SUPREME COURT. Auckland, March 7, 1849.

New Zealander, Volume 4, Issue 289, 10 March 1849, Page 3

SUPREME COURT. Auckland, March 7, 1849.

CIVIL SITTING. His Honor the Chief Justice opened the Court at the usual hour, and a jury being sworn, of which Mr. R. C. Barstow was foreman, proceeded to trial of the cause

BUTLER v. FLAVELL. This was an action to recover the sum of £44 6s. 8d. for the amount of two items— one of £42 6s. 8d, due from the defendant to plaintiff for board and lodging of Elizabeth, the defendant's wife, from the 1st March, 1846, to the 1st May, 1848; and a second item of £2, advanced for passage money of defendant's wife from Auckland to Mongonui, by the schooner "Bride," in the Month of February, 1846. The defendant pleaded that the said Elizabeth was not then nor never had been his wife; but that she had been living with him previously to the Month of March, 1846, and that she left him on or about the 1st of that month without any sufficient cause, and that she had never returned to him, although he had been always willing to receive her back. Defendant denied that the sum of £2 was a necessary advance, and said that the sum of £42 6s. 8d. for board and lodging was excessive. Evidence in support of the pleadings was adduced. Mr. Skey, for the plaintiff, was called on to prove his having performed the rites of matrimony between the defendant and Elizabeth Merrett, in the year 1842, at Mongonui. This witness was examined at some length by defendant's counsel as to his right to act in a clerical capacity. His Honor summed up as follows:— There are two main questions in this case. First— was Elizabeth the wife of the defendant or not? And second, if so: was there a sufficient cause for her living apart from her husband? It is absolutely necessary for the plaintiff to prove that she was the defendant's wife, at the time when the credit was given to her; because, at that time, she was not living with the defendant. (The Chief Justice then commented on the evidence of Mr. Skey, and on the Colonial Marriage Ordinances.) The ground of the whole claim then is this, that Elizabeth was the defendant's wife, for though it is true that where a man and woman live together as man and wife, without being in truth man and wife, the woman may bind the man by her contracts, for articles necessary for herself and the household; yet this holds only so long as they live together. When they have parted, all power in the woman to bind the man is gone. But it is not so with a wife. She, though living apart, may bind her husband by contracts for articles of necessity, though it is not necessarily true that she can do so under all circumstances. If, for instance, a woman leaves her husband without any reasonable justification or excuse, her husband is not answerable. Where any person gives credit to a woman, whom he knows to be a married woman, and to be living apart from her husband, the law imposes upon that person the obligation of making inquiry as to the circumstances under which she is so living. If it is by reason of cruelty, or ill treatment on the part of the husband, that the wife is driven from her home, or if it is by the free will and with the consent of the husband that the separation takes place, and after that the husband does not make and pay an adequate allowance for her; in either of such cases a stranger may supply her with articles necessary for her, and acquire a right to look to the husband for payment. (The Chief Justice then read the material parts of the evidence.) Verdict for plaintiff— Damages £25 and costs. Mr. Conry (per Mr. Merriman) for plaintiff. Mr. Whitaker for defendant.

Brown and Whelch, appellants, v. Bateman, respondent. This was an appeal, arising out of a seizure of tobacco made by the Sub-Collector of Customs at Russell, under the Customs Regulations, the appellants seeking to set aside the decision of the bench of magistrates, by which they were fined in the sum of £100 for a breach of the Customs laws. Mr. Whitaker appeared for the appellants, but as no conviction had been returned to the Court by the Magistrates, his Honor declined to hear the appeal, and ordered it to be dismissed.