SUPREME COURT.-Monday. CIVIL SITTINGS. [Before His Honor Sir Geo. A. Arney, Kt., Chief Justice, and a Common Jury.]

Daily Southern Cross, Volume XXX, Issue 5275, 21 July 1874, Page 3

SUPREME COURT. -Monday. CIVIL SITTINGS. [Before His Honor Sir Geo. A. Arney, Kt., Chief Justice, and a Common Jury.]

Donnelly v. Burnside (Seduction )— This was action brought by James Donnelly against David Burnside to recover damages for the alleged seduction of his daughter, who had betu a domestic set rant in the employ of tho defendant. Mr. Bennett appeared for the plaintiff, and Mr Joy for the the defendant. —The damages were laid at £500. —There was also a claim of special damage for medical expenses. —The following were tho issues which were submitted for the decision of the jury : —1, Did the defendant in the month of April, 1873, at P<*patoetoe, debauch, &o, Bridget Donnelly, tho daughter of the plaintiff? 2. Was the said Bridget Donnelly at the eame time under the age of 21 years ? 3. Did she thereby become pregnant, &c. ? 4. What sum of money, it any, is the plaintiff entitled to receive from the defendant ? — The facts', as stated by the couniol for the plaintiff, were briefly ai follows: —In the month of April, I860, Bridget Donnelly, the daughter ot the plaintiff, being than not quite 13 yeara of age, entered the service of tti* defendant, David Burniide, proprietor of the Raglan Hotel, Fapatoetoe. No improper intimacy had taken place between the girl and the master until just before her fifteenth birthday, and the intimacy continued up to August, 1873, at winch time she became aware that she was enceinte, and on the 7th of February, 1874, the girl waa delivered of a child. To the allegations Bet out in the declarations the defendant pleaded, and denied all the material allegations.—The tint witness called was Anne Donnelly, the mother of the girl, who deposed that she was the wife of the plaintiff, Jamas Donnelly, and resided at the Maketu settlement. She knew Mr. Burnside. She was married nt Capetown, Cap a of G-ood Hope, on the 7th of January, 1554, in the Romau Catholic Church. Her daughter was born in Capetown two yeara afterwards. The 9th of April last her daughter was eighteen years of age. Witness's husband at present wa< ill ' in the Provincial Hospital. Her daughter was delivered of a child on the 7ch of February. The witness became aware of her daughter's condition a wetsk before the birth of the child, although she had suspected it before that. Wituesa had paid a nurse £2, After the child was born witness made an application to defendant to -support the child and in consequence of his refusal the present action had been brought. The defendant said the father of the child was a man named Smith, who had left tho colony, and gone to Canada.— In cross-examination the witness said that Mr. Burnside said to her that it could not have been Smith, as there had nerer been an opportunity for any improper connection between them. — Bridget Donnelly, sworn, said :—James Donually, tho plaintiff in this action, was her father. Sue went into the service of the defendant in April, 1809, and was then within a few days of 13 years of age. She had 3s and her clothing for tho first six Mouths, after that she had an increase of Is per week. After that again she had-8s a week, without her clothing, and was petting 10i a week when she lett the defendant's since the 19th' of March last. She was the only female aervaut in tho house. Iu March, 1871, the defendant first made freedom with hor, she being then not quite 15 years of age. fc>ue wai then about 2 years in •ihe service of tho defendant. It was on the 1st of March, 1871, that tho first intimacy commenced bettreen witness and the defendant. Mie was able to fix the date in consequence ot Mrs. Burnside going to visit her friends, and a reference was made to the date of her departure as being the date for taking out a license for shooting phoasnnts. Mrs Buruside was away three days. She went on a Thursday, and returned on tha following Saturday, and during her absence tlio witness was the only female in the housp, and it was during that time that the defendant lirat seduced her. She did not think that Mrs Burusi le suspected hor of improper intimacy with tho defendant, as •he had never witnessed any freedoms between them. Tha intimacy contiuued on to the year 1863 In the month of August, 1873, tlio wituess waa unwell, and went, by the advice of the defeudant, to see Dr. Stockwoll. She told Dr. Stockwell she had got cold, mid lie wrote her a prescription, and she had it made up at a chemist's. On her return, she informed the defendant what she had told Dr. fttockwoll, ami he (<lefeudaut) told her to keep oa taking the medicine. She went to the doctor again in October, and he told sha was pregnant. Tho last time she wnit the daughter of the defendant acconipamud har Ttii-t was the tirat time she knew the condition she was in. The defendant had given her medicine himself betore she went fo the doctor tho second time. Aftar Baeing the doctor the second time, the witness returned to the defendant's. On hor return she told him tho doctor had said she waa pregnant, aud defendant said, " Oh, I thought aa much." This waa in the evening in witness's room. Defendant told her she had bettar go home for fear anyono should take notice, and witness s.ud sbo would go home. She left tlir defendant's house on tlio 19th November Defendant attempted intimacy with hor afcer ho kuew tho condition she was in, but s>h«' would not poimiu him. This was on a S'tnd >y, and thero tvai no o ip In the house at tho time. Befuio #>nig home, defendant told h^r she was not to toll her mother of the condition she was in until a month after she was there. He gave her

£3 and somi baby ]in«n before she If ft »ns house. He had bought tli3 baby huuu previously, and hid it outside, and told her to go out lifter dark and get it. Witucas did so, aud took it into tko house. It was calico and linen unmade up. Before going away, Mrs. Burnside reckoned up her wages, and paid her the next morning. Her wages amounted to £5 3s., and Mr. Burnside gave her £3 additional. About three weeks before witness left defendant's house he gave her a pound a week, and said he would have given her more but Mrs. Burnsido would miss it from her cash box. Ho used to give her the money early in the morning, before anyone was about. She came to Auckland about the 1st of January and tried to get into the Hospital. As she was returning home she stopped at Burnside's house, and Mr. and Mrs. Burnside kept her there from the Friday until the following Monday. During her staj defendant gave her £2, and and he would give more money and do all he could for her. Mrs. Burnside was very kind to her, and pud her passage to her own home at the desire of Mr. Burnside. She went home en the Monday, and Mr. Burnside came to see her on the following Thursday. On that occasion defendant brought a blanket and some porter, acid some baby huen, and gave them to her, aud said she was to come back when her confinement vraa over. He promised to come up after the shooting and give her money. A few days before the visit of Mr. and Mrs. Burnaide, she had told her mother of her condition. Between the 20th of January aud the 7th of February the day the child was born, witness had told her mother that Mr. Burnside was the father of the child. The defendant had sent up brandy and gin, and also a double bedstead to her, and on this occasion she received a letter : — (letter read). Cross-examined : In 1873 then were several boarders in the house. Mr. O'Donnell and Mr. Frederick Aburrow were there. There was a man named Joseph Young employed there. Among the boarders there was one named George bmith. He was boarding there for two or three months, and witness believed he came in March and left in June. He left because all the work was finished at Papatoetoe. He had been workiug on the railway. Witness Bometimes called him George. She had mentioned him in conversations she had with Mrs. Burnside, but never told her that Smith had shown her (witness) a letter he had received from his lather in. America, requiring him to go home and sign some papers relative to property. She had told Mrs. Burnside, at the request ef Mr. Burnside, that George Smith was the father of his child. Mrs. Burnside did not say to witness, •• Did Smith know you were in the family-way before he went away, and was not that the cause of his leaving ?" Mrs. Burnwde had told witness that she would como and see her mother, and tell her not to be cross to her. She had not told Mrs. Burnside that her mother was bitter and cruel to her. She expected the risit of Mrs. Burnside to her mother's house on the Thursday, when she was accompanied by Mr. Bumsido. Mrs. Burnside told defendant he was to get some herbs, when the medicine she got from the doctor did not do her any good. She got no medicine at all from Dr. Stockwell on her second visit. Witness's mother first heard about George Smith from a report that Mr. Burnside had spread about that George Smith was the father of the child. Witness told her mother she was in the family way, but did not say by whom, as Mr. Burnside had told her tj blame it on George Smith, but she did not like to do so. He told her that before she left his service. The conversation with her mother was before the visit of Mr. and Mr?. Burmside to their housa. Witness believed the letter— (produced) — to Mrs. Burnside, requesting her to get her a bedstead, was wtitten for her by the schoolmaster Defeudaut had not given her any money sinco the birth of the child. All the money witness received from the defendant since 1871 was about £5 10s. — The witnMS was searchingly cross-examined as to whether ahe had ever kept company with George Smith, or was at any time alone with him, either in the hotel or at any other place, but was persistent in answering in the negative. She admitted knowing a woman named Mrs. Carr, also Sarah Young, but denied ever baring met the man Smith in the house of the former either during the presence of Sarah Young or in her absence. — Mary Ginnivan deposed that ahe was the wife of a settler named Patrick Ginnivan at Maketu. She knew all the parties to the suit. She remembered Bridget Donnelly having a child on the 7th February. She told her (witness) that Mr. Burnside was the father. On the 17th she had a conversation with Mr. Burnside at his hotel. He iotroduced the subject, and said that Mrs. Burnside had never htard anything about his being the father of the child until that day, and that she did not believe it. He said if he saw the girl he didn't believe ihe would ■ay so. Witness replied it was not a decent thing to happen in hi3 house, and he should set the case right. Defendant said he could afford to lose £100 on the case, and that they, meaning plaintiff and his family could not. He then, on that occasion, denied the paternity of jtlie child. — This was the case for the plaintiff — Mr. Joy addressed the jury on behalf of the defendant, and called the following evidence :— David Burnside deposed that he kept the Raglan Hotel, Papatoetoe. The girl, Bridget Donnelly, was in his service from April, 18G9, until November, 1S73. She left because she was not in very good health, and was ill for some time after in her mother's house. He and his wife called upon her, but on that occasion did nothing for her. He did not givo her auy baby linen whsn she left his place, meiely paid her her wages. He had never taken any liberties with her. Had never had any improper connection with her since 1871, until the present time. Until ho had a letter from the girl's lawyer, ho ha 1 never had any claim made upon him as the father of her child. Ho never made any offer to pay for the support of the child since it wa9 born : and never at her mother's house, or upon any other ocoa9MU did he tell her to lay the blame of the child upon George Smith. Ho never told her to go to the doctor, an'l tell him she was Buffering from a cold. H« never laid an immodest hand upon the girl in his life. He remembered Mra. Ginnivan calling upon him once since the birth of the child. She had a conversation with him about Bridget Donnelly. She said the case would b« better settled out of Court, as Bridget and her family had no money to go to Court. Ho replied he had had a letter fiom her solicitor, aud the c.ise must be settled in Court. He never said anything about being able to afford to lose £100 on the case. The whole interview with Mrs. Ginnivan did not last above a miuute and a half. Mrs. Donnelly once called upon the witness after the child waa born. She called a littlo before daylight aud told him about her daughter's confinemeut, aud ho Baid ho was »ery sorry to hear it. She asked witness what he was going to do about it, aud he said ho wantel no conversation at all about the matter. He told her he had receivod a letter from her solicitor, and that he was was the person he should reply to. No application had been made to him either by the girl or her mother, as the alleged father of Lhe child. Ho never told the girl to go home, as people miijht notica her condition. Witness admitted getting the girl some medicine, but it was not unknown to his wife, and was merely carrying out her dtiections amount other commiss ons ho had to execute during his visit to town. He knew the medicine was for tho servant girl, but did not know what it was for. The girl had never told witness she was pregnant. He had never given her any money over and above her wagei, except an advance of £2 at the request of the girl's mother who had written to him. This money was to settle some demand male upon tho Donnelly's by a person named Lindsay, <m>l lor wLich they had been threatened with a summons. Witness's wife advanced the money with his ousent. Ou a «■ cond occasion lie (witness) ha 1 p«»id another pouud on behalf of tho Donnelly's to a storekeeper named Moyd. Dm ing the whole time th. girl wai in hia employment she alwajs lifted her wayes for tho support of her family before they were due. — Cross-examiued : He once made the girl a present ot a pair of

ear-rings through hn wile, bad given her many things through hia good nature, and through his wife, but his good nature nerer prompted him to give her any baby linen or flannel.— Mary Burnaide, wife of the defendant, deposed that Bridge*. Donnelly had been in her service since 1871. During the month of May or June, 1873, the girl had compUined of headaches, pains in her hgs, and s*id she oould not sleep at night Wit« ness advised her to go to a. doctor immediately, whick she did, coming in to Auokland with a neighbor. >ha brought some medicine back with her, and to witness's belief she took it. She said it did her no good, and again visited the doctor about six weeks or two months afterwards She bad the bottle replenished. Witness gave the bottle to her husband, and he took it into Auckland. She remembered the girl goiog home in November, but did not know why she left, further than that the girl said she thought ohange of air for two or three months would do her good. Witness let her go, and she promised to come back at Christmas. In January the girl called at the house on her way home from Auckland. She said she had been trying to get into the Hospital. Witness asked her to stay that night The coaoh aet her down at about 5 o'clock in the afternoon, and the girl's home was aboub six miles further on. She said she was no better, and had not teen a doctor in Auckland. She burst out crying, and said witness might know what was the matter with her, adding she w*s in the •family way. On the following Monday she went home, and asked witness to go and sea her mother, who was so unkind to her for being in that condition that she was afraid she would do her some injury. The following Thursday witness and her husband went to see her. She first saw the girl, her mother being out. On that occasion she said, " I did not tell you who was the father of the child, but it is George Smith." She asked witness not te tell her mother, as she would raise hearen and earth to get him and punish him. He had promised to come back and marry her in the course of 18 months. The girl told witness that Smith would hare married her, but he had to go to California, bis signature being wanted about some landed property. Mr. Burnside had not seen the girl before witness spoke to her. The girl's mother asked witness about Mr. Smith, whether he vras educated, or a gentleman, but made no mention of the defendant. She asked whether witness had ever seen Mr. Smith take any liberties with Bridget, and she (witness) replied in the negative. In 1873 Mr. Smith boarded in witness's hotel. He came about the latter end of February or the h 'ginning of March, and left in the month of June. On the occasion of the visit witness gave the girl two pillow-cases and some baby linen.— In cross-examination, the witness swore positively that the defendant never had any opportunity of conversing with the girl during the whole time of their visit. The other thiugs that were subnequently sent to the girl were Bent by the witness at her request, conveyed in a letter to her, and the articles, gin, brandy, Ac, were forwarded by the carrier. The witness corroborated the evidence of the defandant as to the amount of wages that had been paid to the girl, and stated that no presents had been made to her except what had been made through herself. — Sarah Young deposed to the fact of havinf been present at Mrs. Carr'i on three occasions whan Bridget Donnelly and Smith wera there together. — Frederick Akurrow was examined, but beyond proving that Bridget Donaelly and George Smith were on friendly terms, and had sat together for a few minutes by the kitchen fireside of an evening added nothing material to the evidence. — Joseph Young gsve similar testimony to the last witness.— - Mrs. Donnelly, recalled, said : On the ocoa* sion of the vitit of Mr. and Mrs. Burnside, she (witness) was alone with Mra. Burnside for x brief period during the day, but could not say where Mr. Burnside was during fhat time, if nob alone with Bridget. This was the whole of the evidence for the defence. —Mr. Joy then addressed the jury on behalf of the defendant.— Mr. Bennett having replied, his Honor summed up, and the jury returned a verdict for the plaintiff on all the issues, and fixed the damages at £250. — The Court then adjourned till 10 o'clock te-day.