SUPREME COURT.

Evening Star, Issue 4094, 10 April 1876, Page 2

SUPREME COURT.

CIVIL SESSIONS; - ’; Monday, Adbxl 16. • (Before Mr Justice Williams * Special *■*

Jenkins v. Jenkins, and Another— This was.an action brought by one William Jenkins against lus wife, ©oiS one Jonah Mitcheson, to. try whether a -oeiftain order in a declaration previously set forth as to property was obtained frandnlently and by A misuse conferred by ihe Married Women’s Property’s Prote&hn A cts of 1860 and 1870, and by mean. 0 f ***** and fraudulent representations as in the 14th. paragraph of the alleged declaration. MrG. B. Barton appeared for 'plaintiff; Mr Stout for the defendants. : 1 the case being called, Mr Stout moved that it be struck off the list, as no been settled by the Judge. His Honor said he was not at all satisfied as to the course taken by the plainftw all events they had an order, of the Court riot that it was "an” issue to be tried, but that it was “ the” issue to be tried. Thkt dtdbr not being objected to and both parties havingbeen present when the order, was,madAjt seemed to him that there was nb necessity%o go through the regular form preroribeabv the rules. .•*. 9

Mr Stout said his plea was that it was not the only issue. ' • His Honor remarked that the Court seemed to have decided that it was the only, issue and such being the case he would allow the trial to proceed, taking a note of the point raised by counsel for the dfefettdants. Mr Barton opened the case at somelenAh. stating that plaintiff and defendant mamed at Home in 1841, and had severil chUdren. Subsequently they came tms Colony and settled down at QueenstoWA. where nlaihtiff entered into the business of a storekeeper in partnership with one iPhl- , .business was very successful, plaintiff dealing L 2.000 or L 3,000 by it. However, m consequence of some unfortunate circumstances to which he (counsel) need not allude, plaintiff gradually became unhappy, lost his health, and ultinitely. in 1863, was deprived of his reason He was then brought down to the Dunedin Lunatic Asylum and confined therein till June, 1864. On being discharged plaintiff found out that . he had scarcely been locked up before his wife l- and histete partner in business sold evsiy--1 thing belonging to him and turned it into money. With some of this money defen- ' nt purchased some land in Queenstown in her son s name, and went into business as an hotelkeeper. Plaintiff went up to' Queen*, town and found out what his Wife had' 1 £one, and he lived with her again for a tiVfV but something still preyed, upon his mind, and in Nov&nber of the same year he was again put in the Asylum till 1866. Onbeimr again discharged he went to . Wellington rrn' worked at ms trade, occasionally'sending his wife money. . In 1868 he wenti baol' to and lived with her for a tune, whra defendant advised him to take their son William with him and make a trip round Colony for the purpose of regain* mg his health while she carried oh theonnness of the hotel. Plaintiff agreed, and visited the Thames, Queensland, and Viotom, being absent about five years and fc half. His wife often wrote to the son, and always spoke affectionately of plaintiff in her letters. Ultimately he returned to Queenstown, but immediately be ''arrived thereby wife rushed off to Cromwell and: obtained from Mr Warden Simpson, R.M., a protection order under the Act of 1860 upon a written information alleging that she mid deserted by plaintiff in 1867. Hbw (Mid the learned counsel) nearly every word of that statement is a lie—a downright utter falsehood, for plaintiff did not desert her, and in 1867 he was actually living in her house, which was legally his own. She kept" thw order quiet for fifteen weeks, and then suddenly told plaintiff of it and turned him out of doors. One of her pleas as to deseri tion was that he was living in her house, but 1 was bemg charged for his board and lodging the same as the other boarders. {Counsel 1 commented on such an extraordinary state ! of affairs as a husband paying his wife for his board and lodging, and said the jury would doubtless think Mrs Jenkins had mamed her husband for better, not worse: for richer, not poorer; in health, not in sickness.] A long list of interrogatories had been been drawn’ up and answered by Mrs Jenkins to the allowing effect;— That plaintiff had deserted her, and she had earn her own living by doing rifeedlework: and gome out nursmg; she was not aware if plaintiff was living in the hotel at she got the protection order; she had ceived letters from her son when hewkkf' absent with plaintiff, but had destroyed all of them but one; she told plaintiff that she had got the protection order as soon as she obtamed it from Mr Simpson; she told hltoS nearly every day that she intended charging! him for his board and lodging at the Melbourne Hotel; her solicitor (Mr Wedev' Turton) did not advise her to charge for his board, but she did so of her proper motion; plaintiff did not go away velling on ner suggestion; she did not remain m possession of plaintiffs pFopertv iti ftdM - street when he was sent to the lunatic ; aayium in 1863; plaintiff did not then leave any effects in her possession; die did not at wiy time receive any money from Henry Pulford;. she purchased section 86, block £' Queenstown, with money she had earned after plaintiff was confined in the asVlum* die did let section 36, block 1, off and > but the rent would average not more than 5s a week; she conveyed the sectionSmenC £oned in jOaintiffs , deolaration to Mitchisou absolutely. Counselby saying that it remained for the jury te> • deoide_ whether or not the order was obtamed from Mr Simpson by fraudulent'tepresenta> tions, and he would be very mnch artonidi6d A if they did not find that'it hadbeen 'jCT'**' obtained. . . . > '' '’ • . Jenkins, plaintiff gave evidence sumlar m effect'to theSteLhts inW? s ojsening address. * {Thqmpst jiiD^ J! > P<^tewere tbatwheni&tetiff vma,, . ant to the Asylum he ptitoessbd' m^ * perty in Queenstown and at

including three stores, .valued at L3,0000p L 4.000. This, he silked, his wife had disposed of,- and with the proceeds had purchased the Waverley Hotel. When he left the Asylum and Went to Queenstown he was so broken - spirited that he could- not ask- for an account of the manner in which his property had befea made away with. He saw tnatj he was not wanted—-that he was in the way. His wife told him to go away and make a home for himself. She persuaded him subsequently to go on a visit to Victoria for the sake of bia health, and on his return asked him why he had not stopped there with some woman, as she wonld not have cared. In, cross-examination witness denied that he had ever said he intended selling off everything and returning to Victoria within six weeks from that time; and if his son John said so, he would be stating what was false. If he could have got the Waverley Hotel, which was his “ unpolluted ” property, he would have washed his hands of the lot of them. From 1867 to 1874 he never wrote to his wife, but he dictated to his son William letters to other members of his family. He was too unhappy to write to his wife, and was veiy jealous of her. He and two witnesses were examined by Mr Simpson, 8.M., who refused to set aside the protection order. Through his brother-in-law he learned that his wife had told the Magistrate that he (witness) was “hopeless and penniless,” but that she would keep “the poor man.” He believed his . late partner, Pulford, was now in Canada. When he came out of the asylum he did not know that he was-in Dunedin, nor did he know that he remained here for some time afterwards. John Kent, storeman to the plaintiff, said that he was at Queenstown on the day Jenkins' arrived there from Melbourne in 1874. Jenkins went to the Melbourne Hotel at 6 p.in., and two hours afterwards he saw Mrs Jenkins in the bar of the hotel drunk. Next morning he saw her go to Cromwell by coach. 1 This closed the plaintiff’s case. Mr Stout submitted that’ there was no case to go before a jury. To constitute a fraud on Court there must be Wo things established—a suppression of fact, and no opportunity given to the other side to upset and vary the Court’s decision founded on fact—in neither of which essentials had the plaintiff proved his case—not the slightest tittle of evidence to support the allegation of fraud had been adduced. [Left sitting.]