SUPREME COURT.

Lyttelton Times, Volume XXVII, Issue 1940, 8 March 1867, Page 2

SUPREME COURT.

CHRISTCHURCH. Thursday, March 7. nisi prius. (Before his Honor Mr Justice Gresson and a common jury.) CRIH. Cos. Klaus v. Graban (sued as Grabow), Mr W. Williams for the plaintiff, andDr Foster, instructed by Mr Slater, for the defendant. The damages were laid at £SOO. The issues were as follows—1. Is the defendant guilty of the trespasses in the declaration mentioned, or anv of them? ; 2. Was Wilhelmina Klaus, in the declaration mentioned, at the times in the said declaration in that behalf mentioned, or any of them, the wife of the plaintiff. 3. What damage, if any, is the plaintiff entitled to recover from the defendant in respect of the said trespasses ? Mr Wynn Williams, in opening the case said that both plaintiff and defendant were Germans, and he should endeavour to prove that on the Ist of December, 1866, defendant did cohabit with Wilhelmina, the wife of the plaintiff. He believed the act of cohabitation would not be denied, but that it would be attempted to be shown by his learned friend on the other side that the woman Wilhelmina was not the wife of plaintiff. It would be his duty to prove that she was, and if he could do so to their satisfaction he thought they would have no difficulty with the other features of the ease. It was not his object to obtain large damages or to ruin the defendant; but as plaintiff had only one means of getting rid of an unfortunate matrimonial connection, he must obtain damages from a jury of his countrymen for the injury he had sustained before he could .go to the General Assembly and ask for an act of divorce. It was to that end mainly that he should ask for a verdict, with substantial damages, at their hands. His learned friend would doubtless endeavour to shew that the woman was not the wife of the plaintiff; and he regretted that he was unable to produce the marriage certificate. But this document was in the hands of the wife. and he could net subptena her in the case, or get the document from her; nor could he call the plaintiff or defendant. But he would call such witnesses as would make it plain to them that the woman was in reality the wife of the plaintiff, Klaus. Henry Muller, examined : He said hellred at Pigeon Bay, and knew plaintiff and his wife. He had known them in London. He and Klaus had worked together there. He had sten plaintiff and Wilhelmina together in London. He never saw them in church together, but he had seen them coming from church together. He spent the wedding-day with them; that is to say, he supposed it to be their wedding-day. He had known them ever since. He knew Wilhelmina before she was supposed to be married to plaintiff. He did not know her surname before that time, but he knew she was not called Klaus. After that day she was called Mh Klaus. He knew the defendant. He worked with him about two and a half years ago. Himself, Klaus, and Graban had lived in tte same house in Canterbury. Mrs Klaus «s living there at the same time as plaintiffs wife. He only lived a week with them. During that time he never heard defendant address Wilhelmina by her name, and he never heard him speak of her as Mrs Klaus. He, witness, used to call her Mrs Klaus. Cross-examined by Dr Foster: It might be more than five years since he fiist met the parties in London. It was in Leman strep, i Whitechapel. She had been in an English 1 church while he was in England. The church out of which he saw plaintiff and Wilhelmina coming was a German one. He did not know the form of service performed there. Plaintiff and Wilhelmina have livej together on the Lincoln road as man and wife. The house had but one room, and it had three beds in it. He, witness, slept W one of them. Wilhelmina slept in a bed by herself.

Re-examined: Plaintiff slept with W (witness). Klaus Burmeister deposed that he lived w Christchurch. He knew the plaintiff. He knew liim in London as well as h<* They worked together in London. - e knew Wilhelmina Westfall in London. '» saw plaintiff and Wilhelmina go to cliuren, and he went to the door with them, M D further; but he heard them called out on the Sunday before by the minister. , 1 " minister said they were going to be mnrrieuWhen plaintiff and Wilhelmina came onto church, he, witness, went home j but lie iren to their house in the evening; both of tljfi invited him; the next night Mrs R |au shewed him the certificate. , His Honor objected to this answer as f ' dence,andan argument ensued learned counsel as to whether this certinc; could have been produced in evidence, Foster affirming that it could, and • Williams affirming the contrary, „ Examination continued: He had Kn» Wilhelmina ever since that day, and she gone by the name of Mrs Klaus. He » the defendant, who told him that M g about to buy plaintiffs land, and that pw (|ij , and his wife were going to America. J>. wife of Klaus, he meant Wilhelmina. 1«"' and Wilhelmina did start for America. Elizabeth Fuchs examined : She was the wife of Joseph Fuchs, of tw lington Hotel. She knew the plainM tfJi had stopped at her house. Mrs W» u t, with him ; at least the person with m (9 . so called by the plaintiff. They gether as man and wife. After they « | |fr . Wellington, Mrs Klaus came back W self and stayed two days; aad Mr v came and fetched her away, and l' er This was in November last. About* night afterwards she saw the P la !"|! 'yiis came back to the Wellington. W»w came there to him and stayed *"", $ f . After Mr and Mrs Klaus had gone to w fendant came to the bar and aske<i

tf« Klaus was/and she replied that she was: bed with.:plaintiff. '-He; Mid;, he.. fCio, M he shelved much ill-temper, fflaJmriw language. She (witness) saij SandMrsßta;wep.nte.ed ; ;.and im MA "Yes - why don't he keep; her. Smile told Him N0,7; and -he went. fit iefendant came down quite, excited, S ' Afterwards,''Mrß\.Klaus. :eame;down i to iS nnd iherhaisomeVwords' togefter,,but flrlnt eot n horse and cart which he: had *sS"SaWilhelmiha: dressed: herself '1 went away with him rathe.cart, and they ~,«. hack in about.a week...... .',■ . Dr. Foster::, *;1 defendant came to. her house, plaintiff Z Wilhelmina were sleeping together. After. ?f Klaus had comedown, plaintiff came jnivn as far as ■ the bottom of ■ the stairs,, rnban was then gone for the horse and Jart. and plaintiff told his; wife not to gowith, bl rirl Snell, examined: He said he.was: ser V,mtto defendant.. Helcnew IMr Kfans. He had seen; Mrs Klaus at iviban's house. ■ £he wins there, about a week; ,w and after Christmas, ShewasatGrab'sin!s ?° ',e last Saturday,....living' .with Graban. ghehnd been there.'five or six', weeks alto.n(j' his wife, andl ..Graban were living at Tnban's house about eleven months altosether The house had but one room in. it. Ke-esamined:: Plaintiff was not at GraWs house during the;flve.orsix weeks before last Saturday.. Whenplaintiff lived there, he house belonged.to him and not to Graban. Christian Ditford.deposed that hewasia vjier residing .in Christchurch, and .knew thedefendant, He had conversed :with.a> fendant about- a woman known as. Mrs Klaus,; in the beginning.of December.last, a, rp.W: beean between theplaintifJ: and defendant, in this action, about Wilhelmina, Jn a; few minutes they were ■.quiet, and. he, witness, and; others said to defendant that he ought to -be: ashamed of himself: to. take another man's flife away. Defendant said he did. not want; Sims'.wife- Graban said lie would keep jirs Klaus as long, as he thought proper.gome time afterwards defendant canietp the Wellington and talked about;this action,' andhe, witness, said he believed all Klaus wanted; iras his watch and "chain; and'defendant: replied he could have: them and his wife too,. Pefendant and. Wilhelmina went away getlier the first timeabout ..the.beginning of. December. It wis since then that he. had the conversation ahout the watch and chain. , Klaus liiirmeister recalled; By the Judge:; He saw Klaus and Wilhelmina at the -Wellington Hotel about three weeks- before Christmas. Defendant was there also one. day. The woman hesaw there as Mrs Klaus TO the same Woman that he had known in. jondon as Wilhelmina Westfali.; ~: Dr Foster said he should move, for a nbri-.. suit. His learned friend was bound to prove that the marriage of.the parties was valid in; all respects, by strict proof, which he con-, tented had, not been done... It. was : ._not : enough to prove cohabitation and reputation. The marriage was said to have:taken placein.: England, andin'those instances in which'the defendant was said to : have, admitted; the woman to be the. wife of Klaus, he had. pfi»babiymereiy':accepted.tlie; word "wife" as. applicable to the.Woman, .because it was com-: monly applied to.'.her.. ..But ..'this; was., not proof, nor was it a clear, admission., He further argued that. there was no evidence ,of adultery to go to the jury, prior to the 28th January.- ■■ His Honor overruled these objections, and decided to let the case go: to the jury. . . The learned counsel then addressed the jury. ~Hesaid they mnsthot suppose thathis learned-friend wasi in earnest in asking; £SOO damages at their hand?; Such a supposition, was too.apsurd. to be,entertained. He then commented ujpon the evidence at considerable length; and-argued; that the. alleged marriage; between Klauß,and Wilhelmina liad not been proved; but that, assuming that the woman; tos the wife, of the plaintiff, the jaW required that the latter should come; into court with, clean hands, which ' he had ; not done;; for if there had. been any ..adultery, he, the plaintiff,, was, a consenting, party. When ■ the..'..defendant fetched Wilhelmma away from, the Wellington Hotel, the plaintiff went down to the bottom of the stairs,but no further,; lie took no trouble at all to rescue his alleged wife from herseducer, and besides that,'the plaintiff had suffered the defendant tosleepin the same room with 'himself and Wilhelmina for :e)eveh months.;. He thoughtthe have toiputa very. charitable construction upon .the; evidence if. they could agree, to award the plaintiff 40s. damages. MrWynn Williams replied'at length. The Judge then summed up, and: directed the jury that the counsel for the defence had not been at [liberty to go into evidence in mitigation of damages. '■■" The jury retired for about half-an-hour, and then returned a verdict for the plaintiff, Damages £4O, The Court was then adjourned, sine diei..