SUPREME COURT.

Taranaki Daily News, Volume XXXXV, Issue 59, 10 March 1903, Page 2

SUPREME COURT.

Saturday, 7th Marob, 1903—Before His Honor, Mr Justice Oonolly. j pivcro.s j

MART ELI7EN DUOKGR v. ERNEST DOCKIJR. j Mr Samuol, wbo app?ared for the petitioner, Mrs Dueker, said there was do defence to this case, atid no appetr,ance of the respondent. He sated thut the petition was filed on the ground of desertion for over five years. The partioß were married in Januiry 1902, and there was one child (a girl) now nearly 10 years of age. No mitrimonial offence was charged against either party, but there were constant ilwgraements. Ha submitted it was one iif those cases which the recent law was int«!;d(d to me't.

Petitioner give evidence bearing out Counsel's statement. The quarrels were chiefly over property, her husband beting in the habit of taking his money to his parents instead of using it for his onti home. .The house they lived in when first married was held in trust for her husband by his father, as Iter husband was under age. The property was cleared of encumbrances by selling a part of the land, but when her husband attained his majority the property was not transferred to him. This caused quarrels. The house was even tually sold and petitioner had no home, (n May, 1895, her husband went to Warea. Be sent her only £\. Hh then left Warea and went to Australia without saying a word about going. Witness took in work for a fe* months and then obtained a situation, where she remained for several years. Applied for a warrant for her husband's arrest for desertion, but had not sufficient money to pay for its execution in Australia. Received no message or money from her husband until after she wrote for money for support of her child. She was in Sydney at the time I and her husband in Queensland. Received eight letters from hiui in 1899, each enclosing £1 for the child's support, the last being in August. Had received no further money from Mm. Met her husbind for five minutes s ; x years ago in Queensland, and asked bira if he could do anything to help her, and he replied in the negative. Did not meiit him again until last Christmas Eve at New Plymouth, when < hey met in the street, Hir' husband then said he had no home, and

was working at Eahotu. He aakcd her to go home to her mother for six months, and he would we what he cauld do for her. The conversation took place on the Esplanade. She tken consulted her solicitor, and the divorce proceedings were takes. A letter was put in from respondent in which he acknowledged the receip* of the divorce citation aid siid he expected action would have been taken long eince as their marriage wais a mistake, and they could not live together again. John W. Riwlioson, brother of petitioner, corroborated petitioner as to the application to the magistrate to bring baok her husband from Australia to compel him to tuppoct her. Did not consider there was aoy possibility of petitioner and respondent living together again. Deoree nisi granted with costs. Peti iocer to have custody of the child and be at liberty to move after threa months for the decree to be made absolute.

Proceedings in banco were than taken and tha Oourfc adjourned till 11 a.m. on Monday. Monday, 9th Maroh, 1002. WELLS V. WELLS, ROBERT 08BEN CO-RESPONDENT.

Mr Kerr, instructed by Mr Spence, Stratford, for petitioner, and Mr Malone for respondent. The following jury were chosen Messrs J. Butterworth, J. S. Basquet, Thomas Bell, R. W. Dixon, B. Uoleman, W. Bewley, J. Houghlan, 0. J. Knuckey, A. Gilbert, B. J. Hoskio, A. Bayly, and R. F. Langman. Mr. Bewley was elected foreman. Mr Kerr exercised bis full right of challenge, challenging six, Mr Kerr opened his case, detailing the facts he proposed to prove, and called

Albert James Wells, who said he was a labourer residing at Stratford. He was married to respondent on the 14' h May, 1896. Five children, four boys and one girl, were the result of the marriage. The youngest is 11 months old. Since the marriage I have lived in Stratford. Between two and three years ago I left my wife for about a month on account of her adultery with one Richardson. I condoned this and forgave hir and went back to her and from then till the 13th December last lived continuously with her. About tbree months ago I noticed a kind of dis l ance about my wife as she seemed to have no love for me; she went | out a great d*al of a night, and stayed out till 10 and 11 o'clock. I told her I did no*i like her going out of a niglit, that her place was at home looking after the children. She ea : d she was quite a youDg woman and was going to enjoy herse'f. 1 told her that I bad hoard she had been saen standing about the s'reets with a man named Ogben late at night, I told her I did not wish her to speak to him. She replied that she like! him and would spe.k to him as much as the liked, and th it I would never stop her doing so. I remember one afternoon towards the end of November I was away from homo with a ho; S3 and dray. As I got within 100 yai d-< of my home I met my wife. I ask d her wh re sh) whs going; sht-' repliad she was goirg down towu, us she did not. want to stop home. I asked her not to go, but she went. 'She did not return homo thit night, or Sunday.

To His Honor: I lud to look after the children and took af er the wants of the baby. To Mr Kerr: After putlog the children to bed on Sunday evening I went to loak for my wif:. I mit her with Ogben, the ca-resp >nden r . I told him be was upsetting my house, and asked him not to speak to my wife. Ho said he' would speak to her as long as she spoke to him. Ogben is a stou*, big man, half as big as myself. The conversation took place in front of the Army Barracks. From information I received I went to Mrs F1 tv.l's. Saw aiy wife there. I asked her to com home. Sae siid she did not want to. She said she lined jOgben, and if sh> cime home he'd be a snag. I asked Iwr, if she did not care for me, >o come h me for the sake of the childtea. At last I prevailed on her to g > homo. On the Monday (nexi day) the was suffering with toothache, and asked me to give her 2s 6d to get her too'.h drawn. She went. I asked her to be bao'< by dinner, as I wanted to get away to work, Shortly after dinner I wen down town and met her. I asked her

w:y she did i .t- «"•»: back ns t>he promised. She said s:.o did not w*nt to come back; she wn't going down til* coast to get work and Ogben w»s going to follow her in a week or two. I 6wid Imve you be«n carrying on wi'h liim. She <-ai(l I wkk out with hiiii one night Finally I got her to go home with ina. From tut time to the 13<-h D-c.-mber, about a fortnight, rVhi continued h<r coldness to me and foiog out at eight. On Siturday, 13-h December, I got bom* from woik abuut 6 p.m., bad my tea and did several thing*. When my wife was leady to go down town I as-ked her to wait for me and I would go with her; she said she could not as she was going to the play. Bhe went away a little after seven, refuting to wai for m®. I dressed and followed, leavit.g about eight o'clock. Saw ay wife down town, but she avoided ma when I tti<>d to speak to her. Missed hsr, end Inter saw her opposite the Ololhing C rapany'rt shop. She then went down tliu street. I followed her, md she passed over the Patea bridge nstead of going to the Town Hall. She was walking fast and I could not iverfcake her. She turued up Pageand a lit'.le further on' a man Tossiid the street and met her. She raa 50 to 100 yards from me. This raa about 8 o'clock. Siw her and the nan go up the street. Oould not see vho the mm was as they wen too for .way. It was a moonlight night. I rent oack to town as quickly as I oould wilk. Met Mr Reynolds and we etucned to Page-street together tOMt f we could fi id my wife and persuade ler to go home with me. Oould not 46 bar and we walked up Page-street. Ls we were going put some pinna osignis in the Oonain we heard 'oices; we were close to the fecoe in he Domain. I recognised my wife's 'oice, and I got through the fenoe and ound my wife lying down side by side with a man. The man was Ogden. I laid " You are here carrying on with ny wife I see, after being told by me io keep away from her. Ogbea got ip and 6aid, " I don't cue a d—, I ■vill fight the two of you." He rushed it Keynolds and struck him. We Reynolds and myself) went hack to own. My wife and I did not speak o eaoh other. Later I returned home, nd as I was going I saw my wife and )gben part at the corner of Breoon icd Opunrfka-roads. On arriving iome I found my wife there, and said, ' Are you going to stop here with hese children." She replied "Yes." : said " If you are going to stop hen I'm off." I went back with Reynolds ind stayed with him. Have not lived vith my wife since. I received this .his letter (produced) from my wife lated 19 th Deosmber, it is written and ligned by my wife. The letter was read by his Honor ind was a general denial of any im>roper intercourse with Ogben, and isking for forgiveness, and bagging her tusband to come home to her and the hildren.

Witness continued: When I brought her home from Mrs Flaveil's, she said she did not like the hasty way I spoke to her, and I asked her to forgive ma. By the word " knock " I suppose sha meant the shook of my leaving her, fiy Mr Malone: Was improperly intimate with my wife before oar marriage. Oinnot remembsr her ooming home one evening and complaining that Eichardson had oaught hold of her. RiobarJson had recently oome out of an asylum. Did not want my wife to bring an action againat Richardton, Sad no conversation with her on the subject. My wife did not suggest it as far as I can remember. I do not think my wife'* sister «h present when ahe aaid sha .liked Ogben. My wife's aiater did atop with us for a fortnight. To his Honor: It ma gometima dor* ing November. To Mr Malone: Understood Ogben'a mate was courting my wife's eister. Ogben also used to take her out for walks. On one occasion, whan we first heard my wife's sister was going with Obgen's mate, my wife said aha pre* ferred One night in Nov< mber I kicked at my wife, but did no; kiek her. It wae because I found her talking to a man at half past tan at night. I only kicked her once. Another man was present, and I fancy Ogbra wa« not far away, as on the night of the assiult, Ogben siid he heard mo swear at her.

To his Honor: I was near enough to kick ker. His Hooor: Then it «u an assaa't.

To Mr Malone: It wis about a week before she Ift home and went to Mrs Flavell's. I had trouble with my wife saying there was bo feod in the bouse, when I waa bringing SOs wortb of groceries home on the dray. [ cannot remember if there was trouble on the Saturday aha want to Mrs Flavell. There was food ia the house that Saturday. There was food there between morning and midday, I promised to try and bring food by dinner time but could not get back in time. I t,ot back between two and three o'clock. My wife left as I got nfl'ir the houss and said ahe did not want to stop. She thought die had a grievance against me. 1 did not know on Saturday she had gone to Mrs Flavell. As we wrre going home she complained of my hasty temper and I asked ber forgiveness. At times we lost our temper with each other. Ido not know that I laid things I did not mean. I sometimes do things Ido not mean when in a temper. I cannot say if my wife doe* and ays thing* she does not mean. My wife was not in any temper on the Sunday when I went to fetch her. On the Monday when my wife went away with my lmlf-crown £ was not in a tamper; 1 w< ut to look for her and asked her why she did not come home, She said aha did Dot want ts come home as ahe was going to get work and Ogben would follow her. Sbe was not annoyed with me. When she said the young man hid laid hands on ber I did not say " and dragged you down." Whan my wife went down town on the Siturday evening I said I would try to oatch her up. When 1 saw her on the street she turned her back to me; she bad tol i me, after we cime home from Mrs Flaveli'e, she would not rprak to ma on the street. I was a yard or two dW<y from her. She waa with Miss Jeffries. I think ahe siw me. I did not go up to her and speak to bar, Twice I went towards her. I was not wa'ching my wife; I was only watchin# to see if she went to the play. Front Fenton-street to the bridge is two or hree ohains. The bridge i» in the cen'.re of the street. I walked fast aad turned up Page-street. From the bridge tj Dr. P-tgei/a is abous ten trains. 1 <ould go that way home. The man joined her about 50 to 100 yards up the street. I went t > got a una as a witness to whatever should happen. I could h*v» caught her up if I had tried, and nothing would h*vti happened if I had. My wue and Ogben

' (CtttHftUftl M paf§ 4.)

were within four yards of the fence. I did not say we have got here too scon. I spoke to Ogben, and said you are hers carrying on with my wife after I have told you to kesp away from her. Reynolds did no*; speak. Ogben struck Reynolds, and struck him a?nn the same evening at the corner of the street. To Mr Kerr: My wife's sister was not there on the Saturday evening my wife stayed away. Tho man speaking to pay wife I afterwards found was Ogben's dtate. He had caken her sister home. We keep a cow, fowls, and hare a garden with vegetables. When my wife pissed me, within a few yards, as I wis at a shop window, sho turned round and smiled. John Reynolds, laborer, was in Stratford in December last. Remembered 13th December last. Remsmberei Wells, the petitioner, coming to me. It was about a quarter to eight. We walked down Broadway in the direction of Page Street.—We went up Page Street. The Domain is on one side of the street. We heard voices under the trees in the Domain. We got through the fence. I saw Mrs Wells and Ogben under the trees. Witness then described what he saw. Wells wos talking to Ogben. He said you are here with my wife after being told to keep away. Ogben then rushed at mi and ■track ma. He asked me what I was doing there, but I did not answer. In raply to Wells he said I don't cire a i - . He said he would fight both of as, bat we siid we did not want to fight. We then left and returned to Broadway. I went home with Wells. It was about an hour after seeing th?m in the Djmain when we saw them p\rt near Wells' house.

To Ur Malone: Slid nothing to! Ogben vhen hs struck me. lam a bigger m&n than Wei's. Sid not say we've got here two spoons. We were in the Domain about three minutes. First h«ard voices just outside the fer.ce. Anyone passing could have heard them. It was bright moonlight. Weils went in fire's. Could not Biy it vr-es a public Domain. Remember going to Wells' house. Did not remember Wells saying he passed his wife on the bridge. Thonght there was a double row cf pines on the inside of tha fence. To His Honor: The fence between the road and the trees was a plain wire fence.

In reply to the Jury tie v.-i'n- ss more minutely explained tha oitum in which he found Mrs Wells and Ogben. This was the case for the petitioner. Mr Malori* then addressed the jury for the respondent-. JTe contended that unless the jury found t^.t: ■: --1 -cry had actually been eomo. t u < d thoy must give a verdict for the respondent. He characterised tha attempt of petitioner to bring iip an alleged admission of the respondent as an unmanly attempt to blacken his wife's character. Mora than this it had been proved that even if suon an admission had been made the husband had condoned her conduct. He admitted bis client had been indiscreet, bat not guilty of adultery, He called

Fanny Amelia Wells (the respondent), who said she had heard it said ■be had admitted adultery with oue Richardson about three years ago. She was going home one Satorday night when she met Richardson, who called out "Hallo," but wt'neas did not answer. They were bjth going the same way, and further up the roid the man rvshed towards her, gripped her right arm, and dragged her towards iootpith. Witntsa screamed &nd wad then released. Recognised the man and knew he bad bceo in the Asylum for lunacy. Nothing further occurred between thf m, either then or at any • other time. Told her husband of the occurrence when she got home, and he wanted to bring an ss?ault esse, but witness objected on account of her then condition. Richardson did annoy her afterwards. Richardson came to the door one night. Witness kept some one in the house in order that x Richardson should not find her alone. Her husband did not believe witness, and said he would disown the next child

that was born as being Richardson's.! The paragraph in the letter produced j referred "to a row over Richardson, not' an admission of misconduct with that man. Denied having misconducted i herself with Richardson. After the! child was born her husband was quite . satisfied it was his own. With regard j to Ogben, in November last her sifterj was staying with her and thsy fre- j quently conversed about Ogben and bis: _ mate, both of whom walked abou k , with her sister. Remember*, d spying to her sister that of the two she liksd Ogben' the better. On November 18th her husband came down town after her, 1 while she and her sister were listening to the band. In returning hom ejjgf' sister went with her young a quarter of an hour bvfoy^ltr: 6jgi w |, r , met the young irju to town. While talking her husb ;nd accused his wife b?fora young man of crawling about the streets at night. On reaching horse witneff denied " crawling abouh the streets," and her husband then kicked her twice on tho hip. After that they

were not on good terms. Four days witness asked her husband to yo ; to the shop and bring her homo cciua j food for dinner, as what little there j was in the house she was going to give' to her little children, bnt; he did not return till nearly 3 o'clock. Witness was in a very bad temper, and the same afternoon aha wont iufco town and stopped with Mrs Fiavall until the ■ following night. On Sunday evening her husband came to Mrs Flavali's and saked her, in front of -the Salvation Army Captain, if she ba4 committed .adultery with Ogben, and she denied i'\ Wont Lome wish her husband thit evening, but was in a better temper. Next day went to town to get a tooth * drawn. Was expected home to dinner

•but did no*: get back till three o'clock.! Had been talking to her parents and others, Oi returning, her husband- ! agftin asked her if she had committed j adultery with Ogban, and she denied it.! Had told her husband on one occasion j that Ogben had ru 1 ; his hands on bor. j Did not say anything to her husband < about beieg out at night with Ogfaen. j Oa 13th November witness, while j walking with Miss Jeffries, passed her: husband, but was not a wave of having j done so until her companion called her ' a tention to her husband. Witness called out "ILaKo," biU her husband t took ro notice. IS wos only in fun) that she told her husband on Friday r that she was eo : ag to the play. Lett j town about 8 p.m. Went ov-.v the! bridga and up Pjge-stree\ Ogben J crossed over the rond by Gibson's p'acn J and began fo ta'k. Thsy went into t : o Park through the ga<e aiid rati Qi."i"n on the gras' togctta r and talkrd. \ Nothing to k pheo batween tl.eai. j Denied that t;ithi r then or at any o'.her time she bad committed adultery with Ogban. While in the park with Ogben her husband and Mr Reynolds came up. It was bright moon'ight. Hur husband turned to and snirl " I've c.iught you." Reynolds "You have ro? come here for any good." Ogben then struck Reynolds. She denied the made as to tho position in which they were found. To Mr Kerr : Did not go- her tooth pulled. Her husband prevailed on her to go home and sho went. He? husband did tell her not to speak to Ogbsn. Had in fpifce of that spoken to Ogbtn, Could not see any wrong in speaking to hiai ps he was a resp;cta'lle joung ruat>. Had admitted that Ogben laid his i.ands on her wrist. She was n r t fond of Ogben and never told her husband she would sooner go ; with Ogben than go home. His Honor: I do not think Wells j said so. • I told my husband I might go to the ; play. My husband know I was not i going to the play because I had never • been ta a play since I had been mar- j ried to hinl. He might have thought j I meant it. I may not have put it in i the right way in my latter, but I never 1 did wrong wi'hßicharvSon. Eitherof j the roads are equally convenient to go ! t home, bus that night I took the side j t street brcausa a lot of men werestand- « ing at the hot 1 acd I did not care to !' pass them. Mr did not knowi] I vraa goiog hom i that way. I nevor ! | made any appoin'ment, and never!' walked in the evening with Ogben be- ! ' fore thatj. Where wo gat was quite 1 j open to the road, anyone could see us, 1 j and it wa9 bright moonlight. U

Counsel then addressed the Court. THE VERDICT. After a retireffienfc of about fivß minutes the jury returned a v rdiefc that the respondent had bsen guilty of adultery with the co-raspondent. Ogben; a'so that thß co-respr>ndenfc Oj;bsn had b3en guilty of adultery with the respcndent. The judge granted a decree nisi, with leave to apply for the eame to ba made absolute in three months. The pe' itionor to have custody of the chil-j dreu. j Costs were givon agaiuai the co- ! respondent. ,