DIVORCE AND MATRIMONIAL COURT.

Otago Daily Times, Issue 8610, 27 September 1889, Page 4

DIVORCE AND MATRIMONIAL COURT.

Thursday, September 26. (Before his Honor Mr Justice Williams, and a special jury.) ELIZABETH D'ALBEDTHLL (PETITIONER) V. JAMES LETHBKID«E D'ALBEDYHLL (RESPONDENT). Petition for dissolution of marriage and custody of child. The hearing of this case was resumed at 10 o'clock. Dr Fitchett appeared for the petitioner, and Mr F. R. Chapmau, with him Mr A. S. Adams, for the respondent. James Lethbridge D'Albedyhll (cross-examina-tion resume]): The petitioner did not complain of any improper conduct on the part of witness Mrs May, when she went to the bank, said she wanted compensation for the way in which witness had thrown her daughter out of the house. He and the petitioner slept apart at that time, and he thought the petitioner was annoyed at his having written the letters to the girl. He did not know that his wife had the letters.— Witness was then closely cross-examined in connection with the letters, and upoD the information given Mr Brunton, and upon which he acted in writing to the Lethbridges. He could not say whether he was legally petitioner's husband. He had never told her ahe was not his wife, but had asked her for an explanation of her statements that she was previously married. It was not his fault that the negotiations for a private separation fell through. He did not a*k her to come back and live with him under legal advice. He had paid her £550 under the judgment order, and £3 per month on a judge's order. Letters which had passed between the parties were produced, and witness explained the circumstances under which they were written. Re-examined: Witness had not the means ol paying more than he was doing in the way ol satisfying the judgment obtained against him by his wife. He denied absolutely the insinuations made as to his conduct with servant girls. He had not the means to do more than he was doing on the judgment Mrs D'Albedyhll had obtained against him. He had no source of information as to the previous marriage other than Mrs D'Albedybll herself. Through his solicitors, he had endeavoured to find traces of the previous marriage in Ireland, but bad failed, and though Dr Fitchett produced the certificate of the birth of the child, he had never produced the register of the marriage. By Dr Fitchett: When the order was made by the court for the payment of £3 per month in satisfaction of the judgment, a statement of his iucome and expenditure was before his Honor, and that expenditure included the support of his wife, (o which he had not contributed Biucß June. Mary Murley deposed that she had known the parties to the suit prior to the visit to Ireland in 1879, and when Miss Matthews was living in their house. So far as witness could tell the D'Albedyhlls were agreeable and affections te, and she was frequently in the house and had opportunities of observing their conduct. When Miss Matthews left, Mrs D'Albedyhll and witness went with her to Port Chalmers, and Mrs D'Albedyhll then kissed Miss-Matthews, seemed very affectionate, and gave her something when saying good-bye. There was nothing to suggest strained relations between the petitioner and Miss Matthews, but quite the contrary, and Mrs D'Albedyhll mentioned that Miss Matthews was leaving because she would not carry the baby out. During the time of the residence of the D'Albedyhlls at Maybank witness stayed with them for several days at the request of the petitioner. Maggie May was then living in the house. Mrs D'Albedyhll seemed Tery unhappy, and said that Mr D'Albedyhll had no right to remain in the kitchen where the girl was. Mr D'Albedyhll was romping in the kitchen with the boy while the servant was present. Mrs D'Albedyhll asked witness to go into the kitchen and tell the girl to go out of tnu room when her master was in, and not to allow him to speak to her, or as the petitioner termed it, "to interfere with her." Witness did this, and the girl cried, and was much put about, and seemed not to understand why she should be spoken to in that way. So far as witness could see there was nothing whatever iuproper in Mr D'Albedyhll's conduct. After this Mr and Mrs D'Albedyhll lived with witness at first for a week as guests-, ami subsequently as lodgers for nine or 10 months. As she had had her mined poisoned against the respondent sho watched him closely, but saw nothing to justify the vile accusations make by the petitioner against him. Cross-examined: Mrs D'Albedyhll complained at Maybank that the respondent was taking liberties with the servant girl. Witnesß was not on speaking terms with Mrs D'Albedyhll,but had not quarrelled with her, aud would not lowerherself to quarrel with anybody. In 1881 Mrs P'Albodyhll said that hec husband had taken liberties with a girl named Grant, and led her to believe that the respondent was a vile man altogether. Tho letter to the girl witiieis thought was very wrutig, and t»iil when ahe first saw it that it was a wrong thiug for any man to write. John Bryce Thomson deposed that in November 1886 he had inspected a dwelling house in York pkci! occupied by the Nuilsnns, and ill which Mr and Mrs D'Alburfyhll and son were living.

Eliza Jane Matthews deposed that sho remembered going to live with the D'Albedyhlls. She lived with them for just about eight years. During that time she lived with them on the West Coast, iu Auckland, Wanganui, and afterwards in Dunedin. She was lady's companion to Mrs D'Albedyhll, and Mrs D'Albedyhll pressed her to call her " sister" and Mr D'Albedyhll "brother," while the children always called her " auntie." Witness was on very affect:ouate terms with tho petitioner. The question of having a family group photograph taken was often discussed, and from the first time it was talked about she was. to be included in it. Mrs D'Albedyhll never objected to witnesß being included in the group. Every month Mr D'Albedyhll gave his wife his salary and used to ask for any money he wanted. Witness never saw anything to justify the imputations of cruelty. Mr D'Albedyhll appeared to be a very kind husband and a most affectionate father, incapable of cruelty to anybody. Shortly before witness left there was some slight indication that Mrs D'Albedyhll was less frisndly towards her. Witness had done nothing to justify this change, which occurred a few months before she left. Mrs D'Albedyhll often spoke to witness of what she would do with her father's money, and aaid Mr D'Albedyhll should buy some laud near witness' brothers' place, retire from the bank, and that then they should all live close together. Mrs D'Albedyhll purposed going to see her, but did not do so, though she had written to say that she should do so. The allegation of adultery was wickedly false. There was not theslightest ground for the suggestion that she had been guilty of adultery or impropriety with Mr D'Albedyhll. On hearing the charge made against her she had submitted herself to examination by a medical man. It was utterly false that Mrs D'Albedyhll had seen Mr D'Albedyhll by witness'bedside, and the statement that Mr D'Albedyhll had assisted her to a bath was also wholly falsa. The statement that Mrs D'Albedyhll was conttantly trying to send her away, and that Mr D'Albedyhll was interfering to keep her, was not true ; but ultimately witness left on her suggestion. Witness lived with her brothers at Timaru, and had not visited Dunedin since she left until three months ago, but Mr D'Albedyhll had visited her brothers' house two or three times. Cross-examined: The ficut of these visits was fully a year after she had left the house. It was at Mrs D'Albedyhll's suggestion that she left. She and Mr D'Albedyhll had been on the looting of brother and sister, and on one or two ocsasions Mrs D'Albedyhll had made Mr D'Albedyhll kiss witness; but he had never kissed her when his wife was not present. Mrs D'Albedyhll was always suspicious of ladies going to the house; she did not seem to have much faith in women, and did not like her husband to see them home. Mrs D'Albedyhll would say she never could keep a servant because of Mr D'Albedyhll, and mentioned the names of some of the girls. In 1877 the petitioner made these complaints. The respondent was in the habit of placing his hand on the shoulders of girls, and the petitioner seemed to think this very improper. The family was a very happy one at times, but it might be that witness had said she was very glad to get out of the house, because of the constant quarrelling and fighting. Witness could not say what it was that led Mrs D'Albedyhll to be suspicious. Mrs D'Albedyhll had said that she would visit witness at Timaru, and witness vrote to Mr D'Albedhyll asking him to try and get his holiday from the bank when Mrs D'Albedhyll was inclined to pay them a visit. After this the friendly correspondence ceased. Mrs D'Albedhyll may have been displeased with this letter, but there was nothing in it which should have displeased her. The petitioner wrote te witness asking her to cease to correspond with Mr D'Albedhyll, but she continued to correspond with him, and she thought she was the petitioner's friend in so doing. She did not remember ever writing or thinking that the respondent would go mad if she did not write to him or if Mrs D'Albedhyll did not write to her. Dr Hocken deposed that he had seen the last witness for the first time on the previous day. As the result of his professional interview, witness could say that the charge of adultery against her was false. This he was able to saj with certainty. This witness was not cross-examined. Robert Neilson deposed that he remembered Mr and Mrs D'Albedyhll coming to his house to live. They stayed there five and a-half or six years. They were right enough for a good bit after they came, but later did not seem to get on so well. He remembered seeing marks on Mr D'Albedhyll's head. He heard knocking at the door, and Mr D'Albedhyll came in with his head cut about and his clothes covered with blood. He denied that his house was ever uncomfortable and dirty. His wife was not able to come. Cross-examined by Dr Fitchott: MrsD'Albeijhll was in the house a few days after Mr D'Albedyhll left. Mrs Neilson told them to leave after the Brunton case. Conrad Lethbridge D'Albedyhll, son of the parties, was called, but not examined, his Honor suggesting that in after life in looking back he might have cause to regret giving evidence. Mrs D'Albedyhll (recalled) deposed that sht had heard her husband's evidence with reference to Maggie May. It was not true. She had heard the girl call out on the occasion she had deposed to. Mr Chapman, after referring to the evidence, said that he had objected to Mrs May givine evidence as to Maggie May's statement because in courts they were bound by certain rules of evidence, and as he could not give on the othei side second-hand evidence, this evidence was properly excluded. But who was responsible for not having this girl's evidence, excepting those who had been guilty of delay in bringing these charges? The evidence given by Mrs May was consistent with the respondent's statement that she went to the bank for compensation for her daughter having been turned out of her place, and the demeanour of Mr May was wholly inconsistent with any other theory. The bath episode, of which evidence had been given by the petitioner, was not merely suggestive of adultery, but was something absolutely shocking even to men who had been accustomed for a good many years to hear of these things in courts of justice and elsewhere. Did the jury believe that story, and could they believe a case which rested upon a witness that told that story ? Evidently the petitioner was a woman of an excessively morbid mind, and euch persons persuaded themselves sometimes that things were true which were not. It was not, however, for the jury to say how much of the petitioner's evidence was wilfully untrue and how much was believed by her, but whether to their satisfaction a substantial case had. been made out; and the learned counsel submitted the jury could not be satisfied that a case had been established. His Honor would no doubt tell the jury that delay in these matters was very unfair, and that there had been cases in which the petitioner had been pronounced against simply on the ground of undue delay. Had the respondent merely wanted to sat up a defence that would defeat the divorce, he could easily have done so by pleading that the adultery had been condoned, All the charges of adultery related to evente long anterior to cohabitation, and might have been answered by pleading that the acts, if committed, had been condoned. But that was not Mr D'Albedyhll's style of defending the case It might have been suggested th»t such a pier contained some trace of admission of guilt, and tlje respondent would not have such » thing flung in his teeth. The same motive that had induced Mr D'Albedyhll tc come into court to fight the matter had induced him to put on record pleas to which hi could stand, and no plea inconsistent with his assertion of innocence. The learned counsel said he would not refer in detail to the charges of cruelty ; the only specific one of which evidence had been given wag the charge that the respondent had torn his wife's neck and hands in 1884, and he ventured to say that, when they remembered the boot incident, they would conclude that the respondent might very well have charged his wife with cruelty. To this incident the learned counsel would only refer as showing that on the one occasion when it came to something like a tussle the woman proved a good deal better than tho man. The charges of cruelty were simply absurd and preposterous. This was a case in which the respondent was entitled, even at the cost of wearying tho jury, to clear his character. Mrs D'Albedyhll came before them as the blameless victim of years of monstrous cruelty. Could they accept that version of tho story? The whole case rested upon the evidence of Mrs D'Albedybll, and that evidence having been wholly discredited, the respondent was entitled to succeed. In concluding, the learned counsel invited the jurors, in judging the conduct of thr; respondent, not to regard him as an ordinary man of the world, for ouch he was not, but to make allowance for the curious, morbid, religious phase in his character, which was the key to a good many of the foolish things he had said and done. Dr Fitchett, in addressing the jury, said, with reference to the delay, that his learned friend had, no doubt unintentionally, said what was calculated to mislead the jury. This was not a civil suit, and in matrimonial disputes aVife did her duty not when she took advantage of any act of cruelty and misconduct on the part of her husband to drag him into court, and when she submitted with patience to the cruelties inflicted upon her, delay iu instituting proceedings was not to be considered to her letriment. That was the law; for great allowince was made for the situation iu which a wife ivas placed; though the same rule did not applv ;o the husband. Tho fact that Mrs D'Albedyhil md submitted for long years to misery ami mffering was not to be imputed to her as >\ 'ault. Then the learned counsel on the othtr lide was not quite right as to the law on an)ther point. They had been told that the •espondent was entitled to consideration for laving boldly met the charges and for not laving pleaded a legal defence; but the fact vas that subsequent cruelty would revive acts :ondoned by cohabitation. In the nature of .bings it must bo that the evidence in the main vould be the evidence of the parties, and the earned counsel submitted Mint as to the points egardiug which tie. evidenn: of uou-litigants vas obtainable, that evidence supported the >etitiouer nud not the respondent. Did i\<a liry belinvo that Mrs Clay whs iyiug n the witness box? It was quite true bo law prevented iiim from asking her vhat her daughter had told her; but the j earned counsel on the other side might have

done so, had he not with great discretion refrained from doing so. With regard to Miss M»ttkows, ho might say he accepted her evidence. He believed she was the witness of truth, irnd must unreservedly withdrew the allegation of adultery which the petition contained. But whether Mrs D'Albedyhll had in her excitement exaggerated, or had imagined she saw something, there was the fact that some months before Mias Matthews left there was something whioh caused coolness. The learned counsel, however, admitted that ho did not for a moment believe that Hiss Matthews was culpable, and the jury were not asked to find that issue in the affirmative. As to cruelty he would not go through the items, but would ask the jury if they did not believe the evidence given by Mrs Campbell, which strongly corroborated on a yery material point the evidence of the petitioner. After referring at length to the evidence, the learned counsel submitted that though the jurors did not find the adultery proved they would find evidence to satisfy them of this—that from a period shortly after this poor woman married the respondent her life had been a hell owing to the morbid temper of her husband. In the face of what appeared from the evidence, it was as reasonable to expect that the petitioner should go into the den of a tiger as that she should live with her husband, and it was for the jury to say upon the evidence whether the huaband had been guilty of such cruelty as to entitle the petitioner to a judicial separation. His Honor, in summing up the case for the jury, said that there were four issues to be considered :—(1) Whether the parties to the action were married; (2) whether respondent had been guilty of adultery with Victoria Grant; (3) whether he had been guilty of adultery with Miss ftiatthews; and (4) whether respondent had been guilty of cruelty towards the petitioner. The first issue has been admitted, and as to the second issue it was pretty clear from the evidence that respondent had not been guilty of adultery with the girl Grant—there appeared to have been simply a scuffle, after which the girl left, so that even if there was impropriety adultery was not proved. As to third ißsue it was now admitted that that charge could not be supported, but the jury should certainly consider that petitioner had sworn to witnessing a scene which, if the details were true —or even anything like true—would be nearly as conclusive proof as possible tha adultery had been committed. He (his Honor) of course alluded to the bath scene, and if the details given by petitioner were true, only one inference could be fairly drawn from it. Yet uow that charge of adultery was withdrawn. His Honor supposed that this was an admission that this scene was not as described, and if so then Mrs D'Albedyhll had either imagined or invented something which had not taken place, and in either case of course the credibility of her evidence was, of course, affected. It was hardly necessary to point out that one of the letters written by Mrs D'Albedyhll to Miss Matthews was palpably inconsistent with the writer of it having really and honestly a belief that the person to whom she was writing had very shortly before been guilty of a most disgusting impropriety with her husband. The real issue for the jury to determine was whether the respondent had been guilty of cruelty, and in considering this it was just as well they should grasp fully in their minds the principle on which tha Divorce Court granted relief on the ground of cruelty. It was this—that it was necessary for the court to intervene for the purpose of protecting the injured party. The court in granting relief assumed that from the previous conduct of. the wrongdoer cohabitation wittrthe other party was unsafe. The jury, therefore, must be careful not to take 'into consideration the fact, which was undoubtedly perfectly plain, that it was exceedingly desirable these parties should live apart. All would admit that they had managed between them to wreck each other's happiness, but because it was impossible to conceive them living happily together that would not justify the jury in finding that the respondent had been guilty of cruelty towards the petitioner, unless they found that the respondent had been cruel, and that it was necessary for the court to intervene to protect the petitioner. What they had to say was, looking at all the acts which had been proved, did they show that the respondent had been guilty of such a course of conduct as would render it, so far as regarded the life or health of the petitioner, unsafe for her to continue cohabitation. If certain acts of violence had occurred in the course of a quarrel brought upon herself by her own conduct, in respect of any such acts the petitioner could not claim relief; the jury must be satisfied that the improper conduct of the husband had been the primary cause. Being guilty of impropriety short of adultery would not of itself constitute cruelty sufficient to grant a decree of judicial separation upon; but if such acts of cruelty were proved and slight acts of direct cruelty also proved the court would be more willing to grant relief than if the slight acts of cruelty properly eo called stood alone. The great principle was this: had the conduct of respondent been such, either by violence or by outraging the feelings of petitioner, that she should be protected from it ? Was there a risk of cohabitation being unsafe either by reason of the physical violence or mental suffering to which the petitioner would be exposed in any way affecting her health ? The jury retired at 4 20 p.m. At 5.45 p.m. the jury returned, and the Foreman stated that with regard to the fourth issue, which was really the only one they were trying, there was not the smallest chance of the jury agreeing. His Honor, after looking over the statute and rules, said that at the expiration of three houre a verdict of three-fourths could be taken. The Foreman said there was no probability of nine of the jurors agreeing upon an answer to the fourth issue. The jury having again retired after a conference, Dr Fitchett said he was glad to say that they had come to a private understanding of the matter which would relieve the jury. They would ask the jury to gire a verdict on the first three issues, and be discharged as to the fourth issue. His Honor thought that was the proper course. The Jury, on being called in, answered the issues as follows:— (1) Were the petitioner and respondent married to one another ?—Yes. (2) Did the respondent commit adultery with one Victoria Grant ?—No. (3) Did the respondent commit adultery with one Eliza Jane Matthews ? —No. (4) Has the respondent been guilty of cruelty to the petitioner ?—This issue was not answered. His Honor: Then you are discharged from finding the fourth issue. The court rose at 6.30 p.m.