THE NEW DIVORCE COURT.

New Zealander, Volume XV, Issue 1365, 18 May 1859, Page 2 (Supplement)

THE NEW DIVORCE COURT.

Jt is natural that tho proceedings of (lie new Divorce Court should attract a considerable amount of public attention, and it is equally natural that, unless due regard is bad to all the circumstances of the case, a wron<* estimate may he formed of the degree in which thal court is promoting the interests of litigants, or answering the expectations of those who advocated its institution. The fact that all the proceedings of the new court are copiously reported by the press is likely to tell in some degree against it with a portion of (he public whose opinions are entitled to very respectful attention. On tins part of the case it is essential to bear in mind that the new court embraces within itself the whole range of jurisdiction which was formerly shared he‘ween the three separate tribunals of the Common-law couit“,the Ecclesiastical courts and the House of Lords. The trial of all those scandalous cases by the publicity of wind) a som-itive morality is aggrieved, is now carried on before a single tribunal—and the evil, such as it is, which may he supposed to arise from reporting them is only conccntiated instead ol being diffused. It may he interesting to our readers to glance at one or two of the more notorious of the cases which have come before the new court within the fast few weeks and to note in each t he principle of decision. We gave in our last, some account of the evidence brought forward on either side in the great Marchmont case. It was obvious that there had been a great deal of bad temper on both sides—that, in fact, there had been an uninterrupted squabble between the rev. gentleman and

his wife. But there was scarcely decisive the physical violence which, in the eye of the law laid down by the judge ordinary, goes to make up «• elty” had been employed; and there is some doubt whether the verdict of the jury, by which, it w j|j , 1 recollected, • separation was granted, was in acco.d J/ with the evidence. It is manifest that, in juries can hardly help being moved by conaidi u %*; which, from a strictly legal point of view, do notajfg,, the point at issue. Here was a person of a mercenary turn, whose conduct towards hi* wife, if not unqu e 7 tionably “ cruel,” was anything but exemplary ; an Jj tb jury perhaps considered that to separate him from hi* wife and her fortune was an excellent way of punishiL him. It appears, moreover, from this precedent, by tm means impossible that juriea may sometimes shew» kind of unwillingness to refuse a separation in Ptlf> where there i* an extraordinary, unquestioned, » 0( j terly irreconcilable incompatibility, although tbephr, sical violence used may in reality fall considerably of wbat the law would term cruelly. [An app«i Mr. Marcbmont against the jury’s verdict baa ju« b ee l rejected by the full court.] There seeirs, ho* ever, to Lave been no difficult « coming to an opposite decision in a somewhat analogcase which came before the same court a few day* I*-. 1 *-. The case to which we refer h»s more than once (JL’ before the public. The Rev. Henry Curtis Cherry titioned for a restoration of conjugal rights. Mr. * ry married a aeco..d lime, and the new wife did agree very well with the old family. There were dim. putes and qnarrels. Mrs. Cherry went away. j|j r Cherry sought her out, met her in a church at Heading' and when she refused to return home with him, bt next day employed the police and carried beroffbyfo rc# He would aland by hi* “ inalienable rights.” Thai*., held that Mr. Cherry had not been guilty of crat[J and gave a verdict for tbe petitioner, a verdict ia tbe judge ordinary, SirC, Cresswell, concurred. There has been another case before tbe court Utel* that of “ Keats v. Keats and Montezuma,”in which t.h* principle of decision has been much discussed. Xhs point on which the case turned was a very short on? The adultery was admitted—in fact was flagrant, hj had been carried on at many places— amongst others w Dublin. The husband had been put in full posses,;,* of all the evidences of bia wife’s guilt down to tba do* of her stay in Dublin, as early as the spring of this year, when the dtvtrce suit was commenced, loth, course of the automn attempts were made by the wif,’, family to bring about a reconciliation. The hushsnd » person apparently “ of obtuse intellect as wells, of in. firm character,” was led to believe that the evident* submitted to him had been concocted by the arts of hi, wife’s enemies. He agreed to a meeting, it took pU« late last month, at tbe house of the wile’s brother-in !»*. The wife was there. She declared to her bmbiai (which was false) that she had never seen her paramour since she left Dublin. The hush; nd, upon thi,, told tbe brother in-law that he forgave her; and said to hi* wife, " Well, nit dear, I hope we shall understand e«fc other better, but we must not revert to the past.’’ Xbe interview ended by a promise on the husband's part to go and see the wife at St. Leonard’s, where she wattbea residing ; a promise which was not kept, owing to hi, having called on his attorney in the way. To meet tin, evidence of alleged condonation, counter-cvidenre »„ tendered and received to show that the wife at this interview bad deceived the husband, and bad, in fact, renewed the adulterous intercourse after leaving Dublin. Tb* main question in the case was whether on the«e facta there bad been any condonation. Sir Cre-swell Cresswell defined condonation to mean, not a mere teraissioD »f tho imputed offence, but a remission accompanied with tbe intention of restoring the party offending to the same position as formerly. Unless Mr. Keats, with full knowledge of hi, wife’s adultery, Lad reso ved to Mot it out of Lis mind and take her to live with him a, hi, wife again, then, according to Sir C. Cresswell, time was no condonation. The jury were to find whether is fact he did so intend or not. One of tbe jury fora long time refused to confine himself to this view of bi, functions. lie did not like the judge’s exposition of the law, and declined to limit himself to a mere verdict on tl* facts. But ultimately the jury agreed that the facta did not prove tint there Lad b-en condonation in Sir C. Cresswell’s sense of the term, and the husband au\f ceeded in dissolving hi* marriage. “In the particular case,” says the ‘ Daily New*,’ *• no one could regret ts find the judge’s exposition of the law sustained, but it is difficult to avoid the conclusion that, as a general statement of the doctrine of condon«tion, it is open to objection. Condonation, if pleaded as a bar to the sail for a divorce or a dissolution of marriage, must-urelj mean such a remission of a wife’s offence as to preclude the husband from continuing Lis suit. If, with a knowledge of the facts on which the suit is founded, he remiti tbe offence which is its ground, that surely is enough for the purpose of precluding the suit from going os. This, however, is a mailer on wbichtbe Court of Appeal will have to pronounce, and the probable importance of tbe point as a guide to future decisions renders it quits as well that it should be put in a course of being conclusively settled.”— Home Neics.