[adultery – criminal conversation – damages, criminal conversation]

Gould v. Peek

Supreme Court of Van Diemen’s Land

Pedder C.J., 14 September 1840

Source: Hobart Town Advertiser, 18 September 1840[1]

Before His Honor the Chief Justice, and the following Special Jury

            W.G. Elliston                                        James Davis

            D.R. Furtado                                        John Espie

            F.A. Downing                                       P.G. Emmett

            G.R. Dumas                                         W. Carter

            W.H. Glover                                        T.P. Cowle

            R. Cleburne                                          Joseph Dixon

The Solicitor General, with whom was Mr. Allport, stated the case for the plaintiff. The plaintiff was a young man who arrived in this colony as an emigrant in the early part of the 1838, with a small capital, and established himself as a baker. In February, 1839, he became acquainted with, and married, a young woman, the daughter of Mr. Daniel Kelly, of prepossessing appearance, and, in every respect, calculated to make the marriage state happy. Shortly afterwards, relying upon the valuable assistance to be derived from his wife, opened a confectioner’s shop, where he succeeded in establishing a very good business. His capital being small, he undertook the manual part of the business himself, and was generally occupied late and early in the bakehouse. His wife being well adapted for the business, took the management of the shop and everything went on extremely comfortable. The business was succeeding, and aided by his wife, this young man had every prospect of succeeding in the world. In February last the establishment was first visited by the defendant, who it was somewhat difficult to describe, as he had no business - was at once time a billiard-marker, and generally considered as an idler about town, being the reputed son of a person of wealth. The plaintiff being engaged in his bakehouse, was for a long time, unaware of the frequent visits of the defendant, who took the opportunity thus afforded him of tampering with the affections of the plaintiff’s wife. The visits of the defendant at length became so frequent and offensive, that the business was falling off; when the plaintiff addressed him a letter remonstrating on his conduct, and warning him to stay away. For a season after this his visits were discontinued; but on the 22nd of June the misguided wife departed from her home on pretence of going to see her sister who was living on the New Town Road; and never returned. Inquiry was made, and it was found that she had never been at her sister’s, and the following morning, she was traced by her sister to a house in Liverpool-street, where the defendant lived; the sister knocked at the bed-room door which was opened by the wretched fugitive in her night dress, the defendant being in bed in the room. From that time she had been living with the defendant, and going with him from house to house. More direct proof of a criminal intercourse could scarcely be afforded; and here the learned advocate would ask the jury - what could compensate the plaintiff for being thus robbed of the wife of his choice - of a partner who was essential to his business by the base artifices of an unprincipled villain. It was unfortunate that the law treated this only as a civil injury, and the plaintiff had no means of redress but to adopt the very unsatisfactory course of coming into Court to seek for compensation in damages - unsatisfactory as this course might be to the plaintiff, it left it in the power of the jury to punish the perfidy of the defendant by inflicting upon him a heavy penalty in the shape of damages, and of marking the public sense of such gross immorality. The verdict would be read, and this would be the best answer which could possibly be given to our calumniators at home, as it would shew that juries would not suffer acts of this kind to pass without the severest punishment. The damages in this action were only laid at £2000 - a very moderate sum compared with the injury inflicted upon him. For the destruction of his peace of mind - for the withering blight cast upon his fondest hopes for the destruction of his business - nothing could compensate the plaintiff; but heavy and exemplary damages would be a punishment for the delinquency of the defendant, who the learned advocate trusted would receive at the hands of the jury that measure of justice they would desire for themselves if in similar circumstances.

Elisabeth Miller. - I am the wife of the Rev. Mr. Miller, and knows the plaintiff; his wife Mary Ann resided with me before her marriage nearly four years; she married from my service to Thomas Gould. I was present at the marriage, and one of the attesting witnesses; Gould was then a baker in Murray-street; he removed to Elizabeth-street, and set up as a confectioner a few months afterwards; I was in the habit of frequently going to the house and they appeared to live very comfortably; up to February last I always thought they were very comfortable; I placed a great deal of confidence in her; I have children and would have left her in charge of them; I think she was not of age when married; her appearance was very pleasing when I visited her I always found her engaged in the shop; I should have thought her well calculated to serve in such a shop.

Cross-examined. - She lived with me nearly four years; I knew her father Daniel Kelly; he was a poor man, I believe lived by charity; he was a hair-dresser by profession; she was very active and industrious; I am not aware of any very particular exceptions to their living comfortably; I never knew them quarrel but twice; the first time was not very long after their marriage, about some article of dress; the second was on the day she left her husband; I was there that morning; when I went in they were not quarrelling, but seemed uncomfortable, and quarrelled afterwards; Mrs. Gould said to her husband she was determined to leave him; I urged her to come to my house where she should always have a home if she could not be comfortable with her husband; she appeared at the time to be uncomfortable; these are the only two occasions that I have witnessed any disagreement between them; I did not know of her having left her home till the next morning; she was once a few days at my house when she was ill; I fetched her away myself; she did not tell me why she left, only that she was ill; that was in January last; I do not know of her having left her home to stop out all night on any other occasion; when she said she as determined to leave her husband she said they could not agree; she was a person of very prepossessing appearance; Gould was a very good-looking man; they had no family; she served in the shop in the confectionary establishment; when I have been there the shop appeared well attended, more particularly by ladies and children she was so liked; I very rarely saw gentlemen there; I have seen her husband in the shop, her sister lived with her for a short time; she was not living there when Mrs. Gould said she would leave; there was no one else present; the conversation took place in the shop; knew Mr. Peck by sight; never saw him there.

By the Court. - Was in the habit of going to the place as often as twice or three times a week.

William McCarthy, a lad is near seventeen, and apprenticed to the plaintiff. - Entered his service in October last; he was a pastry-cook and worked in the bake-house; I assisted him; he had no other assistance; he was the most part of the time in the bake-house; he used to get up at one o’clock in the morning, and stop there all day long till seven or eight o’clock in the evening; the Mrs. served in the shop, which opens into a little back parlour, the window looks out to the bake-house, which is at the [???] parlour window you could see the bake-house door; besides the door there was a window between the shop and parlour; you could not see the bake-house from the shop; I know the defendant; he first came to the shop that I recollect a little before Good Friday; after that he came frequently; he only saw Mrs. when he came, Master was down in the bake-house; at first, he used to come about three times a week, afterwards he always used to be coming there, and Master sent a letter to him; he was there continually; he used to be walking up and down the door every day; he never used to come in more than two or three times a week, Mrs. used to come and stand out at the door; I was employed in taking buns and pastry into the shop; when not so, was in the bake-house; when I saw Mr. Peck with Mrs. I have seen Master come; Mr. Peck set down then; I never saw him do anything else (a laugh); I have seen him go away; not when Master came into the shop; about a month before Mrs. left Master sent me with a note to Mr. Peck; I took it to Mr. Molloy’s where he was living; I gave the letter to the man at the bar; Mr. Peck was sitting inside; I did not see the letter given him; I don’t recollect any thing taking place that evening; when I first went they appeared to be very happy; Master was a hardworking man, and Mrs. was very attentive in the shop; they continued to live very happy until Mr. Peck began to come about.

Cross-examined. - Mr. Peck used to come about a little before Good Friday; Master and Mrs. were happy, not the least difference of opinion; not the slightest ; never knew Mrs. to be out at night; she used to go out of an afternoon; I slept in the bakehouse; never knew her sleep out all night; used to see Mr. Peck two or three times a week; he used to be walking about; and when he heard Master coming set down; when Master was there he talked to him, when he was not he talked to Mrs. (a laugh) he used to walk up and down; Mrs. went out to talk to him; he used to come late at night and take a meal there - (a laugh); Master did not think there was any harm in him then (laughter); Mr. Peck used to send out for the beer; I used to go; I used to bring two bottles of porter; Mrs. used to sit by the fire; Master had nothing to do with it; Mr. Peck used to pay for his supper; it was got ready in the bake-house, and took into the parlour; Master wrote that letter; I did not see him write; I know Mr. McMinn; I never saw him write; don’t know whether he can (a laugh); I have not often seen him there, not so often as Peck by no means; I will swear the letter was not written by Mr. McMinn; I did not send it; I only saw Mr. Peck on the outside; the writing looked like Master’s; I took the letter about a month before Mrs. went away; have seen Peck at my Master’s after I took that letter; not very often; never saw him have supper afterwards; I saw him inside the door talking to Mrs. while Master was in the bake-house; never saw Master there when Peck was; never saw him and Master and Mrs. together after that; recollects the day Mrs. left home; it was one Monday night between six or seven o’clock, Mrs. told Master that she’d leave; never heard her say so before that day; she told me I was going to have a new Mrs; I didn’t say nothing, but ran to the bakehouse; she said, “I’ll go away this afternoon;” Master thought she was only in fun - ( laugh); I did not see him draw a white handkerchief from his pocket; I heard him say nothing; I was not anxious to get rid of her; Master did not ask her to stay; I did not hear him say anything; she bid Master good bye, and he said good bye too; Master was writing; that’s the last time I saw her at home; I did not see her leave; I saw her going down with another young lady; never saw her at the house; Master was not following her; knows Miss Saunders; not certain it was not her who was with Mrs; Mrs. managed the shop; she was constantly at home; never recollects her going out on horseback; went out in a carriage with master.

Re-examined. - Master kept a sort of eating house; other people had meals and paid for them besides Peck; master is not licensed to sell liquor; did not hear her say where she was going; she had a sister living on the New Town Road; I did not hear her say that she was going there; I went there that night, Mrs. was not there; master sent me; I have seen her since she left at a house of Mr. Molloy’s where Mr. Peck lives; when she said good bye, she did not say she was going for good; master was writing and seemed very happy; she kept saying she would go all day. Master sat up very late that night, later than usual; it was 9 or 10 o’clock when I went to Mr. Bradbury’s.

The Attorney-General wished to cross-examine on the new matter, but his honor said he should object to the examination.

Washington McMinn - Have known the plaintiff and his wife about six months; knows, defendant. I was in the habit of going to plaintiff’s shop before his wife left - rather frequently. I dined there once; I never saw any one dining there but myself; I am not a judge of what business he was doing; there appeared to be custom. His wife generally attended in the shop - sometimes he did - very seldom. Before Mrs. Gould left I am aware defendant was a frequent visitor there. Plaintiff and his wife did not appear to disagree much - never saw any serious disagreement between them. I never saw the hand-writing of plaintiff but once; I saw what I supposed to be his hand-writing. Did not say I had any doubts of his hand-writing. I saw a letter purporting to be in his hand-writing; it was shown to me by the defendant. Is not more than three months before she left. I never named the month when the letter was shewn to me; as far as I can recollect it was two months or better before she left, it was in the street. Defendant met me and said, “here’s a pretty go”, and showed me a letter. I read it - it was dated - I paid no attention to date; I have been frequently in the habit of going to the shop with defendant; the last time was after the writing of that letter. I did not go into the shop then, I went with him to it. Mr. Peck was in the habit of spending a great deal of money in the shop in sending out for porter. I believe I have supped there with Mr. Peck - can’t say when or how long ago, but shortly prior to the receipt of the letter. The first time at supper there was soon after I became acquainted with the house; never supped there after the receipt of that letter in company with Mr. Peck. The letter was shewn me about two or three months before I heard of Mrs. Gould’s departure. I have every reason to believe I am correct with respect to the letter in consequence of something said to me by the plaintiff connected with a letter said to have been sent from him to the defendant. I know the Pickwick; the defendant slept there at the time plaintiff’s wife left her house. Knows that the defendant is in possession of some houses in Brisbane-street, and have heard him say that the old man, meaning Mr. Molloy, had nobody else to leave his property to.

Cross-examined. - Know the plaintiff for some months before his wife left him; they appeared to disagree occasionally. Have known what witness would call a serious dispute between them, about a month or more previous to the letter that has been referred to being sent. From her language on that occasion does not think plaintiff and his wife ever lived what I would call happily together. The shop had a middling custom; can’t tell whether the persons frequenting the house were respectable. Never saw any disrespectable conduct in the house myself.

George Pearce, tinman. - Live next door to plaintiff, and knew him; seldom in the house; never heard any thing to induce me to believe otherwise that they were happy; he was an industrious hard working man.

Cross-examined. - Never disturbed me in my business - rather a noisy one. Two or three days before she left heard Mrs. Gould say he was as good and kind a husband as ever she would wish to have.

Jane Kelly, sister of Mrs. Gould - Have lived in Hobart Town since her marriage; have been in the habit of going to her house. Don’t recollect my sister becoming intimate with Peck. Mr sister and her husband appeared to live very happily; lived with them for four months the beginning of this year; during that time they appeared very happy together; recollect calling at my brother-in-law’s on the 23d June, about 8 o’clock in the morning in consequence of a message I received from my brother-in-law; I remained there about an hour. My sister was not at home. During the time saw a friend of mine pass; had no conversation with her, but I went with her to a house called the Pickwick in Liverpool-street. I knocked at an inner door which the person shewed me; the door was shut my sister opened it; this was about 9 o’clock; she was in her night-clothes. There was a bed in the room; I went in, Mr. Peck was in the bed - no one else. To all appearance she had only got up to open the door; I endeavoured to persuade her to return with me but did not succeed; I left her there. I left Mrs. Bradbury’s, and took the management of my brother-in-law’s shop, and have remained there ever since. I am going to continue there; he pays me a salary. The business has fallen off since I went there. My brother was very uneasy when he found my sister was gone; he appeared to be much distressed; he is not so attentive to business as formerly.

Cross-examined. - Still labours under extreme depression of spirits; he did not send me to look for my sister. Sophia Hames went with me; I last saw her about a fortnight ago - she was well then. Mr. Gould knew where I was going; he had not breakfasted when I got there; it was about 8 o’clock, when I arrived; I left about half-past 8; Gould had not breakfasted then;  I have seen him breakfast since - eats tolerably hearty. His appetite does not appear impaired. (A laugh) He lived very happily with my sister- very; have heard them at words; never heard her use bad language to him - oh no never. I was housemaid at Mr. Bradbury when my sister left. I knew in the evening that my sister had left, but I did not go that night as my brother was not certain she would not return.

George Marshall, a confection in Elizabeth-street. - Was acquainted with Gould when he was at Mr. Hedger’s; knew him shortly after he was married; he built an oven on the premises; and fitted up the bakehouse. I provided him with goods; I believe he was doing very well before his wife left. I have been occasionally at the house. Mrs. Gould appeared well adapted for the business, and I never saw them disagree. She seemed rather short tempered with him; have seen him since his wife left; he seems quite an altered man since - altered for the worse. He tells me the shop is getting empty of goods and no money coming in. He has advertised his business for sale. I prevented his giving up business the day after his wife left.

Cross-examined. - His sister-in-law manages his shop now. I will not swear I went to the house once a fortnight, but it would average that. I have not seen what I call disagreements - I have seen some short temper, but I thought nothing of that. I am a married man. (A laugh) Some time after he set up in business he came and dealt with me; he seems now in low spirits, and does not attend to his business; he is now down town two or three times a day; his appearance is not altered.

The Attorney General rose to address the Jury for the defendant, an individual who, if the description given by his learned friend was to be believed, was a most unheard of villain, in an action for damages alleged to be sustained by the plaintiff by criminal intercourse with his wife. No action that could be brought depended so much upon circumstances as actions for criminal conversation. When the respectable and virtuous wife of an industrious man was seduced by the cool, deliberate artifices of another, there could be no doubt that the plaintiff ought to recover heavy damages; but if they were satisfied, as he thought they must be in this case, that the cause of this had taken place - that the seduction, if there were any, was on the other side, the very smallest amount of damages would be sufficient. The learned counsel on the other side had made a appeal to them in terms not characterised by the felicity of thought and expression, which usually marked every observation falling from the Solicitor-General, who had imagined it possible that some of them might in their domestic relations as unhappily placed at the plaintiff, when he asked them to do as they would be done by. With equal implicity was the appeal made to them to mark their hatred of immorality, and thus silence their calumniators at home by their verdict on this occasion. They were called upon to sieve the golden - the rare- the singular opportunity which this occasion, the second only that he recollected of the kind afforded, of shewing how hideous vice and immorality was considered in this calumniated Colony. (The learned advocate was here reminded of the case of Tomon v. Kelly, 12 months ago, which created a general laugh.) That was another instance raked up with much impunity; but he would remind the Jury that when their verdict was read at home, the evidence would be read also; and what was that evidence. Was there the slightest evidence to shew that any injury had been inflicted upon Mr. Gould. The loss of his wife appeared to give no pain - he did not ask her to stay, but like a diligent accountant, continues writing, although she tells him she is going. “I’m going,” says she, “he keeps on writing, I’m going, good bye,” says she “Good bye” says he, and continues writing. When he finds her gone, does he go after her? No - he sends his apprentice boy. The following day when she is traced to her retreat, does he go as a bereaved and broken hearted husband to seek her, and drag her from infamy? No; but he allows her sister to go, and then with a degree of delicacy he had never before witnessed, puts that sister in the witness box to publish a sister’s shame; and that too; when there was another person present who might have been called. The learned advocate could not conceive any thing more heartless than this conduct -he envied not the feelings of that man, who to get money, (for the gravamen of his charge was the loss he had sustained by the loss of his wife’s valuable assistance in his business) could thus violate every principle of decency. To give damages in such a case would be an incitement to profligacy, and holding out a temptation for the basest of objects. Here was a woman, of prepossessing appearance, as Mrs. Miller said, and she was no doubt an excellent judge, throwing herself as it were at the feet of the defendant, who could not pass up or down the street, but she rushed out to meet him. Here was a man engaged repeatedly in providing supper for the man who was plodding his destruction. What could be the impression evinced on such evidence. He was not prepared to defend the morality of Mr. Peck - we were all liable to be overcome by passion; but although the fact scarcely admitted a doubt, and a verdict must pass for the plaintiff, it was for the Jury assess their damages by the amount of the injury sustained. The interesting plaintiff had been displayed to their view in the beautiful gradations of his prayers, from the moment of his arrival as an emigrant with a small capital - as “Hedger’s man” as he was familiarly called - thence as a baker; and so on to the more elegant occupation of a pastry-cook. Here he selects his wife as he would his oven, because she was suited to his business. It was remarkable, that if there was in any Town a pretty woman in that sphere of life, she was generally found in a pastry cook shop. For what motive selected he could not say, but Mr. Gould being an experienced man followed the same course. (The learned advocate then dissected the evidence and dwell particularly on the want of happiness between the parties and wound up his address thus.) It was quite evident, that this woman was either worthless and impetuous, or goaded by the ill-treatment of her husband. In either case the marriage tie instead of blessing, would become a consecrated curse.

The learned Judge summed up at considerable length, and the Jury after a consultation of an hour and a half returned, with a verdict for the plaintiff, damages £90.