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THE COURTS—TODAY., Issue 8022, 26 September 1889
SUPREME COURT.—DIVORCE AND MATRIMONIAL CAUSES DIVISION.
(Before His Honor Mr Justice Williams and a Special J ary of twelve.) D’Albbdyhll t. D’Albkdyhll.— Suit for dissolution of marriage. Dr Fitchett appeared for the petitioner ; Mr F. R. Chapman, with him Mr A. S. Adams, for respondent. The following further evidence was given by respondent in examination by Mr Chapman The charges of impropriety between himself and Miss Matthews were wholly false. Miss Matthews was in their bouse for eight years, and was an intimate friend of Mrs D’Albedyhll. Twice or thrice he did kiss Mias Matthews, but openly and under circumstances of which Mrs D’Albedyhll approved. He absolutely denied having dragged his wife about. He had never been cruel to bis wife in any way. There was nothing whatever improper between witness and Maggie May. The reason he wrote the memo, to her was that she was deaf, and Mrs D’Albedyhll being very jealous he desired to warn the girl to be careful. Witness denied that Mr and Mrs May had given an accurate version of what had occurred. It was not true that ho had kept his wife in filthy and unhealthy lodgings ; and he had himself occupied the same lodgings. He had not threatened to send the child to India. Cross-examined: The letter written to his wife mentioning a secret referred to his wife’s seduction, not to her marriage. He had never heard of her previous marriage until about two years ago. He had never heard of a charge of adultery with Victoria Grant at Hokitika until the present proeeedings, and the statement was false. He did not use any violence to his wife. His explanation of the letters to Maggie May was now the same as he had given in a former case. As a master, he thought it to be his duty to explain to the servant why he had not seen her home. There was absolutely no impropriety between himself and this girl. When Mrs May went to the bank ■he wanted compensation for his turning her daughter out of the house; and she had committed perjury in saying that she had called him a villain for what he had done to her daughter. Petitioner did not complain of any improper behaviour of witness with the girls; she never mentioned the girls’ names. When Mrs May called on witness at the bank she wanted compensation for the way in which he had thrown her daughter out of the house. The time that he and petitioner oame to sleep apart was about that time. He thought petitioner was annoyed at his having written those letters to the girl. Ho did not then know that she had them. After cross-examina-tion as to the letters witness continued that he could not say whether or not he was legally petitioner’s husband. He bad never told her site was not his wife, bat had asked her for an explanation of her statement that she was previously married. It was not his fault that the negotiations for a private separation fell through. He stopped the allowance of LI a week because petitioner. was threatening him with exposing him as a blackguard—for that was what legal proceedings for a judicial separation meant. Could a man commit adultery and not be a blackguard? He wanted her to go back and live with him, but to expect her to go back was a different thing—he did not expect her to go back. Their life had not been a hell upon earth for years back; he had not got to Hell yet. They used not to go for days without speaking to each other, but It was possible that ho sometimes wrote to her while they were livifcg in the same house ; to approach her by word of mouth was sometimes utterly impossible. Witness thought that they could live comfortably together if petitioner would go back and confess herself in the wrong. Dr Fitchett: Oh ! you expect her t® make a confession, then. _ Respondent continued that it was not by advice that he wrote to the petitioner offering to take her back, so as to defeat her intention of getting a divorce—he did not know exactly why he wrote to her in that way. He had not paid the LI,IOO for which she obtained judgment against him ; all he had paid was L 3 a month under the Judge’s order. Mary Murley stated that she had known the parties for several years, including the time that Mias Matthews was living with them. The couple seemed to be kind to each other, and to live very agreeably together. When Miss Matthews left Dunedin in 1878 petitioner saw her off, and was very affectionate towards her. Witness saw the parties off on their trip to Ireland, and also met them on their return. On both occasions they seemed to be very loving, and as agreeable towards each other as before. Witness remembered visiting them at Maybank in 1881, while Maggie May was servant there. Respondent seemed as happy as ever, and was romping with the little boy in the kitchen while Maggie was there, but petitioner was in a great state, and complained of respondent’s behaviour with the servant. Witness saw nothing wrong with respondent and the servant—of course many gentlemen would not have done it. Petitioner asked witness to go into the kitchen and tell the girl that she should always leave the room when her master was there. Maggie was greatly put about at this and cried, not understanding being spoken to in such a manner. Witness stopped with the D’Albedyhlls for three days at that time and never seen anything wrong, but petitioner was always complaining, and witness was glad to clear out of the house. Some little time afterwards there was a great to-do, and petitioner went to witness’s place to _ stop for a day or two. Witness at that time looked on her as an injured woman. Respondent came for her in a day or two, but she would not go back with him, and witness at last arranged to find apartments for them in her house. They stopped at.her place for nine or ten months, and on account of petitioners having poisoned her mind as to her husband s being snoh a fearful man witness watched him very narrowly. She never saw anything wrong about him ; ho never ill-treated bis wife, and he was always kind and gentlemanly. When unpleasantnesses occurred, as they would, witness always rose and left the table. She never saw anything to justify the vile imputations that his wife had made against him. The girl Lizzie Sims was there, and owing to want of room she used to sleep in a large linen closet, and as there was no window in it it was arranged that the last person to leave the sitting room at night was to open this door, so as to give the girl air. The unpleasantnesses between the parties were always about money matters. To Dr Fitchett: Petitioner did show witness some notes written by respondent to the servant girl. Witness thought it was very, very wrong for any married gentleman to scribble notes to servant girls; it was in her opinion a very, very serious matter, but it did not give any weight to petitioner’s imputations against respondent. Witness was not now on speaking terms with petitioner; she had not quarrelled with her, but had been very much persecuted on account of the evidence she had given in the other case. John Bryce Thomson, builder and contractor, stated that in 1886 he inspected
the house in York place m which the D’Albedyhlls lived, in order to ascertain if it was healthy. It was in a perfectly healthy condition. . , . Eliza Jane Matthews stated that she went to live with the D’Albedyhlls in 1870, and stayed with them for eight years in Auckland, Hokitika, Wanganui, and Dunedin. She was ladv’s companion, and was like a member of the family. Petitioner pressed to call her “sister” and her husband “ brother,” while the children always called her “auntie.” She was on very affectionate terms with petitioner. The
latter never made any objection to witness’s being included in the photographic family group. She never saw any cruelty on respondent’s part towards petitioner—he was always a loving and affectionate husband and father. lu witness’s opinion he could not be cruel to anyone. Just before witness left their place there were indications that, for some reason which she could not understand, petitioner was not so friendly disposed towards her. There was not the slightest ground for the imputation that she had ever been guilty of any impropriety with respondent—she detested impropriety. When she first heard of it she was horrified, and immediately submitted herself to medical examination, She had never been anything but a true friend to petitioner. The statement as to petitioner’s catching respondent assisting her in taking a bath was utterly false. Petitioner, with her little boy, visited her at her brother’s two or three times after sho had left their service.
To Dr Fitchett; Respondent had occasionally kissed her—petitioner had in a bit of fun tnado him kiss her on one or two occasions. Petitioner used to be jealous of ladies who visited the house—she had no faith in ladies. She used to object to respondent’s seeing them home—she said she did not like him going home with young girls. She was always complaining that, for Mr D’Albedyhll, she could never keep a servant, and she used to mention the names of servant girls with whom she said ho had committed improprieties. Respondent had a habit of putting his hands on girls’ shoulders. Petitioner used generally to originate any unpleasantnesses that occurred. They seemed to bo a happy family, but she thought sho remembered telling petitioner that there was so much quarrelling and fighting in the that she would be glad to get out of it. They were a happy family at times. Witness did not know what to say as to whether or not petitioner was suspicious about her, and as to whether that had something to do with her leaving the house. She was jealous of witness before sho left, and she also wrote desiring her to cease correspondingwith respondent after she left. Witness did not cease corresponding with him—the correspondence was only on business in connection with shares. She considered herself petitioner’s friend, although she did not accede to her request to cease the correspondence. She did not think sho ever told petitioner, or wrote to her, that respondent would go out of his mind if he did not correspond with her—she did not think she expressed herself in that way. Dr Hocken stated that he saw the last witness yesterday for the first time. He had no reasonable doubt whatever that she had never committed adultery. Counsel on either side having addressed the Court, His Honor, in summing up, said that there were originally four issues for the jury to consider, as follows: —(1) Whether the parties to the action were married; (2) whether respondent had been guilty of adultery with Victoria Grant ; (3) whether he had been guilty of adultery with Miss Matthews; and (4) whether respondent had been guilty of cruelty towards petitioner. The first issue had been admitted, and as to the second issue it was pretty clear from the evidence that respondent had not been guilty of adultery with the girl Grant—there appeared to have been simply a scuflle, after which the girl left, so that even if there was impropriety adultery was not proved. As to the third issue, it was admitted that the charge could not be supported by evidence other than that of the petitioner, but the jury should certainly consider that petitioner had sworn to witnessing a scene which, if the details wero true —or even anything like true—would be nearly as conclusive proof as possible that adultery had been committed. He (His Honor) of course alluded to the bath scene, and if the details given by petitioner were true, only one inference could be deduced therefrom. The jury would have to consider the credibility of the various witnesses in dealing with this issue. Then as to the charge of cruelty, which was practically the real issue, the jury would have to consider the principle on which the Court ceuld intervene. The Court, in deciding a case of this sort, had to assume that from the previous conduct of the wrongdoer c ihabition between the parties was unsafe. In this case the parties had managed, between them, to wreck their happiness ; still that was not enough to justify the jury in finding the respondent guilty of cruelty unless they gathered from the evidence that he had Wu guilty of sufficient cruelty to render their further cohabitation unsafe. Did all the acts of the respondent, taken together with his acts that had been proved, show that he had been guilty of such gross misconduct as to render it, so far as the life and health of petitioner was concerned, unsafe for her to continue cohabitation ? If the matter was a result of quarrels brought on petitioner by berownmisoonductshecould not claim relief.
If respondent was guilty of impropriety, short of adultery, that ought not of itself to warrant a decree of judicial separation. The great principle was this : had the conduct of respondent been such, cither by violence or by outraging the feelings of petitioner, that she should be protected from him ? Was there a risk of cohabitation being unsafe either from physical violence or from mental suffering. The jury retired at 4.20 p.m.
PORT CHALMERS POLICE COURT,
(Before Messrs W. Elder and J. Mill, J.P.s.) Smuggling, — James Thomas Pettengill was charged, on the information of Mr Chamberlain, Commissioner of Customs, with unshipping from the steamer lonic 201b of tobacco, the duty on which had not been paid, whereby he had rendered himself liable to a penalty of L2l, being the treble value.—Accused pleaded guilty of having it in his possession.—William King, Customs officer, stated that at 7.30 p.m. on the 25th inst., while on duty on the George street pier, he stopped accused and asked what he had in the parcel under his arm. Accused replied that he did not know, but thought it was a few toys and a doll. Witness said he must know the contents, and took accused and the parcel to Sergeant Mulville, when the accused acknowledged that the parcel contained tobacco. It was rolled up in a quantity of paper in a pillowslip. At accused’s request witness went on board and found another parcel, which contained a few toys and a doll.—ln defence, accused stated that he did not think it was wrong in bringing tho tobacco on shore, as there was no restriction when he brought it on board at Teneriffe. Although he had been a resident in the colony (at Wellington) for six years he was not aware of the Act.—Mr Chamberlain said that he would leave the question of penalty in their Worships’ hands, but petty smuggling must bo stopped. He had only elected to sue for the lowest penalty If he had sued for the full penalty (L 100), their Worships could only have mitigated it to a fourth (L 25).— The Bench, after consultation, stated that they were inclined to let tho accused off easily, although at the same time they were sure accused, after residing in the colony for some six years, must have known he was doing wrong in bringing dutiable goods on shore. They would reduce the penalty to one-half —LlO 10s.
THE COURTS—TODAY., Issue 8022, 26 September 1889
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