LAW AND POLICE.

New Zealand Herald, Volume XXV, Issue 9021, 6 April 1888, Page 3

LAW AND POLICE.

DIVORCE COURT. Thuesdav. [Before Hie Honor Mr. Justice Gillies.] Wbatt v. Wkatt.—John Wratt (petitioner), Fanny Elizabeth Wratt (respondent), and William Coward (co-respondent). Mr. James Russell (Jackson and Russell), appeared for the petitioner. No appearance was entered on behalf of the respondent or co-respondent. The petition was for dissolution of marriage on the grounds of adultery. The facts of the case were stated by Mr. Russell as follow :—The petitioner and respondent were married in Nelson in 1861, and they lived and cohabited for 18 years in the province of Maryborough. .Five children—issue of the marriage—were living when the petitioner came to Auckland in 1880. While in Marlborough he had some reason to suspect the fidelity of his wife, but had no definite proof; but this, however, led to some disagreement. His wife followed him to Auckland in 1882. In July, 1883, the husband and wife signed a deed of separation, the husband agreeing to pay her a sum of £40 towards her maintenance; but apparently this sum was insufficient, for she applied to the Charitable Aid Board for assistance, and, acting on the advice of the Board, she sued the petitioner for maintenance in the Police Court; and it was by her own evidence, when under cross-examina-tion in the Police Court, that the petitioner was first made acquainted with his wife's infidelity, as she admitted having had a child of which her husband was not the father, and she subsequently admitted to Mr. Strathern, an officer of the Charitable Aid Board, that Coward, the co-respondent, was the father of this child. The petitioner was examined at considerable length, and questioned by His Honor as to his relations with his wife. John Strathern, visiting officer of the Charitable Aid Board, to whom the respondent admitted cohabiting with Wm. Coward, and having a child by him, which was registered in the name of Simmons, that being the respondent's maiden name, gave evidence to that effect. Mr. John Owen Lord, registrar of births, deaths, and marriages, produced the register of the birth o? the female child referred to, which was made on the 7th of January, 1885. The registry was made at the request of Annie Simmonds, who represented that she was the mother of the cnild, and who signed the register. Geo. Smith and Henry Ingram gave evidence, showing that Coward and the respondent cohabited, as he had so informed them himself. This was the petitioner's case, and His Honor said he must take time to consider the case. The evidence showed that the wife was guilty of adultery as far back as 1875, and the petitioner did not then take proceedings, and the Court had to satisfy itself whether the husband had in any way been accessory to or conniving at the adultery. ,

Kelly v. Kelly.—Sdit for Judicial Separation.—This was an action for judicial separation, which was heard at the March sitting of the Court. Mr. Theo. Cooper appeared for the petitioner, and Mr. Alexander for the respondent. His Honor now delivered judgment as follows : —This is a suit by a wife against her husband for judicial separation on the ground of the husband's desertion for over two years, the wife being in Scotland, and the husband in New Zealand. The husband simply denies the desertion, offers no evidence, but leaves the case to be determined upon the evidence adduced by the wife herself—viz., her own evidence and her husband's letters. The facts, as proved by the petitioner, are certainly peculiar. The respondent, a widower with four children, a colonist of South Australia, aged 39 or 40 years, in good circumstances, went home to Scotland, and after two months' acquaintance, in 1873, married the petitioner, then a spinster of the ripe age of 29. After some months travelling about, they returned to South Australia, where, in the neighbourhood of Adelaide, they continued to cohabit, and two children were born, the first of whom died. The respondent, in accordance with previous® arrangements, went to New Zealand to select land on which to settle, and returned to the petitioner in Adelaide in March, 1875. Soon after he returned to New Zealand, taking with him three of the children of his first marriage, leaving with her aunt, at Adelaide, one of the children of his first marriage, the petitioner, then ill with rheumatism, and her child- When he settled down in New Zealand, at Mangawai, he evidently began to think, or perhaps his previous experience deepened into a conviction, that the petitioner and he could not be happy together, owing to her admitted ignorance of housekeeping and other circumstances which I need not allude to. He so informed her on the 25th July, 1876, and subsequently (in terms which I cannot do otherwise than severely reprobate) ordered her to return to her relations in Scotland, offering to pay her passage, and to allow her £/5 per annum. After the delay of nearly two years ehe, in June, 1878, accepted the offer, was provided with a passage home, and until August, 1882, received the allowance of £75 per annum. In 1880 he demanded that the child of the marriage (then 5 years of age) should be sent out to him to receive a practical rather than a theoretical education. The petitioner refused (naturally) to part with the child, and the respondent in 1882 stopped the allowance. The petitioner in 1886, brought this suit for desertion. The respondent requested her to return to cohabitation, and went to Scotland in June, 1887, where she refused to see him, or to let him see his child. These are the facts before me in the petitioner's own evidence, and I must say that I entirely fail to see in what the desertion consists. Up to July, 1876, it is admitted by the petitioner that the respondent had gone to New Zealand whilst she remained in Adelaide. This was by mutual arrangement, but it was argued, on behalf of the petitioner, that the desertion commenced on the 26th July, 1876, when he wrote to her ordering her to go home to Scotland to her friends, and offering in that case to provide her passage, and allow her £75 per annum. Had she for two years persistently refused to comply with his order, and to accept his offer, ana demanded that she should be allowed to return to cohabitation, whioh he refused to allow, then, I think, that possibly desertion might be inferred. But when, before the expiration .of two years, she accepted his offer, arid complied with his request, however unwillingly, I must come to the conclusion that the separation which then took place w&a by mutual consent, "and vowing she would ne'er consent, consented still." The doctrine laid down by Lord Penzance in Fitzgerald v. Fitzgerald (L.R. 1 P. and D.—694) then becomes applicable, " that if the state of cohabitation has already ceased to exist, whether by the adverse act of the husband or wife, or by the mutual consent of both, desertion from that moment to either is impossible, at least until their common life ana home have been resumed. In the meantime either party may have the right to call upon the other to resume the conjugal relation, and, if refused, to enforce their resumption ; but such refusal cannot constitute the offence intended by the statute urder the name of desertion without cause." In the present case, there having been no resumption of cohabitation after the voluntary separation, there can be no desertion. The refusal of the respondent to continue his allowance when tne petitioner refused to give up the child to him cannot constitute desertion. The petition is therefore dismissed, but, under the circumiitances, without costs.