SUPREME COURT.—MATRIMONIAL JURISDICTION.

New Zealand Times, Volume XXX, Issue 4579, 23 November 1875, Page 3

SUPREME COURT.—MATRIMONIAL JURISDICTION.

Monday, November 22. (Before their Honors the Chief-Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) The Court sat at 11 a.m. KNOWLES (PETITIONER), AND KNOWLES (RESPONDENT), TOWERS (CO-RESPONDENT.) Petitioner asked for a decree dissolving the marriage on the ground of his wife’s adultery. Mr. Izard applied that evidence by affidavit might be substituted for oral evidence in this case. He cited Palmer and Palmer and Rendle and Rendle, both of which cases had come before the Court at previous sessions as precedents for the course he desired their Honors to take. The affidavits related to adultery committed in Melbourne and Wellington. A long discussion took place, and on Mr. Izard submitting the first affidavit, their Honors delivered judgment. The Chief-Justice said : Although it is not necessary for us to go further than to say that inasmuch as that in this case you have not followed the ordinary rules of Court by not filing the affidavits within eight days after the making of the order, they are inadmissible, yet it seems to be better for us to give an opinion upon the main question you have raised. In this case there has been no defence set up, and the question'asked is: Whether in a case where there has been no defence raised, evidence ’ on affidavit can be admitted. Affidavits can not be admitted except the affidavits of the parties—the petitioner, respondent, or co-respondent. Our Act differs from the English Act in having had introduced into this 46th section “his or her own.” The English Act does not contain these words, and therefore it is competent for the courts in England, although they do not exercise the power extensively, to allow' the whole or any part of petitioner’s case to be proved by affidavits of any person not restricting affidavits to the petitioner or the other parties to the suit. In New Zealand it must be otherwise. The 46th section says, “The witnesses in all proceedings before the court where their attendance can be had, shall be sworn and examined orally in open court, and such attendance and the production of documents by them shall be compelled in the same manner as in an action at law, but the parties shall be at liberty to verify their respective cases in whole or in part by his or her own affidavit, but bo that the deponent in every such affidavit shall on the application of the opposite party or by direction of the court be subject to be cross-examined by or on behalf of the opposite party orally in open court, and after such cross-examination may be examined orally in open court as aforesaid on Ms or her own behalf.” The rules provide how this is to be done. Affidavits are to be filed a certain number of days, and these persons can be called upon to be cross-examined orally. Now, it may have been considered that where cases were undefended, where no appearance has been entered, the case may be said to go by confession or default; but it seems ‘to me that the 25th section shows that the court must hear the case, and decide the case quite irrespective of the admissions of the parties by a want of appearance or otherwise, The 25th section says, “In case the court is satisfied on the evidence that the case of petitioner has been proved, and does not find that the petitioner has been in any manner accessory to, or conniving at, the adultery of •f the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with the respondents, or either of them, or with any person liable to be made a re- . spondent under the provisions herein contained, the court shall pronounce a declaring such marriage to be dissolved.” That section seems to show that the Court is to be •satisfied upon the evidence that the case has been proved. It seems to me that the Court hearing the petition, although the parties do not appear to defend is to be satisfied upon the leval evidence ; that is, evidence taken orally, and in open court. I think it is necessary, although the parties do not appear, that only oral evidence shall be taken, except that it may be taken by commission where the parties live more than two hundred miles from the place of trial, I think the order made by myself was one wMch I had no jurisdiction to make, but I may say it was made owing to similar orders having been made before, and with an intimation that I thought our Act did not authorise it, X yielded to a former practice. Mr. Justice Johnston : I quite agree with what fallen from the Chief Justice. It seems that the onus is thrown upon this Court, where the parties do not appear to defend to see that good grounds exist for granting a divorce. TMs is to be done by examination and cross-examination of the petitioner to see if there is any collusion or condonation, and it is also necessary to see that the facts alleged by the petitioner are established by legal evidence. The fact of the non-appearance of a party does not allow us to deal with the case as we should in an ordinary case between parties and allow the allegations of the petitioner to be acted upon as established by confession, for possible collusion between the parties is one of the principal matters that requires searcMng inquiry and investigation by the Court itself as a court of conscience. Where the parties appear—the respondent and co-respondent appear—and plead, the issue may be of a different character. Questions such as -cruelty or desertion might arise for the determination of the jury. It is clear that there is no intention of alleging anytMng of the kind in this case. We are asked for a dissolution of the marriage upon the ground of adultery and we cannot grant that unless upon evidence of a legal character which must satisfy the court as a court of conscience as) to the propriety of granting the decree. As far as the question of affidavits goes, I entirely agree with the learned Chief Justice as to the fact of there being a distinction between the language of our Act and the language used in the English Act, and I think we must come to the conclusion that the words “his or her own affidavit ” were introduced by the Legislature of New, Zealand for the express purpose of avoiding the occurrence which sometimes takes place in England—that the facts necessary to establish the petitioner’s right to a decree are allowed to be proved by affidavits, either wholly or in part. On what occasions it would be proper for the Court to go upon affidavit of the parties it is not necessary here to speculate. It may be that for the purpose of establishing some facts of the petitioner’s case such affidavits might be allowed, but it is clear that the petitioner must be present in order to be crossexamined on the question of collusion or condonation. It is not sufficient for this Court to receive an affidavit. Oral evidence is necessary to make the petitioner entitled to the dissolution of the marriage. Mr. Justice Gillies ; I am quite satisfied that evidence must be given orally, except in the case of the parties living at a distance from the place of trial. A commission might then issue, but otherwise the evidence is not admissible in this court.

Mi - . Justice Williams : I quite concur with the remarks that have fallen from my learned brothers. The terms of the 46th section seem clear. “ The witnesses in all proceedings before the Court where attendance he had shall he sworn and examined orally in open court,” and there is an exception engrafted that the parties shall be at liberty to verify their respective cases by their own affidavit. The next section says that the court or judge may order the examination of by commission under the ordiuary jurisdiction of the Supreme Court. The mode of taking evidence is prescribed precisely by the 46th section of the Act, and there is no power to take evidence generally by affidavits. It is unfortunate that the rules may lead to a difference of opinion ; but it would appear they were framed under the English Acts, and have been framed in error. Evidence was then given proving that the maiden name of respondent was Louisa Emily Lomax. She was sixteen years of age ; Petitioner was twenty-four years of age, and the marriage took place at St. Paul's Church, Wellington, on 23rd August, 1865. Respondents mother was present when the ceremony .was performed. The parties lived together till last February, most of the time at Marton, when the respondent left the colony for Melbourne, in company with the co-respon-dent, Nowell Towers, adultery having been first committed in Wellington. One child, son of petitioner, was taken away by the respondent. After their Honors had consulted, The Chief Justice, said : The court has arrived at the conclusion that the petitioner has sufficiently proved his case to entitle Mm to have the rule nisi for divorce granted. The court sees no reason for coming to any conclusion that there has been connivance or collusion. The court is satisfied on that head ; but I may say, for myself, I think in cases of this nature we ought to expect the parties to prove their cases in the best way they can, this case better evidence to prove identity might have been called. In this case the only evidence tendered in identification is that of the identification of the portrait. Mr. Justice Johnston concurred, and said these cases ought not to be “starved,” the best evidence should he brought forward. Much more evidence might have been brought forward.

THOMAS (PETITIONER) THOMAS (RESPONDENT). V. HAYES (co-respondent). This case was adjourned on the application of Mr. Izard, who appeared for petitioner. It is a Dunedin case, and this course was taken by the learned counsel owing to some error in the evidence taken under commission. This being all the business, the Court adjourned till the second Monday in May.