SUPREME COURT.—CIVIL SESSION.

Otago Daily Times, Issue 784, 22 June 1864, Page 5

SUPREME COURT.—CIVIL SESSION.

TUESDAY, Jitne 21st,

(Before His Honor, Mr Justice Richmond.)

The Civil Session,of the Supreme Court commenced this morning, His Honor taking his seat at eleven o'clock.

CRIM. CON.

Smeeth v. Nesbit —The plaintiff was Henry Smeeth, and the defendant was David Nesbi*:, generally known as "Scotch Joels." The action was for 1500 damages, for erim. con with the ivife of the plaintiff. The issues stated were—ls Mary Sraeeth the wife ot the plaratiff; did the defendant debauch, &c, her; did the defendant wrongfully receive anri detain her; did the plaintiff reque-t the defendant to give bsr np to him ; did the defendant refuse to tio so; did the plaintiff consequently hr-e tno society, &c-, of his wife; has the plaimiff sustained any damages, and if so, to what amount. Mr T. B. Gillies, and Mr O'Loughlin, were counsel for the plaintiff; and Mr James Frendergast, with whom wa3 Mr Barton, for the defendant.

Mr Gillies briefly stated the case. Adolphus Robert Smeeth : I am a miner, and am the brother of the plaintiff. I have a brother John, but I have not seea him since the 12th May, when he was on bo:srd the Golden Age. He said he was going to Melbourne. I believe he is not in the colony. He told me he should not return.

By the Judge : I did not see him oa board aay sea-going sieainer.

Henry Charles Mauley : I am managing clerk for Mr Wa rd. plaintiff's solicitor. I know John Smeeth. I saw him first about the end of April.

Mr Barton objected to the question, " Had you any conversation with him as to his movements 1"

The Judge ruled that the questiou was inadmissible.

Mr Gillies: Did he make a statement about a ticket?

Mr Barton objected, and The Judge ruled with him. In such a case, •evidence of the man having taken a ticket and gone on board a Melbourne steamer might surely nave been procured; and that might have been admissible.

Examination continued: John Smeeth was living in a, tent with the piaintiff and his other brother. I have inquired from the plaintiff where his brother John now is.

This was objected to and over-ruled.

The Judge said he was quite willing to take ■what was a good desl short of demonstration of the absence of John Smeeth from the jurisdiction of the Court; bat, objection being taken, he must hold that enough had not been proved to warrant the admission of any statements made by John Smeeth before a Commissioner.

Examination continued: lam acquainted with the defendant., and I have s?en in his house, in Stafford street, a peT.son who goes by the name of Mrs J^esbit I have seen thetn in the streets and other places together. I saw fiem on horseback, riding togf-ther, at the races two months back. I called at the house to serve the woman with a subpoena in this action. I asked for Mrs Nesbifc. The subpoena wai in the name of Mary Smeeth. 1 spoke to the woman. Mr Barton objected to the question, " What -did you say ?" The Juo'ge ruled, against the question. Examination continued. I have since seen the woman in the Police. Court. The defendant was there. The woman answered, in the Court, to the name of Mary Tripp. Mr Gillies asked to have the woman called, that she might be identified.

Mr Barton: This injured husband is prosecuting the woman for bigamy, and she has just been remanded fora week.

Mr Gillies thought the woman might be brought up. The Judge said he could only have her called as a witness. He had no power to have her brought in as an article to be looked at.

"Mary Smeeth" wai called, but did not appear. Examination continued: I ceryed a subpoena upbn the woman to whom I refer, for the first trial; aud I served her with another for this sitting. i?he was walking with the defendant at the time. When I first saw the woman at the defendant's house, I said I had a subpeeaa for Mary Smeeth, and she said it wa,s all riglit. By Mr Barton : I have seen the tvoman in the Police Court this moaning. The plaintiff is prosecuting her for bigamy in marrying John Do> le, in October, 1862. The prosecution is under advice of counsel in Melbourne. Mr Gillies proposed to put in copy of marriage c jrtificate Mr Barton objected that it ciid not purport to be signei by the officer entitled to have charge of j the original registrar. The Judge ruled that the paper could not be admitted. Mr Gillies proposed to call the plaintiff, to prove the marriaee aud the certificate. Mr Barton objected that parties to «n action could not give evidence in cases of crinu con. or I alultery. 1 Mr Gillies argued, that under the second count, ho had a separate cause of action for harboring. The Judge said that if the question was res integer, he should be inclined to viaw the declaration as a whole ; but there was a decision quoted, which he would respect, and he was mcliued to allow the eviience at the plaintiff's prril. Note of the objection wa* taken; Mr Gillies asking Hist itsho\vd be recorded that the witness was produced only for the purposes of the second csunt. '/'he Judge nia-le the record ; but he would not at present admit the possibility, of what was pro posed. Henry Smeeth : I am the plaintiS. 1 have worked as an ironmoulder in Dunedin. Prior to Christmas 1833, I was keepinz at an hotel in London. 1 was married on the 26th December,

ISO 3, at St. John's Church, Waterloo Road, to Mary Tripp. I cinuot read. I have seen this document before. I cot itsjntout to Melbourne. I lived with my wife, in London, until June, 1854, when we came together to Melbourne. I worked there for a fortnight, and then I went to the diggings. "" My wife remained behind; but in six weeks, when I had got a house for her. I fetched her up to the Auckland diggings. She left me there, in June, 1855 I found cut nest day where she had gone, and I wont after her. ' 'Aha returned with me. We went to Albury, and there she left me again. I ftrnd her out, at the Woolshad, Beechwo- th, and went for her, but she would not come back with me. This was in 1855. I did not get her back again until 1859. wheu I found her with the defendant, in Collingwood. I know ,where she was some time; but when I went for h«r I was oeaten. She was living at a restaurant, and the men there used always to beat me.

The Judge did not see what the value of the society of such a lady couid be to the husband.

Mr billies was heard in support of damages, and quoted cases.

The Judge : You will search the English cases in vain for a parallel to this.

Examination continued: I found her in Col liogwood, in the house of the defendant. She came to the hotel where I was stopping:, and said that she would live with mo again. She aaid she wis living with CTesbit and he would b'3 angry if sh^ did not go back to get things r>-ady, She said he owed her money, and I let her go. I found that she did not. come back in the evening, and I went to N"esbit's. He answered me from inside, that if I came there he would give me ia charge. This was in 1859.

The Judge : This is quite a farce. Examination continued : I have seen them together in Dunedin. I asked Nesbit to allow her to come back, and he insulted me.

Mr Gillies: He means " assaulted," I think. The Judge: He cannot mean " insulted," lam sure.

Examination continued : He struck and abused me. I have seen Alary Tripp who has been charged with bigamy in the Police Court. She was my wife.

By Mr Barton : lam fond of my wife—yes, I do like the woman. When I married her, she was my barmaid. I kept a night hou^e, for cabmen. I never knew anything1 wrong of her before I married her. I never turned my brother John out of the house because of his intimacy with her.1 I told him it was time he got a 3bip. I did not invite him to my marriage, but lie fame to it. I camfi out to Melbourne in the name of Henry Tripp, and my wife came as Mary Tripp, a single woman. I had not beaten her before we started, and I did not beat her on board ship. I did not beat her or ill u?e her in Melbourne. I never struck her as if she was a bit of iron. I'm only a moulder's laborer.

The Julge: iron is not moulded with a hammer. (Laughter.)

Cross- examination continued : When I found her at the Woolshed, in June, 1855,1 askel her why she left me, and she said she did not know— she ought to be ashamed of herself. She lived with me ten weeks or three months tJj.en. In Beech worth, I never got a chance of asking her why she left me. It was then the men threatened and beat me. She weat oaeach of these times to a man named Bailey, who kept a restaurant He had been a policeman at Deep Creek.. They did not l':ve as man and wife ,• he said she was only his hired servant. Nesbit has told me the same. I don't know whether Bailey wa<s a very virtuous man.—(Laughter.) I was at the Woolshed from 1855 to 1852. I don't know who she was living with during a goad deal of thai time. The Judge : Really, is it any good to go furth-.r with this !

Mr GHliies|intiniated that he would not proceed further.

The Judge : Gentlemen of the Jury,—The defendant, may safely admit every single allegation in the declaration, except the one with respect to the plaintiff losing the society and services of Mary Smeeth. if there is anything in that for him to lose. I must say this business must be exceeiingly scant; indeed, in Duncdin, when solicitois cm be induce to take up cases of this kind. I consider that it is a disgrace to have brought this case into a court of justice. Solicitors must be very short, indeed, of business, before tiiey will take up crS63 of this kiad. It is not the purpose of the plaintiff to offer you further evidence, and I think he does well. You may, if you please, find all the issues against the defendant, except, perhaps, two. As to the third issue: when a man has acquiesced for a number of years, as the plaintiff has done, iv what he must have known was the prostitution of his wife, is he capable of having his wife wrongfully detained from him ? I doubt it. but it is for you to consider. Has the plaintiff lost the society and services of Mary Srneeth. by the act of the defendant? If you find for him on that issue, it is my.idea that the defendant will be entitled to your verdict. Otherwise, you will have to consider the amount of the damage the plaintiff has sustained.

Mr Gillies asked His Honor to point out that Counsel, in withdrawing the case, as had been done, acted so because they found the case to be such as it was.

The Judge: I have purposely abstained from saying anything about Counsel. Counsel, when employed as such, can know nothing but what is in their briefs ; but it is the duty of the solicitor to have looked more deeply. Anybody who has even scratched the surface of this case must have known what it is. I repeat, that it is a disgrace to any solicitor to bring such a case into Court.

Mr O'Loughlin said he understood it was brought upon the opinion of Counsel, given in Melbourne.

The Judge: It is the duty of the solicitor to examine tha facts ; and I don't think this matter can be palliated. The more it is stirred the more it stinks. BHEAOH OP PROMISE. Ford v. Telfer.—The plaintiff, Sarah Ann Ford, is a widow; and the defendant, Alexander Telfer, is a widower. The actiou was to recover. LSOO, for the defendant's breach of his promise to • marry the plaintiff. The counts were the ordinary ones; aad the defendant pleaded a general denial.

Mr Gillie 3 and Mr A. W. Smith were for the plaintiff; and Mr O'Loughlin was for the defendant.

Mr Gillies, in statinef the case, said that it was not one out of which amusement could be got— there was no romance in it, nor any foolish lovelettsrs, that had grown out of the broken promise. The defendant and the plaintiff were both of mature age, and they first became acquainted through the plaintiff waiting upon defendant's wife, during the illness that preceded her death, some twelve months since. Mr Giilies detailed the fasts; and the following evidence was given: — Alexander Williamson: lam a merchant. I know the plaintiff. Mrs Ford, and also the defendant. The plaintiff was formerly a tenant of mine.1 The defendant was a cabinet-maker and piano forte tuner, but he has been for some time out of business • I remember a conversation with the defendant. I was summoned as a juror from four to six months ago, and was hurrying to Court, when I met the defendant. He said, "Do you know a Mrs Ford V I said, " Yes." He said, "What sort of a woman is she?" I

sail, " I always found her a nice, decent, respectable woman." He said, " She owes you a little money, doesn't she?" and I said, " Yes" He said, " How much ?" I replied, "L sor L 6." He said, " Oh! that's all right. 1 intend to marry her, and I'll pay that money, if you'll send mei:t a bill." J said I was very glad to hear it, for Iliad never intended to trouble her—that I looked upon her as a very respectable woman, that I knew she had a hard struggle, and that I never intended to bother her any more on the matter, I sent in a bill. No : he has never paid ma.—(Laughter.) About a week after I sent the bill, ha came up to me, blustering and swearing, and asking if I thought he was going to pay her bills. He said he was not going to marry her. By Mr OLoughlin: I'm not a good julge of ages, but I should say the defendant is at least 50 years old. He is not a feeble man; I have known him sines he came to he colony, always as a healthy man. He has paid rne_ all he ever owed me, and I am not in a position to know more of his position, as to difficulties. I am aware that he has been sued.

Ee-exnmine<i: He was sued in the Resident Magistrate's Court. About the time of his C3nversation with ■ me, I know that the defendant sold a property near the ArJale for a considerable sum.

Jacob Bernstein : I am a.jeweiler inMac'atrgan greet. I know the plaintiff ai:d the defendant. 1 wasf formerly a tenant of the defendaut, and he was in th« habit of coining to my shop. He once said he would leave hove and go to England. Th?.t was after his wife's death. Subsequently he eaid, " I'l! give you something new— 1 intend to get married in Diinedin and settle myself." He s'id that several times. Ha fitted up a narrow pi ice for me on his own premfcss, and I met there Mrs Ford. She weat away, and he then, said, " That's the lady I intend to get married to." By Mr O'Loughlin . flic defendant ii an old man.

Re-examined: Ke is a good stout, healthy man. He did not complain of his health after he talked of getting mavrisd. -(Laughter.) Andrew 'W illiaoi Sandstrom: lam a shoemaker, in George street, where I occupy oae of the defendant's shops .1 know the plaintiff, who Pvel next door, ia one of the defendant's shops. She came there about September last. There was a cottage behind the shops. I have been payiug LI a-week—he wanted 30s; the other shop was like mine. The defendant frequently called upon me; and we often talked about Ivlrs Ford aiter she came to live there. He's^ not a man of very many words, but of course it was mentioned.-(Laughter.) He told me 12months a;jo of his wife's death. He often said he was miserable, and I said, chaffiogly, why don't you make yourself comfortable. Oae day he toll me he had propo33d to marry Mrs Ford, and I said, "That's the best thing yew have done this last twelve months," She had not then, been there a week. About <he beginning of December, he ordered a pair of boots, and I arked, "Are they to be youv wedding boots?" He said, "V^ry likely." *' When do you want them 1" I a?ked, and he said, " About Christmas will do." A week before Christmas, I said, " I had better take your measure, now, or the boots won't be ready by Christinas." "Oh!" he said, "New Year will do."—(A laugh.} New Year came, and then he said he wouldn't have the boots at all - didn't want them. -(Laughter.) Mrs Ford used generally to leave her key with me The defendant frequently visited bar. The. defendant oace fetched tbe key and went in while she wa3 out. By MrOT.ougb.lin: So far as I can judge, he is a pretty old man. I know nothing about his affuis. John Yorstoa: I live in Qeorare street and am a storekeeper. I know the plaintiff, who did live next door but one. I have very often seen the defendant walking out with her. He very often came to my place. I have, in a chaffing' sort of way, spoken to him about his marrying Mrs Ford. I don't remember the purport of his answers. I have spoken to him about this action. I told him it was a great pity - that I thought he had better compromise it, aud not make fools of themselves in Court. He said that, he would never marry her and that he would not compromise. I have seen the defendant walking with Mrs Ford and her daughter, Mrs Thompson. It was a Sunday afternoon. They were standing looking at some newly built houses — merely lookinsr up at them.—(Laughter.) This was the c!se for the plaintiff.

Mr O'Louglilin submitted that there must be a non-suit. There was not a tittle of evidence of mutuality of promise to marry—all rested upon statements to third persons. There was even no evidencaof acceptance on thfl part of the plaintiff

The Judge: Very little will do in such cases. Ladies are are not expected to say," Yes!" plump out.—(Laughter.) Mr O'Loughlin said there were no circumstances from which it could bs presumed, inferentially or directly, that the plaintiff hai accepted the defendant. A young girl of 16 might blush and hesitate when an offer was made; but a widow of Mrs Ford's age was not likely to hesitate to say "Yes;" and evidence of acceptance might easily have been got. To go further, there was not a word ot evidence of the defendant's refusal to marry. Idlf>, chaffing conversations with other persons, never coul 1 be taken as amounting to evidence of refusal; for he might well have intended to marry Mrs Ford, a'though ho told these parties that he did cot. It was most clearly laid down, that to recover in this form of action, there muM; either be a marriage with another, so as to render the performance of the promise impossible; or a tender and a refusal to marry. A " reasonable time" had not elapsed, for tha performance of any promise, for the writ was served on the 4th April. There was not evidence that Mrs Ford had been ready and willing to marry, much less of the refusal of the defendant.

The Judge said the case was certainly weak on ssveral points; but there was something to go to the jury. Mr Gillies said this would make it unnecessary to address the Court; but there were cases to meet all the objections.

The Judge reserved the points that there was no evidence of refusal on the one side, nor of readiness and willingness on the other. Mr O'Loughlin aidressed the jury. He thought they would agree that, there was no question of fealing or passion in this case ; and that, at the worst, all they could ba asked to assess wa3 the commercial value of the plaintiff's loss in not marrying an old man. Suppose, as they were justified in doing, that the defendant had git into difficulties, was it not the more manly course for the defendant to fell Mrs Ford of it plainly, and to leave her, rather than to marry her and drag her into hia own mi&fortunes. The amount of damages, in such a case, could safely be left to the jury. Mr Gillies replied generally on the evidence, and the address for the defendant. The defence confessedly depended upon the plaintiff being unable to prove her ca-e, rather than upon any merits of its own. ,'t was so far to the credit of the defendant, that hi hud not attempted in any way to blacken the plaintiff's character—not to question that she was a thoroughly respectable woman. The ages and conditions of the parties were the natural and necsssarv causes of the alleged weaknesses in the plaintiffs case. If they had been a couple of young ppople, no doubt evidence could have been brousht of mdonlight walks, arms around waists, and so on; but here there was even the more satisf >ctory evidence, that the parties had settled down in the conviction that they were about to ba married. Even if the affair had been the most purely mercenary commercial transaction on th? pa?t of the plaintiffs, that did not disentitle her from reasonable compensation, for the breach of which the defendant had been clearly guilty. There was no evidence of the defendant being in pecuniary difficulties ; and if he was, he might, at least, have given the plaintiff the choice as to what she would do. The Judge commented on the evidence. He would leave the whole question 1o the jury as reasonable men. If there was anything in the technical points raised for the defendant, they were reserved, and he could have the benefit of them hereof'er.

After twenty minutes' absence, the Jury came into Court, and the Foreman asked, " In the event of a verdict for the plaintiff, what' amount will carry costs ?"

The Judge: 403. The Jury remained locked up for an hour and a quarter more, and at half past five the Judge sent for the Foreman, who replied that there was not the least present prospect of their agreeing as to the amount of dainßges.

It was agreed that the verdict should be taken by the Registrar; and the Juilge quitted the Court. At twenty-five minutes before eight o'clock, the Jury returned a verdict for. the plaintiff—damages, Is. -

CASE 3IN ORDER FOR TO-DATi Duff v. Brunton; Luhning v. Isaacs; Morrison v. Taylor; Milne v. Telfer.

It is said that a pure diamond may be easily recognised by putt;n» it under water, when it retains all its brilliancy, while all other precious stones lose their pecnliar appearance.