SUPREME COURT. DIVORCE AND MATRIMONIAL CAUSES.

Otago Witness, Issue 2004, 21 July 1892, Page 14

SUPREME COURT. DIVORCE AND MATRIMONIAL CAUSES.

Thursday, July 14. (Before his Honor Mr Justice Williams and a special jury of 12.) THOMSON V. THOMSON AND WYLIE

Suit for dissolution of marriage and L2OOO damages. Mr Solomon and Mr W. C. Macgregor appeared for petitioner, George Thomson : Sir Robert Stout for the respondent, Georgina Ihomson; and Mr J. Macgregor for the co-respondent, Kennedy Wylie. Sir R. Stout, in opening the case for the respondent, said that the first thing to which he would call the attention of the jury was that the opening of Mr Solomon admitted that there was no direct evidence. Mr Solomon had qu ted Browne to the effect that in such cases as this direct evidence was not usually procurable, nor required by the law. That statement he (Sir Robert) admitted to be correct, but the jury must be convinced not only, as Mr Solomon put it, that there were opportunities of criminal intercourse, but they must go further, and be satisfied from the facts narrated that such intercourse did take place. It would not be enough to show that there might have been familiarities and opportunities of familiarities, but the jury must be satisfied that the evidence led to that and nothing else. He (Sir Robert) submitted that from the evidence given, other explanations of what took place might be given than the oue suggested. All the evidence about the drinking was strongly against the petitioner's case. How did the petitioner present his case "before the court ? It was this, that his wife was given to drink, and that this drinking habit gradually grew upon her, and that she would do anything in order to get liquor, and that this was continually going on to such ah extent that when her mother was dying she could not refrain from taking liquor. If that were so, if the story was not exaggerated, he (Sir Robert) submitted that if it meant anything it meant that this woman saw Wylie in order to obtain liquor, and the jury were not to assume that that necessarily meant that there was criminal intercourse. This evidence about her drinking went against petitioner's case. But he (Sir Robert) submitted that this had been greatly and grossly exaggerated. He was there simply as. advocate for respondent, and as »uch he would ask the jury not to draw unfair conclusions against her ; but if he were present to point a moral in dealing with this case he might well ask who was to blame ? Petitioner was a Good Templar for a year or two after the marriage, and yet it was he who began with the liquor and led his wife into temptation — it was he who brought it to the house, and who, when they went out driving, regaled his wife with whisky ; and yet after that he complained that she had a liking for drink ! Who led her into temptation I And who was to blame if the woman had fallen by the way through liquor? It seemed to him (Sir Robert Stout) that all through this case, with every additional witness who was called to speak of the drinking that was said to go on now and then, petitioner, if ho could only see it, was simply bringing on his head his own condemnation. It was petitioner, also, who took Wylie to the house, and he know that Wylie was supplying Mrs Thomson with liquor ; and now he came to the court and complained of the result of his own action ami deeds. Who was to blame if this woman had fallen through drink ? But ho (Sir Robert) would again repeat that if Mrs 'J homson had done what she was accused of doing, and there had been no drink in the matter, the jury might have drawn an unfavourable conclusion against her, hut the fact of the drink and the statements made by her while under the influence of liquor regarding Wylie, herself, and her husband, were not to be used against her. That would be unfair, and the jury would not use this against her. And the evidence against Mrs Thomson rested on the testimony of three women, and so far as the testimony of any ouc of them was concerned, there was no corroboration whatever. There were not two witnesses to any one fact alleged. And in the petition Thomson had set up a certain month in which this adultery was said to have taken place. It was March 1 1891. But there had not been one tingle witness to speak to a date at all. Mr Solomon thought it would be only proper that such a remark as that, going to the jury, should be accompanied by tho statement that this took place at other times.

Sir Robert Stout said that he was coming to that. There was a statement fixing the date as in March, 1891. From whom was that statement obtained ? It must have been obtained from one of the three witnesses. It could not have been obtained by chance. Why was that statement npw departed from ? Mr» Bain, one of the witnesses, when previously asked, said, "About nine months ago"; Miss M'Millan said two or three mouths, and the oi her witness said two or three weeks. Butnodate was everfixed, and none was now fixed excepting Maich IS9I. Why was the statement put in that bald form? He (Sir Robert) would tell the jury why. They knew that Wylie was often away from home— he made trips all over Otago, buying and selling stock— and if any special date had been fixed Wylie might have been able to show that he was not then in Balclutha. What was the evidence on which this charge rested ? Did the jury pay any attention to what Mrs Bain had said? How could they? He (Sir Robert) did not wish to comment on her character, but by her own admission she had remained in the house all the time, believing that improper things were going on, and she neither left nor said anything. Miss M'Millan said that she did leave the house because of something improper going on, but she did not leave till a fortnight after Wylie left. Miss Sinclair's testimony consisted of the washhouse incident and the ballroom incident. The washhouse incident, as narrated by the witness was ridiculous, and evidence would be brought to show that her version of it was not correct. It was utterly untrue that respondent and co-re-spondent were ever together in the washhouse, and it would be utterly denied that there was anything in the ballroom incident. The evidence would be that the witness did not go home alone that night, but that she was accompanied by her sweetheart. Why was he not called, when he must have had the same opportunity as witness had of seeing what was said to have been seen ? That was the only incident, so far as Miss Sinclair's evidence was concerned, that could tell against the respondent or co-respondent. The only thing left was Mrs Bain's statement as to the respondent and co-respondent being in each other's rooms. The jury could discount that evidence by the statement of counsel in opening for the petitioner, that before Thomson started for Dunedin he had interviewed the servants and ascertained that there had been something improper, and that he then consulted his solicitor and commenced these proceedings. The evidence of the girls was that they never spoke to Thomson about the matter. Either the statement of counsel was wrong, or the girls were wrong. They could not both be right. Or else petitioner launched this case without knowing whether there was any evidence to support it or not. Only one of the girls was asked, and she said that she believed there was something wrong; and yet learned counsel had stated that before Thomson left for Dunedin he had interviewed the servants, and then launched the case. Mr Solomon : The case was not launched for nearly three weeks afterwards. Sir R. Stout : You me in that the petition was not issued in the court f ji 1 three weexs. Mr Solomon : It was not signed. Sir Robert Stout replied that that was not the point. The statement made by counsel in opening was that Thomson interviewed the girls before leaving for Dunadin, and having ascertained that there was something improper he at once came to Dunedin and commenced this suit. The evidence did not bear that out. Mrs Ttain said that she was not spoken to till the end of March or April; Miss Sinclair was never spoken to at all ; and Miss il'Milla i, though spoken to, did not give any details to Thomson at all. If the girls were to bo believed, the case was launched without any evidence having been obtained by Thomson, and it was only after launching the case that he proceeded to see the servants and get evidence. There might be are ison for that. Petitioner not only asked for a dissolution of marriage, but he wished to make mouey out of the transaction. He claimed L2OOO. And th-it was the attitude of the man who brought up all this thing about tho drink, which, by the way, had nothing to do with the matter, because however much his wife

might have drunk that was no ground for divorce in New Zealand, and therefore he (Sir Robert) did not know why the question was brought up at all. Further, it would be shown that the servants had exaggerated and were biased. It was not what they said, but what they omitted to say. As proof of the bias and exaggeration, he would mention one matter. The jury would remember what was said about M'Neill getting drunk and being arrested and pub out of the house. According to Thomson'sevidence Thomson's father struck Mrs Thomson in the face, blackened her eye, and knocked her down. The girls who were called never saw that. Why? That was the test of bias— the best the jury could get. Mrs Tompkins and Miss Sinclair were both present, and neither saw it. It was the old story. The eye only saw what it was prepared to see. It was said by counsel on the other side that condonation was an inconsistent defence. He (Sir Robert) contended that it was not inconsistent, because it was put in hypothetically. As to what took place on the 11th of May, the jury had either to believe Thomson or the other witness called by the other side (M'Donald). Thomson's story was that he never went into the dining room at all ; and M'Donald, who was in the adjoining room, said that the noi>e of Thomson and hi-> wife talking in the dining room prevented him from sleeping. He added that they might have been talking for an hour. It would be shown that Thomson's evidence on this point was untrue. Why had he so spoken? Because he knew peifectly well that on that night he condoned anything that had been previously done. It was practically agreed between the husband and wife that the charges should be withdrawn, and evidence would be givon that the excuse Thomson made for not doing so was that Wylie would comj between them for money. In concluding, learned counsel said that this story about the drink helped respondent's case, because the jury would conclude that a woman given to drink would go to almost any length in ordor to obtain it ; and the main charge would bo directly denied by both parties. This was not like an ordinary divorce case. The evidence produced in such cases was far more circumstantial than that produced in this case. Kennedy Wylie, the co-respondent, who was the first witness examined, said ill reply to Sir Robert Stout that he positively denied that he ever conducted himself improperly with the respondent. In reply to Mr J. Macgregor, witness stated distinctly that he did not see Mrs Thomson on the night that the petitioner said he saw him and Mm Thom«on together in the dining room, when the latter put out the lamp. Thomson and he were on very friendly terms until that night. They had all lived together as if they were one family ; he thought so, at any rate. He was treated as one of the family both by Mr and Mrs Thomson. He had two illnesses uhen he was staying with them. One time he was confined to his bed, and Mr 3 Thomson waited on him and gave him every attention. During all the time that he stayed with the Thomsons he never saw Mrs Thomson what he would call drunk. He had seen her always prepared to take a drop of drink, like the rest of them. None of them were very bad at it. Mr Ihomson could take two drinks to the others' one and never show it. He never remonstrated with witness about taking drink to the house, but he rebuked him for doing so one Sunday morning in the barn. He left Thomson's house on the 21th of November. The first time he went back after that was on the day of the Balclutha races. He met Thomson at the races and they were on friendly terms then. The day before the races witness had been to the Waitahuna Show, and Thomson came up to him at the races and said, " Wylie, you ought to hear Jessie relate the subject about you and the Waitahuna girl." He also cautioned him about the girls, saying: "In any case, don't write letters to them.— (Laughter.) If you do will have you up for breach of promise ; they will ' go' for you, because they know you have money. Thomson also said, "If they do I will help you, because you are always getting into trouble with the women." Witness proceeded to say that Thomson had got him out of many a little scrape. A fter his conversation with Thomson he went to the house in consequence of having received an invitation to do so. Mr Thomson was not in when he got there, but he came in some time afterwards. Before he came in witness sent for a bottle of whisky. The bottle was standing on the table when he came in, and a liti le had been taken out of it. After he came in witness asked him about some rumours he had heard on the racecourse. He told Thomson that he had heard that he had put him (witness) away from the house on account of being jealous about his wife. He also asked him if such was a fact. Thomson then said decidedly, " No, Wylie." A few weeks afterwards he saw Thomson riding through tho town, and went over to him and spoke to him about the Sunday morning "affair." Thomson said he never was in a greater rage in his life than he was on that morning, and he was sorry for what had occurred. It was arranged that he should go over that night to the house and have tea with the Thomsons. On second thoughts Mr Thomson said he could not be at home that night, as he had to go to Kaitangata. He, however, wanted witness to go to tea, but witness said he would not go unless Thomson was there too. He did not go, and he did not think he had been in the house since. That was on the 13th of February. Georgina Thomson, the respondent, stated that she was married to Mr Thomson in ISS2. After marriage, and before Mr Wylie came to board in the house, there was often drink there. MiThomson drank and gave drink to visitors two or three years after marriage. The liquor was generally brought to the house by Mr Thomson in bottles, but there were also some demijohns of whisky brought to the house. She remembered Mr Wylie coming to board at her house. He generally kept liquor of his own. After Mr Wylie came into the house there was often whisky used when Mr Thomson was present. Mr Wylie was very ill once when he was stopping at the house, and was attended by Dr Fleming. Witness also attended him at all hours. Her husband certainly knew that she was attending him. She would not have done so without hi-> knowledge. She heard Mrs Bajn give her evidence. She most emphatically denied th.it she had any improper intercourse with Mr Wylie at any time. She remembered a quarrel between herself and her husband some days before Wylie left the house. The quarrel originated in witness' room. She thought it was about a bottle of whisky. Mr Thomson and she went out of her room into Mr Wylie's room she thought. She could not remember what Mr Thomson said ; but she thought he said : " Whatever am I to do." Mr Thomson had the bottle of whisky in his hand. After leaving Mr Wylie's room she thought they went to the wa.shhouse, then came back into the dining room. She could not remember striking him that day, but she had struck him. He, however, had often given her repeated blows on the head ; and she sometimes kicked him. Mr Wylic stopped in the house between a week and a fortnight after the quarrel. She would swear he did not leave the same morning. Mr Wylie often visited the house after that. She remembered his visiting the house and asking to see her at the back. She was ironing at the time in the dining room. The girl Jessie Sinclair told her that Wylie wanted to see her, and she went. She was certainly not in the washhouse with him. She remained with him about five or 10 minutes. She asked him what he came for, and he said he came for his clothes. She remembered him being at the house on the race night. Mr Thomson was not there when Mr Wylie came in first, but ho was there afterwards. She never heard her husband forbid. Mr Wylie the house. She entirely defied Jessie Sinclair's story about Mr Wylie being in her bedroom. She had not seen Wylie on the night it had been stated he met Jessie Sinclair on the bridge. After her husband came in he called her into the dining room and said, "Who has been hereto-night 9 " Witness replied, "I do not know." He said, "You know very well." Witness repeated that she did not know. Her husband then asked, " Where is Wylie V " Witness replied, " What do I know about Wylie." Her husband said, "You know very well ; I saw you sitting there with him with a bottle of whisky between you." Witness said, "That is an utter impossibility." Her husband then took her in his arms and asked her to confess it. She said she could not confess what had not occurred ; and in order to convince him she took an oath on the family Bible, and said, "George, Wylio brought no whisky to the hou-e tbis night." She rememhcieil Wylio bein^ at the house on the 23id of Februaiy, when thuio was a row. bhe was struck on that occrtsiou, and

had both her eyes blackened and her nose swelled. She never said that she wanted Wylie to take her away, and that she liked him bettor than Thomson. Mr Wylic often brought fruit to the house for her mother. On one occasion witness invited him to stay to tea, buthedeclined, and MrThomson said, " What, Kennedy, are you going away ?" She was certainly sober during the time she was nursing her mother. On the Sunday evening, on the day of her mother's burial they all went to church. It was entirely fal«e what Jessie M'Millan said about her being in Mr Wylie's bedroom. She left Balclutha on February 29 and went to town with her sister and Mrs O'Shea. When she came to town she went to live in the Valley. On Friday, the 4th of March, her husband called to see her. Up to that time she had not been served with any summons. She remembered going to her husband's house at Balclutha on her last visit there. When she went to the bouse Mr Thomson was in the dining room. She walked into the room and had a good deal of conversation with her husband. They talked together for about a quarter of an hour or 20 minutes. She then went into the kitchen, and Mr M'Donald aftoi w.irds came in. When Mr M'Donald went to bed .she and her husband had a conversation in the dining room which lasted about two hours. They were talking about the case. She slept that night in the same bedroom that she generally slept in when she lived at the house. Mr Thomson was in the bedroom that night with her for about three-quarters of an hour. It was arranged that she was to go to Dunedin and stay six months with her sister. She was to tell no one for fear Mr Wylic should know. She had previously said to her husband that she would have nothing to' do with him unless he withdrew all charges against her. She subsequently had an interview with her husband at the railway station on the 7th of May. He then said that it would be the dearest wish of his life to "see her name cleared. She replied :— " If those are your sentiments help me. Get up a good case to clear my name." She also asked him who were the witnesses, and stated that she would go to the Ulutha for the purpose of finding out. Her husband replied, "You can go to the Clutha and set the Clutha on fire if you like." Before they parted her husband said, " If you came to me as a penitent woman things would be different." Witness replied, "Why should I be penitent for things that I never did." Her husband observed, " I cannot clear your name ; that will have to be done by somebody else." Witness said, "George, surely yon don't believe this teirible thing ag.iinst 3'our wife — you who knew me before marriage and afterwards." Her husband replied, "No, Georgie; I don't believe them. If I did you would not be here." At a subsequent interview she had with her husband he asked her if she would go back to Balclutha. She .staled thai she did not like the people of the place. They agreed to meet at the railway nt.itinn on the 20th of May, and they parted on very friendly terms. Witness here asked learned counsel if she shouli' tell everything that took place at thii l.i->t interview. Sir Robert Stout replied : Yes ; go on. Witness : He embraced me very, very warmly, and said, "Gcorgic, dear, the^e lips of yours arc the dearest things to me on earth."— (Laughter.) Witness proceeded to say that when she saw her husband on the 20 h of May he said lie thought he would give ur» his position as mayor at Huh chitha and take her home. She, however, replied, "No, I vittl not go home on such conditions If Igo home it wiil be in honour, not in disgrace." At another interview he asked hei if she would go back to Balclutha. She said she thought she would. He told her she must make up her mind— that he -wanted her answer in writing, and that she had better go home and consult with her sisters. Witness gave evidence as to further interviews with her husband, in one of which he told her to go home and make her mind easy about the divorce proceedings as he would see the matter was made all right. On being cross-examined by Mr Solomon, witness stated that the reason the case had come to court was because she was foolish enough to keep her word to her husband. The night M'Donald stayed at her house her husband and she occupied the same bedroom after M'Donald retired. He, however, told her not to let M'Donald know as Wylie might get to learn about the matter. Mr Thomson said : "We don't want Wylie to get at us." Mr Solomon : You insist that the whole story of your misconduct is a fabrication. Witness replied in the affirmative. Mr Solomon : You have heard what these three servants said about you. Did they part with you in anger ? Witness : No ; but I have reason to believe that one of them has been helped to get married lately. Her husband is in my husband's employ ; and the other girl, Jessie M'Millan, has been staying in the house, living with my husband when I was away. Mr Solomon : I suppose you mean to imply that she misbehaved herseif ? Witness : Well, I have got some evidence to go on, but I don't know whether I should say what it is. Mr Solomon : Is it true what we have had the misfortune to hear — that you were in a terrible state of intoxication ■when your mother lay dying ? Witness (solemnly) : No,' Mr Solomon. Mr Solomon : Can you account for this fact : that four or live people have sworn that you gave wav to drink, and became helplessly drunk ? Witness : I deny it. I have witnesses to prove that that was not the case. Mr Solomon asked witness if she meant to say seriously that the witnesses who had sworn as to her misconduct with Wylie had sworn falsely ? Witness : I say that these people would be capable of taking anybody's life away, and they are trying to take more than my life away ; they are trying to take away my reputation. Mr Solomon asked if one of the servants was an honest girl. Witness : I don't call her an honest girl now. I have reasons. Mr Solomon : What arc the reasons? Witness : She has been influenced by Mr Thomson. In reply to further questions, witness stated thit the whole of the evidence against her was for the purpose of making what was vulgarly termed "a rise" at the expense of her reputation. Her husband was a man who liked to pose as a martyr. Like her, he liked pity ; and, unlike her, he liked publicity. Mr Solomon again alluded to the night that Mr M'Donald stayed at Mr Thomson's house at Balclutha, w hen he tried to reconcile the husband and wife, and asked witness if she persisted in denying Mr M'Donald's statement that her husband slept with him all night. Witness replied that her husband was in her bedroom undressed, but he may have dressed himself afterwards and gone into Mr M'Donald's room. She could not account for Mr M'Donald's statement ; she could only give her own statement. Mr Solomon, before putting another question, said : "I don't want to badger you, Mrs Thomson." Ihe witness immediately replied : You cannot ; because the truth cannot be turned or twisted. Mr Solomon asked if witness had auy reason to doubt that Mr M'Donald was her friend. Witness replied that she thought on the previous day that he had been "got at." Herhiiiband was a very influential man. Mr Solomon : So all your husband has got to do is to waive his influential w.ind, and at once witnesses appear to swear away your character. Witness : My husband has often paid pretty j severely for his influence. Alice Marion O'Shea (sister of the respondent), Mary Ann M'Neil (wife of James M'Neil), Mary Ann Patterson, and Thomas Patterson also gave evidence. The case for the respondent then closed, and Mr Macgregor intimated that as Wylie had been in the box he did not intend to call any evidence. The court adjourned at 20 minutes to 5 p.m. Fkiday, July 15. (Before his Honor Mr Justico Williams and a special jury of twelve.) THOMSU.N V. THOMSON AND WYLIK. Suit for dissolution of maniage and L2OOO damages. Mr Solomon ond Mr W. U llacgregor appeared for petitioner, George Thomson ; Sir Ilobert Stout for the lespondent, Georgina Thomson; and Mr J. Macgiegor for the co-respondent, Kennedy Wylie.

Sir Robert Stout, in addressing the jury on behalf of respondent, said, so far as his client was concerned, this was not a contest for money — it was a contest for her honour and her life, and if the jury had any doubt about the matter it was their duty, as his Honor would tell them, to give her the benefit of it. The onus laid on the petitioner, and it would bo wrong and highly dangerous if they were to draw inferences against her if there were two sides to the facts presented. If there was anything in the evidence which might, or on the other hand might not, show criminality, the jury were bound to find that it was not proved. Moreover, he repeated that there was no corroboration, and in no divorce case, so far as he could remember, was the evidence so shadowy as in this one. Even if no evidence had been called for the respondent at all, they had three different people speaking to different facts at different times, and, he submitted, no corroboration. Then, what were the jury to make of the denial of Mrs Thomson They would see that she cloaked nothing whether the story told against herseif or not— they could not say that she was an untruthful witness— and if they looked at her evidence fairly, as no doubt they would, there was no need for any further answer to the case. They might say that there were matters of grave suspicion, but there was a doubt as to whether the allegations were proved or not, and if the jurymen's minds were brought to that state they were bound to find for petitioner. Learned counsel reviewed the evidence, at some length, and, having done so, he said that when the jury came to the second issue, as to condonation, he put it to them that when they had to say whose word was to be believed — that of Thomson or Mrs Thomson—conridering the way ehe had given her evidence, they were bound to believe what she said as to what happened on the night of the 11th May, when it was said by respondent that everything previous had been made up ; and if they did believe what she said on that point the jury were bound to answer that issue in her favour. It was their duty not only to weigh the evidence carefully, but, further, if the evidence was evenly balanced, to give a verdict in tho wife's favour. Thomson, if not a hypocrite, was only anxious that his wife should have her named cleared. If that were so — if he did feel that anxiety— he would not have believed as he had in this case. He would have given his wife every chance to meet the charges by supplying dates and everything else that would help her. He professed to be anxious to have her reputation cleared, and therefore would suffer no harm if the finding were in her favour, whereas, on the other hand, if the jury found against Mrs Thomson she was ruined and damned for life. When Sir Robert Stout concluded his address, Ifr Solomon rose to speak ; whereupon his Honor asked if M r J. Macgregor was not going to do so. Mr Solomon thought that he had no right to. His Honor: Not for the co-respondent ? Mr Solomon submitted that he could not do so when he called no witnesse.;. Korthis contention he relied on " Pritchard on Divorce." It made no difference to him (Mr Solomon), but he submitted th >t Mr Macgregor had lost his opportunity. Mr J. Macgregor submitted that his Honor would decide on the ordinary Supreme Court rule. I'he divorce rules were silent on the point ; and that being so, the ordinary rules applied. His Honor said that he must say that he did not see the principle on which the case referred to by Mr Solomon had been decided, and he did not think it was a case that ought to be followed. Counsel for co-respondent certainly ought to have an opportunity of addressing the jury. It seemed to his Honor that the proper time for doing so, if Mr Macgregor called no evidence, would be after the evidence had been given for the respondent. That was the ordinary practice in civil cases, and his Honor saw no reason why the practice should differ in divorce cases. His only doubt was whether Mr Macgregor should have addressed the jury before or after Sir Robert Stout. Perhaps it would have been better if he had spoken after Sir Robert Stout's evidence was concluded, but he (his Honor) thought that there was no reason why Mr Macgregor should not address the jury now. Mr J. Macgregor, in the course of a lengthy address, said there were many improbabilities in this case, and in referring to two or three incidents which were alleged to have taken place, he urged upon the jury that they should not give credence to ihem in the absence of corroborative evidence. It would be an extraordinary thing if during a period of four years three prying servant girls could not find out something about a household which, after a long interval, could not be construed against some of those living in the house. Mrs Bain's evidence was of a general nature all through, and of so vague a character that the jury would not accept from a witness speaking a long time after the circumstances were said to nave occurred— a witness, moreover, who was putting the worst possible construction on what she thought nothing of at the timp, and one whose husband and sister w ere still in Mr Thomson's service. Miss M'Millan's evidence was specific, but she also never thought it necessary to mention the occurrences to any living soul till Thomson asked her, and then she did not tell him. Miss Sinclair's evidence would not stand the test of examination any better than that of the other two. The jury would not be justified in drawing the inference she evidently wished them to draw ; and in regard to the ballroom incident, the jury would not give a moment's credence to the statement of the girl in its uncorroborated form when it might have bofc corroborated by the sweetheart who was said to have been there. As to Thomson's evidence it did not bear in the slightest degree upon the question of adultery. He had told the court that he had no suspicion of anything being wrong up to the 23rd of February, except in regard to the matter of drink. The jury could not believe that he had appeared in the witness box in his true light. It was almost impossible to conceive that any horsedea'er, as Mr Thomson was, could attain to such a degree of simplicity as he wished to make the jury believe. The truth appeared to be that he was posing before them as a simple-minded man ; but the jury could not believe he was such. He came to that court for the purpose of getting a divorce from his wife, in the first place. Then he also wished to get damages from her seducer ; and, besides this, he made the great burden of the case the proof that his wife was an habitual drunkard. How could the jury explain his conduct in that respect. The explanation was obvious. It showed him not only to be a mean, despicable hound ; but it was also to remoye from himself the responsibility for the condition to which his wife had come, and to shift it upon the co-respondent. That was his principle ooject", but he also had another object. He wanted to enhance the amount to which he would be entitled by way of solatium if the jury found in his favour. He had asked the jury to t;ive him larger damages than he wouldotherwise be entitled to; and he had also done it for the purpose of averting suspicion from himself. It was impossible to conceive any conduct more despicable than that of Mr Thomson. Surely it would have been enough for him to bring sufficient evidence to entitle him to a divorce without blackening his wife's character and making her case hopeless for ever. Learned counsel concluded by appealing to the jury not to look at the case as if they were outside, and say, "Oh, there must be something in it," but, after weighing the evidence carefully, to give a verdict in accordance with the evidence. Mr Solomon said that the intemperate way in which Mr Macgregor had attempted to blacken his client was adding insult to injury. If not so serious it would be amusing to hear of Mr Thomson being described as a monster and a despicable hound. It was for the iury to say to which of the parties such terms applied — to the man who went into a friend's house and stole his wife, or to the man who (-ought to uphold his honour. As to the evidence of the girls, which had been called in question by counsel on the uther side, what motive could they have had for not speaking the truth ? If they had not spoken the truth — aiA there could be no ques-tion of making a mistake— they had conspired with Thomson to make up a story which was utterly foundationless, and then come to the court to commit perjury, and perjury in its most diabolical foim, the object being to ruin the honour and the cha-tity of one of their own sex. Why should they do so These girls had been subjected to a 'most rigid cross-examination in .Sir Robeit'sbest style, and their testimony was not damaged, and no one could soy anything against them. JM rs Thomson herself said that she believed them to be honest girls, but thought they had been "got at." Sir Robert Stout had asked the jury to disbelieve one of these witnesses because she said that certain J

misconduct took place on one or two occasions/ and it was afterwards shown that it was not on one nor two occasions, but it might have been three, lhat was the same as if a man said tint he saw one or two persons going down the street, and afterwards called a liar because theic h^r,,«°i i? HHer c rs .°» s - I* had been asserted by counsel that Mrs Bain had never mentioned one fit! g ,vl, / i°f° •I"*"'*"'*?- That assertion was utterly f ounrtatiouless. She had spoken of one ocraan 0 H n fn n ,nH h Ar lS n went into M « 'Thomson's mom «?a fllJ dMrs , lh " mson °«t and her clothes on the fioor, and afterwards saw Mrs Thomson corning out of Wylie's room. There was one case that was spoken of. Further, Mr Macgregor said that Miss Sinclair's evidence was not to be credited, and yet ho had not asked her" a single question whon she was in the box, so that ho had made no effort to shake her credibility. He (Mr Solomon) submitted that none of his witnesses hat) been discredited nor had anything been suggested against their character. As to the evidence on the other side, he would ask the jury to look at the motive Mrs Thomson had for making mistatements. As her counsel had put it, her very life was at stake. And Wylie had a strong motive for telling a lie. Further, let the fury consider the demeanour of Mrs Thomson in Hie witness-box. All credit to her, he said, for tho admirable manner in which she had ass sted her counsel. Clever as Sir Robert Stout was she had been cleverer. But did her story speak to the jury of an injured and a wronged woman? She was clever, he admitted-clover exccedinglvbut not an innocent woman. And as to Wvlie'a w e S n o ° Ur '-7 + n i S &F? Sol °mon) saying too much inrfi »c sa ld that the jury must have felt disgust fhf,Wi g S orin i^ a man ~who in a matter of this kind had nothing but jokes and quips and Pr U^ leS -" l # c r*™ 83 }"*- Which wa Q s the low creature? The husband who had been charged by Sir Robert with "putting on side" whSn ho begged for consideration at the end of a fivo hours examination of a painful character, or tho man who stood m the box and never attempted to shield the woman he had wronged, but tried on one occasion to crawl out of a difficulty at her expense by saying, in reference to a quarrel between her and her husband, that he had told her he thought she would be more of a lady ? Further look at the way in which this case was managed' by the other side. Counsel for the co-respondent had respondent s statement, and counsel for respondent called the co-respondent a3 witness. Could anything be clearer as to the relationship between the parties? They had been one in the past, and they were so still. Ho would also remind the jury that while the burden of proving adultery rested on the petitioner, the burden of proof as regards condonation rested on the other side. He wonld further point out that condonation meant a reconcilement and a reinstatement of the wife to the position she was in before she transgressed. The only day upon which it was alleged there was condonation was the 11th of May ; but even taking Mrs Thomson's evidence to be perfectly true as to what passed on that day, there was no condonation. There were only negotiations between the parties which came to nothing. In order to show how strongly condonation required to be established, he would refer the jury to the fcase of Hall v. Hall and Kay, reported in the " Law TimeH " (vol. 64, page 83/). 11ms was a case in which a wife gave her husband a written confessionof her guilt, which he believed. Attcr tho confession was handed to him, ho accompanied his wife to their house and slept with her two nights. He afterwards took her to the railway station, and, in the worcte of the judge, parted with her on friendly and even on affectionate terms " ; and yet in the face of that the judge told the jury that they were not bound to find condonation. Further than that, they did not do so ; and the Court of Appeal upheld them. Learned counsel went on to observe that he had no hesitation in saying that in this case tho question of condonation, to use a vulgar phrase, was a " put-up job " ; and for that Detective Bain and O'Shca were responsible. They tried to trap the petitioner into condonation in order to get over the adultery. There was only one other question on which he wished to speak, and that was the question of damages. > At a certain period of Mr Thomson's married life he noticed that his wife unfortunately showed a tendency to drink to excess As soon as ho observed that tendency he sought to check it, but instead of aiding her husband to stop her in her downward career, the co-respondent tried to induce her to drink so as to deaden her sense of shame and in order to gratify his own selfish Sassions. Before Mr Wylio appeared on the scene Irs Thomson was a good honest helpmate to her husband on his journey through life. For a few years her husband was doing well. He had a happy home, was in comfortable circumstances, his wife was kept in luxury, and there was not a cloud above them. They were living on affectionate terms— the woman idolised by her husband and indulged m every way. Then Mr Wylie came to stay with them as the trusted friend of the family, and tried to seduce the wife. When the husband s back was turned ho sneaked into the house, induced his wife to drink, mined his home, and had now left the place desolate. His work, indeed, was that of a fiend. As learned counsel resumed his seat he was lmully applauded by the auditors in the body of the court. His Honor, in summing up, said there were three questions which the jury had to try. The first was whether the respondent and the corespondent committed adultery ; the second, whether petitioner condoned the adultery, if such was committed ; and lastly what amount of damages petitioner was entiled to recover from the co-respondent. If the jury found that there haa been adultery, and that there had been no condonation, petitioner was entitled to recover damages, but only in that event. He was not entitled to recover if there had been adultery and that adultery had been condoned. In England the law was different. If adultery were committed, even although condoned, a petitioner was entitled to recover damages from a co-respondent, but that was not the law here. The first issue, therefore, was whether there had been adultery. The burden of proving that laid on the petitioner. If the jury found that there had been no adultery there was an end of the case. The facts of the alleged adultery depended mainly— it might be said entirely— upon the evidence of Mrs Bain, Miss M'Millan and Miss Sinclair. If their evidence was displaced, then, although there might be circumstances of suspicion, certainly it could not be said that there would be evidence upon which the jury would be justified in finding adultery. The other evidence, ho\yever, mu3t be considered, because, though 'it did not directly tend to establish the chaige, it had an important bearing in determining the question as to how far the main witnesses were credible or not. [His Honor then read evidence on the point given by the petitioner.] Referring to the occasion when Thomson looked through the window, this at auy rate was certain : that immediately after Wylie had been in the house Thomson made the charge against the respondent that she and Wylie had been sitting in the room together, and he made the same charge the next morning. So that it could hardly be suggested that this piece of evidence was manufactured for the purpose of this case. Either the petitioner must have been deceived in what he saw, or if he then and there invented the occurrence for the purpose of QSF&fZj. his y ife and ww y ] ie with it, it was dimcult to see his reason for doing so at that date. As to the direct evidence of adultery, the only things in Thomson'sevidence to raisesuspicionweie that he found his wife in Wylie's room on one occasion in a loose wrapper, but Wylie was asleep, and she was there for the purpose of getting drink ; and that on the 13th February petitioner found them together on the sofa, but that also was a matter of drink ; and then there was the occasion on which respondent said that she preferred Wylie to her husband. As to Kate Bain, it was suggested that there were reasons (apart from the evidence itself) why her testimony should be looked upon with suspicion. The facts apparently were that her husband was in l etitioner's employ ; that she was married on the 11th May, and had a baby very shortly after marriage ; and that her sister was now in petitioner's employ. There was nothing against her, however, except this infant arriving inoppostunely, and it did not appear that' she had any quart ul with Mr.s Thomson. On the contrary, 'she said that she had had some disagreement with Thomson himself. A further circumstance with respect to this witness was that she left not on account of anything being wrong, and bhe did nottellanybody about what had taken place until she was aeked

4

by Thomson whether she had seen anything, and she said "Yes," and was then asked to see the solicitor. That was commented on as improbable. It was, of course, a question for the jury. [His Honor then read Kate Bain's evidence, and also that given by Jessie M'Millan, who spoke of specific circumstances.] There did not seem to be anything known against Jessie M'Millan's character, nor did she seem to be particularly intimate with Kate Bain or Jessie Sinclair. She also kept silent until asked by Thomson whether there was anything wrong, and then she made a statement to Mr Solomon. As to the evidence on the other side, Wylie's testimony was just a general denial of the evidence of the other witnesses. Mrs Thomson also denied that there had been any impropriety, and said that the accounts as to the drink had been exaggerated. It was, of course, for the petitioner to prove the adultery beyond all reasonable doubt. If that were proved, then the jury had to consider the question of condonation. In finding out whether there had been condonation or not they would have to consider what took place on the 11th May. Apart from that there was nothing which they could properly consider as condonation. It was not till the 23rd February that the petitioner suspected his wife. That was the date on which she was said to have made the remark about caring more for Wylie than her husband. If she did really do and say what Thomson and Mrs Toiupkins and Jessie Sinclair said ahe did, it would naturally give rise to grave suspicion. There was, of course, a well-known proverb, " In ■vino vcritas," and he (his Honor) supposed that that applied to whisky as well— a person in wine would probably let out things which when not in liquor he would conceal. However, that was a question for the jury. In order that there might be condonation, there must be complete knowledge of the act of adultery and an intention to forgive it, followed by cohabitation ; and it rested with petitioner to show that there bad been condonation. It was not till after the girls left that petitioner had knowledge of the alleged offence. But on the 11th May he had full information before him, and if, knowing what had happened, he chose to resume conjugal relations, the jury could hardly get out of saying that condonation had been established. There was nothing to show that he did not know at that date all that he knew now— nothing fresh had come to light. However, the jury must be satisfied that he knew and believed that his wife was guilty of adultery, and tbat he chose to resume cohabitation. It had been suggested that there was a plea of condonation put in and sworn to in April, before this suggested condonation took place at all. That was naturally a, subject of comment ; but, looking at the statements in the petition, he (his Honor) did not know that it was at all inconsistent with the case the respondent made out now. The petition charged that in March 11891, and before and after that date, adultery had been committed. Well, they had lived together as man and wife till February 18!12, and a lawyer with a petition before him and knowing that they had lived together would naturally put this plea of condonation hypothetically. So that ho (his Honor) did not know there was anything in the fact of that plea being put in and the affidavit being sw orn before this suggested condonation of the 11th May. Comment had also been made as to the conduct of petitioner's case that it was an indication of somet"hing wrong between the parties that the respondent and co-respondent had put their heads together and were haviDg a joint defence ; but assuming their innocence, it would be perfectly reasonable for them to adopt the line they had adopted, and he (his Honor) did not think that any inference could be drawn, one way or the other, from the fact that they had allied themselves in meeting these charges. Then as to the ciuestion of whether there was condonation on the 11th of May, that depended upon whether the jury gavo credence to the petitioner or the respondent. If it appeared to them that the husband was telling lies with regard to what took place on that date, then it threw discredit on his whole case. If, on the other hand, adultery had been proved, and it appea red that the wife had been telling what was not true on the niain issue, it was natural to doubt whether her evidence was truthful on the secondary one. As regarded the question of damages, the principle upon which damages should be assessed had been fairly enough stated by counsel. The jury should not look at the wealth of the parties. Damages were not given as punishment, but as compensation for the loss of the wife. If a wife was a good wife, so much more money, apparently ; if she was a bad wife— well, so much the less. If it be the case, as was suggested by the petitioner, that his wife was a good wife— and it had been proved by all the witnesses that she was a good wife— and further, that she was corrupted by Wylie, a lodger in her house, taking advantage of his friend and using drink to assist hiiii in ruining the woman, that was a matter which the jury should take into consideration. He did not know that he need trouble them any further. They -would kindly consider their verdict. Mr Solomon asked his Honor to tell the jury that petitioner was bound to bring the co-respon-dent before the court. His Honor said that that was so when the corespondent was known. He need not, of course, have asked for damages. The jury, after a retirement of 20 minutes, returned to court and answered the issues which had been put to them as follows : — Were respondent and co-respondent guilty of adultery ?— Yes. Did petitioner condone the offence? — No. What damages, if any, is petitioner entitled to? — LISOO. The Foreman (Itfr J. Roberts) : Is it necessary, you Honor, that I should state that the verdict is entirely unanimous ? His Honor It must be entirely unanimous. Mr Solomon applied that co-respondent be ordered to pay the costs of the suit. His Honor said that there would be a decree nhi, returnable next sitting day after three months; costs to be paid by corespondent ; special jury and second counsel certified for. Sir R. Stout applied that costs of the trial be allowed to the wife, and that the court should settle part of the damages on her. After a short discussion between counsel it was decided that these questions should come up in Chambers. Sir Robert suggested that tha decree be suspended till these matters were disposed of. His Honor concurred in the suggestion, and intimated that the decree would be suspended till the applications in question were disposed of at the first sitting in Chanibeis. IN CHAMBERS. Tuesday, July 19. (Before his Honor Mr Justice Williams.) THOMSON V. THOMSON AND ANOTHER. Motion to settle costs, &c. (Sir Robert Stout). v Mr Solomon said that whether his Honor felt at liberty or not to allow Mrs Thomson part of the damages after hearing the application on her behalf, he might state that his client was quite willing— indeed anxious— that the wife should receive LSOO. It might bo that Sir Robert Stout would ask for more. He did not know whether he would or not. Sir Robert Stout stated that he should do so. It was accordingly agreed that the matter should be argued after the luncheon adjournment. After luncheon, Sir Robert Stout said there were two points involved in this case. The first matter was a question of costs. He submitted that since the decision of Robertson v. Robertson, and in the later cases up to 1891, the theory had been that costs must be provided for by petitioner in such a case as the present. Jessel had gone so far as to say tliat, independent of law, right feeling should lead the husband to allow costs. As to damages, learned counsel cited Latham v. Latham and other cases, and then went on to submit that the court ought to so settle damages as to enable the woman to live ■n good life. He (learned counsel) thought that an order might be made in _ this form : that the costs as between solicitor and client should be a first charge on the fund, and after that that LSOO should go to Thomson, and the balance should go to the

Mr Solomon : I say that the court ought not to keep her. His Honor : In all cases it seems that there has been a settlement made even where the wife has been guilty, if there are no children and damages have been given. Mr Solomon admitted that, but contended that the courts showed much greater disinclination to give damages to a guilty wife than to an innocent one. His Honor said : With respect to the costs, I think the case of Robertson v. Robertson, which deals very fully indeed with the principle on which a wife's costs are allowed, shows that her costs should be taxed and should be paid by the husband, although she has been unsuccessful in the trial, ajad although the taxed amount may bo iv excess of that which has been already secured. That case has been followed in Otway v. Otway, and has been recognised in Russell v. Russell. I hardly think that the fact that the possession by the wife of a trifling amount of separate estate — a house producing 6s a week — is sufficient to alter the position. As to the apportionment of damages, that is a more difficult question. I think, however, that looking at the fact that the rate of interest is likely rather to fall than to rise, that the sum of LSOO is hardly sufficient to allow as the amount which is to be set aside f or the maintenance of the wife. I quite agree with Mr Solomon that it is undesirable, and it would be unjust to the husband, that more than a bare maintenance should be allowed to her. She has, however, this house to which I have alluded, and I think that in addition to what already belongs to her she should be allowed the interest on a somewhat larger sum than LSOO. I think it would not be unreasonable that damages should be thus apportioned : that petitioner should be entitled to L 750, which .should be a first charge upon the sura of LISOO ; that the L 750, which he would take, would cover the extra cost to which he had beeu put; and that the remaining L 750 should be invested in the names of the trustees mentioned, for* the benefit of the wife so long as she remains chaste, and so long as she does not marry the co-respondent. It she chooses to marry someone else she will be at liberty to do so without forfeiting her life interest ; but if she lapses into unchastity, or if she marries the co-respondent, her interest would revert to the petitioner. Ou her death also the corpus would revert to the petitioner. The act does not contemplate that the corpus should be settled on the representatives of the wife after her decease, and there is no reason at all why it should be so settled.

In answer to a question by Mr Solomon, His Honor added : There is no doubt at all that all the costs which the husband has been

wife. The LIOOO would only give her L6O a year at the outside. His Honor : And that Thomson should have reversion of half at her death ? Sir Robert Stout said that that was what he proposed. The names of Mr Daniel Stewart for the petitioner and Mr Mondy for the wife had been suggested as trustees. Mr Solomon said so far as costs were concerned he understood that the co-respondent was a wealthy man and there was no doubt that he would be able to pay costs. He, however, did not wish to press the matter of costs, but it was his duty to point out that there were cases on the other side to that taken up by Sir Robert, and he submitted that the man who had brought the woman to her unfortunate position was the one to pay her costs. Mr J. Macgregor said that as to costs he would suggest that it should be taken into consideration that very heavy damages had been given against the co-respondent. His Honor : The heavier the damages the greater the guilt, and the more he should be obliged to pay costs, should he not ? Mr Solomon said as to damages he submitted that his learned friend was unreasonable in his demand. It was very necessary, he thought, that the woman should only receive such money as was actually necessary for her subsistence. They knew that she was addicted to drink. Sir Robert Stout understood that she had taken the pledge and had kept it for a month. Mr Solomon said that the husband had to restrict the wife's allowance of money so as to prevent her from getting drink, and if she got more than was necessary for her subsistence she might use it for that purpose and get into trouble again. Damages were given as a solatium^ to the husband. His Honor observed that it was peculiar that that being the undoubted rule as to damages, the Legislature should have made this provision for settlement on the wife. It seemed somewhat illogical. Sir Robert Stout said that the reason as given was that it was fairer to have it that way than to make a charge for permanent alimony out of the husband's means. Mr Solomon urged that in this case the woman had a house worth Ll5O ; she had no children to support ; and she was only 30 years of age. Surely those were circumstances that should compel her to work. But he would go further in her favour, and have LSOO secured to her. At the same time he would strongly submit that it would be unreasonable to ask for more. His Honor thought it would be far the butter way that she should have a life annuity. Sir Robert Stout said that LSOO would give her only 11s 6d per week, and that would not keep her.

put to, including the costs which he has had to pay on account of the wife, are part of the costs in the suit which have to be paid to the husband by the co-respondent. There is ample authority for that. Sir Robert Stout : There is only one other thing, your Honor. The deed will have to be approved of by the court. His Honor agreed, and ordered a rule nisi.