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

Goold v. McSwyny [1847] NSWSupC 27


Supreme Court of New South Wales

Stephen C.J., 7 October 1847

Source: Sydney Morning Herald, 9 October 1847, in Supreme Court Collection, Vol. 2, p. 15


In this case His Honor the CHIEF JUSTICE delivered the following Judgment:-

The Judge's charge in this case is objected to, in two points. The girl, in respect of whose seduction the action was brought, lived with her mother, who kept a lodging-house in Sydney. The plaintiff, her father, lived in service in the country. It was proved, however, that on one occasion, within a few weeks or months of the time of the seduction, he came to town to see his family, and ascertain how they were going on. His Honor told the Jury, that the girl's service with the mother, if established, was under these circumstances equivalent to a service with the father; that the wife might be taken to be his agent, for the purpose of employing the daughter; and that, if so employed, with his assent, it was in effect an employment by him. We are all clearly of opinion, that that direction was right. The Judge said, secondly, that no proof of the loss of service was necessary. His Honor had previously admitted, when refusing to nonsuit the plaintiff, that according to the strict rules of law, having reference to the principle on which this species of action is founded, some evidence of loss of the daughter's service, in consequence of the seduction, was indispensable; but, he observed, the established judicial practice was the other way. In support of this, he referred to Joseph v. Cavander, per Lord Denman, cited in Rosc. Ev. 5th ed. 483; where the action was held to be maintainable, although the daughter had not been confined, and the father had voluntarily turned her out of his house, on discovery of the pregnancy. This direction by his Honor, was the one most objected to; and Mr. Foster and Mr. Lowe contended, that it went to subvert the only principle, on which actions of this kind are founded. We have considered their arguments, however, and the cases cited by them; and we are of opinion, that the direction was substantially correct.

The action, no doubt, is founded (or supposed to be founded) on the relation of master and servant; and, strictly speaking, therefore, two things are necessary to sustain it --- service, and the loss of that service. If, however, for this reason, it would have been technically and in form more accurate to say, that some loss of service was necessary, we still think that, substantially, it was not incorrect to tell the Jury, that no proof on that point was required; for almost every case shows, that the loss is considered as involved in the act of seduction itself. On no other way can the fact be accounted for, that in all the modern text books, so far as we have discovered, and in most (if not all) of the modern decisions, the loss of the service is scarcely noticed. Instead of being separately treated of and discussed, the question is passed over without remark; or included in. and confounded with, the consideration of the fact of service --- as if, that point being established, and the fact of the criminal intercourse, nothing more remained for inquiry. And such, we conceive, by the practice of the Courts, is now the law in these cases; although, in respect of other injuries to a child or servant, for which a master may seek redress, actual loss of service may be essential.

In a note to 3 Bl. Com. 142, Professor Christian says expressly --- "In this action the seduction may be proved, though it may not have been followed by pregnancy, or the loss of service." Serjeant Stephen observes, (3 Comm. 540,) after noticing that the parent is without remedy, unless the child was in his service at the time the injury was committed, "But, where a parent is plaintiff in a case of seduction, the Courts incline to relieve him as much as possible, from any difficulty connected with proof of the loss of service; considering the action as brought, in substance, to repair the outrage done to parental feeling. They hold, therefore, that in such an action the mere residence of the child with the father, at the time, affords sufficient proof that the relation of master and servant existed between them." In accordance with this is the case of Maunder v. Venn, M. and M. 323; where the right to the child's service was holden to be sufficient, So, Holloway v. Butler, 2. N. and W. 542, Parke B. says --- "If the child is a minor and of an age capable of service, the service may be presumed." --- Where such conclusions are permitted to be drawn, to establish actual service, what proof could possibly be given, as matter of fact, that any loss of service, however slight, will be sufficient. But, since the bare right to the child's service is enough, is not the mere act of intercourse, itself a violation of that right; by the then interruption to its exercise? I should be prepared, however, for myself, to treat the loss of service as a thing substantial and real; and necessarily consequent (in ordinary cases) on the seduction --- by holding, that the service of a daughter consists, in part, of the society which she affords her parent; that any diminution in the value, equally as in the degree, of the service rendered, is to that extent a loss of the service; and so, that seduction induces and effects a loss of the child's service, by its own unavoidable operation.

Two recent cases, however, have been relied on for the defendant. The one is Boyle v. Brandon, cited from 14 Law Jour. N S., but reported in 13 M. and W. 738. In that case no service would seem to have been shown; or, at least, none appears. But the loss relied ion was, an illness of the daughter, caused by the defendant's desertion, not his intercourse. The Chief Baron directed the Jury, therefore, to find for the defendant on the plea of not guilty; as it was necessary, he thought, that the loss should spring from the seduction, not the abandonment. There was a motion for a new trial, on the ground of misdirection on that point, it being contended that, whether the illness was caused by the seduction or not, the action was still maintainable. The Court were of opinion, that that question ought to be discussed; and they would therefore have granted a rule for a new trial, (although there were other issues found for the defendant, so that practically the decision would have been one involving costs only,) had not the defendant consented to a verdict against him on that issue---and so, rendered the discussion unnecessary. That case, therefore, is no authority against the direction here; but its tendency is rather to support it. The next case is Grinnel v. Wells, in the same volume of the Law Journal, C.P. 19. It would be difficult to find a case, more strongly establishing the fact stated by us, that service and loss of service, in actions for seduction, are not distinguished. Throughout the judgment of the Court, in that case, the loss of service is put as the thing to be proved; and the ground of the action is stated to be, "not the seduction itself, which is the wrongful act of the defendant, but the loss of the services of the daughter, in which the father is supposed to have a legal right or interest." (Per Ld. C.J. Tindal, p. 22) But of the declaration be looked at, on which the question n arose, it will be seen that it was defective, not in omitting to state a loss of service, but the fact of service. The daughter was alleged to have been a poor person, under age, maintaining herself by her labour. The relation of master and servant, therefore, (without which, unquestionably, the action cannot be maintained,) was not shown to have ever existed; and consequently, there having been no service, there could by no possibility have been a loss of it. The question whether, when service has been established, and a seduction of the servant, the loss of that service is not conclusively inferred, is left therefore where it was before.

There is, however, another point. The Judge, after the defendant's case was closed, allowed the plaintiff to increase the amount of damages laid, from £100 to £1000. This was done, after a conference with myself, on the supposed authority of certain cases, which (it is now admitted) do not bear out the position for which they were cited. His Honor gave leave to the defendant, however, should the Jury give more than the sum originally laid, to move to reduce the verdict to that amount. But the defendant insists that, by reason of the amendment, he is entitled to a new trial; as (he contends) the Jury were unduly influenced by it, and led to give damages on the impression of the Judge, rather than their own. We cannot adopt that view of the matter. The order of His Honor plainly amounted to this only; and must have been so understood by the Jury---that they might give more than the £100, if they thought fit. And we are clearly of opinion, that justice will be fully done, according to the leave reserved.

Under the circumstances, the defendant having succeeded, but very partially only, in his application, each party will pay his own costs of the motion for the new trial.

Published by the Division of Law, Macquarie University