SUPREME COURT.

Lyttelton Times, Volume LI, Issue 5603, 8 February 1879, Page 6

SUPREME COURT.

Hw Honor Mr Justice Jphnston set in Chambers’ yesterday morning, when he die‘posed of the followuig CapseList- , DEEDS ’ BEOISTBATION ACT AND BE WILL i 0J ' ,1 JOSEPH JDOHS. DEOSASkp. :, Mr Coimeß apphed for an order to register a copy of will Application granted. OP JOHN BYANB, DECEASED. Mr Percival applied for an order for leave tpissue probate of wiU to Margaret Evans as sole executrix therein named! Application granted on the usual terms. weight V. WItBON. ao show cause why defendant should not

haVe leave to withdraw his flr*fc pl«ft h«rtin. .On the application ordered to stand over for leave to plaintiff to, apply for leave to reply, ' , 1 IBABB9 4,KD flAhsa AOX ANS BB PETITION OP JANE CAIN AND ANOTUHB. . . | Mr Izard appeared to move, but etated tPat he had not had time to road the papers j; be, had onlj reoeitod ipitruotipn® that m &is. Honor profess sel thus throwing the papers before him J ho allowed the case to stand over till next -Tues- . dftTa i ■ ■ ■. •( ; ; ■i . ;• EE THOMAS IBWfON, DECEASED. ) , : ; Mr Stanley Kdwards applied for letters of adminiptration to iuue to .Samuel Lennon ■ of Fillinehy. '. Application granted. . .. * BE MABV PA,w)ifO»,a)ECEAfIED. ' . Jir Izard applied A<« letters of admimslra* tioh to; issue to Thomas, hpsband, of deceased. Application granted op condition of one surety for £IOO being entered into. ;i ti EX PASTE JOHN BESSY, AND BE OATHBBINB :Mn'Holmes appeiPediSto shpw' oatißq\to a thAhffifihvftl-'vH John Berry, be-read-tifae -affidavits of Mary, the "wife’s sister; and of two others. The first set forth that shortly -after, the death of Mrs Stephen’s husband : she Imd aiked Berry to allow his daughter to. live with her,at her farm, Shapd;» track, s apd that he had con- ! seated to the "request, op conditiop that the | Childvhdlild I and allowed' to atte'peh the-' WeSleyati'ChnrchJ I They further,-averted *tkat Johii'Bferryj flndl ing this condition was being ignored, inasj much as his daughter> a little girl of ton years lof agb, was hero^'educated at the .KOpian ! Cbtholio 'stiidi httotidihfe r the ; Catholic Churehiappiie<LtobaveherTetUriied ito him. '4 hat such application was treated i vritfr contempt, he, boipg totally 1 bliiid, Was, .unabla tq" insist," as he, OtherwW ’ imight, nporxl rS-pdssbssihg himself:of, hat idaughtvr. I j . -Thb affidatitß on theothey-Mdeahawedicaat I |.«u « thgt \tpg_ daughter7Cathei me;' had been baptlsod.as a I Catholic by a priest, that the child had never j been admitteerto-any otber-church, and that no promise hud child’s aunt, CatherinS pfepnt«y to onhg her upas a Brotestant. Fmrtpffifeore, tjiesai affidavits alleged lie and proper custody of a young | applicatioP 'Originally rhade was‘fof* a I toJbdisßded,'oaUingoh Catherine’ jStevens to deliver to John Berry tbe body of : Catherine Beariy, hutpt s n«>y appeared that; (lie Ichild had, transferred, to ihe k'eepingof iherinother in a maimer... iWhenthe fatoeViwePt'to dehiind his child he' iwas-driven by his son iawftprih| hart. Uh the way he had to pass- the Koman Catholic Bch(Jhli;afiiwluchffl<udanglifer was. His wile tpok : wdyaptogoj qf ,- this to fruttraite his wishes, -flhe managed to get.herself conyeyed in the cart with .her hustaiid, unknown to. jhim, he being, ‘‘ as before stbtefl; blind j and on reaching the 1 from fhe hart, gone intp'the building, and removed her daughter. She hadvtheni hurried to her jsister’s (Mrs Stevensilhoase,’ and informed jher sisterthat’Bbqrhad token possession of her daugVfWf raying : (die hid MrS WM thua enabled % replying ithafe she did ndt kß&r whesW the" Between the two sisters the father was Unable to . learn the whereabquts of - hia .child, ahd had therefore pe«| for relief. ! With regard tq theqimstiqn of the father’s unfitness to Kave the hustody of his child, the affidavit of the aunt - stated that he had brutally and cruelly -used, his wife; without giving any specific instances .of such dl-usage. f f His Hqnor said it , would, be .exceedingly yri;eng mf t a judge to allow himself to.,be affiected-'“by £; euch vague statements, which were no evidence. Mr Holmes said that Mrs Stevens made the statements to show what her reason was for. harbouring the child.-- - ‘ His Honor conßidered it no reason in law. It might certainly, be .evidence of a conspiracy existing between the two sisters. ; Mr Holmes read from Mrs Stephen’s affidavit a denial that she had colluded with the mother. On the contrary, she had urged the mother to give the child up to the father. ! His-. Honor thought the case looked very like a religious fight over a “ Ginx’s Baby.’-’ He , could, not recognise any rights of the mother as , against to® father. It mast first be proved that the father was an unfit person, and that must be-., dfipa. jnot by vague statements, but by affidavit, of some- speeifio facts. ; Mr Holmes 'cohtended that Mrs Stephens had shown that the proper person to be called upon to give up the child was Mrs Berry, in whose custody the child-was. ! His Honor said" that here there were, two Boman Catholic feistere, Who were very probably actuated by the best possible motives, combining together to keep the child from her father, who was entitled by law to her custody. The Court would certainly not confide the child to an unfit person. ; Mr Holmes said the mother was entitled to the custody of the child, as the next person to the father. His Honor held that there was no such thing as a next person to a father while the father was alive. Mr Holmes assured His Honor that if the habeas corpus were issued the mother would obey it and surrender the child to the father. *

‘ His Honor thought that if the mother’s reasons for retaining the child were correct she ought not to surrender her. The case was thislt might be* that by an arrangement, by positive collusion (and every intelligent person would- consider tbat there was evidence of a common consent between the sisters), these were keeping the child from her natural guardian. If, however, they could make out the case that the father was an unfit man, let them do so, and the Court would certainly hot assist him to obtain his rights. . ; Mr Holmes pointed ont that under , the Married Women’s Protection Act, 1870, when a married woman is treated with cruelty she can apply for a protection order for herself and for her child.

; His Honor asked how the word “child" was defined in tho Act.

. Mr Holmes read the clause Which he had referred to. ! • 1 > ;His Honor did not consider the Act applied in this instance. , Mr Holmes contended that undoubtedly a sufficient case of cruelty had been established by the affidavits. Mis Honor said he was not going to find a person, in effect, guilty without further evidence.

Mr Holmes asked if his Honor would allow the matter to stand over for further evidence.

■ His Honor said that he decidedly would not. Specific instances of cruelty should have'been shown, sothat the other side might have an opportunity of contradicting them; Mr Holmes pointed out thatwhen John Berry had been accused of cruelty he had not contradicted it. ! His Honor informed the counsel for the other side, Mr Percpal, that the affidavits read that morning had not raised any doubt i« his mind as to the sisters hating acted in concert, but they had ! mtmaged to make it appear that the Ohfld waO under the mother's control, and therefore there would be no necessity for a writ of haieat corpus to Mrs Stephens, The case would sooner or later have to turn on the question pf the father’s fitness to ha¥o control ore* the child. ! ‘ that he had been preT ented, by ( want of time. from answering the other side s: which had been filed ? nI J °° 6 - .®» cruelty was alleged to have taken place in Victoria, 16year8Mo.it was not cruelty to children. ■ • *i,H^ 8 Honor held tlmt where the cruelty was the result of the Wife's own misconduct or St aigit not affect 1 the * u « rt *<> a M to fitness to ™ the ardfefs mded he would lie to see life girl herJw n °t Wald be wur to call upon the father at present to defend

himself. He felt inclined to let the matter, stand over. As to the two sisters he looked upon , them both as equally responsible for. defying the father, Could' Hr Pereira! do anything before Tuesday nekt P He thought: 'the matter should not stand over longer than absolutely necessary. Mr 1 Pereira! in-; formed hit Honor that he would be prepared by next Tuesday to answer ; tbe. affidarits of the other side. < • :

The case was postponed accordingly.