Untitled

Otago Witness, Issue 1273, 22 April 1876, Page 4

Tuesday, 11TH April.

(Before His Honour Mr Justice Williams.) JENKINS V. JENKINS AND MITCHESON.

The question submitted to the Jury in this case was whether a protection order obtained by the defendant, Mrs Jenkins, from Mr L. Simpson, R..M,, in the year 1874, was obtained fraudulently and by a misuse of the powers conferred by the Married Women's Property Protection Act, and by means of false and fraudulent representations, as set forth in the plaintiff's declaration ? Mr G. E. Barton, with him Mr F. E. Chapman, appeared for the plaintiff, and Mr Stout for the defendants.

When the Court rose on the previous day the plaintiff's case was concluded, and Mr Stout moved that the plaintiff should be nonsuited, as there was no evidence to go to the Jury of fraud upon the Court below. I His Honour took time to consider his de- | cision, which he now gave as follows : — The issue is, was the order obtained fraudulently and by means of false and fraudulent representations ? The issue is framed for the purpose, if it be found in the affirmative, of serving as the ground for a decree to set aside the order. The ground therefore must be fraud of such a character as if found would justify the Court in secting aside the order. I will assume that, the Court will set aside the order if it can be shown that it was obtained by the wilful misrepresentation or suppression by Mrs Jenkins of a material fact. The present question therefore will be : Is there any evidence to go to the Jury that there was such a wilful misrepresentation or suppression 1 The evidence of what took place before the Magistrate is contained in the complaint of M v s Jenkins, and in her answers to the interrogatories. The complainant alleges the fact of desertion and the date. Now the word "desertion" in the Married Women's Property Protection Act received a judicial interpretation, but any person not a lawyer using the word would naturally use it in its ordinary sense, and would not be impeachable for fraud in so doing unless it could be shown that he was aware of the exact legal meaning of the word. She alleges in the complaint that her husband deserted her. In her answers she says that she informed the Magistrate that her husband had deserted her, and that she had had to earn her own livelihood since 1868, and also that phe had heard her husband was coming to Queenstown. What evidence is. there that these statements are wilfully false, or evidence of suppression of material facts ? The learned Judge then commented on the evidence given by Mr and Mrs Jenkins, and said: — In substance, therefore, there is simply oath against oath, uncorroborated by any extrinsic circumstances, and both witnesses, so far, are produced as evidence on the same side, and then we have the well-known presumption against fraud. Where an application is'made to set aside the judgment of an inferior Court on the ground ot fraud, and the fraud alleged is that the judgment was obtained by means of false testimony given by one of' the parties, I think there is no doubt that there j should be some further evidence than the mere; conflicting oath of the other party to submit to! the Jury. There is a strong analogy between' a charge of fraud and a charge of perjury, and the analogy is so strong that it appears to mej the same principles would apply in each case. , In the present case, there is no exact evidence, either given by witnesses or derived from ex-; trinsic circumstances. The question as to: whether the order was made on insufficient materials is quite different from whether it was obtained fraudulently, and that, of course, is not the question before us. The question 1 simply is : Is there evidence to show that the order was obtained by means of a false state* -

ment made by Mrs Jenkins. Of that, I say there is no evidence from extrinsic circumstances. The only evidence is the conflicting oaths of the parties, and where fraud is charged and the nature of the fraud being false evidence, there should be something more than the conflicting oaths of the parties to go to the Jury. Under the circumstances, I think I ought to withdraw the case from the Jury. Mr Stout presumed that His Honour would direct the Jury to answer in the negative. Mr Barton presumed in that case his Honour would reserve leave to enter a verdict for the plaintiff, in ca«e it should be held hereafter that the evidence was sufficient to sustain the allegation of fraud.

Mr Stout urged that leave could only be reserved on misdirection. He objected to leave being given as described by Mr Barton, and contended that such a course' couH be adopted only by consent of the oilier side.

After argument,

His Honour said be would roserve leave to move, as asked for by Mr Barton, bufcjwowlcl take a note of Mr Stout's objection, which could then De takon advantage of in showing cause.

Hi« Honour then directed the Jury that there was no evidence to go to them in proof of the alleged fraud, and they would therefore find in the issue for the defendants. The Jury returned a negative answer to the issue. The Court adjourned till 1.30 p.m. next day.