PROCEEDINGS IN DIVORCE

Dominion, Volume 13, Issue 213, 3 June 1920, Page 6

PROCEEDINGS IN DIVORCE

o- - JURY WISHES TO COMMENT BUT HIS HONOUR FORBIDS

THE BENCH AND COUNSEL

In tho Divorce Court yesterday, before Mr. Justice Edwards and a jury of twelve, John Walter Yorston sought a dissolution of his marriage with Ida May Yorston. Petitioner accused respondent of having, without just cause, deserted him for three years and upwards.

Mr. P. W. Jackson appeared for petitioner, and Mr. H. F. O'Leary for respondent.

Petitioner gave evidence that he was a relief clerk in the employ of the Railway Department. . He married the respondent on December 14, 1913, at tho Basilica, Wellington. After marriage he lived with her at Ngahauranga for about two years, then at Makoutuku for nine months. There was ono child, born in February, 1916/, When witness was transferred to Wellington in March, 191.7, his wife would not go with him. Sho said that she had definitely finished with him, anil that the marriage had been a mistake right from lhe first. He accompanied her to Featherston, where she went to live with an uncle. The child remained with liev. Sho had vot since lived with petitioner. Petitioner 'main--tained the child, but his wife never made any application to him for her own maintenance. He made visits to Featherston to see liow the child was getting on. During those visits the only topic his wife would discuss with him was the prospect of getting ti divorce. She 6aid she was prepared to "go to any length to got it," and she treated him wit!h utter contempt, In an interview he had with her respondent told him she had been keeping company with a man for nino months. Perhaps that man would call upon him. The man would be co-respondent, and accordingly petitioner could claim damages from him. At that time an amendment had just been mado in tho law of divorce for desertion, and witness told respondent he intended to take divorce proceedings at once. She asked him to wait, saying that perhaps tho other man would ccme and take her away. Later on sho told him that in April she was going away to Australia with this man. One d«ij" m March petitioner met respondent in Cuba Street, and asked : lier whether she intended ever to live with him again. Respondent said to a friend who was with her: "Mona, come and listen to wjiat he says." "Then," proceeded witness, "in a. sneering, laughing,' dirty tone, she said: 'H B (usked me to live with him again!'" Witness invited her to express her intentions

in writing. 'As a result, he received from respondent the following letter, dated Ufa roll 21:—"Received your letter a few days ago, and I don't want any further to do with you or _ say, as I am through with you.—l. Yorston." "No Evidence of Desertion," Mr. Jackson was about to examine tho witness as to the conditions of Ms life with tho respondent, When His Honour observed: "I do not see any evidence of desertion."

Counsel: Respondent left petitioner under circumstances which, unless she can justify her act, clearly show desertion. Ilis Honour: She left him by' mutual consent. The position is this: These people don't got on together, and tho wife says: "I am not uoing lo live with you any more." "Well." the petitioner says, "1 will take you nt your word, . . . Whatjshafl we do with the furniture? . . . Tlmt "had better go to uncle's, tco." There is no ovidenco of desertion there.

Counsel: He has sworn that she iefused to come to Wellington with him. His Honour: Ho took her to Tea thereto]! and left her there with his own consent, and ho paid for the child to remain. I shall direct the Jury that there is no evidence of desertion. ... I am assuming that every word tho witness said is true, and I tell you there is no evidence of desertion. Mr. Jackson said he wished to supplement the evidcnco already given with evidence of respondent's conduct towards potitioner "in deserting him at other times." Ilis Honour: The question is whether we shall spend tho wholo of to-day, and possibly another day, in fruitlessly discussing the previous matrimonial history of these people, which has nothing to do with the matter. Mr. Jackson, I rule that there is no evidence of desertion. If you don't like my ruling thero is' the Court of Appeal. Counsel: I ask. Your Honour to let tho petitioner give his evidence.' I have some more questions to ask him. His Honour: And you want him to contradict what he has said already ?

Counsel: I want him to give evidenco that is perfectly relevant to his ease. His Honour: It is irrelevant if it is in reference to previous squabbles or separations. It is absolutely irrelevant.

Counsel: ft is a question for the jury whether they believe desertion has taker place or not. T ~ '

His Hoftour: I am the person in auhority and charged with the (idminisration of the law. . . . I .entertain no loubt nt all as to what I have ruled ooing right. ... I assume the evidence of the witness to be literally true. "What more can you want? Counsel: But Your Honour is really taking— His Honour: I won't argue the matter. I won't permit— Counsel: But Your Honour has indicated that you will withdraw the case from the jury before I have finished my evidence.

His Honour: If you can produce any evidence relevant to this desertion yen may do. it; but allow you to go into previous matrimonial squabbles I will not!

Counsel: But I submit it is evidence in support llis Honour: But there is 110 eridenco to support. You don't appear to understand plain English. 1 assume _ everything this man'has said to be literally true. That being 60, there is no evidence of desertion. Counsel: AVill you allow the petitioner to give evidence to the effect that after the first 18 months of married life the wifo refused to cohabit with her husband?

Ilia Honour: No, because it is no part of the allegations contained in the petition, find no part of your case. Counsel: I have not alleged it, becauso it is a nintter eo hard of proof j but I can give it in evidenco in support of petitioner's allegation that she refused to live with him in 1017. Another refusal

"The End Has Com#." His Honour: There must ]>e an end of this, and the end has come. Counsel: All I su'bmit is that you arc not. Admitting evidence that His Honour: Well, vou ask the question and I will formally reject it.

During this exchange the petitioner had, by His Honour's direction, stepped out of the witness-bos. He returned to the box when His Honour gavo counsel tli© permission indicated. Counsel ('o witness): You are cn your former oath. His Honour: Former oath! What .nonsense you talk... Go on. Counsel: I don't liko to be told that it is nonsense I talk.

His Honour: It is nonsense to tell the witness when he gets back in the box that ho is on his former oath.

Counsel: I very respectfully submit it is not nonsense.

His Honour: Go on! I do not allow you to wrangle with mo at every word I say! Counsel (to witness): You were married in 1013?

His Honour: He has already told us that.

Counsel: Did you'live happily with your wife? Witness: Every day wag a perpetual misery in the woman's presence. His Honour: I will not allniv evidence to be given of previous differonees between the parlies which are r.ot connected with the act of desertion alleged in the petition. Counsel: flicn, Your Honour, I must accept your ruling, and I have no further questions to ask this witness. Witness (to His Honour): But, sir, my meaning has been misconstrued.

His Honour: Stand down, sir! Your counsel has wrangled with mo till I am tired of it.

Counsel: Your Honour, I have a witness to prove that this man was alone for the greater part of the three years during which he 6iiys he was deserted, but in view of what Your Honour lias stated, and what Your Honour has said you will direct tho jury, it seems to me useless to call him. I submit I havo established a prima facie case, but as Yonr Jlcaiour has said you will not let the case go to the jury • His Honour: I will give tho jury a direction that there is no ovidenco of desertion for them. Mr. O'Leary said he took it that' the petitioner's case was concluded. He formally submitted, as he had intended to submit IK-foro His Honour gavo the rilling, that there was no evidence of desertion, , His Honour directed the jury as he had stated ho would do. Tho jury had one issue put before them: "Did the respondent desert tho petitioner?" • What the Jury Foreman Said. After hearing tho Court's direction, Mr. Albert Christeson, foreman of tlm jury, said: Nevertheless there are members of the jury who consider certain points havo been raised. We would like to have an opportunity to' discuss thoso nmttcr=. His Honour: You are bound to obey the ruling of the Court. The foreman: It seems to me a case where wrangles arc bound to ocoui. I would like to know have we tho right His Honour: You have no right to depart from the direction I havo'given. The foreman: Have we the right to consider the case and bring in a rider? His Honour: You have not such a right. The foreman: Certain mombers of tho jury think they have, Ilis Honour: What rider aro you going to bring in—that you don't like my ruling? Tho foreman: That we have to consider. His Honour: That I won't nllow, for the 6ake of decency. Mr. Foreman, you must understand this, that the only persons who can judge of the judicial act of a Judge arc other Judges. For that purpose tho Court of Appeal is instituted. That Court will sit in Wellington nn the 28th of this month .... I cannot accept any comment from tho jury upon my act. ■ Tho foreman: We have nothing to do except find in accordance with Your Honours direction? His Honour: You can say: "By direction of the Judge the jury answer 'No*. '• The foreman: And wo can • make no further comment? Mr. Jackson: May I say— His Honour: Sit down, sir! Mr. Jackson: I rise again, sir— Threat of Committal for Contempt.

His Honour:. Sit down, sir! I shall commit you for contempt of Court if you interfere any further at this stage. The foreman: Have we the privilege of retiring? Do you debar us from that privilege, sir? His Honour: You may retire if you like. „ , T The foreman: I thank Your Honour. His Honour: You must understand I will allow no rider or anything that is cummcnt on the mode in which I have discharged my duties to-day. Tho foreman: I thank Your Honour. I hear you. The jurv returned about fen minutes Inter and delivered the following verdict: - "We Knd, in accordance with tho direction of tho Judge, that no desertion took place. Wo regret that wo are (( debarred from commenting 011 the case." The petition was dismissed, ond petitioner was ordered to pay costs on the lowest scale. Counsel for petitioner wa« allowed U days within which to give notice of motion for a new trial.