SUPREME COURT.

Otago Witness, Issue 2168, 12 September 1895, Page 11

SUPREME COURT.

IN CHAMBERS. Monday, September 9. (Before his Honor Mr Justice Williams.) KNOX V. PISH. Summons for special jury of four. Mr Finch for plaintiff; Mr Chapman for defendant. ' Accoidiugly ; coats reserved ; date of trial to be fixed on Ihuraday, 19th inst. CIVIL SITTINGS. Monday, September P. (Before his Honor Mr Justice Williams.) UROWN V. HOOD AND ANOTHER. Claim by the trustees of the will of Thomas Brown (deceased) for the custody of bi< child. In this previously-beardciso, in which thy Hon W. D. Stewart and Mr Woo 'house appeared for the plaintiff, and Mr W. C. MacGregor for the defendant, his Honor gave judgment a* follows :— The reckless conduct of Mrs Brown in money matters, her subsequent mairiage to Mr Hood, which was concealed fioin Mr William Brown, and her expict-sed intention to leavt! the colony and t-ke the child with her, com pi tely justify Mr William Brown in instituting those proceedings in the interest of the child ami in bring' ng the whole of the circumstances before the court. What the court now has to decide is v htthcr, lookiog only at what is best foi- the cbiM, the mother should be removed from her office of testsmuntary guardian and should be deprived of the custody of the child. The child is a girl between five and six years of age, healthy and well cared for in every \v*y, fond of her mother i.nd her half-brothers find s'sters, with wlio'ii fell* has been brought up, and also attached t» Mr Hood and his family. Her mother has brought up her other children propuily, and Mr Hood has brought up his family properly. The families appear to .live happily together, and the child is loved by her mother and treated by all around her with kindueFS and affection. In such circurnstanc3S a very strong case must be made to show that it is really not for the moral and material welfare of the rhild that j>he fehould remain in her mother's custody. To take agiiloftba< a?e from a mother whom flx«- lnyes and who has hitherto been to her everything that a mother should be, and from her halfbrother.-, and filters with whom she has been brought up, and to pl*ce her among sti angers, however respectable, is a step which only extreme necessity would justify. The most essential part of the training of a youug chiLi is the cultivation of the afftci ions ; anything that would seriously wouucl her i»ff»ctious or interfere with ih-ir giowth is liable not only to cause temporary pain, but' life'ong injury. Two grounds are biiggcsted on which it would be for the child's benefit to be removed ifv«m its mother's custody. The first is that the laxity and want of principle exhibited by the mother in her business transactions ftbow that sheisuulitto be trusted with the inoiol training of her child The second is that owing to the mother's marriage with -Mr Hood, the large size of the combined families and the slender means of Mr Hood, the child will not get the full benefit of the moneys applicable for her niaint' n»ncf With respect to the first ground, it is obvious that no one would ever have thought of taking away the child fiom her mother had it not been for the fact that the child if she lives, will come into money. The mother is easygoing, goodnatured, and unbusinesslike. She married Mr Brown, who had considerable means, and s^ems to h-ive been extravagant during his life-time as well as after his death. Her extravagance, however, was not so much in rninUteiing to her own pleasure as in assisting her relations who leaned upon her. It is quite possible that her behaviour may have brought her within the penal clauses of the Bankruptcy Act. Had there boen any property of the child to administer, these would have been very good rsa'ons for prevonting her administering it There is, how*-ver, no property to administer ; the sums to be applied for the maintenance and education of the child are in the dis cretion of Mr William Brown, and ho can apply them himself or see that they are properly applied. I pee no reason, however, to suppose that the mother's conduct is such ns to indicate that her influer cc over the child will be for evil. It would be altogether unreasonable to draw the same inferences from the conduct of an unbusinesslike wi man as would be drawn from the like conduct on the part of a capable man of business. She may have been careless and extravagant; she may oven, when cornered, have told ribs. The latter, however, not unfrequently happens iv the case of woithy and even pious persons, and does uot necessarily indicate exceptional depravity. There was nothing in her conduct to indicate a deceitful habit of mind. On the contrary, fiom the way in which she gave her evidence, I should judge her general disposition to be frank and open, and that there is no risk of the child being trained by her to habits of deceit. The most effectual way to train up a child to such habits is to place it among people whom it does not love, and of whom it might be sfraid. Nor do I think the fact that the child, by her mother's marriage with Mr Hood, becomes a member of Mr Hood's household, will be injurious to her. From the exceedingly satisfactory nature of the evidenc- as to Mr Hood's character and antecedents, and from the fact that he has brought up his family well under very disadvantageous circumstances, I am satisfied that the influence of Mr Hood will be beneficial both to the mother j and to the child. Mr Hood has been shown to be a man upright and conscientious, scrupulous in money matters, and, moreover, possessed of an amount of thought fulness and general culture that is often wauting in persons who, co far as mere wealth is concerned, are much better off. The suK't'e«=tion at first thrown out that Mr Hood was of drinking habits is, I am completely satisfied, without the Blighteßt foundation. Hie only shadow of evidence in support of the suggestion was the incident spoken of by Mr Lorie. Mr Lories impression is the result of a not unnatural but, nevertheless, a wholly erroneous misconception. Nor can it be reasonably supposed that Mr Hood's influence will interfere with the religiouß training of the child. There is no doubt of the sincerity of the ■mother's wish and intention to have the child trained up religiously, as she haß had her other children trained. There Is not the slightest reason to suppose that Mr Hood, whatever his own precise religious beliefs may be, will in any way interfere with or duoouragc the mother in so training up the child. On the contrary, from the course he has followed with respect to his own children, she may expect to receive from him every encouragement. No doubt it in important, in view of the child's prospects, that Bhe should not associate with persons who are ill-mannered and unrefined, but Mr Hood and, so far as I can

ascortain, the members of his family appear to be persons of quiet and unassuming manners and sufficient refinement. In the course of years, when the child grows older, it may become desirable that the child should be in a different position, so as to enable her to make the best use of the educational advantages to which her fortune wouli entitle her, and which she will then be able to appreciate. For the next few years, however, there seems no reason why she should not be brought up in her mother's care and under Mr Hood's roof. Tho marrisge of the mother with Mr Hood appears to mo to rendertfao position of Mr William Brown really less difficult, as he can arrange through Mr Hood for the due expenditure of the sums he advances for the maintenance and education of the child, so that the child will got the full benefit of them, instead of being left to deal with so completely unbusinesslike a person as tho mother. If Mr William Brown approaches Mr Hood as one i upright and »traightfo\vard man anxious to do ' his duty would approach another, I have no doubt that all difficulties will vanish. lam satisfied, therefore ia ,that for the present at any rate it will be for the best interests of the child that she should remain with her mother. To deprive so youog a child of a ruolher's love and in the name of the law to hand ber over to strsngers, would, to my mind, be a piece of cruel pedai. try. Neither the mother nor the child must, however, without leave, go or be taken beyond Ihe jurifdiction of the court, and there mutt be an effectual undertaking of some kind to that effect, to be. embodie i iv the decree or otherwise as may be arranged. Subject to such an undeiUking, the action will be dismissed. Ou the question of rose, hi* Honor mid he had thought a good deal about the matter. He would be ve<y much di-incli-tied to coiulcinn Mr W, Brown t'i pay coits unless thore was some fuud out of which he cou'd recover them. His own view of tho c^s^ was that it might be considered that tlie action was l'eally in respect to the education of the infant. It niUht be po.-bible that the costs of hnth parties nu'sht bo paid out of the iucome. Counsel would have to tli ink over that. He hoppd the parties would approach each other in all subsequent proceedings in a peaceful spiut. Mr Woodlouse said he would consult with Mr Muctjregor on tbc nutter. It was agreed that the question of costs should be mentioned in Chambera on Friday.

DIVORCK AND MATRIMONIAL CAUSES. Mommy, September 9. (Before his Ilono; Mr Justice Williams.) RYDER V. RYDER. I A husband's petition for dissolution of marriage. Mr Sim appeared for the petitioner, Abraham St George Ryder, farmer, of Waipiata, near Nasoby. Ther< waß no appearance of the respondent or the co-respondent. 'I he petition set t'orth that the petitioner was, on September 28, 1888, lawfully married to Ellen Woigaii, than a spinster, at All Saints' Chinch, Woodville. After the mairiage the potitioncr lived and coha' iUd with his wife at Woodville, and afterwards in New Plymouth, Wangamii, and IVmeriiton North. The if sue of the ruarringe wot two childreu— a daughter (who died in infancy) and a son (who was now five yearn of sge). In or about the month of August 1894 the petitioner's wife committed adultery on several occasions with aii an named Fivink lewis. The petitioner had been unable to find the m»n Frank Lewis for the purpose of inakiug him a corespondent to the petition. He therefore piayed that his Honor would be pleased to dedee that his maniage with the respondent might be dus 'lved, and (hat he might have such further and other relief on the premises as might seem just. Mr Sim, in opening the case for the petitioner, said there was an affidavit of service of the petition on the respondent, and his Honor made an order op .Time 28 giving the petitioner leave to procutd without joining any co-respondent. The evidence in support of the adultery would consist of a confes-ion made by the wife to the petitioner and to Mr Bain. Iv May of this year the resfudent gave birth to a child, and she admitted to Mr ttyier and to Mr Baiu that Frank I ewis was the father of the child. Steps had been take, to try and find Lewis, but they had not been successful. The IVtitioner, in the course of his evidence, said when he left the North Island his wife stayed with her mother at Wauganui. Witness cacue down to Naseby to \vin<l up an estafe for the New Zealand Land and Loan Company, but he made very little money, und was quite unable to provide a home for his wife. Mrs Ryder came to Nascby later on, but witness, who was liviag in a rabbiter's hut, could not think of taking her to live with him there ; the place was not fit for a woman who had been brought up oa Bhe bad been— in fact, it was unfit for any woman. Mis Ryder left Naeeby and went to live with witncßi"'* mother in Chri*ti-hurch. Witness wanted her to go back to her own mother in Wangauui. It. wai always witness's inteution to provide a home for his wife when lie was in a position to do so. When his wife came to Dunedin he allowed hoi £3 a month, and aho made some provision for clothing His Hunor said he had receireJ a lottor from the respondent. Of course it was very wrong of her to write to him, but at the same time there was a question in the case— not between the petitioner and the respondent, but between the petitioner and the public; and he was to take notice of what was stated for the purpose of asking the petitioner any questions. She said the letter was confidential, but that was out of the question. If she chose to write to the bench, the letter became public property. She hoped she was not doing wrong ; but she had no money to go on with the case and she did not wish to defend it as long as Mr Ryder left her her boy. Her husband, she said, left her pannilcga, having parted with everything belonging to her. His llonor aeked Mr Ryder if that was the case. Witness replied io the negative. His Honor : You left her with money when you came away ? Witneaa : To the best of my recollection it was £10. His Honor : When did you give her any money afterwards ? Witness said he could not speak positively as to the time, but when she went to Wanganui she got some. His Honor, perusing the letter, said Mrs Ryder went on to say : " His letters became few and far between, and my people were very dissa isfied at my being left at home with the baby to kefp, as they were not well oft". It ended in mother appealing to a friend to supply me with means to join him here." In reply to questions by his Honor, witness said he arranged that his wife was to get £2 a month before che came down here. Her people were comfortably off, to the best of his knowledge. He wrotu to his wife regularly during the time she was with her mother. His Honor : What do you call regularly ? Witness said he should think that not more than two or three weeks elapsed between his letters. Mr Sim : Did you write as frequently to her aa she did to you? : Yes. All her letters were answered. Ilia Honor : Have you got any of her letters? Witness : I don't thiuk I have now, you Honor. She says: "It ended in mother appealing to a friond." How did she get money to come down here ?— That i« more than I can possibly say. You did not send her the money ?— No. I objected to her coming. She telegraphed and asked me if she could come. I telegraphed back saying certainly not, and explained the why and wherefore. Did her mother telegraph you to meet her when she arrived ?— No, your Honor. His Honor, again refe-ring to the letter, observed : Then she says this, *' I did not know a creature nor the name of a street. For three months he was written and telegiaphed to, but he took no notice, knowing all the time that the little boy . . . might be starving. My people Bent me money, and I went to Naseby. 1 Was she long in Dunedin before she wont to Naseby ? Witness : That is more than I can potnibly answer. She might have been in Dunedin for some little time, but I don't think it can have been long. Did she not tell j ou when 6he came to Naseby ?— It was some time after she came to Naseby she told me she had been in Dunedin I don't know how long she was in Dunedin prior to her coming

to Naßeby. She wrote to me from Dunedin, but it wns some time after ehe arrived. Hiß Honor asked where she stayed in Dunedin f Witnets repliei that his wife told him that she stayed at a boarding house. His Honor ; How did she keep herself when in Dunediu? Witness : She toM me that she brought money from Waijganui with her. You did not know at the time that she was io Dunedin?— No. JLtid she not write to you from Dunedin?— Some time after she arrived, and prior to her coming to Waipiata, she wrote to say she was in Dunedin, and asking if I could go down to see her. I wrote telling her I could not go. Then she said : " I went to Naseby, and instead of finding him living, as he represented, in a mud hut, he was staying at a hotel and living in luxury." Were you living at a hotel?— Ko; not at the time tho arrived. Had you been before? -During the firet week or 10 days I stayed at the tu.tel. Then she says : "He asked me what I meant following him about the country, and simply turned me out, telling me all day that ho had no money, to keep me." Did you «ay that ?— No, your Honor. His Honor, continuing to read the letter, said the writer dtatcd that s>he pleaded with her husband to help her, and asked hira if she tried to earn some mocey would he take her back again. He neither wrote tor sent her money while she was ttnying with his mother in Christcuurch. Witness admitted that h.s wife had no money from him while she was in ChrUtchurch. Hi* Honor : Why oid you not tuppl> her with motey in Chrhtchurch? VViinens : Iv the hist place aho did not ask m» for it. It was ateo difficult under the e'reum stances to forward funds, and I wished her to stay with htr mother in Wanganui. When she left Naseby whr.t kind of leaving was it?— Wo parted on good term* The only disagreement "was as to where she was to go. I wished ber to go to her mother, and bhe declined to do so. How 'ong did you sny she was with you at Naseby ?--About three mouths, I think. She went to jour mother in February 1892, and retun.cil to Durudin towards tht end of 1892?— Yes, your Houftr. Then the tuyj from Febiunry to December 1892 you did not supply her with funds.— Yes, it was about that time I think. While she was in Christcliurch 1 did not send her any money. Hia llonor said the writer stated that she then came down to I Uinediu and went to Mr Adams, who summoned the witness. Did he get a suminuub from Mr Adams ? W itness admit toil that he did. Hu Honor: Why did you not let us know all about that before ? You were summoned. What /or? Witness : For maintenance, I think. I canu down at once and made the best arrangements I could The summons wa« never heard. And the arrangement wus that you were to pay her £3 a month. She says this also: During the time that she was in Cliristchurch jou nevet wrote to her. Is that the case ?-No ; it is uot the ca»e, your Honor. How often did you write io her while she was iv Cliristchuich? — I could not say positively now; I don't recollect It was more than onco at any rate ; twice, I think. His Honor, once more referring to the letter, read : ''My husband, when summoned, agreed to pay £3 a month for the keep of m)Eclf ami boy, which in the winter, for food, clothes, and runt, was aim* st starvation. During all tbst time I wrote to him every week, pleading with him, for his boy's sake, to see me, or even ste his boy ; but he took no not cc." That was after you agreed, under pre&ture, to pay £3 a month.— Did she wi ite to you ? Witness: Not so frequently as she said, your Honor. Have you any of her letters at all?— No ; I don't think I have any of them now. Possibly there might lie one or two at Waipiata. Did you write to her?— On one or two occasions I think I did. I answered all her letters. After she sent the lawyer'a letter to you, your relations were not so friendly ?— Naturally they were a little strained. I cannot Ray they were unfiiendly; but naturally I resented her taking the step she had. When yon did not give her any money for a year?— There was no nccebsity if I had known the facts of thecai'C. The facts of the case were that she had no money.— l did not know that she was inDunedia ami had left my mother. She came down at the end of 1892, aud she was in Dunedin foi two years?— Yes, your Honor You often had to sue her during that time?— I could not say that I recollect now. I went on one or two occa-ions to soe her, but she had gocu to the country somewhere. Did you cobabit with her at all during thos<3 two years?— No, your Honor. When did you last cohabit w ith her ?— On the occa-ion of her last stay at Naseby. She goes ou to Buggeat that you were too frlcudly with somebody else thcro, who died, but thore ia no need to go in'o that. "1 then took a situation at Waimato, where Mr Ryder followed mo. I tt.ld him all the truth, and told him I would plead guilty and help him to get a divorce if he would only leave me my boy, which he contented to do." Did she say that ?— No ; not in that way. Iv the first pkee she asked me not to take any proceedings whatever. I pointed out the impossibility of that. She then asked, if I took procoedi< gs that the boy should remain with her. 1 wo.ild not commit mjself iv auy way by making a statement of the sort. Where 13 she liv-iug now?— l don't know. I think she is in lodgings-.- SJieJs eomc where in Duneiin, I believe. Robert Barn, piivate detective, also gave wi dence stating that tho respondent aisked him to assist her to find Frank Lewi?, the father of hor child. He -had searched for the person in question, but could find no trace of him. Mr Sim understood his Honor to say theie was no use speaking about the couuter charge. His Honor replied in the affirmative. This closed the petitioner's case. His Honor : I think the petitioner is entitled to his decree. 'Jhe fact of the wife's adultery has been proved, and thore is no reason to tuppose that the petitioner has been an accessory to-the adultery, or has connived at it. While, however, admitting that the petitioner may be entitled to his decree, I cannot fay I am entirely satisfied with the conduct of the petitioner with respect to his wife, but if it was sought to eitablißh that a petitioner wfco has" not been guilty of connivance has been guilty of some of the matrimonial offences mentioned in section £C of the act oi 1867, the burden' of proviDg that lies on the respondent. Of course, if the petitioner in openiDg his own case makes it clear that he has been guilty of any of the offences mentioned in that section, then the c urt would refuee a decree; but if it is Bimply It ft doubtful, then, as the burden of proof lies on the respondent, the petitioner, so far as tho matrimonial offences mentioned In sectiou 26 are concerned, is entitled to the benefit of tho doubt. A decree nisi will ba granted. , Mr Sim : Will your Honor give leave to move to make it absolute in three months? His llonor : Ye».