AN ALIMONY CASE.

Gisborne Times, Volume XXVI, Issue 2194, 19 May 1908, Page 1

AN ALIMONY CASE.

SMITH V. SMITH. RESPONDENT TO FIND SECUR-

Thc alimony case in which , Mary Elizabeth Smith sought to recover increased alimony from Abbotsford Smith, reached a final stage yesterday, when Mr. W. A. Barton, iS.M., read the folloUTng judgment given by his Honor Mr. Justice Chapman on the arguments heard during the last sitting of the Supreme Court: “Several motions were brought before me at the circuit sittings in March last which 1 have until now been unable to dispose of, owing, to pressure of business. The first are cross-motions as to the Registrar’s report, one objecting to it, and the other moving to confirm it. Tho matter had already formed the subject of a report which Mr. Justice Deuniston referred back to tho Registrar in November, 1907, lor further , enquiry. I see no reason lor disagreefng with the report now filed’, which complies with the terms of his Honors order, and is based on intelligible principles and definite evidence. The objection is largely based on the smallness of the respondent’s capital and tho income which might be expected to How from it, and also upon tho smallness of the actual returns. It has been field that if a respondent’s position could do better with bis capital lie must be held chargeable as if lie were employing tho idle capital. I think it ought also to be recognised that if a man has a farm, and is himself a skilled farmer, his property ought not to bo treated as an investment merely, but it ought to be borne in mind that he is in a positon to earn money beyond the rent of the farm or interest ondiis capital, as the farm gives him a position in which he ought to earn tho full profit attributable to the land and to

liis own work. This is what I understand Mr. Kells, one of the witnesses, to mean when he rates the cost ol management at £IOO yearly. 1 therefore dismiss the respondent’s motion and confirm tTie report. Then as to the proper allowances, I think that it is not unduly straining tile means of the respondent, who owes to his former wife, who has obtained a divorce from him, and to his children, the duty of supporting them, the annual sum of £4O in respect of the wife’s maintenance. This sum is to supersede henceforward the allowance made for alimony pendente lite, which was expressly declared not to form a precedent, and which the respondent!... Has disobeyed. This sum so fixed is to run from the Ist of this month. With this 1 order that all sums due under that order and this order be paid by the respondent to the petitioner forthwith, and that future payments of alimony he made in monthly instalments of £3 6s Bd, such instalments to ho considered as falling due on the Ist day of each month, and to ue paid before the 4th day of each mouth. This order is subject to ho revised and the amount varied at the instance of either party, but no motion is hereafter to he made by the respondent to vary the amount* unless upon filing tlio notice of motion Vo deposits with the Registrar the sum of £5 by way of security for costs, and files ail affidavit showing that he has complied with this order. The order made on the 12th May, 1900, for the maintenance of the children will remain in force and will he subject to ho varied subject to an application under this order on the terms above stated. With respect to the security, that order to 1)0 given is a security upon the freehold and leasehold land of the respondent to secure performance of the, provisions of the several orders as to maintenance and the sums due and to become due thereunder.' This security, as agreed at the hearing, is to he given to the. Public Trustee, and to "be by way of mortgage to he approved by the Registrar at Gisborne, and* is t 0 bo enforceable b.v the Public Trustee at the instance of either himself or any party interested, in terms of any order the Court or a Judge may make, but the existence of the security is not to prevent the petitioner proceeding by execution or attachment. There is a further notice of motion, which asks for the disposal of pending matters,

some of which arc disposed of by the above order. As to tins motion the following older is madoi—No. 80, allowed; No. Si is dismissed; No. 85 is refused so far as the respondent by ;it applies lor a modification of existing orders; No. J- is saying that the respondent has put the petitioner to a great deal of unnecessary coat, and imposed on her a great deal of vexatious delay. .Further, ho has disregarded the orders of tho Court in not at least endeavoring to comply with them. It would bo wrong to allow tho burden of this trial to fall on the wife, who has no other means of support. Motions have been made and summonses taken out, and other proceedings taken by the respondent or forced on petitioner, to a greater extent than 1 have over experienced in such a case before. The number of documents on tho file is little short of one hundred. Tho respondent ought to know that to proceed in this way is largely a wusto of money, and lie ought to bear in mind that the incurring of legitimate costs by his wife is a necessary expense, just as is incurring bills lor the necessaries of life, and that for such tilings the liability falls on the husband. Litigation of this kind is unlike ordinary litigation in which a successful party seldom finds himself relieved of tho entire cost. It would be impossible for me to assess in detail in a satisfactory manner the costs of these numerous proceedings, and 1 accordingly order that the respondent pay to the petitioner costs of all proceedings up to this date, including those reserved by various orders, such costs to be taxed as between solicitor and client. Where stated costs of any particular proceedings have been allowed or fixed, tho costs under this order will not exceed the allowance. If tile Registrar in any instance thinks that any of the petitioner’s costs have been needlessly incurred, lie will reduce or disallow them. An order of the Court will be drawn up, embodying what is above expressed. Should the parties differ about ;its terms, or call attention to anything that I have omitted to deal with, the draft must ho forwarded to me by the Registrar, with such observations as he may think necessary.” Mr. G. TI. Lysnar appeared for the petitioner, and Mr. H. J. Finn for the respondent.