THE COURTS.—TO-DAY.

Evening Star, Issue 5824, 7 November 1881, Page 2

THE COURTS.—TO-DAY.

SUPREME COURT.—DIVORCE AND MATRIMONIAL CAUSES. (Before His Honor Mr Justice Johnston and a Special Jury.) Edward Goldstein v. Makgakkt Goldstein and Another,—This was a petition for divorce. Mr Stout, with him Mr Macdonald, for the petitioner; Mi Denniston for the respondent. There was no appearance on the part of the co-respondent. Tho following constituted the jury:—Henry North (foreman), J. E. F. Coyle, A. R. Kclsey, William Cargill, George Watson. Charles White, James Horsburgh, William Bridgman, John Houghton, Henry Guthrie, AVilliam M'Beath, and .T<-hn H. Morrison. Tho pleadings alleged that the petitioner, a jew.eller, was married on June 16, 18G6, to Margaret Burns, a spinster, at the manso of Dr Burns ; and that on August 7, 1881, and other days about that time, the respondent committed adultery with Charles Frederick Aubrey, the co-respondcr-r; wherefore the petitioner prayed for a dissolution of marriage and such other relief as the Court might think fit. The respondent admitted the marriage, denied the adultery, pleaded that on many occasions during the past five years the petitioner had been guilty of. cruelty to her, had turned her out of his house, and had refused to maintain and support her. She further alleged that he had prevented other people from sheltering her, and that he had deserted her; wherefore she asked that the petition be rejected. The petitioner replied denying the allegations as to cruelty and desertion. Mr Stout, in opening the case, said that petitioner sought a divorce from his wife on the ground of pdultery. In answer to this the respondent had pleaded cruelty, relying on the Court of Appeal to say that if the petitioner had treated her cruelly he was not entitled to sue for a divorce. The petitioner had long carried on business as a jeweller, aud his wife for a series of years had been a drunkard. Ho tried to reform her, but unfortunately without effect. At one time, through the exertions of Father Hennebery, she was induced to take the pledge ; but twice had to be put into the Asylum for curative purposes, On August 5 last she

camo homo quite drunk, and the husband and wife had a fall out. She then left his house, and it was alleged committed adultery with the co-rospondent, Ho contended that any cruelty was induced by the wife's misconduct, she having boon almont a Confirmed drunkard for Sears. The petitioner had been struggling to support his children The defence as to desertion was absurd, as the petitioner had always remained with his family, and lie denied having turned his wife out of his housei Edward Goldstein stated that he resided on Bell Tower, Dunedin, and was a working jeweller. He was married to the respondent (Margaret Burns) in Juno, 1866, at the Rev. Dr Burns's manse. About three years after his marriage ho found that his wife drank heavily. Latterly she had drunk to excess. He had tried everything to reform her intemperate habits. She had token the pledge from Father Henneberv and also from the Good Templars, but never kept it. She was In the Asylum twice for curative purposes. Ho took her wit at her entreaty, and promise not to drink again. His Honor: .It is the usual story, Mr Macdonaldi I have had considerable experience of it. They never allow th<* asylums a fair chance; thev always make it up. "Witness continued: She continued to drink up to this year. On the night of August 5 last ho came homo about a quarter to six o'clock. He made a fire, cleaned up the place, gave the children their tea. and put them to bed. His wife then came houie in a very drunken, state, staggering about and covered with mud. He was mad at hearing that she had been to, the pawnbroker s. He struck her on the face twice with his open hand, and she went away again. On the Oth a Mrs Macfarlane called and gave him some information. After asking other people he got Sergeant Melville and Constable Murdoch to accompany him to a house where Charles Frederick Aubrey was living. He knocked at the door for about five minutes. Aubrey then came out. He was not dressed. Witness asked if his wife was there, and Aubrey replied that she was, pointing to a bed. When Witness want.towards the bed the constable threw his bull's-eye on iu, and ha saw his wife crouching beneath the bed. She had only a night-drees on. He called her out, and she said that she had to go there for shelter. There was another stretcher in the room, which was occupied by a man. Sometimes she would stay away from witness's house for two or three weeks at a time.

In cross-examination, witness stated that he had warned people against harboring his wife. On many occasions he had struck her with his open hand under provocation. He swore absolutely that he had not been with her since the 6th A-ueust.

Sis Honor: There is no plea of condonation tin the record. "Witness continued: He giivo instructions to commence these proceedings on the day after he discovered the adultery with Aubrey. The only occasion on which he turned his wife out was in 1878, when she sold all his things she could lay her hands on. t)v Burns stated that he had known the Goldsteins all their married life. The respondent was so intemperate in her habits that in 1870 he gave evidence which led to her committal to the Asylum. Witness had frequently had means of judging of Goldstein's ordinary conduct in recent years, and thought him an affectionate father and husband ia ordinary circumstances. Mr Hocken deposed that ho had known the principal parties to this suit for fifteen years. Mrs Goldstein was a woman of intemperate habits. From frequent visits to the house witness was impressed with the idea that her husband was verjr kind and affectionate to his wife and children, t)uhcan Macfarlane, carpenter, residing in High street, stated that with his wife ho called at the house of a Miss M'Kellar in High street oh August 5. They heard the voices of Aubrey and Mrs Goldstein in an adjoining room. Mrs Macfarlane wished to go and tell Goldstein, but witness objected because there would be a row. His Honor: You objected to telling a man that his wife was committing adultery ? Witness went on to say that he went into town and on his return found that Aubrey and Mrs Goldstein were still in the room. The light which had been burning was extinguished. Sergeant Gearin gave corroborative evidence as to finding Mrs Goldstein and Aubrey in a bedroom early on the morning of August 7. Mary Macfarlane gave similar evidence to that of her'husband, and the petitioner's case dosed. Mr Deuniston said that lie had somo doubt as to the right of a jury to try this class of ca^es. His Honor: The proper timo to take that point was at the settling of the issues. Mr Macdonald: When settling tho time and mode of trial, nothing was said. His Honor: Telling" you the truth, I took it for granted you had settled this matter; because I confess I am not without doubt upon it. As it is your object to get an effectual divorce, Mr Stout, what have you to say to this point ? Mr Stout: I can only say that it has been the practice adopted throughout New Zealand for years. His Honor: We have acted on the assumption that it wa3 competent for a single Judge to try the, facts.

Mr Denniston, in addressing the jury, urged that a man when he had a drunken wife had greater responsibility thrown on him in guarding his wife and protecting her. He contended that, the petitioner had conduced to his wife's adultery by meeting her on the threshold of his house with a blow', and by not going at once to the place where he was told his wife was with a man, and rescuing L her from evil consequences. His Honor : You ask me to put that seriously? Mr Denniston: Certainly ;itis no matter for jest or ridicule. Margaret Goldstein, the respondent, admitted that she was of intemperate habits. Her husband had frequently struck her about the eyes with his closed hands, leaving marks. He had turned her out of the house when ho was in a bad temper. She could just crawl from one place to another to get somewhere to live in. On Friday, August 5, last, she went out to get butcher's meat, and on returning found the doors locked. She knocked at the back door. It was opened by her husband, who struck her in the face, clutched her by the throat, arid closed the door. She sat down for a while, and then went to Miss M'Kellar's; but was refused admission. She slept in an empty water-closet that night. The next day she again went to Miss M'Kellar's, where Aubrey invited her to go in and take a rest.

Some discussion here took place as to whether the witness could be asked if she were guilty of adultery with Aubrey that night. Eventually the answer was allowed and the adultery denied. In cross-examination, the witness said that she had a counle of glasses of beer on tho Friday, the day that Goldstein turned her out; but was not drunk. She pawned some things for 4s, but lost the money when she had the row with her husband. On the Saturday she was quite sober. When she first went into Aubrey's room tho two men were there. This was the respondent's case. Mr Stout asked leave to call rebutting evidence as to when the second man arrived In the house. Mr Denniston objecting, His Honor expressed the opinion that it did not matter much. On a point of law ho was clearly of opinion that petitioner could call rebutting evidence. Mr Stout said that he would not press the question, but would merely commont on the evidence as to it. Mr D&njtfston: You must not comment, because my,objection was strictly on a point of law. His Honor : Really, Mr Denniston, you seem to conduot the case a« though tho Judge and the persons opposed to you were your natural enemies.

Mr Denniston : I might make a reply to that, but I will not out of respect to tho Bench. But your Honor naturally tempts me to reply by your remark. Mr Denniston then proceeded to address the Court as to the facts proved. As to the adultery, it must be borne in mind that the respondent did not go to his house with Aubrey. She had gone there as a refuge, having been ejected with violence from her own home. If the facts were inconsistent with criminality, the jury were bound to so find. He did not say that k, was right, proper, or decent for the woman to sleep in the same room with two men, but her conduct was not sufficient to let the jury say that she had committed perjury in denying that adultery had taken place. The issue was not as to whether the marriage ought to be dissolved on account of habitual drunkenness, but ought it to be dissolved on tho ground of adultery ? He put it to the jury that no husband had a right to close his doors even to a drunken wife while the marital tie remained, unless ho knew she had committed adultery. That being so, did not this breach of duty on the husband's part conduce to the circumstances which subsequently occurred ? Mr Stout replied, and His Honor then summed up. Mr Denniston asked His Honor to direct the jury as follows: —That if tho jury believe that the petitioner struck tho respondent and closed the door in her face, so as to justify her in fearing further violence if she attempted to enter, thoy would be justified in finding issue 3 in the affirmative.

His Honor deolined to give the ruling suggested, and ruled that there was no evidonce of wilful separation on the part of the petitioner. The Jury, after ahout fifteen minutes' deliberation, returned, and answered the issues as follows: —

1. Did the respondent commit adultery with the co-respondent ? —Yes. 2. Has the petitioner been guilty of such cruelty to the respondent as in her answer alleged?—"No," with the following note: "We find that the petitioner struck the respondent with his open hand or fist when under provocation from his wife." 3. Did the petitioner wilfully separate himself from the respondent before the adultery without reasonable cause ? —No. 4. Has the petitioner been guilty of snob wilful neglect or misconduct as has conduced to the adultery ? No. The Court then rose, CITY TOLICE COURT. (Before J. Logan, Esq., J.P., and W. Isaac, Esq., j.r.) DitUNKKNNKSS.—For this offence Peter Bcitz, John M'lntosh, James. Chcync, and Charles Martin were each fined ss, or to be imprisoned till the rising of the Court j John Turner and

Mary Ross ss, or twenty-four hours' imprisonment ; James Galloway 20s, or throe d&ysrimprisonment; and Henry Class and John M'Bain were each fined 20b, and 20s and 2s costs respectively, to be recovered by distress. wta reTnftndod nntil to-morrow, being in an unfit state to appear. BREACH o'F thk Peace. Milton and Edmund. Efihe pleadod guilty to behaving in Manse .street b'n the tfth' ih'st. in* a manner calculated to pi'ovoke a breach. 61 the peace. They said that the affray wa« occasioned by a dog-fight, and that it originated in one of them trying to prevent the other from striking the dogs with a stick. A atxugglo ensued, during which both of them fell to the ground, and the constable coming up at the time they were taken into custody.—Thoy were each fined ss, with the alternative of twenty-four hours' imprisonment, Fraudulent Bankrul'tcv.— John Gordon, a bankrupt, was charged on the information of William' Hepburn with fraudulently neglecting to discover to Ms trustees the full amount of his property, to the value of LlO. and over.—Mr Denniston appeared for tho informant, and Mr Macgregor for the accused.—On the application of the former a remand was granted for •one-WeeS, bail being allowed in accused's own recognisance of L'iOO and two sureties of LSO each. Apprentice's Desertion.-— Frederick Wain wa3 charged on remand with unlawfully absenting himself from the service of David Hyndmau, to whom ho had been apprenticed. —This case had been adjourned from last Monday to allow of the dofendwit's returning to his work. His master now stated that he had done so, and at his request the information was withdrawn. Vagrancy.— Thomas Yates was charged on remand with having no lawful visible means of support.—A remand had been granted to allow of the accused leaving the town, and the police stating that he had complied with the request, the case against him was withdrawn. (Before J. Logan, Esq., J.P.) t/ificENY bx A Police Constable.— John Duprce, a polico constables, was charged with stealing, on the 6th inst., four fowls ahd three ducks, value 255, the property of Daniel Lewis, Castle street.—On the application of Sergeantmajor Bevin the accused was remanded until to-morrow.