Supreme Court, Nelson.

Marlborough Express, Volume VI, Issue 297, 17 June 1871, Page 7

Supreme Court, Nelson.

// / (From the Examiner.) [Before His Honor Mr Justice Richmond.]

MONDAY, sth JUNE,

Thomas v. Thomas and Bythell

This was a case, the first tried in Nelson under the divorce law, raised, on petition, by James Thomas, of Wakefield, shoemaker, against Emily Thomas (formerly Jolly) respondent, and Elijah Bythell, of Wairau Yalley, flax-dresser, co-respondent. Mr Pitt appeared for the petitioner-, and Mr Fell to watch the case for the respondent. The co-respondent made no appearance in Court, and was unrepresented. The following jury was chosen :—Hugh Martin (foreman), Thomas Tester, James Johnston, George Dickson, William Dement, John Davenport, Henry Baigent, William Bettany, James Mills, Thomas Wimsett, Thomas Yarrel, and Daniel Stewart.

The petition sets forth that the petitioner and respondent were quarried at Blenheim, in the Province of Marlborough, on 29th December, 1866, and lived together at Renwicktown in the same Province for 'some months ; that, on 21st May, 1867, respondent gave birth to a male child, afterwards named William Jolly, and of which child petitioner declares he was not the father. That immediately after the recovery of his wife, after the birth of this child, the petitioner left her, and went to live at Wakefield, in the Province of Nelson, and has since had no connection with her. That in the early part of 1869. the respondent committed adultery with the co-respondent, who in July 1869 gave birth to another child, of which the petitioner was not the father.

The petitioner therefore prayed, that the Court would he pleased to decree a dissolution of the marriage, and that the said Elijah Bythell pay the sum of £SOO damages by reason of his having committed adultery with petitioner’s wife, such damages to be paid to the petitioner, or otherwise paid and applied, as the Court might see fit.

The following evidence was adduced : George Gee deposed to his knowing the petitioner and his wife at Blenheim four years ago, when they were married; he was present at the wedding, which took place at the house of Mr Alexander Eajnan, and was solemnized by the Presbyterian minister, Mr Russell.

H. Williams deposed that he was a duly qualified practioncr, residing at Blenheim; he produced a. copy of the marriage certificate, which he had got from the officiating minister at Blenheim ; he had examined it to see if it corresponded with the original entered in the register kept by Mr Russel, the minister who performed the ceremony. He remembered the marriage taking place,

and had been professionally consulted by the respondent before the marriage, though not in reference to obstetrics. Three months after he attended her again for supposed premature labor, and was called in again on the 30th May, when she was con Lined of a full grown nu de child. On the 9th of July, 1869, at the request of Bythell, he attended her again during her confinement, at a house occupied by BytliolL; Bythell was not present, and Mrs Thomas told him that the child was Bytholl’s, and asked him to register the birth in the name of Mary Ann Bythell. He refused to do so. He was paid by Bythell for his attendance. Bythell did not directly own to being the father of the child, though from the general tenor of his conversation witness concluded that he was. Mrs Thomas had told him that her brother-in-law was the father of her first child. By brother-in-law, he understood some other person than Thomas. By the Court : On attending Mrs Thomas three months after her marriage, I found her far advanced in pregnancy, and I communicated the fact to her husband. Edward Alfred Symons, a carter residing at Blenheim, deposed that whilst searching for a saddle, he entered a room in which Bythell and Mrs Thomas were in bed together. Ho knew nothing of Mrs Thomas’s mode of life either at Wellington or Blenheim before she was married.

Joseph Bird deposed that he resided at Wakefield, Nelson, and that the petitioner had resided there since 18C7, and that he could not have left the place without witness being cognizant of it.

Mr Pitt being sworn, proved serving the citation on the respondent. This was the case for the petitioner. We subjoin the QUESTIONS FOR THE JURY. 1. Was James Thomas, the petitioner, lawfully married to Emily Thomas, the respondent, at Blenheim, in New Zealand, on or about tho 29th of December, 1860 ? 2. Did Emily Thomas, the respondent, on or about the 21st May, 1867, give birth to a male child ? 3. Was James Thomas, the petitioner, the natural father of such male child ? 4. Did Emily Thomas, the respondent, since the month of June, 1867, commit adultery with Elijah Bythell, the co-respondent, as alleged in the petition ? 5. Did Emily Thomas, the respondent, in or about the month of July, 1869, give birth to another child ? G. Was James Thomas, the petitioner, the natural father of such last mentioned child ? 7. Between the month of June 1867, and tho month of July, ISG9, had James Thomas, the petitioner, at any time had access to Emily Thomas, the respondent ? 8. Has James Thomas, the petitioner, condoned the adultry, committed by Emily Thomas, the respondent, (if any) ? 9. Has James Thomas, the petitioner, been guilty of cruelty towards Emily Thomas, tho respondent ? 10. What amount of damages should be paid by Elijah Bythell, the co-respondent, in respect of the said adultery (if any) by him committed ? After evidence had been taken, Mr Pitt briefly addressed tho jury. The Judge shortly addressed the jury, whose duty he said was a very easy one. Their decision would not settle the case, which would not be settled until the husband had been subjected to cross-examina-tion. That was not the function of this Court. The record, with the answers of the jury, would go up to Wellington, and the case would be disposed of there before a full Court, that is by a Court consisting of at least three judges. The Court would not accord the prayer of the petition until it had the husband before it: and the husband must state whether or not he had connived at, or been accessory to, or condoned the acts of adultery. The answers of the jury would be very simple. The fact of marriage appeared to be established. On the second issue, the child being born in wedlock, the legal presumption was that James Thomas was the father, but Mr Pitt had produced evidence that a confession had been made by the respondent, that Thomas was not tho father of her first child, but that her own brother-in-law was. On the question of condonation, he would say that there was do evidence offered that this offence had been condoned, if the respondent did not come a chaste woman to the husband, he on finding out the fact, would be justified in leaving her, and he only staid with her a very short time after the birth of the child, and appeared to have left her as soon as she recovered. The duty of the jury was simply a preliminary one, the decision would be made by the Court above. He should strike out the issue as to cruelty, as no evidence had been shown as to that point. On the question of damages, the basis of these was, first of all, that an offender in debauching a man’s wife deprives him of her society, and the comforts of married life. But this point did not arise here, because the petitioner

left his wife on the child being born. He left her altogether, she did not leave him. It was not to be argued however, because a woman has been left by her husband, that therefore she was entitled to take up with another man , that would be a social evil which the law did not warrant. But there was no proof that the husband had made any provision for the maintenance of his wife after he left her. If he had done so it would have been a different matter, and in considering the question of damages in that event, while not advising heavy damages, still they would be more like substantial than they could be in the case as it now stood. But the case was

different, Mr Pitt here stated that his client relinquished the claim for damages. The Judge : That still further simplifies the matter, and that issue is also struck out.

The jury then retired, and soon after returned with a verdict for the petitioner on all the issues, as follows :—lssue Ho. 1. —Yes, 2.—Yes. 3.—Ho. 4.—Yes. s.—Yes. 6.—Ho. 7.—Ho. B.—Ho. Issues 9 and 10 struck out. The question of expenses was adjourned till the case came before the full Court at Wellington.