 29 March 1837

Source: Sydney Gazette, 30 March, 1837[ 3]

Laurie v Beilby. - This was an action for seduction (the full particulars of which have been already reported in this journal), tried before the Acting Chief Justice and a Special Jury.  Damages were laid at £1,000.  Verdict for plaintiff, damages one farthing.

Mr. Windeyer moved, on behalf of plaintiff, for a new trial, on the ground that the amount of damages were insufficient, and that the learned Judge (Dowlin [sic]) misdirected the Jury before whom the case was tried, by conveying to them during a lengthy summing, that the action was prematurely brought, it being necessary to produce a living witness, i.e. an infant, to prove the counts of the declaration.  His Honor would not admit the position, his charge to the Jury was directly contrary; for he distinctly gave it as his opinion, that although it was the first case of the kind he had seen brought into Court without such a confirmation, yet it was not necessary to prove more allegations than are sufficient to justify the verdict.  His Honor had, at the time of the trial, refused to certify, whereby the plaintiff was deprived of costs.  He considered that had the defendant been a hoary headed seducer, instead of a mere boy of fewer years than the female, the consideration of the amount of damages would be allowed.  His Honor had stated at the time, and now repeated, that this action was not Clarissa Laurie's action, but her father's, for loss of service.  It was still open to her to take her action for breach of promise of marriage.

The several objections were overruled by the Court, and the application refused.

 

 

Notes

[1 ] For lengthy summaries of the evidence, see Australian, 21 March 1837; Sydney Gazette, 21 March 1837; Dowling, Proceedings of the Supreme Court, Vol. 134, State Records of New South Wales, 2/3318, p. 58.  The Sydney Gazette reproduced the judge's charge to the jury as follows:

``His Honor, in charging the Jury observed:- Gentlemen, this is an action to recover damages for lost services and carnal knowledge of plaintiff's daughter.  It is usual on such occasions for parties to wait until the fruit of intercourse could be produced.  It is not, however, necessary to produce a child under the form of the declaration.  It is for you, gentlemen, to be convinced that she has been debauched and seduced.  She swears that she has, and it is for you to satisfy yourselves of the fact.  In the absence of other proof a medical man might have been produced to speak as to her pregnancy, or even the intercourse which she swears took placed. [sic] None was produced - she does not know herself whether she is or was pregnant or not.  On the other hand, gentlemen, the female herself is the most important, and frequently the only evidence in such cases.  She swears positively to the fact - you must be satisfied of it.  The Attorney-General made a most able address on opening this cases, in which he very properly and ably deprecated the crime of seduction and enumerated the manifold and consequent evils entailed upon society.  It was manly, fair, and honorable, as able an address as ever I heard in a court of justice - still, gentlemen, you are to try this case upon its own intrinsic merits, and not to be led away by the speeches of counsel, able though they be.  You must recollect, gentlemen, that this is her father's action, he is the plaintiff, and not her; he seeks compensation for the loss of her services.  It is open to her hereafter to take her action for breach of promise of marriage.  You will consider the youth of the boy, the forbearance of the father, and determine then what damages, if any, will compensate the father for her loss of services.

``The Attorney General cited from Starkie:- `The Jury not only give damages for loss of services, but the outraged feelings and disgrace of the parent and family.' - She has been earning her own livelihood."

Seduction and criminal conversation always interested the newspaper editors.  See, for example, Sydney Gazette, 31 August 1837 (report of an English case on criminal conversation); Sydney Gazette, 11 April 1837 (report of an English seduction action); and see Sydney Gazette, 12 September 1837.  English breach of promise of marriage cases were also interesting to them: see Sydney Gazette, 3 and 5 January, 7 February 1837.

[2 ] In Dowling, Proceedings of the Supreme Court, Vol. 134, State Records of New South Wales, 2/3318, p. 81, the judge noted that there had been no loss of services, the girl still being in her father's family.

[ 3] See also Sydney Herald, 30 March 1837; Australian, 4 April 1837.

Published by the Division of Law, Macquarie University