Skip to Content

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

Quiney v. Wagstaff [1870] NSWSupC 1

seduction, breach of promise of marriage

Supreme Court of New South Wales

Cheeke J., 4 March 1870

Source: Sydney Morning Herald, 5 March 1870

Sittings for the Trial of Causes.

Before his Honor Mr. Justice Cheeke and a jury [of] four.

Quiney v. Wagstaff.

This was an action for breach of promise of marriage. The plaintiff, Martha Quiney, was "an the infant under the age of 21 years, "sueing by Charles Quiney, her next friend. The defendant was James Wagstaff. The declaration alleged a mutual promised to marry between the plaintiff and the defendant, which plaintiff had been ready and willing to fulfil, but which defendant had broken off by marrying another woman. Damages were laid at the the and the £1000. Defendant pleaded, first, that he did not promise as alleged. Secondly, that he had made such remarks upon the faith and belief that the plaintiff had always been a chaste and modest woman, but that, after making such promise, he discovered that she had not always been a woman of this character, and therefore had broken such promise.

Mr. M.H. Stephen and Mr. Butler, instructed by Messrs. Stephen and Stephen, appeared for the plaintiff; and Mr. Windeyer, Sydney; Mr. James Waller, 113, Botany Road, Sydney; Mr. Caleb Wilson, Randle-terrace, Newtown; and Mr. William Henry Watson, 788, George-street, Sydney.

The case, as opened by the plaintiff's counsel, and, as sustained by her witnesses, was one not only of breach of promise of marriage, but of seduction. The plaintiff and her family resided at Emu Plains, at the time of this breach, where plaintiff's father kept a public-house. They now resided in Parramatta-street, Sydney. Defendant was, at the end of 1868, and until about the middle of 1869, received at Quiney's house as the accepted lover, and promised husband, of Martha Quiney, the present plaintiff. Defendant (who was then employed as a fireman on the Southern and Western Railway, at a salary of about £12 per month) was in the habit of getting his meals and occasionally sleeping at Quiney's house, when he came to that vicinity (to Penrith) with the trains in the ordinary course of his duty. Under the circumstances, and looking on defendant as engaged to Martha, Quiney made no charge during all this time, although, as will be seen, he made a charge after the engagement had clearly been broken off. The promise to marry was fully made out by circumstantial evidence - supposing that evidence to be true. Mrs. Ellison, a married sister of the plaintiff, and the plaintiff's father were both examined on this point. The former testified to a conversation between herself and the defendant, in which the latter had spoken of his intended marriage with Martha as an event which was to take place before long, and which would have taken place earlier but that he had lost some money. This conversation arose in reference to a marriage which had taken place in the neighbourhood. Defendant had given Martha a brooch, a pair of earrings, a dress ring, a wedding-ring, and a keeper, which Martha showed to Mrs. Ellison, adn defendant asked the latter afterwards, "how she liked her sister's jewellery." An unmarried sister had been present when this jewellery was given, as defendant called Martha to the door to make the present. Martha showed them to her sister, however, directly afterwards. The father of Martha swore that defendant and his daughter went about constantly and openly together as an engaged couple, and that about licensing time in 1869 defendant spoke of the intended marriage as an event which must be postponed until after Quiney's contemplated removal to Sydney. A neighbour also proved that defendant had been in and out at the Quiney's residence and among the family just as if he had been already a member of it, and had spoken of his intended marriage to Martha. It appeared that, about May or June, or perhaps a little later, the courtship was broken off. Defendant became a visitor at the house of a Mrs. Jude, a widow, said by the witnesses to be reputed very wealthy, and declared by plaintiff's counsel to be worth somewhere about £400 a-year, to whom he (defendant) was afterwards married. The marriage to the widow appeared to have taken place about October last. When defendant ceased to visit Quiney's house he left behind him some clothes. These were sent for, but Quiney refused to give them up until defendant came for them himself. The defendant afterwards came to the house, and got his clothes. On this occasion defendant offered payment for his board and lodging, and inquired what would be sufficient. Quiney asked for £20, but defendant pleaded poverty and offered £5, which Quiney took. After this settlement the defendant and Quiney had a glass together. It came out on the cross-examination of Quiney that on this occasion the plaintiff admitted to her mother and father, while defendant was still in the house, that she was pregnant, but all that Quiney said was that Wagstaff was "a pretty sort of a fellow." This was after the settlement, but before the defendant and Quiney drank together. Defendant did not on that occasion (as Quiney swore) deny the seduction. No evidence whatever was given in support of the plea of plaintiff's want of chastity except in so far as she had been seduced by the defendant himself, which seduction had led to the birth of a child in January last. It was elicited by cross-examination of the plaintiff's witnesses that about twelve months before the "advent" of the defendant, plaintiff had "kept company" for a time with a person named Atkinson, who had since left that part of the country; also that Atkinson had given plaintiff a pair of earrings, and that some young man had sent a nugget of gold to the house, which was believed to have been intended for Martha, but might have been intended for the unmarried sister. A clergyman of the Church of England was placed in the box to speak to the plaintiff's character, but the evidence was objected to, and rejected. After the pregnancy of the plaintiff had been discovered, defendant was appealed to by the married sister, and declared his intention not to marry at all. After the birth of the child, the defendant being then married, plaintiff and her sister went to him and asked if he was going to allow anything for the maintenance of the child. Ere this steps had been taken for the initiation of the present action. Defendant asked the plaintiff "if she knew what was going on," and on her replying in the affirmative, he said that "the two things had better go on together." The child had since died.

No witnesses were called for the defence, but the jury were addressed at considerable length by Mr. Windeyer, who maintained that the evidence on the other side was incredible and insufficient, and that, at the most, the case was one for very small damages only, seeing that the father of the plaintiff appeared to have attached no importance to the imputation of defendant having seduced his daughter, and that at the time of the alleged promise defendant was in poor circumstances, so that the plaintiff had not suffered any material pecuniary loss in not having obtained him for a husband.

His Honor told the jury that there had been no evidence in support of defendant's second plea. The questions really for determination were - first, whether the promise had been made out; secondly whether there had been a breach of such promise; and, thirdly - assuming the promise and breach to have to have been established - what amount of damages ought to be awarded. In estimating this amount, the jury ought, in his Honor's opinion, to be guided by a consideration of the defendant's circumstances at the time of the breach.

The jury found a verdict for the plaintiff - damages, £50.

Published by the Division of Law, Macquarie University