HUSBAND CLAIMS FROM WIFE

Taranaki Daily News, 11 October 1929, Page 12

HUSBAND CLAIMS FROM WIFE

SHARES BOUGHT IN HER NAME. MAGISTRATE ENTERS NON-SUIT'. Claiming that he had not made a gift, Roy Keith McGiven sued his wife, Dorothy Ellen McGiven, in the New Plymouth Magistrate’s Court yesterday for the return of £lOO deposited with the New Plymouth Finance Company in her name and 150 shares in the New Plymouth Brewery and Cordial Company, Ltd., together with interest and dividends. McGiven was non-suited, with costs totalling £l4 16s. Security for appeal was fixed at £lO 10s and the payment of disbursements and costs of the action.

The case proceeded only after refusal to grant an application by plaintiff to have the Press excluded under section 23, sub-section 1, of the Married Women’s Property Act. In outlining the circumstances of the claim, Mr. R. J. Brokenshire said that in May, 1927, McGiven had about £2OO to his credit in the New Plymouth Savings Bank. His wife knew of this deposit, and they discussed the question of securing a better return than the bank rate of interest. It was agreed to place £lOO on deposit with the New Plymouth Finance Company, at 64 per cent., and to buy 150 shares in the New Plymouth Brewery and - Cordials Co., Ltd., then being formed. The deposit was made and the shares acquired in the wife’s name in order to facilitate the business connected with the transactions, as McGiven found it difficult to get away from his work to attend to business. McGiven withdrew £lB3 from the bank and gave it to his wife. The deposit with the Finance Company was made on the following day, May 10, and the wife retained the balance. The receipt for the deposit was handed to the wife, who gave it to her husband, who had kept it ever since-, and it had never been demanded of him; The wife, whose evidence had been taken at Wellington, said the receipt had been placed on the household file, but it would be produced and it would be seen that it had no mark of ever having been filed as she claimed. THE BREWERY SHARES.

The brewery shares were also obtained in the wife’s name and paid for out of the money withdrawn from the bank. A total amount of 12s Gd per share had been paid up, making a sum of £93 15s; No dividend had been paid on these shares, but the Finance Company had paid’ interest each half-year ,by cheque. The plaintiff did not know that the company paid by cheque, otherwise he would not have had the deposit in his wife’s name. He had been under the impression that the business would be done as he had done business with a building society, and that he would have to go personally to collect his interest. When the cheques were received they were endorsed by the wife and handed to the husband, who negotiated them and handled them as his own money. The difference between £BB and £93 paid pn the brewery shares had been made up by McGiven by a further withdrawal from the bank. Mrs McGiven deserted her husband on January 11, 1929. On June 25 McGiven was granted an order for 'the restitution of conjugal rights and this was served two days later. The decree had not been complied with, however. The defence to the present claim was that on February 12, in Wellington, McGiven had declared to his wife that he had given her the moneys, but counsel contended that the presumption in favour of the wife was discharged by her evidence. This was a question of fact and the magistrate should have no difficulty in finding that the gift alleged on February 12 was highly improbable under the circumstances. Mr. Brokenshire then attempted to introduce the judgment of Mr. Justice Ostler in the Divorce Court, but Mr. Bennett objected on the grounds of irrelevancy and .the magistrate asked why, as the original matter had been determined in the Supreme Court, this could not have been brought before the same court, which certainly had some knowledge of the case. Mr. Brokenshire: Simply because it is cheaper here and just as effective. We can appeal if necessary. ’His Honour has found facts that are essential to our case. The magistrate said that if the judgment were reported it was a matter of record. -Mr. Bennett: Its introduction is obviously improper. In the end Mr. Tate agreed to admit the judge’s decision and comments, subject to °Mr. Bennett’s objection. DECLINED TRANSFER. Mr. Brokenshire said that Mrs. McGiven had offered to transfer the’ shares to her husband, but when the forms were presented for her signature she had declined to sign' them, and during the course of the divorce proceedings she had said she would not do anything till the court decided to whom the moneys belonged. The plaintiff had taken no action for the recovery of the moneys till after the expiry of the time for the wife to return to him in terms of the order made by the Supreme Court, lest any action of the kind might have prejudiced her obedience of that order. It was significant that on the last day before the expiry of that term the wife had sold the shares for £5O, whereas the face value and market value of them was hot less than £93 15s. It was a reasonable inference that the money had been treated as the husband’s till the divorce proceedings began. Her present attitude was merely that of revenge. Giving evidence, McGiven said that at the interview at Wellington on February 12 his wife asked him if the money she was holding was his or his mother’s. He told her it was his, a fact that she had known perfectly well, lie had the money before he was married and his wife was holding it for him. That -was the only mention of the money and shares at the interview, and nothing had been said about a gift. In answer to Mr. Bennett, McGiven said that in his income tax returns for 192 G to 1929 he had returned the investments in tha Finance Company and Brewery Company. He was willing to allow the court to obtain copies of the returns. .. , Counsel: I will ask your Worship to obtain copies, as that evidence will have an important bearing on this case. Mr. Brokenshire said McGiven was asking for an order that the shares were not a gift and for their return to him. In rebuttal of the allegation of a transfer in 1927 counsel submitted that the husband had held the deposit receipt; that he- had received the dividends, except the ones in dispute; that according to the wife’s own statement on February 12, she did not regard the money as her own.

Without hearing Mr. Bennett, the magistrate said he was sorry he had pot heard Mrs. McGiven’s evidence viva voce. He felt, however, that it was for the husband to prove conclusively that the money was not put into his wife’s name as a gift. This had not been proved and McGiven would be nonBuited.** -