THE NASH DIVORCE

Evening Post, Volume CVI, Issue 107, 2 November 1923, Page 3

THE NASH DIVORCE

NEW TRIAL REFUSED

FINDING OF FULL COURT.

Judgment was given by the Full Court yesterday as to the application by Maud Mary Nash for a new trial of the divorce action instituted by William Harry Nash. In the course of. his judgment the Chief Justice, Sir Robert Stout, stated that the grounds of the application were threefold: That the Judge misdirected the jury in a material point of law, that he failed to direct the jury on a material point of law, and that the verdict was against the weight of evidence.

Eeferring to the first ground his Honour ruled that there had been no direction in point of law. The Judge had said: "If they (the jury) found both parties had been guilty of cruelty to one another neither garty would succeed in obtaining an order for separation," and, his Honour continued, there was no direction to the jury because it was not the jury that had to decide the question as to whether a decree for judicial separation was to be ' granted or not. The function of the jury was simply to answer the two issues put to them: (1) Had Mrs. Nash been guilty of cruelty to her husband ? (2) Had Nash been guilty of cruelty to his wife? The jury was therefore not asked to consider, nor had the Judge the right to ask them to consider, what the effect of such findings would be, and his Honour failed to see that that ought to have influenced the jury or did inI fluence the jury in its consideration of the evidence. Upon the second point, his Honour ruled that as no direction had been claimed by the respondent the second ground upon which the application waiS base^l could not stand. The question then was, continued, his Honour, waa one or were both issues wrongly answered? The main contention of counsel for the respondent was that the first issue was the one that was wrongly answered. It was to be noticed, however, that both parties asked for a judicial separation, and it-seem-ed peculiar that Mrs. Nash should seek for a new trial on that issue if she was really desirous of a judicial separation. He understood the contention was that she wished a new trial because, first, a slur was upon her, and, second, it might affect her in the awarding of alimony. There was no doubt that in I awarding alimony the conduct of both, parties had to be considered. The alimony that had been offered to her seemed reasonable alimony, seeing that she had been offered for herself and two . children £5 a week, the petitioner having to pay I all the costs of the proceedings. The petitioner having offered her £5 a week, it seemed to his Honour that she had very little to complain of on the question of maintenance. The Court, however, had to consider what did the evidence show? Was there any evidence on which the jury could reasonably have come to the conclusion that she had been guilty of cruelty to her husband? In his opinion the evidence was ample. "I go further, and say that if the jury had found that she was not guilty of cruelty that verdict would have been against the weight of evidence and a perverse verdict. . . . I have gone carefully through the evidence, and I am of the opinion I have already expressed, namely, that if the jury had not found Mrs. Nash guilty of cruelty to her husband it would have been a perverse verdict. Then, as to the question with regard to Nash's cruelty, 1 am of opinion that if the jury believed Nash's oath and his evidence they were quite justified in finding that verdict, namely, that he had not been guilty of cruelty to his wife. "The matter was one entirely for a jury, and except the Court can say that the answers to one or both issues were such as no twelve reasoable men could give, the Court cannot disturb the finding of the jury." s The other members of the Court, their Honours Mr. Justice Hosking, Mr. Justice Herdman, Mr. Justice Sahnond, and Mr. Justice Eeed, concurred with the Chief Justice that the motion should be dismissed. During the hearing of argument Mr. D. R. Hoggard appeared for petitioner, and Mr. G. Toogood for the respondent.