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SUPREME COURT., Wellington Independent, Volume XIX, Issue 2077, 21 June 1864
. OIVIL SITTINGS. [Before His Honor Mr Justice Johnston.] Thursday, 16t& June, 1864. Thr Court was opened at 10 o'clock precisely, with the usual formalities. The following gentlemen were empannelled for the Special Jury : — Messrs. E. Batters bee, Wm. Hickson, John Kebbell, N. W. Levin, Thomas Mason, A. E Ow<*, E. Pearce, Walter Turnhull, Geo. Hart, EdwarWVliller, John Hugh Bethuue, Wm. Lyon, Esq., roreman. M'LAOGAN AND THOMPSON V. I. B. FJEATHHRSTOH, SOPERINTENDETK. Messrs. Hart and Alton appeared for the plaintiff. Messrs. Brandon and Borlase for the defendant. The following were the issues to be tried : — 1. Did the defendant take wpon himself the duty to keep the roadi and bridges over whch he knew the plaintiffs would draw the materials for the performance of their said contract in repair, 2. Did the said defendant negligently omit to repair the road and bridge in the replication men • tioned ? 3. Were the plaintiffs delayed in the execution of their contract works in the declaration mentioned, by the stoppage of the road in the replication mentioned, and if bo, for how long? 4. Were the alterations and additions to the . works of such a nature, and so, incorporated with the works originally required, as necessarily to occasion delay, 5. Did the defendant take possession of that part of the wharf outside the inner T of the wharf before the completion of the works, and if so, when ? 6. Were the plaintiffs delayed by the defendants taking possession thereof before such completion of the works, and if so, for what time — and if bo, what amount of damages was thereby occasioned to the plaintiffs ? 7. Whatamount of damages, if any, were caused to the plaintiffs by delays attributable to the defendant ? 8. Has the defendant paid the plaintiffs all i Bums due in respect of tho works in the declaration and replication respectively mentioned, except . v thesumof JG1465? If not, how much remains due to the plaintiffs ? Mr Hart addressed the Jury at eomo length, explaining that the action was brought against 1. E. Featheraton solely in his capacity as Superintendent of the Province, and in no other way. The action arose out of a contract entered into between the plaintiffs and defendant for the erection of the Deep Watei Wharf. > This contract the learned counsel then read. When the plaintiffs took the contract, they made the pest arrangement they could for procuring the. timber required The nearest place ■ they 'cibuld obtain it fioin was Grey town. They 1 had 'first to' obtain the ground, theß to cut down •!: ■ • tteea,* ; andt". ' <»rfc them to their mill.
where it had to be sawn; then brought into Wei lington to bo used for tha put poses of the Wharf f An arrangement had been made that the roadi wore to be kept iv repair, and certain alterations we re to be effected. Through a landslip ami a flood, the road was stopped for a period ot tout months. The Government had issued a notic« promptly enough for the repair of tho road, and also for the repair of the bridge. Mr Bennett, to whom the repair of the bridge was intrusted, was not under any penalties to have it done in any given time. The contract for the repair of the road being limited to three weeks, the plain tills got ready a considerable quantity of timber, but were prevented from bringing it into Town in consequence of the delay in the repair of the bridge. The Government had also required certain alterations to be made in the construction of the wharf which involved n departure from the original plans and specifications, and this had caused a delay of two months in completing the contract. The alterations besides had made it necessary to employ ship carpenters instead of ordinary carpenters. Besides, the additional work could only be done as the tides suited, and this of cour«e involved considerable delay, for which delay they had been mulcted in penalties. The contractors had been much hindered in their work by vessels being allowed to moor at the outer T, the fees thus accruing having been received by the defendant. He might give several other instances of delays sustained by the plaintiffs in executing the work. Ten ship carpenters were kept waiting three days for tho purpose of driving a bolt, the Provincial Engineer refusing to pass the work until it had been done. The plaintiffs had been charged penalties for these three daya delay, and even the day the Government had hoisted tho flag on the wharf, they had charged for. On Mr Hart's concluding his address — His Honor suggested the propriety of submitting the case to arbitration. Mr Hart said he was quite prepared on behalf of his client to submit the case to arbitration. Mr Brandon said the Court would possibly adjourn for a short time, as he wished to consult his client before he decided. Shortly after, the Court wasadjouraedfor threequarters of an hour. On the re-assembling of the Court, Mr Brandon intimated that his client wished the case to proceed ; and the first witness called, was John M'Laggan.Jwho deposed — I amaearpenter and one of the contractors. I attended at the office of Provincial Government to execute the contract, on 4th December, 1862. I furnished Government with schedule of prices for which I would do extra work. [The schedule was read.] Mr Q. Moore, Mr J. Burne as my sureties, Mr Brandon, Provincial Solicitor, and Mr Woodward, Pro-,, vincial Treasurer, were present when the contract was signed. I went to Wairarapa to get timber. I could not see how to get it anywhere elße nearer at a fair profit. Totara was 18s per 100 feet, such as would satisfy the contract. Common timber was 18s per 100 feet. In estimating the contract, I put down a price I thought timber should cOBt. I did not ascertain the price of timber before taking the contract. I went to Mr Barton. He did not say he would let me h^ve the timber. He advised me to go to Mr Haslatn. I went. He was not at home. I produce plans and specifications. [Produced.] The plan produced is the plan referred to in my contract. Mr Levin asked me 30s per 100 feet for the timber to be used for the construction of the inner T. I went to the Wairarapa. I leased a mill with 500 acres of. land. The rent was £7 a week for the first 6or 7 months, £Q a week afterwards. I could not get timber from Collius's until l4th February. We got timber from all parts. After I took the mill, 1 could get plenty of timber. My arrangements were known to the Provincial Government. Mr Holdsworth (Paymaster of Roads) was often at the mill. I got 'iO.OOO feet of piles from the mill at Wairarapa— l3,ooo feet before the land slips. I had an agreement with Mr Hastwell to bring in' the timber. I got to the first cross done with the timber I got from Wairarapa. The first pile was driven on the 28th April, 1862. Three weeks after, the piles were driven to the first cross. Tha land slips stopped my further progress with the wharf in April. Another cause of delay was tho Silver Stream bridge being carried away altogether after we took, two loads over. When I found the timber waanottohand, I wentto Mr Barton's and started five or six pair of sawyers. From 16th April, 1802, to July 14th, 1863, I got two loads of timber. I first obtained timber from the mill in October. Tho road was impassable from 16th April, to October -48th We got the first load on that day. I received a letter from Mr Woodward (acting Provincial Secretary) dated 9th August, 1862. I replied to the letter. I received another letter dated I lth August, from Mr Woodward. (Letters produced and read.) Alterations were made. They extended from the inner cross. (The models were produced, and witness explained the nature of the alterations.) This work took one month more than it would have done if it had not been altered. The alteration was a most important one. They had to work night and day to complete it. The wages paid were more for night work than day From the 6th July the Government had the itse and profit of the wharf. The lower wales were not finished. The lower wales are 30 feet long by 14 feet 6 inches. We could not put the wales on the wharf while the Queen of tho Avon lay there. She was there three or four weeks. There was a ship from Adelaide lying at the wharf while the Queen of the Avon was there. I must have been delayed about 8 or 10 days in completion of the wholo wharf, in cousequence of the vessels I have mentioned lying there. Cross-examined by Mr Brandon,— l did not protest to Mr Hales against the wharf being used ; I am not aware that I complained to Mr Hales or any person about the wharf being used. Mr Duncan (the Manager of the N.Z.S.N. Company) never asked me permission to go alongside ; I claimed damages from the N.Z.S.N. Company for damages done to tho wharf by their vessels, and got paid ; the damage was done before the Government took possession of the wharf; I know Mr D. Anderson of Wellington ; Mr Anderson did not apply to me, nor did I give him leave, but he asked our clerk to allow him to ship some goods, and he got it. (The letter dated the 6th August, 1862, put in and read.) I received JJ4S for the iilO feet alterations. i! 9 for material, and the balance for labor ; I had twenty-eight or thirty men employed ; we paid some of the men 13s a day and some 10s ; three hours is the average of the time the tido admitted the men to work ; the alterations were made on the - ioth January, and the wharf was completed in October; I was paid £■£5 for the alteration of the stairs ; It took three days extra to effect the alterations ; £6 of tho i' 26 was for material, and the remainder for labor there were three extra piles required for this work ; the men were about five days fixing the stairs; 1 was paid £\b2 10a for the extra work to the outer T ; the time occupied to complete the extra work was one hundred and twenty days ; the original work could have been done in forty days ; I could not keep on the common carpenters for want of the ship carpenters, who alone could do the work ; I had to discharge twenty men to keep on the other ten : I say that if I had not had the extra work to do, I might have handed over the wharf eighty days before I did ; I had an interview with the Superintendent before 1 commenced the wharf; 1 had three foremen; Adam Thompson was my first; he was with me about twelve months ; he was aship carpenter ; I dismissed him because I did not think he was doing 'his duty ; he used to take away the men for other work ; I do not know who paid foi the labor for discharging the Prince Alfred. Re-examined by Mr Hart, — I was not informed when I took the extra work, that the penalties would be enforced. Andrew Campbell, deposed,— l live in Wellington. lam a ship carpenter. I have been employed by Messrs McLaggan and Thompson, in the construction of tho Queen's Wharf, I commenco'l before Christmas 1862, and continued at it until it was finished. I remember alterations being made in tho working plans. Tho work could only be effected when the tide served. Tho new kind of braces would take doable tho time that those on tho old plan would. The men could not, be employed on tho upper work, because Mr Hales objected, as he said the bolts could be screwed tighter. The change in the cross braces at the outer T took about throe times the, time to execute than by" the original plan; I Vecolleefc vessel^ coming' there; the'PrincVAlfred^tne Queen ofthe
- Avon, and other vessels, also some of the N.Z.S.N, '. Company's vessels coming to the upper T. There a were only two days work for ten men in cousej'quence of these vessels being there. I do not i know that McLagpwn could j?et other ship car- :• penter.s if he had discharged the men. We were > stopped for eight or ten days. [ Cro*s-examinert by Mr Brandon, — I have been i in Wellington about eighteen months; there is no i notching i/> tno \v;ilo to the outer T ; there was no work done on this stage that could be propared before hand ; wa had to fix one diagonal i first before we could fix .the other; we were on the wharf, but we were not. profitably employed ; there waa no work for us to do. George Pointesther, deposed— l am a shipwright. I have been employed for the last thirteen months on the Queen's wharf. I remember an alteration being made. The old work could have been done in half the time that the newalterations took. The model produced is the same as the alteration, the other model is according to the original plan. The alteration to the outer T would take three times as long to complete as the original plan. We could not go on only at low tide ; our chances were decreased by the rough weather and the aea. I recollect some vessels lying alongside the wharf, the Queen of the Avon, a barque from Adelaide, with wheat, *nd some •tearaers. They hindered the work at the wharf very much, Wo used to be killing time. Ido not know any other shipwright but Messrs Thirkell, Meech, and McLean. Alex, A. Gordon Pilmer, deposed — I am a contractor. I know the public wharf, I have ex. am hied it. I have seen these models befor*. The model produced is the same as runs from the inner to the outer T. The improved bracing would take three times the time to execute to that of the origin*! plan. There are sixty-six rectangles, which would take six hours each, for four men, which would make 396 hours. The alterations were calculated to delay the conitiuction. John McLean, deposed — I am a boat-builder and shipwright, 1 carry on business in Wellington. I had a look at the bracing of the public wharf in January last. The new plan would take about three tinies aa long as the original plan, there is six inches more boring. It would take twelve men about three tides to do six pannels. There aro sixty-six pannels, that wonld take twelve men thirty-three tides. The average of the tides is about three hours, or ninety-nine hours for the whole. Cross-examined by Mr Brandou — I think it would take ninety-nine hours to do the pannelling. I consider three hours as a fair average for a tide here. I think it would take eleven tides for the original plan, for twelve men. Tho altered plan would take twice the time. I have been in Wellington between eight or nine years. It is generally shipwrights who do such work. All the journeymen shipwrights were employed at the wharf. 1 was asked myself to go and assist at it. , By Mr Hart — 1 could not say, but that wheel- ! wrights and carpenters could do such work. j Henry Meech, deposed— l am a shipwright at Wellington. I know the public wharf at Wei. lington. The first model is the most simple mode of bracing. The other model is more complicated. There is more than double the work io one, that there is in the other. Cross-examined by Mr Brandon-I think it would take about double the time to complete a section William Spinks, deposed — I am Wharfinger at the Queen's Wharf, and have taken fees for the wharf, making no distinction bstween the outer and inner T. Mr Hart said that this was the case for the plaintiffs. Mr Brandon said at the opening of the pleading it had been stated that this action hud been brought againstjthe defendant, solely ia his capacity of Superintendent, and he need hardly say it was for tho public interest, alone that the present action was defended, so as to prevent the reckless manner in which contracts were tendered for. Mr Brandon explained tho nature of the evidence he intended to produce, and called the following witnesses :— , William Hales deposed — I am a civil engineer. I was in charge of the Deep Water wharf, in 1863, employed on behalf of tho Provincial Government. I began my duties their on the Bth of Dec. 1863. The work was entirely under my control. The works were not very diligently prosecuted. There | were frequent stoppages of the work. Tho model produced is correct, only it does not show a bolt that ought to have gone through both wales. Jt is not marked in tho plan, but is mentioned in the specification. It would take 48 inches more boring to make them a3 is represented in the model, The 2nd model is for the cross head only. The drawings produced are the original drawings, and as carried out. The addition would make no difference in time, in putting up. The extra work could be done in 16 hours by one man. The whole work could h*ve bean done in one day by 16 men if they had sufficient stages. It was summer time when this work was done. It was authorised in Jan, or Feb. and it was executed in March. I think it would not take more than three tides to do the-work, on the new plan, for the 210 feet in addition to the old plan. They might have done the whole work, if they had had sufficient hands and stages, A great deal of tha work was prepared on shore. It was not necessary to have ship carpenters, any ordinary carpenter might have done the work. The drawing produced ia the plan for the outer T, and the other ia the altered plan. There are 06 panels in the outer T. It would take about twice as long to do the new plan, as to do the old plan of bracing. According to the new plan, the whole ought to have been done with the existing staff in 20 days; a staff of 10 men would require 20 days to do the work in, and 10 days according to the original plan. The Queen of the Avon was anchored at the outer cross head. A portion of the work was unfinished. The lower wales were not on the fender piles. The fender piles have nothing to do with the bracing. The bracing was completed before the Queen of the Avon was there. There was plenty of other work to be done, but they had not the timber on the ground to do it. The contractors made no complaint to me that the Queen of the Avon, or other vessels impeded the progress of the work. If the Queen of tho Avon or other vessels had not been there they could not have handed over th» wharf before they did. The last portion of the wharf completed was part of the inner T. There was a great deal of unnecessary delay in commencing the additional work, nearly a month. I remember the Prince Alfred going alongside. I had some conversation with Mr McLaggan about it, I asked McLaggan' why he allowed the steamer to come alongside, while the piles were loose? Ho said, "they have asked me for leave and have agreed to pay any damage.'' . ! Examined by Mr Hart—l think the work could nave beon done in three tides, with the stages they had. 1 remember the William Carey being alongside the wharf. I remember a fender wale being broken at the time the Win. Carey was at the wharf. The plaintiffs had a foreman thnre, overseeing the men, and I was there constantly overseeing tho work. Re-examined by Mr Brandon — Thompson was the first foreman. James Wilson deposed — T am a house builder, and have had very considerable experience. 1 have looked at the wharf, but I have not examined it. I know the nature of the work. The work can be done by house carpenters. David Anderson deposed — I am a Morohint and Storekeeper in this town. I shipped soiae goods by a steamer to Wanganui from the wharf, in March 1863. It was from the inner T. I shipped none from the outer T. Jonas Woodward, deposed — I am Provincial Treasurer, and am now, and was during the erection of the Deep Water Wharf, acting Provincial Secretary. In September, 1863, we accepted the wharf as finished. I gave no instruction to any officer about the whole wharf before that time. It ia not exclusively my business to order the Harbor Master or Wharfinger ; the Superintendent may give orders independently; but it is soiu the absence of the Superintendent. Some orders were given in July or June, 1863, relative to the inner T. On the loth October, 1863, the general rules for the whole wharf were published. I have paid the sum of .£14,563 15s lid in respect of the contract and extra work. The contract waa for £16,420, and there were two items " for extraa amounting to £3H 19»7jd. The Qontfaoiprfl made a deduction of £1 9a 4jd, whic^mSdb^ho
, total ±'15,770 10s 3d, from which £1205 was de- ) ducted for penalties, viz : ail days. The contract . was accepted on the 4th December, 1862, and the ; wharf accepted as finished on the 23rd Septem- . bor, 1863, a period of 293 days. A deduction had i been allowed by the Government of 44 days for Sundays, Christmas day and Good Friday : and 8 days for the extra time required to effect the alterations, making si days in all. Thin closed the case for the defendant. Mr Brandon addressed the jury for the defendant. Mr Hart for the plaintiff. John M'Laggan, recalled by Mr Hart— l am not aware that the wharf could not be finished in consequence of the timber not being on the ground. There was no want of material. By the Court — The men were employed} but were not working to profit. The Court was then adjourned for half an hour. On the Court resuming, his Hnnor summed up. He said if the jury should find on examination of the evidence that the plaintiffs had been delayed upwards of 52 days, then they would find for the plaintiffs, and allow £o for every day they had been io delayed ; but if they should find that they wer« delayed a less number of days, then they would find for the defendant. Hi§ Honor then went very carefully over the evidence, commenting upon the several points as he proceeded, and expounded the law. _The jury after retiring for an hour brought in the following verdict : — First, second, and third isssues were struck out. 4. "Yes!" 5, 6, and 7 : On the isssues five, iix, and seven, the jury find, that the defendant did not take posieasion of the wharf until the 23rd day of September, 1863: but they find that plaintiff* is entitled to three hundred and forty-five pounds (£315) damages for delays attributable to the defendant. 8. The defendant has paid the plaintiffs all sums due in respect of the works, excepting the above sum of .£345, and a balance of account — £l 15s 4d. The Court then adjourned. Saturday, June 18, 1864. His Honor took his seat on the bench at a few minutes past 10 o'clock. OBIM. CON. Hulke t. mpttit. The following gentlemen were empannelled ai ' a special jury :— Messrs H, Bethune, J. Bridges, C. D.Barraud, J.|H. Wallace, W. Hiokson, G. Moore, T. Kebtiell, R. S. Ledger, J. Martin, E. A. Owen, E. Pearce, J. Pharazyn, Esq , (foreman). This case, which created considerable interest, was an action raised by the plaintiff Charles Hulke, a Lieutenant in a Volunteer Company at Wanganui, against Henry Mosely Muttit, a Lieu tenant in the 57th stationed there, for adultery with his (the plaintiff's) wife. The circumstances are fully disclosed in the following report of the evidence. Messrs Izard and Hart appeared for the plaintiff; Messrs Borlase and Allen for the defendant. Mr Izard stated the case to the jury, and called John Clark, deposed — I am a soldier of the 57th stationed at Wanganui. I know Mr Hulke. He lives neur Wanganui. He is a lieutenant in the Volunteers. I know H^enry Muttit. He is a lieutenant in the fi7th. I lived with him as servant till March. I know Mrs Hulke. I saw her at Muttit's house in March 1863. Ido not know the day of the month. I saw her in the sitting room, having breakfast with Mr Muttit. I did not see her tho night before. She stayed th« whole of tho day. She stayed all night. There are only two bedrooms in the house, mine and master's. Mrs Hulke did not sleep in ray room. I took master's bath to his room in the morning, I saw some females' clothes lying on the flocr. I saw the same clothes on Mrs Hulke at breakfast time. 1 also saw a brooch which I afterwards saw on Mrs Hulke'a breast at breakfast. Mr Muttit told me not to give the woman any short answer, as she was of a respectable family. Cross-examined by Mr Borlase — I knew Mrs Hulke before that time, t have not seen much of her. I was at a boldier's ball in July, 1862. Mrs Hulke was there. It was at Kell's public house. Her husband was not there. I know him by bight. 1 did not speak to her at the ball. I left Mr Muttit in tho latter ond of March, or the middle of it. I had never spoken to Mrs Hulke. I caw her on the night of tho ball dancing \rith a. ioldior. Hugh Gowrman. sworn — I am a soldier in the 57th stationed at Wanganui. I knew defendant and plaintiff- I have been in Mr Muttit's service. 1 went soon after John Clark left. I Baw Mrs Hulke at Mr Muttit's house about three or four days aftor [ arrived. It was about twilight. She had her bonnet and shawl off. I taw her in tho sitting room. I saw her about a week after, she then stopped two dayi. I saw her about 7 o'clock in the morning. I saw her about 9 o'clock the night before. I went to master's room in the morning to take his bath. I saw a woman's dress on a chair. I afterwards saw Mrs Hulke wear it. She did not leave till the second day. I went as usual to my master's room the next morning. 1 saw the game clotlies. The second time she came, about a week ' afterward?, I saw Mrs Hulke in tho bedroom. She was undressed and in bed. Mr Muttit was in the room. I hoard him address her as Mrs Hulk*. Cross examined by Mr Borlase — I knew Mrs Hulke when she came. I was not at the soldier's ball. I knew her when she staid at Mr Kells'. I knew nothing of her conduct. Her husband was not staying there at the time she lived at Kell's. William Wyborne, sworn — I am a farmer residing at Wanganui. I know Mr Hulke. I have known him five or six years. I know his relatives, thtty are in a Rood position, residing at Deal, in Kent. Ido not know the age of Mr Hulke, but he is a young man. His father is a doctor. lam a married man, and frequently visited at' Hulke's house. Mr and Mrs Hulke lived on good terms together. I never heard them have any differences between them. They have had two children in Wanganui, both are dead. Sometime in April, 1863 Mrs Hulke left her husband for good. Mr hulke left his own house immediately after she left. He went to live with Mr Holder. Mr Hulke is a Lieutenant of Volunteers. He was a school master. He had about twenty scholars. Cross-examined by Mr Borlase — Mr Hulke lived two or two ami a half miles from Wanganui. I lived three quarters of a mile from him. I visited him constantly. I don't remember Mrs Hulke being absent at any time. I remember her going to New Plymouth about twelve months ago last Christmas. She was away about five or six weeks. I did not see her when Bhe lived at Ketls' Re-examined by Mr Hart — I know Mi's dulke's relations. They live at New Plymouth. Their name is Collins. lio not know in what position in life they are. Edward Newing, sworn — I am a farmer residing at Wanganui, about half a mile from Mr Hulke's. I have known him four years, and been in the habit of visiting him. I know his family. They live at Deal. His father is a medical gentleman Mr Hulke and his wife lived on amicable terms. I have never seen anything to- the contrary of being affectionate. Mr Hulke's manner was that of a kind and affectionate husband. Mrs Hulke is about twenty -dix or twenty-ui^ht years old— and she is about the same u^e. Ido not. know Mrs Hulke's parents. I know some of her relatives in England. They are in a respectable position. They are living on their means. Cross-examined by Mr Borlase — I constantly visited at Mr Hulke's, 1 have seen Mrs Hulke at Wanganui in the street. This concluded the plaintiff's case. Mr Borlase addressed the Court at some length for the defendant and pioceeded to call Bedford Sheriff, sworn — I am a trooper in the W.D.F. I lived at Wanganui up to about seven weeks ago. I Jived near Mr Hulke's. I hare seen Mrs Hulke often before March. lam a bachelor. My partner lived with me at the house I was formerly a farmer.. Mrs Hulke has cume to our house both with and without her husband. She has been there in the evening, and stopped till her husband came home. I did hot know that she lived with any one in Wangaaui. I have not seen her much. :By the Court— Her husband knew she came to my house. Wilson (my partner) is a steady man. ,i John Kejls syfora— l :^n^ &anui toißpi, 'an^pftrfof 1968. I reii>eniber;i^
She came to lodge with me. Her husband was not with her. I noticed her conduct. It was good. I twice gave her notice to leave my house. My dislike to female lodgers in the house was the only reason. By the Court—We never got paid for her board. Gross-examined by Mr Izard— l remember Mrs Hulko receiving a letter from her husband. She shewed it to me, and in consequence of its contents, I turned her out of the house. I am a matried man. The ball was respectably conducted in every respect. The visitors were principally soldiers. Some of the officers were there. Re-examined by Mr ßoilase — This was a ball got up by the soldiers. Arthur Wicksteed, sworn — I am a lieutenant in the Wanganui Militia. 1 have lived in Wanganui 1 2 years. I know both. Mr and Mrs Hulko. I was staying a good deal in Wanganui at the house of an officer of — — - Kegt. The officer was a bachelor. I have 6een Mrs Hulke there repeatedly. I have seen her there both night and day. I have seen her there without her bonnet and shawl. By tht Court—Her conduct while there was that of a mistress. I hare seen her take the wine from the table when she considered my friend had had enough, and from that and other things, I concluded she must be his mistress. I have often slept at the house. I have seen Mrs Hulke there on successive days. Th«ro are four or five rooms in the house. When I stayed there all night I slept on a truckle, or soldier's bed. I have seen Mrs Hulke late at night there, and at early as nine o'clock in the morning. Re-examined by Mr Borlase: — I saw Mrs Hulke at the soldiers' ball, at Mr Kells' public house. Her conduct was most disgraceful. She was dancing with soldiers, kissing them and acting in a disgraceful manner for « respectable married woman. By the Court.— She was both kissing the soldiers and being kisaed by them at the ball. Some officers looked in at the window but did not go into the room. I did, but did not stay many minutes. Re-examined by Mr Borlase, — I left about halfpast nine or ten o'clock. I have seen Mrs Kells. and Mrs Hulke together. 1 saw Mrs Kells turn her out of the bar on one occasion for kissing a soldier. Mrs Hulke said "Oh ! never mind, Mrs Kells, no one saw it." Mrs Kells replied " Yes, Atty Wicksteed did." I was lying on the sofa in the parlor off the bar. [The witness here gratuitously informed the Court that his name was Arthur, but that his more familiar friend* called him " Atty.'' He also assured all concerned* that he and his friend were considered (< wild fellows," in fact regular " Don Juatu."] His Honor at thu conclusion of this witnesses' evidence remarked that he onght to have known better, than to implicate the names of gentlemen in this case who were not in Court to defend thoinselves from imputation. [We have purposely omitted the name of the officer referred to in the above evidence, believing, with the learned judga, that it would be exceedingly unfair to mix up the name of any person in a case like this, particularly when absent.] Michael Boyle sworn — I am a soldier of the 57th. I remember the ball at Kells' i was there. I know Mrs Hulke. She waa at the ball. 1 danced with her. About eleven or twelve o'clock I went outside. I saw a man »nd woman lying down in the yard. They were lying near th<s stahle on some loose hay and straw. Mrs Hulke was the woman. By the Court — I know positively Mrs nulko was the woman. When I went into the yard I heard a roise say, '• who's that."- The same voice spoke to me as I was entering the house. I said, "all right." Mrs Hulke, as she passed, was arranging her hair. By Mr Borlase — 1 know Mr Hulke. He was not at the ball. Cross-examined by Mr Izard— lt was between eleven and twelve o'clock at night. It was a bright night. I was close to them when I saw them, so close that I touched the man with my foot. I have not been in the service of the defendant, only since I came down here. 1 have spoi<on to Mr Miiwjt'f about this in Wanganui. Mr Muttit never gftVe me a watch or promised me one. I never received a promise that anything would ; be done for me for giving this evidence, I do not expect to get paid. Mr borlase then read the following letter, — No. 1 Line, Wanganui, July 14, 1862. To Mbs. C. Hulke — Madam,— «Some few weeks ago, I informed you that unless you changed your line of conduct I should be compelled to effect a separation. I presume that your are aware that you have disgraced yourself, that it is impossible for me to look upon you as my wife ; and, therefore, I have resolved to allow you the sum of X'2o (twenty pounds sterling) per annum, with sole right to all property you may legally possess or that may revert to you hereafter on condition of your signing a deed of separation. Please to send me the name of your legal advisers , as well as the name in full of the third party who will act aa your trustee, in order that I may get the necessary documents prepared, Further comment is unnecessary. Your clothes and personal effects shall be sent to you. Charles Hulke, Wanganui. To Mrs. C. Hulke, at J. KeHs', York Hotel. Mr Borlase then addressed the jury on the evidence. This closed the case for the defendant. Mr Izard replied on the whole. His Honor summed up the case to the Jury very briefly. He remarked that an attempt had been made on tho part of the counsel for the defendant, to prove that the plaintiff Mr Hulke had condoned, a previous offence of a similar character to that which was the subject of the present action and that therefore he did not coma into court with clean hands on the present occasion. He (the learned Judge) considered that the evidence failed to prove that the plaintiff had been aware of his wife s previous guilt, or that he had in any way sanctioned it knowingly. In fact he appeared to have acted justly throughout. No condonation of other adulteries had been established. The defendant's conduct had been of a disgraceful character, and scarcely befitting one who held a commission in h'*r Majesty's service, still he did not think, the character of the woman being taken into consideration, that the plaintiff had suffered a serious loss. It was however for the Jury to determine whether they would award substantial or nominal damages. He folt it his duty to notice the manner in which Arthur Wicksteed, one of the defendant's witnesses had given nis evidence. The levity and flippancy with which he spoke of his own i>rocQedings, as well as of the acts of others not present, was excessively unseemly. _ With these remarks he would leave the case in the hands of the Jury. The following were the issues presented to the Jury,— 1. Was the said Ellen Clarissa married at the time of the trespass In tho declaration mentioned the wife of the plaintiff. 2. Did the defendant debauch and carnally known the said Ellen Clarissa as iv the declaration mentioned. 5. Wore the said Ellen Clarissa ani the plaintiff, at the time of the Baid trespass finally separated from each by agreement between them. IN MITIGATION OF DAMAGES. 4. Was the plaintiff voluntarily living apart from the said Ellen Clarissa at the . time of the said trespass. Had the plaintiff at tho time of the said trespass abandoned the said Ellen Clarissa, and refused to supply her with the means of maintenance and support. 6. To what damages, (if any,) is the plaintiff entitled. . After a short consultation the Jury returned a verdict for tho plaintiff on all tho isauea,. damages £%5. The Court then granted & certificate for a SpeoiarJuiy. v . This caso closed the Civil Sittings. :
. Dv rVsug^ip, : .pf. !^njf iibai-;;:V?bp Js; jpertiaps
SUPREME COURT., Wellington Independent, Volume XIX, Issue 2077, 21 June 1864
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