SUPREME COURT.—DIVORCE AND MATRIMONIAL JURISDICTION.

New Zealand Times, Volume XXXIII, Issue 5356, 28 May 1878, Page 3

SUPREME COURT.—DIVORCE AND MATRIMONIAL JURISDICTION.

Monday, May 27.

(Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Richmond, Mr. Justice Gillies, and Mr. Justice Williams).

HENEY V. HENEY AND HOOKE. Mr. Chapman for the petitioner. David Heney, a farmer, the petitioner, prayed for a divorce from his wife, Lizzie Heney, on the ground of adultery with tho - co-respondent, William Moore, a farm laborer. • Evidence had been taken at . Christchurch by Mr. Justice Johnston without a jury. At first tho petitioner claimed £SOO damages, but he waived this, and Judge Johnston intimated that he would not have heard the case without a jury, had damages been sought for. *** After argument as to the legality of the proceeding, the Court now held that the evidence ’ could not ho received by the full Court, and that the hearing of the case by Judge Johnston was irregular. Mr. Chapman now made an application to the full Court to hear the case, and this was agreed to. From the evidence of tho petitioner and of Thomas Heney, a sou by a former marriage, it appeared that theHenoys were married in 18 71 at the Presbyterian Church, Christchurch, by the Rev. Mr. .Fraser, the witnesses • being Thomas Stevenson and a Mrs. Somerset. At the time mf tho marriage the petitioner was about forty years old, and the respondeat, whose maiden name was Lizzie Borridge, between seventeen ’and eighteen. The co-respondent, Moore, who was a nephew of the petitioner, was twentyfive years of age when he xvent to live at his uncle’s house as a farm laborer. On the 12th of July, 1877,'at a soiree given iti the Odd Fellows’ Hall,, JKaiapoi, Mrs. Heney and Moore were so attentive to each other that / Mr. Heney’a suspicions were aroused. On various days between that' and tho 16th August the petitioner saw enough to confirm his doubts, and he taxed his wife with being unfaithful. She at first denied her guilt, but afterwards confessed it, and swore on the Bible, under persuasion, that she had been unfaithful. When asked why she had so oon- «, ducted,herself she said, “It was the devil > that made me do wrong.” The petitioner re- ; ■ - fused to forgive her, and instituted proceedings for a divorce. At the close of the evidence the Chief Justice intimated that the Court would give judgment later in the day. . After the adjournment for lunch, ‘ The Chief Justice said; I think the petitioner has established his case, and is en itled to a rule mrifora divorce. I think be has not In any way condoned his wife’s offence ; but had it not been for that point being made clear I should have had some considerable doubts whether he could have relied upon anhsequent misconduct, inasmuch as he had, after, his suspicions and proof of Moore’s misconduct. - allowed the two persons to remain in the house together. However, I think he is entitled to a rule nhl.

,:Mr. Justice Johnston : Some donht appears to have arisen as to the propriety of the petitioner’s conduct. The explanation that ho makes is to my mind intelligible. It depends very much ' upon the habits and education of the parties as to what effects. axe. produced by such startling circumstances as he was a witness to. The explanation why he did not at once take some steps upon the discovery of his dishonor was that he reflected he had no witness to corroborate what he stated, and the two might have said that it was all a falsehood—merely the creation of his jealousy ; and he waited. Ho had thus laid himself open to a considerable imputation, on the ground that lie had permitted the young man to continue on his premises. After what ho had seen he ought to have removed Moore, but he preferred to have his suspicions confirmed to preventing his wife continuing to commit the sin of adultery. I cannot come to the conclusion that he intentionally condoned his wife’s offence. Judge Gillies : I only wish to state, in addition to what has been said, that I quite agre? that the petitioner is entitled to a rule nisi, not upon his own evidence merely, but partly upon his wife's confessions. I cannot help expressing entire disapproval at the mode in which those confessmns were extracted, and in moat cases very little weight should be attached to confessions so; extracted. Judge Williams ; I think the petitioner has established the faoto/his wife’s adultery with the co-respondent, and I do not think be has done anything to disentitle him to the relief he seeks. The rule nisi should be allowed to go. The Chief Justice: Brother Richmond (who was not on the bench) concurs in the conclusion the Court hag arrived at. . Buie nisi granted on the usual terms. WOOLOOCK V. WOOLCOCK AND WADDELL. The petitioner, Charles ; Woolcook prayed for a divorce on the ground of the respondent, Mary Jane Woolcook, having committed adultery with the co-respondent, James Waddell. Mr. Travers, for the petitioner, stated that no service, personal or substituted, had been effected upon the co-respondent. He desired to call the attention of the Court to two cases with regard to service upon a co-respondent not being necessary under certain conditions. As hearing oh this he cited Cook v. Cook and Quaiie, 28 L.J., P. and M. cases S. In that case the parties had gone to Australia. In Tonkin v. Tonkin, 27, L. J., the Court dispensed with service. The affidavit of the petitioner was to the following effect That at the close of the session of the General Assembly in 1876, on iny return to Greymouth, where I was carrying on business, I found that ■- Waddell .had been engaged by my wife as a V ( laborer .in connection with the business. He tt was a-laboring man, and had lately arrived at Greymouth. Soon after my return I suspected that there was an improper intimacy between 1 ihy wife and Waddell. In consequence of violent conduct on the part of Waddell and ■ ■ ■ - my .wife, and threats upon their part to do me bodily harm, 1 left the house. My wife oon-.tinued-to reside there with Waddell until he .. left Greymouth, in February, 1877. Waddell was imprisoned for a violent assault upon an old man named “ Johnnie the gardener.” Waddell's whiskers and hair were of a light color, with a reddish tinge. I have been informed that immediately after his discharge from prison he dyed his hair and beard black, and left for Nelson. I saw him at Nelson

when he was disguised, and I believe be afteri wards went to Dunedin, but I could get no ; ■ trace of bim, and I have reason to believe that ho has gone to New Guinea. Charles Wooloock, the petitioner, deposed : ■ I was married to a young woman named Mary ITane; Lovell, I think in November, 1865, in Nelson at a Presbyterian Church, by Mr. Calder if I mistake not. I was then a widower. She was single, and was about twenty years of age, and I was about thirtyfive. The witnesses were people I did not know, and were brought by tho minister, with . whom I, think they wore connected. (Certificate handed to the witness.) That refers to : my marriage. We resided in Nelson for about twelvemonths; after that we lived in Motueka, and then we went to Greymoutb, where I resided until last year.; I was a member of tbs Assembly, and in 1876 I left my wife at Greymoutb when I attended the session of Parliament at Wellington. I then had no reason to suspect her infidelity. I returned in the early part of November to Greymoutb, v on btwineßs as a produce merchant, I found Jamea Waddell there, he appearing to . be engaged as an ordinary "Storeman, I had left the business in my wife g entire charge. The day after my return, on, going through my accounts, I inmured of my wife about a branch business at Kumara which she had opened in my absence. She said WaddelS had gone there to take stock. ....fabe .further ,‘flaid: that' the Numara business would improve the state of the business gene- , raUy. On the following day Waddell returned,and I observed my wife in confidential conversation with him—-speaking low, and apparently as u they did not wish me to observe them, lie afterwards told, mo that I had nothing to do with the business ; tbat it was his, , i ‘hen expressed my astonishment at this, for X was aware that my wife had spent considerable tune in attending to that business, she - ? a i U J? - U thofa for a fortnight at a visit. X bad them a suspicion, and expressed my surprug and indignation that my wife should have neglected mybusinei/j and my family to attend

to the business of a man who to me and 'to~ my affairs was a stranger. Her reply was that she was to have a share m it. .f eeling very indignant, I left the house. In marking their movements during the evening, I suspected they were making preparations to clear out. I demanded the proceeds of a cheque for £l3O which X had handed to her on my return from Wellington, and I became further suspicious, because she had cashed this cheque instead of paying it into my banking account. During the., evening I demanded this money, and her reply was that I would have to wait her convenience. I called again later, and again demanded the money, stating that I would not leave the premises until she had handed over the money. I then withdrew from the house and remained outside the gale. Shortly after she and Waddell came out and I stood at the gate and said, “ Mary, you don’t leave the premises until you hand me that money, and then you can go your own way." On my obstructing her, she drew back and covered me with a revolver, declaring that if I did not allow her to pass she would shoot me. She snapped the revolver, and it missed fire. Whether it was loaded X do not know. They at oncemadearush.hoknockingmedown,and they cleared. I raised an alarm, and they did not go far. She then handed over the money to a gentleman, and I got it afterwards. On .the following morning Iwent to my own house,that is, to a house I had settled upon her, and Waddell

ordered me out. My wife was there and heard this It was done under her ’instructions, and he said that he had her authority for doing it. I have not lived with her since, and have had no communication with her excepting as to the children, of whom there are six My wife ami Waddell lived together in the house until tho latter part of February, 1877. Waddell then committed an assault upon a poor innocent «u----offendin" man, and got a month s imprisonment, with hard labor. X nest saw him m N elson, in April. When X first knew him the color of his hair was reddish. lid was about 40 years of ane When I saw him in Nelson his hair was dark, and evidently dyed. I recognised him after a careful scrutiny. I did not speak to him, and did not hear his voice. His countenance and the peculiar grin he had led me to scrutinise him. The clothes were those.l had seen him in at Greymouth. When I returned to Greymouth my wife was there, and she left at once. She had sold all her furniture when Waddell was in prison, and she left for Nelson in the first steamer after I reached Grcymonth. I have not seen her since. _ The eldest of my children will be twelve in November, and the youngest is three and a half years old. They are all in my charge. My wife had sent four of the eldest children to school at Nelson, and she took the two youngest with her when she left Greymouth. She aftewards left, all the children at Nelson, and they are now with me. ■ To tho Court : My wife and I had always lived happily together, and she appeared a most devoted wife and mother. I did not know that she drank, but on my return I had a suspicion of it. Waddell was not above her position in life—he was a scrubber, or skunk. When I was in Wellington nothing was communicated to me as to what had been going on at Greymouth. Waddell, as X learn from the books, was employed a fortnight after I left for Wellington. On one occasion I asked my. wife what reason she had for pursuing such a course, and she replied, “I am a child of nature, and will have my fling.” She never accused me of not having behaved well. On the contrary, she said that my conduct had always been that of a gentleman and a kind husband. She said nothing but death should ever separate her from Waddell. Ido not know that he is a very good-looking man. He had a wife and six children in Greymouth. They sent Mrs. ■Waddell and four children home with my money. They used several hundred pounds during my absence, and practically ruined my business.

Samuel Wadman, of Nelson, who had possession of theCuatomHouse Hotelin April, 1877, stated: A person calling herself Mrs. Osborne came to the hotel on the 19th April, and her reputed husband on the 20th. The woman had two children, and they were sent to school. He was a man taller than myself, but not quite so stout; was a jolly sort of a man, Scotch, and was fond of his whisky. Mrs. Osborne’s sister said that her real name was Mrs. Woolcock. Mr. and Mrs. Osborne I took to be man and wife; and they stopped sis days. They left for Melbourne by the Taupo on the 21th April, to catch the Albion at Wellington. Mrs. Osborne was a tall, fine-looking woman. They were rather shy, only going out of an evening, and she did not come to the public table.

Charles Woolcook, a boy ten years of age, a son of Mr. and Mrs. Woolcook’t>, said; I remember my mamma. I was at school in Nelson about a year ago, and there were three brothers with me. X saw Waddell come to our house at Greymouth when papa was iu Wellington. I saw Waddell in Nelson about fourteen or fifteen months ago when I was at Thomas’ school. My mother was with him, and I beard them say they were living at the Custom House Hotel. Waddell had his whiskers dyed black when I saw him -in Nelson. I have not seen my mother since she left Nelson. She kissed me, and told me she was going away, but did not say where to. Mother and Waddell took me for a drive.

The petitioner, re-called, in reply to the Court, said ; X took tho children away from school in June, 1877. I saw Waddell iu Nelson In April. I have received letters from my wife, and I received a telegram from Dunedin three months after she left, asking what had been done with the children. I thought my wife aud Waddell had left the country, aud the receipt of that telegram showed me where she was, and enabled me to have the citation served upon her. The Chief Justice : The Court is satisfied that the petitioner has made out his case. Rule nisi granted. The Qourt then adjourned sine die.