IMPORTANT QUESTION OF LAW.

Dominion, Volume 5, Issue 1439, 14 May 1912, Page 3

IMPORTANT QUESTION OF LAW.

IS HUSBAND LIABLE? l-'OP, WIFE'S LEGAL EXPENSES. THE MEWHINXEYS. V rather important question of law was involved in a civil action heard in tho Supreme Court, before Mr. Justice Cooper, ve-lerday, when (i rny and solicitors, (if Wellington. sued Oliver Mewiiinney, civil serviinl. nl \\ elli ngtoii, to recover the sum ft' X'2ol .i ; . -d. alleged to be due lor .-ervices rendered. Mr M. Alver- aope.iied lor lii'ay and .hnl;-en. ami Ihe defendant, .\le»hniney. apni'—.'d in per-nn. , h * i<- ntoniont of clium it wa- m j i out tliit (I ray and .lackson hud acted lor Mrwliiuney's "jio /Nettie Lena hinnevi in flivoirr prurnediug* instmnwl bv her ngairihl h*r husband. Tn March, 1910, Mrs. Mev.'hianey obtained a decree

nisi, and the Court ordered the respondent (defendant in the present action) to pay tho petitioner's party and jjorty costs of suit on the lower scale, with an allowance of «£ln Jos. for one extra day, and the cosh of interlocutory proceedings and witnesses' expenses and disbursements. The costs up to the decree ntei wero taxed and allowed at J.'65 0.-;. Gd., with witnesses' expenses and disbursements amounting to .£33 13s. Od. Mewhinney paid the sum of .£O7 13s. in satisfaction of such allowance, ?nd he aiterwarc.s paid the? sum of £7 llis. for party and party costs of subsequent orders for maintenance, etc. After receiving credit for those sums, Mewhinney was still indebted io Grav and .fackson in the sum of J—jf ss. 2d. for services rendered subsequent to the decree nisi. In his statement of defence, Mewhinne> said lie had obeyed tho order lor I>ayment by him of his wife's party, and partv costs, but declared tluu the < dcciec nisi was made by the consent rf the partie.-?, and not on the merits of the 11(5 denied that he was indebted to vvijj and Jackson in the sum of y* or in any sum whatever. Consequents ho repudiated their bill of rosts, } v ;' t l V| l lie declared was excessive and cxorj)<tant. As a further defence, he said that Grav and Jackson's client ha« not been successful in her action, which *as mainiy over the custody of she chiUnen, and which carried aimost the wJ 10 V i tile expense. Further, he allied thnt Uil I case wis not fairly or properly eoniiue.eii, nor the expenses properly or rpa&onab'y incurred, and that had Gray «nd : I!lC K'™ made proper investigation and thev would have seen that, there v.as no probability of ultimate success. The case was set down for tna» before , a jury of four and Mr.Myers m his opening addressed the jury it i length, pointing out that if a husband misconducts himself in such a way as to enable the wife to take proceedings eitliei for judicial separation or divorce, tti.; wife, having no means at iOW, could go to her solicitor and pledge her husband s credit (in a general sense) for costs winch she incurs. Whether these proceedings were unsuccessful or whether the petition was allowed (speaking generally) the wile was entitled to an order ironi the Court for. costs. The costs allowed by the statute did not always meet the ease. ->l'.s. Mewhinney, however, was successful in this case, at least on one point. Counsel was referring to the pr c ' vl "' ls proceedings when his Honour sou. that the lurv had nothing to do with what hao a,rcailv been determined. The presem proceedings, starting from the decree nisi, seemed tii rest on a ([iiestion of law aione. Subsettnently on the suggestion o. his Honour, both Mr. Myers and Mr. Mewhinney agreed to dispense with the jury ana the jurymen were then discharged. His Honour pointed out that tne proceedings could be further shortenei. it Mewhinney should agree to the costs heing taxed at once and thc-n the Question of liability could be argued subsequently. Mr. Mewhinney said he was willing to agree to this, but the trouble was that when it came to a question between his word and Mr. Gray's, the Kegistrar would take Mr. Gray's word every time. He had had improper charges allowed against him in the past. Mi. Myers: This is a monstrous statement to make against an ofiicer of the Court. • . , ... Mr. Mewhinney. Well, I say it deliberately. His Honour said he could not per mil such aspersions to be cjist upon officers of the Court. He was snre they always did their duty fairly. . After a li,ttlc further discussion, evidence was called in support of plaintiffs case. Alexander Gray, a member of the plaintiff firm, said that he personally, was first instructed and retained bv Mrs. Mewhinney in August, 1!)09, and Mr. Mewhinney s solicitors were at once notified. Neither Mr. Mewhinney nor his solicitors had ever withdrawn his (witness's) retainer by Mrs. Mewhinney. From the very outset, 110 assistance had been received for tho other side, who had contested the caso all the

The witness was submitted to a very lengthy cross-exainin.ition bv defendant, in the course of which he admitted that certain first costs were taxed down from .6133 Is. Bd. to .£97 13s. Witness also admitted that Messrs. Findlay and Dalziell originally had ' the ease in hand, but not in any actual proceedings. Messrs. Herdman aud Ivirkcaldie also had the case, but witness did not know the exact reason why tho,v did not go oil with it. When witness first took the ease ho was satisfied that there was reasonable chance of success. He did not know that Mrs. Mefrhinney had been successful in previous actions. During the cross-examination his Honour stopped defendant from reading certain letters, as such a reading might result in prejudicing some third persons who could not be heard in defence. Ihe letters could be handed in, aud his Honour would read them. If tliev got into the press they might be read by hundreds. Mr. Mewhinney: I think the jiress must be pretty sick of the whole business. The correspondence was submitted to witness, and ne was cross-exstninod on it. No other witnesses were called for the .prosecution. Before calling evidence, defendant ask. Ed for a nonsuit on the grounds tlint—(l) plaintiffs had not proved that Mrs. Mewhinney was without private means, find (2) since the Married Women's Act; o. 1881 was passed plaintiffs in cases of ihis kiud cannot recover. Defendant elaborated these points, after which his Honour said he would reserve them, and ill the meantime defendant could tender evidence. Mr.'Myers would have an opportunity of replying to the nonsuit points later on. The first witness called for the defence was Detective Kemp, who gave evidence in regard to a search of boxes he had made and the removal therefrom ot certain articles, which Mewhinney said was his property, and which had been stolen from him by his wife. To Mr. Myers: The valuable things, which Mewh'ijiney said lie had lost, were never found. The articles found w'ere uol of much value. . Defendant had just commenced to give evidence on his own behalf when the further hearing was adjourned until 10 o'clock this morning.