AFFILIATION CASE

Hokitika Guardian, 8 April 1930, Page 8

AFFILIATION CASE

INTERESTING LAW POINTS

By Telegraph—Per Press association./

WELLINGTON, April 7

A sudden end was reached in an aiUliag.Oii ijease in the Magistruite’s Jo.irc to-day,- consequent upon the Magistrate ruling that neither a hus•u.iiu nor a wife .could give evidence in the direction of illogitimatising a child horn during their cohabitation.

An application was made by a young married woman for an affiliation order against a young married man, who appeared. The complainant went into the witness box to give evidence, but upon its being stated that she and her husband lived 'under , one roof, counsel lor the defendant protested. He submitted that the law, as it now stood, was that neither a husband nor a wife could give evidence to illegitimati.se a Wind born during the time they were cohabiting. lTe i quoted authority in support.

The Magistrate (to Mr Crombie): Have you anything to say to this submission? I think it is very formidable.

“I would like tbe opportunity lo cons.dei 1 the ease further. ’’

T’he Magistrate: I will dismiss the case without prejudice if you wish to consider it.

Scautlebury: That may mean that we may have to come hack again later.

The Magistrate: I have an idea it won’t, if I look into the matter. 1 think you will not have to come hack again.

Counsel for defendant said that the defence was a complete and absolute denial of paternity.

The Magistrate: This is the position, I rule that a wife cannot give evidence to illegitimati.se her own child. Mr Scantlebury: Does Your Worship also hold that the husband is not idle to give evidence? The Magistrate: Yes I Neither the husband nor the wife can give evidence that will tend to illfegitima.tise their own child.

The Magistrate mentioned that he would really like the opportunity of looking into the cases quoted by Mr Scantlebury, and lie adjourned the Court for that purpose. Upon the Court resuming Counsel for the complainant said it seemed clear tlrat there was the presumption of the legitimacy of a child born in wedlock. That presumption could he repudiated by other evidence, hut he was riot prepared to go on with the ease on the evidence available. He tnerefore asked for a dismissal, without prejudice of the complainant. “I may say that L had quite made up my mind” said the Magistrate. “I thought so at the time.” He dismissed the case without prejudice pointing out that the complainant was always at liberty to lay a complaint again. Costs amouning to £7 12s were allowed the defendant.