COURT OF APPEAL.

New Zealand Times, Volume XXXI, Issue 4886, 18 November 1876, Page 2

COURT OF APPEAL.

Feiday, November 17.

(Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Williams, and Mr. Justice Gillies.) The Court of Appeal sat' at 11 o’clock, and proceeded to consider the case JENKINS V. JENKINS AND ANOTHER. The case was an appeal from a ruling of his Honor Mr. Justice Williams, in the Otago and Southland district. Mr. Stewart and Mr. Mouat appeared for the appellant, and Mr. Maoassey for the respondents. '

Mr. Stewart stated the circumstances of the case, which are shortly as follows;—The appellant and the respondent, Eliza Jenkins, were married in 1840, and they lived happily together until 1863. Early' in that year the appellant went to reside at Queenstown in Otago, and in July was joined by his wife. While there he carried on the business of a storekeeper, and acquired real and personal property of the value of from £2OOO to £3000.1n August the appellant became insane, and was sent to the Dunedin Lunatic Asylum, where he was confined until June, 1864. During his confinement his wife took possession of the property, and received the rents and profits, and continued to do so after his release. In 1866 the wife purchased certain land, and a public-house and theatre, in Queenstown, known as the Melbourne Hotel. These premises were, at the request of the wife, conveyed to the appellant’s eldest son, the appellant alleging that such conveyance was made with the intention of fraudulently depriving him of the use and possession thereof. On his release the appellant returned to Queenstown, and resided with his wife,- and, as he alleges, owing to her misconduct and ill-treatment of him, was compelled to leave in November, when he returned to Dunedin. On the 17th of that month he was imprisoned as a lunatic, but was released as of sound mind on the' Ist February, 1865. He then proceeded to Wellington, where he worked at his trade as an upholsterer for a period of two years, corresponding with his wife, and forwarding money for her support from time to time.' In 1868, at the request of his wife, he returned to Queenstown, where he resided with her for a short time. He then, on her advice, and accompanied by his son William, again left Qneenstowntotravel for thebenefitof hisbealth, visiting the Thames goldfields and the‘colonies of Queensland and Victoria. He remained in Victoria with his son for about three years, being absent in all about five and a-half years, the son during the whole period keeping up a correspondence with his mother—affectionate messages passing between her and the appellant. During the whole time the wife received the rents and profits, and-confused and mixed the same up with the monies earned by her : own lawful industry. The appellant returned from Victoria to Queenstown in June, 1874, and found his wife living in the Melbourne Hotel. On the day after his arrival his wife went to Cromwell, a distance of 40 miles, and obtained from the Resident Magistrate a protection order under the Married Womens Property Protection Act, 1860. At the time tlte order was granted the appellant was staying in the Melbourne Hotel, and continued to reside there for fifteen weeks afterwards, during, which his wife gave him no information as to the order of protection having been made. At .the expiration of the fifteen weeks the appellant’s wife caused him to; be assaulted and turned out of the house, and it was not until then that he became aware of the existence of the order. On the 6th August the property alluded to before as having been conveyed to the son, was transferred by him to the respondent, Eliza Jenkins, the appellant alleging that such transfer was made .with the view of fraudulently depriving him of the same. On the 14th January," 1875, the. respondent Eliza Jenkins conveyed the property to the respondent Josiah Mitchinson, the consideration.

for such conveyance being' the natural love and affection which she bore to the said Josiah Mitchinson. Joaiah Mitchinson is the son-in-law of the appellant and his wife, and the appellant charged collusion between his wife and Mitchinson as to the conveyance. On the 15th January, 1875, application was made to the Resident Magistrate at Cromwell to rescind or vary the order of protection, such application being however refused. On this the appellant commenced proceedings in the Supreme Court, praying—(l) That the respondents might be restrained from dealing with the property; (2) that Mitchinson might be declared to be a trustee for the appellant; (3) for an account of the rents, &c,-; (4) that Eliza Jenkins might be restrained from enforcing the order so far as it affected the property; (5) for a declaration that such order waif obtained by fraud; (6) for a declaration that the property was unaffected by the order; (7) for a discovery; (8) for costs of suit; (9) that the order might be declared void; (10) that the deed of gift might be declared void; and (11) for such other relief as to the Court should seem just. The respondents having both pleaded, a decree was moved for on the 28th October, 1875, but the motion was dismissed ; his Honor Mr. Justice Williams directing that the issue be tried between the parties, whether the order of protection was obtained fraudulently and by a misuse of' the power conferred by the statute, - and by means of false and fraudulent representations. Interrogatories were administered to the respondent, Eliza Jenkins, on the 3rd November, 1875, pursuant to the order of the Judge in that behalf, and duly answered. The issue directed to be tried was tried at the sittings of the Supreme Court in April last, at Dunedin, before his Honor Mr. Justice Williams. At the close of the appellant's case, it was contended, on behalf of the respondents, that the appellant had not adduced any evidence in support of the issue, and that there was nothing to submit to the jury. His Honor Mr. Justice Williams took time to consider the question, and adjourned the hearing of the case until the following day, when he directed the jury to find a verdict for the respondents, reserving leave to the appellant to move for leave to enter a verdict. Pursuant to the rule reserved, a rule nisi was obtained to show cause why should not be set aside, and a verdict entered for the appellant on the following grounds ; (1.) Misdirection by the Judge as to there not being sufficient evidence to support a finding for the appellant; (2.) That the finding was against the weight of evidence ; and (3.) That the credibility of witnesses, and intentions of parties were not submitted by the Judge to the jury. The rule was argued on the 16th August, and en the 27th September his Honor delivered judgment, the rule being discharged with costs. It was against this judgment that the present appeal was lodged, under section 23 of the Court of Appeal Act, 1862. The question for the opinion of the Court was, whether or not the said judgment should be affirmed, reversed, or varied ?• The first question which arose was, was there evidence of fraud on Mrs. Jenkins’ part in obtaining the order ? For the purpose of the appeal Jenkins’ evidence must be looked upon as absolutely true. The'question was, was there or was there not evidence offered which,' 1 if believed, might enable the jury •to come to a determination. If his evidence, whether contradicted or not, would have shown fraud, the issue should have gone to the jury. His contention was that the Supreme Court had full power as a Court of Equity to set aside the judgment of an inferior Corut obtained by fraud. The early proceedings in the present action were reported in vol. I. of “New Zealand Jurist,” p. 35. The question as to the issue being properly directed or not was not at the present time before the Court, and could not now be considered. As he had stated before, the Resident Magistrate had refused to alter his decision in re the protection order. , His Honor Mr. Justice Johnston asked if fraud had been set up on the application for the reversal, to which Mr. Stewart replied that it appeared so from the pleadings. • • • His Honor Mr. Justice Johnston then said that the whole matter was at large. The Legislature required that Resident Magistrates were , to adjudicate in this matter, and not the Supreme Court. He thought that the course adopted now was not the proper remedy. Mr. Stewart submitted that the Court could not now inquire into the propriety of the direction of the issue.' His Honor Mr. Justice Gillies said that in his opinion, the only real question was the propriety of the direction of the learned Judge at the trial.

His Honor tha Chief Justice pointed out that Mr. Stewart would have to show what sort of evidence would support such an issue. His Honor Mr. Justice ‘Williams thought that Mr. Stewart’s object was to set aside the order ah initio , the rights of the parties between the date of such an order and its reversal being protected by the inferior Court under the'statute. Mr. Stewart said that if he could show fraud the order Would be clearly bad ah initio, and the only question before the Court Was, was there evidence of such fraud to go to the jury ? His Honor Mr. Justice Gillies thought that another question suggested itself, viz., was there such evidence to go to the jury as would justify a Court of Equity in interfering. His Honor Mr. Justice Johnston said that in this case it would appear that the issue had not been stated sufficiently clearly. Mr. Stewart said that in a case of this kind a Court of Equity would not require very strong evidence of fraud, inasmuch as the proceeding was ex parte. If the party asking relief showed a prima facie case, it was the duty of the other side to rebut it. There were two grounds on which the order was obtained; (1) desertion, and (2) without sufficient material cause. There had been a suppressio veri onthe wife’spart in the proceedings, whereas the strictest truth should have been required on these two points. It should be remembered too that on leaving Queenstown for the first time the appellant was worth between £2OOO and £3OOO, and that the wife was evidently amply provided for. These circumstances should have been stated on the application, as it dealt with the question of the wife supporting herself by her own industry.

His Honor the Chief Justice asked where was the evidence as to fraud ? Mr. Stewart said that the wife had stated that the appellant had deserted her in 1867, but the evidence showed that he had left her, with her full consent, in 1868. The leaving with consent did not amount to desertion.

His Honor the Chief Justice pointed out that if the wife misconducted herself the husband had a right to desert her. His Honor Mr, Justice Gillies intimated that, although there had been consent as to the going away, the desertion might arise by the appellant staying away without cause.

Mr. Stewart said that in this case it appeared that the woman had applied to the magistrate, and, after asking her a few questions, he had granted the order as of course, lu the case of Thomson v. Thomson, 29, L.J., Probate and Matrimonial, 65, it had been laid down that to entitle the wife to a judicial separation the husband must have wilfully absented himself without her consent.

His Honor Mr. Justice Gillies pointed out that after all the protection order was not a very serious matter, as it only protected the woman’s earnings, which in any case ought to be protected. Mr. Stewart said that the woman was the appellant’s wife, and she had no right to alter her status without his consent. In the case which he had cited there had been no contribution towards the support of the wife and children, and the Judge Ordinary had held that there was no desertion. There was no wilful absence as against the wish of the wife, and there was no evidence to show that desertion took place at a subsequent period. At all events the return of the appellant took away whatever right the wife had obtained by reason of his absence. In the case of Cargill v, Cargill, 27 L.J., Probate and Matrimonial, 69, it was laid down that an offer by the husband to return and provide for the wife would take away the right.to an order for protection. The Judge In that case. In delivering judgment, pointed out that it was by the leaving the wife unpro-

vided for that the right to protection accrued. The element of fraud in the case was that she had improperly stated that she was deserted. His Honor Mr. Justice Gillies asked did Mr. Stewart contend that the suppressto veri amouted to a suggestio falsi.

His Honor the Chief Justice asked Mr. Stewart if he proposed to show what fraud would cause the Court to order the issue to be tried. Mr. Stewart submitted that there should be greater accuracy in an ex parte proceeding, and that a Court of - Equity in dealing with this matter should undoubtedly take the fact into consideration. As to what amounted to fraud he would quote from “ Kerr on Fraud,” p. 1 and 2. It was not easy to define fraud, as considered by a Court of Equity, and the Courts would not adopt any settled definition dealing with each case as it arose. His Honor the Chief Justice pointed out that desertion might perhaps be treated as such until cohabitation was resumed. Mr. Stewart said that the desertion must be continuous to entitle the wife to an order. “ Kerr,” p. 316 and 17, dealt with the question of the evidence required. The evidence was the same in equity as at law. Fraud would not be presumed, but the facts must be clear and conclusive. His Honor the Chief Justice asked what were the facts which should have gone to the jury? Mr. Stewart then made some quotations on evidence from Kent, an American author, and pointed out that deductions might be made from facts, however trivial. Further authority would be found in “ Story’s Equity Jurisprudence," section 190 A. His Honor Mr. Justice Williams stated that the older editions took a different view, viz., that Courts of Equity would act oh less evidence than a Court of Law.

Mr. Stewart then quoted from section 190 of the same work, as being more explicit on the matter, and expressing the same view as that pointed out by Mr. Justice Williams. His Honor the Chief Justice said that it was laid down in “Lewis on Equity Drafting” that the facts of the fraud must be stated, and undoubtedly a similar practice would prevail in New Zealand.

Mr. Stewart then proceeded with his argument, and said that supposing under the old practice in England the Equity Court sent down an issue to be tried at law, the Court of law would have to send that issue to the jury, and he would submit that such a. principle should be applied in the present case. ' His Honor Mr. Justice Williams expressed an opinion that it would be most mischievous to admit a distinction between law and equity in the Supreme Court of New Zealand. Mr. Stewart then proceeded, and pointed out that the evidence necessary to support a finding on the issue for the appellant was that the respondent did not communicate to the Resident Magistrate the facts of the appellant having left Queenstown in 1868 with her consent and with the intention of staying away some time ; that at the time of the application the appellant had returned and was actually an inmate of her. house or hotel, and that she had been earning her living by her own lawful industry. Further evidence on the subject was that she ought to have stated that she did not desire her husband to return, and he would submit that under these . circumstances the Court below ought to have let the issue go to the jury.

His .Honor Mr. Justice Williams said that admitting the respondent knew that the appellant was back, and that she did make a false statement, it was quite immaterial whether he was returning or had returned. His Honor Mr. Justice Gillies pointed out that all the facts stated by'Mr. Stewart could have been brought before the Resident Magistrate on the application for the reversal of the protection order. , His Honor Mr. Justice Johnston asked why was the Magistrate not examined ? , He .could have stated on what grounds he would not reverse the order.

Mr. Stewart apprehended that , there could not be a stronger case of fraud than that submitted. / . His Honor Mr. Justice Gillies could not see how the appellant could be injured by the order. , ’ : ‘

Mr. Stewart then pointed out that under the statute the protection was extended to the earnings and property of the woman, and property might be held to be ejusdem generis. He would admit that the doctrine of a scintillal of evidence was exploded, but would submit that there could be ho the appellant being sent away by his wife. There was no color or pretence for the respondent alleging that she had been deserted. The question for the jury was, was the order obtained fraudulently or by false representations, and who could answer this but the jury? If the order could not be affected by fraud, why was the issue allowed by the CJourt below at all ? The appellant was entitled to a finding if there was prima facie evidence tq support it, in order that the question of costs might be decided. In Towney v. White, 4 H. of Lds., p. 312, it was laid down that when a verdict was obtained by suppression or misrepresentation, the Court would reverse the decision. In considering this case it should be remembered that the Court was the final Court, and that under the Protection Statute there was also no appeal. It was laid down in “ Kerr on Eraud,” p. 3, that Courts of Equity could relieve from every species of fraud,' and on page 432 that a decree obtained by fraud was not binding, as it was a nullity., His Honor Mr. Justice Johnston pointed out that if the order was a nullity, it should have been treated as such, and there would have been no need to come to the Court. Mr. Stewart then said that he would admit that it was not very clear that an innocent party would be allowed in another Court to impeach a proceeding which he could set aside in the Court of first instance. He assumed, however, that the Court would set aside the order if satisfied that it was obtained by fraud. Harrision v. Mayor, &c., of Southampton 4 De Gex, McN. and G. 430, was an authority if there was collusion between the parties, a marriage being declared valid fifty years after its having been held void. His Honor Mr. Justice Williams quoted the, case Howard v. Earl of Shrewsbury, L. Hep. 2 Chancery, as showing what evidence was required to set aside a verdict on the ground of fraud. His Honor the Chief Justice referred to a judgment of Lord Cairns as illustrating that the mere over-estimating of rights was not the kind of fraud to allege, in order to get the Court to set aside the decree. Mr. Stewart said that he would admit that where there was a variety of facts upon which to found a judgment, the opinion cited would apply ; but in a case like the present, where there were only two points, viz,, desertion and no lawful excuse, then, he ventured to submit, it would have no application.

His Honor the Chief Justice asked how was the Court to know that there was not more evidence ?

Mr. Stewart submitted that no stronger evidence could be given than had been submitted by him, and he would ask, were the rights of the husband to be committed entirely to a magistrate, who in all probability was both ignorant and incompetent? The case Dewsbury v. Newbold, 26, L.J. Exchequer, illustrated his argument. He would submit that the answers to the interrogatories, and the evidence of the appellant and Kent, was sufficient to support a finding of fraud, and it should have been submitted to the jury. ; In his opinion it was impossible to prove a more glaring case of fraud, and he would leave the case in the hands of the Court. Mr. Mouat then addressed the Court on the same side, and pointed out the omission of the word “ lawful ’’ in that part of the evidence re the order as to the respondent supporting herself by her own industry. The evidence also went to show that she had been supported by the appellant’s means, as she had received the rents and profits of his property. He would cite a case; Matthew v. Matthew, 19. L.J. Rep,, where it was laid down down that where the husband’s whereabouts was known notice should be = given l of proceedings previous to the granting of a protection order. He would submit that this rule of practice should also obtain in New Zealand. In Dunedin the practice was to serve the husband with a copy of the order where practicable. He would admit

that in the English Act to which the case cited applied there was no power, to repeal or vary the order when once made. The practice under the Destitute Persons Relief Act would also illustrate the present case, and that practice had been not to enforce orders where an offer of a home had been made. He would call attention to the fact that there was no answer to the 9th interrogatory. His Honor Mr. Justice Gillies pointed out that the interrogatory could not be answered, inasmuch as the main point in it was the intention of the appellant, with which the wife could not be acquainted. Mr. Mouat then argued that animus was shown by the respondent in the non-produc-tion of the letters asked for, which would have placed the conduct of the appellant in a favorable light, and in the production of a letter not asked for, which gave any thing but the bright side of his character. Mr. Mouat concluded his argument a little before! o’clock. His Honor the Chief Justice intimated that if the Court thought it necessary they would call upon Mr. Macassey to reply on another day. The Court then adjourned until eleven o’clock on Wednesday.