SUPREME COURT-CIVIL SITTINGS.

Evening Star, Issue 7495, 13 April 1888, Page 2

SUPREME COURT-CIVIL SITTINGS.

Thursday, April 12,

(Before His Honor Mr Justice Williams and a jury of twelve.) d'albedyhll v. brunton,

The following concludes our report of the day's proceedings:— Alfred Brunton was examined by MiAdams as to the circumstances connected with the writing of the letter, and its several publications; and also as to the documents and statements lie had before him at the time he wrote it. Witness stated that his only object in writing the letter was to place the facts before Mr D'Albedyhll's sister and her husband, and that he had written it simply from a sense of Christian duty. There was nothing, witness said, in the documents he had received, or in the statements he had heard, which led him to assume that D'Albedyhll had any knowledge that his wife was a married woman before her marriage to him, previous to his wife's statement to him on February 2, 1886. Witness's belief when he wrote the letter was that Mrs D'Albedyhll had been previously married, but he was not certain about it. No one would have known of this letter had it not been for his conversation with Mr Green. Mr Green told witness he had heard such reports about D'Albedyhll, who was an old friend, that he hardly knew whether he could shake hands with him. Witness advised Mr Green to speak to Mr D'Albedyhll himself, and he said he had done so, and that Mr D'Albedyhll was in such an excited state that he could not speak calmly about it and had referred him to Mr Brunton. Mr Green also said that Mr D'Albedyhll had told him that Mr Brunton had been friendly enough to write to his sister. Witness was thrown off his guard by this and said he would tell him since he had been referred to him. He said to him that he too had heard the rumors referred to, and partly believed them at first, but that lately documents had been placed in his hands which made him feel that Mrs D'Albedyhll's statements were hardly reliable. He then told witness something of the statements of Mr Dunn with reference to the former marriage. He certainly did not make use of the expression that Mrs D'Albedyhll was a " bad, wicked woman," but he said if the documents were true, Mrs D'Albedyhll had deceived her husband. The account Mr Green had given of the interview was not true. He considered that Mr Green had come to him in confidence, and he found afterwards that his confidence had been betrayed. Subsequently ho charged Mr Green with having betrayed his confidence in a most dishonorable manner. At this interview Mr Green spoke of his candor as his weakness (Mr Green's), and witness replied : " God save me from such a candid friend." The inquiries which had been spoken of were held in accordance with the practice of the members of the communion to which the parties belonged, who believed that it was wrong to go to law. Mr Adams : Why ? Witness : The Word of God says we are not to go to law with one another. I do not mean to say that it is an absolute sin to go to law. There may be circumstances in which it is absolutely necessary (Dr Fitchett: "This case.")—but there is the rule that quarrels between members of the same church

His Honor: Being members of the same church, if you can eettle it among yourselves, so much the better, that is perfectly obvious. Witness denied that he was vindictive against Airs D'Albedyhll, or that he had then or still had any malice towards her. He had never had any quarrel with Mrs D'Albedyhll. The quarrel, if there was any, was with Mr D'Albedyhll, but that was not a quarrel. Mrs D'Albedyhll referred to what had taken place by saying that witness knew sufficient of her husband to put him out of the meeting. That was likely to produce a false impression. Mr D'Albedyhll's conduct on the- occasion referred to was not in any way immoral, but was simply disorderly, and he was requested not to continue it. Witness was briefly re-examined.

The Court adjourned at 6 p.m. until ten o'clock this morning.

Friday, April 13

The hearing of the case was resumed at 10 a.m.

Dr Fitehett put in a number of documents and intimated that the plaintiff's case was closed.

Mr Adama then proceeded to open the case on behalf of defendant. In the course of his remarks he said that when Mr Brunton wrote the letter to Colonel Lethbridge he (defendant) said that he bona fide believed that the statements therein contained were true, and he made these statements in that belief. Colonel Lethbridge was a stranger to Mr Brunton, and the latter had no particular reason for writing to the Lethbridges otherwise than that Mr D'Albedyhll had desired him to do so. It had been said by the other aide that defendant had written maliciously; but it was a matter for the jury to say whether this was so. And then, as to the second and third publications the subject of this action, he (Mr Adams) would put it to the jury that there was only one way by which Mr Brunton could clear himself from the charge of malice that had been made against him, and that was by showing the letters to those who were competent to form an opinion as to whether he had acted in good faith. It had been said that the letter contained statements which showed malice—statements which were false to the knowledge of defendant at the time when they were made. That was the main point—whether Mr Brunton believed them to be true at the time he made the statements. He (Mr Adams) would ask where was the evidence of that. There was nothing to show that Mr Brunton did not believe that what he had written was true. Defendant had set up privilege as part of his defence. The question as to whether defendant was privileged was one for His Honor to decide, and counsel would address His Honor on that point, and would produce authorities in support of his contention that defendant was privileged. Defendant relied on that plea, and it would be necessary to ask His Honor for a ruling on the point. Mr Adams proceeded to review the evidence that had been adduced, but on the suggestion of His Honor agreed to reserve this part of his address until all the witnesses had been examined. In concluding his speech, counsel said he felt convinced that when the case was complete the jury would not only consider that defendant had acted without malice, but that he did a praiseworthy thing in coming to the rescue of a man who was placed in a very awkward position, and that defendant's subsequent actions were no more than necessary to clear his own character. R. T. Wheeler, recalled, said that he was at defendant's house when the letter was read. Defendant read it in a very plain and impartial manner. Before reading it he tried to persuade those present that he read the letter with much reluctance and that he was not actuated by malice.

Cross-examined: I knew at that time that he had been charged with writing falsely, but was not aware that he had been charged with writing maliciously. lam a friend of Mr Brunton's. I have spoken to Mr Brunton since giving evidence in this case, but not with reference to what I was going to say to-day. By Mr Adams ; I had no idea that I -was to go into the box to-day until I was called on.

John Lothbridge D'Albedyhll, who asked for some consideration on the ground that he was extremely nervous, said that he was married to Mrs D'Albedyhll in 1865 in Nelson. He first knew her at the end of 1861 or the beginning of 1862, in Auckland. They were intimate during 1862, and met frequently. He left Auckland in May, 1863. At that time they were engaged. Witness went to Invercargill and corresponded with his wife from there and from other places. He did not see her until she came to Nelson. In July, 1865, he was in Nelson ; Mrs D'Albedyhll had comedown just before that with the object of being married to witness. On 27th September, 1864, witness wrote to plaintiff a letter, the damaged portion of which was now exhibited. The Becret referred to in that letter was that she had acknowledged to what amounted to having been seduced,

Witness had heard nothing further of this secret before marriage. He heard of the child two or three days before the marriage. His wife did not tell him before marriage that she had been previously married. He had not at that time heard anything of a ship called the Lord Raglan. When he was told about the child plaintiff did notsay who was the father of the child. Witness was in a very sad position, and thought the less he said the better. It was not true that his wife had, previous to 1886, said anything to him about a previous marriage. Dr Fitchett objected to these questions, but

His Honor thought it was the proper way to get the information. Witness continued that in October 1886, he heard a statement about the previous marriage. Plaintiff said to him—" I was a married woman before I married you, and a married woman when I married you, and our marriage might be proved to be illegal." Witness's boy heard the statement. Witness was astonished, and called in Mrs Neilson and asked plaintiff to repeat her statement. Mrs D'Albedyhll told Mrs Neilson to mind her own business, or something to that effect. Witness asked the boy whether plaintiff had not used the words just stated, and the boy answered in the affirmative. The boy is over ten years old. Mrs Neilson went into the kitchen, witness following. Mrs D'Albedyhll also went into the kitchen, and said " Whatever you have to say to Mrs Neilsou say in my presence." Plaintiff repeated the statement that she was a married woman when (emphasing the word when) and called God to witness that witness knew it. That was the first time he had heard of the matter. Some time before this he had received a letter from Mrs D'Albedyhll, dated 4th February, 1885, in which she referred to her daughter. Previous to this witness had sent Home for the daughter. After the statement was made to him in ISBG witness made inquiries—endeavoring to find out whether Mrs D'Albedyhll was really married or not. He spoke to Mr Hunter, and the result was the letter from Mr Macauley. Witness also wrote to Mr Dunn, and received the letter in which Dunn referred to a previous marriage. He also received a second letter from Mr Dunn in which the marriage was spoken of as a sham, the parson a fraud, etc. Witness made inquiries also from Mr Joseph Newman, who replied that plaintiff was introduced to him as Miss Elizabeth Garner. He likewise wrote to Mrs D'Albedyhll on 7th June, 1886, appealing for information ; but got no answer. Witness told Mr Brunton of these things ; he placed Mr Brunton in possession of the information. There was an action between witness and his wife in 1885-86, which resulted in favor of Mrs D'Albedyhll. He also got letters from his brother and sister in reference to the marriage. Witness's mind was at the time in a sad condition. He did not know then, and did not know now—.would to God he did—whether she had been married or not, and did not know what his child was. The letters from his brother and sister urged him to let bygones be bygones, and to make matters up with her whom they called LizzieWitness's sister had not then been informed of Mrs D'Albedyhll's previous history. Those letters had been destroyed by witness. They put him in an awful state, and depressed him a good deal. When he got .the letters he went and saw M- Brunton, in the beginning of August, ISS6. Before that time he had frequently gone to Mr Brunton for counsel. He showed Mr Brunton the letters when ho went to him ia August. He (witness) saw that he must tell his sister all about the matter, and was not in a condition to do this himself, and thought he could not do better than get a friend to do this for him ; that was how he came to go to Mr Brunton. Witness's sister had asked for all particulars. His object in going to Mr Brunton was to get him to write. In the interview witness disclosed certain facts to Mr Brunton, and said that he could get the I whole facts of the case from witness's solicitors. Witness went to Adams Bros, and instructed them to give Mr Brunton the documents. Mr Brunton afterwards read the letter to witness. It carried out witness's wish as to the information to be conveyed to witness's sister and brother. [Counsel then went through the letter clause by clause, and questioned witness as to his having informed Mr Brunton of the statements made therein.l Witness denied that he had suggested the answers received from Mr Dunn ; if he had done so he would be a very bad man. Witness approved of the letter on Mr Brunton showirg him a copy of it. Some time after the letter was written witness met Mr Green and spoke of the letter to him. Mr Green approached witness in a sympathising manner, and witness believed that he was sincere in his pretension of friendship. Mr Green wished to know_ of the relations between witness and his ivife. Witness replied that they were of such a nature that he could not even tell his own sister about the matter, and had got Mr Brunton to do so for him. It is not true that witness referred Mr Green to Mr Brunton.

Cross-examined: Witness and his wife had since the last trial and before that been on such terms that no husband and wife should be. They were living in the same house, but not as man and wife. That had been going on since about 1881. That state of affairs was first brought about by Mrs D'Albedyhll making charges against witness's character—witness believed that was the beginning. They occasionally spoke, but sometimes witness considered it more advisable to write. Witness was not a member of the meeting of which Mr Brunton was pastor. For some years witness had attended sometimes the Wesleyan aud sometimes the Baptist church, but was not a member of cither. Mr Brunton had written twice or thrice to the Lethbridges at witness's request, but witness could not say whether there had been any letter since that of the 11th August. After the last trial, and before the iudgment, Mr Brunton wrote to the Lethbridges. Witness knew that Mrs Murley's name had been mentioned, and witness wished Mr Brunton to assure his relatives that during the trial nothing had been established to the detriment of witness's moral character. That was the letter of the sth May. Mr Brunton showed witness that letter. When witness received the letter from his relatives he was physically unable to make a reply. In the interview with Mr Brunton the latter said that witness was the proper man to write, but witness replied that he was utterly unable to do so. As to the letter of the 7th June, in which witness asked his wife certain questions categorically, to the best of witness's belief he wrote without any consultation with Mr Brunton, and would be very much surprised if he were told to the contrary. Witness had no recollection of telling his wife before the letter of the 7th June that he knew of the previous marriage; but he was not to-day in a condition to speak positively. Witness sent clothes and money to his wife each month, but did not always expect to get answers to the letters enclosing the money. The note produced was written by witness to a servant girl. His main reason for writing the letter was that the girl was deaf, and he did not want to have to shout it out, as he was anxiouß that Mrs D'Albedyhll should not know the contents. There was nothing immoral in the letter, as counsel wished to suggest. Dr Fitchett had not intended to suggest that there was anything immoral in the tone of the letter.

His Honor remarked that it appeared to him that it had not been represented that the letter contained anything immoral, but that if the letter fell into the hands of witness's wife or those of any other woman they might have been understood as meaning something immoral. Witness would solemnly declare in the presence of all assembled that he had never been guilty of any improprieties. He had once given the servant a slap in the face in a playful manner—that was the ohly time he had ever put his hand on the girl—and he would leave it to the jury to say whether there was anything wrong in that action. The boy was so far a source of trouble that he had parents that were not united as they should be, but there had been no quarrelling over the custody of the boy. The grounds witness had for doubting that plaintiff was his wife were that she had said so, that she had said be had nothing to do with the boy, and that she had not replied to witness's requests for an explanation. The letter of the 11th'

August was not written for the purpose of blackening Mrs D'Albedyhll's character; it was simply to put her, Colonel Lethbridge and his wife in possession of all the facte of the matter. Witness was aware that there had been correspondence between Mr Dey and Messrs Fitchett and Thornton in respect to the possibility of arranging a separation between himself and plaintiff. The luncheon adjournment was taken at one o'clock.

Harriet Neilson, wife of Robert Neilson, said that plaintiff and her husband lived in her house. She remembered on one occasion being called in to the parlor and asked to hear a statement that Mrs D'Albedyhll had made. The little boy was asked what had been said, and he replied " Mamma was married before she married you and when she married you." M<-s D'Albedyhll said: "I was a married woman when I married you." She said that she was a married woman before she married Mr D'Albedyhll—she said so before witness. Witness told Mr Brunton of this, and signed the paper produced. Cross-examined: She had signed the paper at the request of Mr D'Albedyhll. Witness did not quarrel with Mrs D'Albedyhll ; but the latter was a most unpleasant woman to live with. Witness could not say whether Mrs D'Albedyhll was an unwilling dweller in her house; she might have made efforts to get out, but witness did not hold her in.

Edward Farmer Eaton, accountant, said that he was a member of Mr Brunton's church. After August, 1886, he had a conversation with Mr Brunton about a letter. Mr Anderson told witness that Mr Brunton had espoused the cause of a bad man and was oppressing a virtuous—a good woman. Witness heard that Mr Brunton had written a letter reflecting on Mrs D'Albedyhll. Witness spoke seriously to Mr Brunton about the matter. Witness was present during a conversation between Mr Brunton and Mr Green about the affair. Mr Brunton said that Mr Green had betrayed his confidence. He explained how Mr Green had got the information from him. Mr Green began abusing Mr Brunton; said that he had vilified Mrs D'Albedyhll, who was a good woman, by saying that she was a bad, wicked woman. Mr Brunton denied that. The conversation then turned on a lot of scandal about Mr Brunton, and witness went away. Mr Green did all the talking; Mr Brunton could not get in a word edgeways. Dr Fitchett: You do not love Mr Green ? —I love him as I love all men—as I love you.

Dr Fitchett: I hope you don't love me in a similar way. You are a member of Mr Brunton's conventicle—you meet in his church ?—Yes.

Mary Murley said that in 1884 she had told Mr Brunton that she saw nothing unbecoming in Mr D'Albedyhll's behaviour. There had been some talk about charges made against witness by Mrs D'Albedyhll. Mr Brunton called on witness and showed her a paper making serious statements about her. Witness replied that she had seen nothing wrong in Mr D'Albedyhll, but that Mrs D'Albedyhll had said grievous things against Mr D'Albedyhll, which led witness to watch for herself; but she had seen nothing wrong in his behavior.

Cross-examined: Mr Brunton would have allowed witness to read the whole of the document if she had desired it. Witness was too horrified at the part of it she had read to wish to read it in full. The accusation was that witness had been speaking to Mr D'Albedyhll against the plaintiff. Witness was one of those women who are not inquisitive. She was never unfriendly with Mrs D'Albedyhll. Dr Fitchett: Are you her friend ?—I am not her enemy.

Dr Fitchett: And you leave the jnry to draw the distinction ?—That is so. Witness continued that later on she cut Mrs D'Albedyhll's acquaintance. Witness was not the public, and did not know that she bad been accused of giving untruthful evidence. The only inquiry concerning herself that she knew of was one in reference to Mrs D'Albedyhll having slandered her.

Cross - examined : Witness had never known until she saw something of it in the daily papers that an inquiry into her conduct had been held by the elders of Mr Brunton's church.

Mr Adams: I will call a witness later on who will Bhow that what the witness states is perfectly true. Thomas Dick said t' at in the early part of 18S7 he was asked by Mr Brunton to attend an inquiry into some matters concerning Mrs D'AlDedyhll. Mr Brim ton wanted to justify himself from these charges. At the meeting the questions were put in specific form. Witness agreed to act in conjunction with Mr North and Mr Morley. The inquiry took place in a room in the Choral Hall. Mr Anderson and Mr Adam Paterson were also invited. Mr Brunton read the letter and some documents. There was nothing special in Mr Brunton's manner—he read the letter in a quiet way, so that those assembled might hear it. Mr Brunton made no charges against Mrs D'Albedyhll beyond those contained in tho document. Cross-examined: Witness and his coadjutors gave a judgment in writing. Witness could not say whether he would have felt justified in writing the letter had ho been in Mr Brunton's place—he had never been in Mr Brunton's place. [Judgment read.] In stating that the statements made by Mr Brunton were established by documents, the judgment meant that Mr Brunton had produced letters from others which showed that he was justified in writing his letter. Dr Fitchett: Do you remember saying that if you had known what the letter was you would not have attended?—l don't remember using the exact words. Well, would you have attended if you had known ?—I cannot say. Mr Adams proposed to call a witness to prove that Mrs Murley was speaking the truth when she said that she did not know that an inquiry into her truthfulness took place in 1886, but Do Fitchett said that he was satisfied with his learned friend's assurance on the point. The Rev. Mr North was called on, but did not appear, and Mr Adams explained that he had told the witness that he would not be wanted before three o'clock. Mr Adams said that he would allow the case to rest where it was, and would now proceed to argue the question of privilege. His Honor said that the argument might be very edifying, but it was hardly necessary for the jury to hear it, and doubtless they would be glad of an opportunity to stretch their legs—that was if the argument was likely to last long. Mr Adams thought that he would pro bably take three-quarters of an hour, whereupon His Honor released the jury for an hour.

Mr Adams then proceeded to argue the question of law raised on behalf of the defence, and cited a number of cases in support of his contention. Dr Fitchett replied.

In ruling upon the question of privilege, His Honor said that he did not think he ought to direct the jury that the first publication was privileged. It might be so, or it might not be so, according to the view the jury took of the matter. The law seemed fairly enough laid down in the last page of Odgers (2nd edition, 216) — that is where the facta are undisputed. That was as to the first communication—as to the original letter. And it seemed to His Honor that the question of the second publication was dependent on the finding as to the first. If itbethatthefirstpublicationwereimproperly made it of course followed that the otUertwopublications'were improperly ma.de, and the jury in deciding that would practically determine the whole case. In order to determine that they would have to determine the circumstances of the letter, and all the surrounding circumstances. Mr Adams then proceeded to address the jury on the whole case, and had not concluded when we went to press.