HAMILTON v. HAMILTON—DIVORCE CASE.

Thames Guardian and Mining Record, Volume I, Issue 44, 27 November 1871, Page 3

HAMILTON v. HAMILTON—DIVORCE CASE.

(From the Jlubart Totrn Mercury.) In the Supreme Court of Tasmania, on the 31st August, the following case was heard :—Before Sir Francis Smith and Mr. Justice Dobson. HAMILTON (Petitioner), HAMILTON (respondent). The Attorney-General, instructed by Allport, Roberts, and Co., appeared for the petitioner. The respondent was not represented, This was a suit for the dissolution of marriage on the ground of adultery and bigamy coupled with with cruelty. The petitioner was Emma Elizabeth Hamilton, and the respondent Archibald Sillers Hamilton. The citation was served on the 22nd July last, and no appearance had been entered by respondent. Their Honors on the last day J of the third term, had fixed to-day for the hearing of the suit before the Court alone, the petitioner’s evidence to be taken viva voce , and the rest of the evidence by affidavit. The Attorney-General read the several affidavits filed in the suit. That of the Rev. \V. Henderson, Presbyterian minister, St. Andrew’s, Ballarat, proved that on the 10th December 1864, Archibald Sillers Hamilton, bachelor, of Lydiard-street, Ballarat, Public Lecturer, was married by deponent to Emily Ellis, spinster, of Adelaide, South Australia, and certificate of the Registrar-General of Victoria of the marriage was duly verified. A photograph of Hamilton annexed to the affidavit was deposed to as a correct likeness. The affidavit of Mrs. J. Ellis, of Adelaide, South Australia, was to the effect that on the 20th December, 1864, she received a telegram informing her that her danghter Emily Ellis had been married to Mr Archibald Sillers Hamilton, and that they were on their way to Adelaide, which they reached shortly afterwards. Subsequently deponent, having heard that Mr Hamilton had been previously married wrote to the father of the petitioner, in Launceston, and received in reply a letter informing her that his (the father’s daughter) was Hamilton’s wife. To this affidavit also a photograph of Hamilton was annexed, which the dejioncnt duly verified, The last affidavit produced was by Mrs. Lloyd, keeper of the Royal George. Hamilton subsequently brought to the hotel a lady, whom lie represented as his wife ; and the parlies cohabited together as man and wife while they remained at the hotel. As in the previous cases a photograph was annexed as an exhibit to the affidavit. "\ The Attorney-General then called the petitioner, Mrs. Emily Elizabeth Hamilton (formerly Jocelyn). She deposed to having been married to respondent on the 2nd August, 1858, by the Rev. Mr Denham at the Church of St. Mary-10-Strand, London, and she verified the certificate furnished at the time by the officiating minister. The parties afterwards resided together at Chelmsford, Colchester, Oxford, Banbury, and other places. "Witness then deposed to several acts of alleged cruelty committed by respondent, and commencing within a fortnight of their marriage. He used violent and abusive language, and threatened her without reason, having a violent temper, and losing all control of himself. "When at Oxford respondent beat witness on the face, cut her lip, and disfigured her for nearly a week, because she refused to act as money-takerat one of his lectures ; he wished her to take money in the passage outside the door. Respondent ■wrote to her and persuaded her to go back to him, promising to be kind in future, but he still continued to treat her cruelly, often threatening violence. On two occasions he threw water over her, dashing a large bedroom jug of water over her; on one of those occasions he re-filled the jug, and dashed it twice over hex’. At other times he used force and abusive language. They left England in July, in 1854, in the ship Potentate, from London to Launceston accompanied by witness’s mother and little brorher. On the voyage out respondent’s conduct was more offensive than ever ; he often used violent language, and once struck witness on the face with his hand. He refused to allow her to speak to the other passengers, or her own mother ; and wanted to shut her up in her cabin. He did shut her up in the evenings from 9 o’clock, and refused to let her have alight. They arrived at Launceston in November of the same year (1854), when witness left respondent at once on the day of arrival and refused to return, and she had never since returned to him. She saw him in July, 1865, on one occasion, a Sunday, on coming from Ghurcli; respondent, came and pulled her out of the porch, tried to seize her, and drag her away ; he did drag her down on the ground, but some gentleman picked her up, and took her away from him. After that respondent left the colony. He returned again in April this year. On his return to the colony he wrote her a letter (preJuced), in which he told her he had come to Launceston, and would give her the means to commence proceedings for a divorce if she were inclined to do so. He also intimated that he intended to deliver a course of lectures, but if she should wish it, he would not do so, but go to Hobart Town where he had a large circle of friends. He begged that witness would favor him with a short interview. The letter was delivered to her by Mr Murphy, a neighbor, and witness wrote a letter to Mr Murphy declining to see respondent. Witness saw him once accidentally, but never spoke to him. From 1855 to the present time witness had supported herself by teaching music, and had had no assistance from Mi Hamilton. The present suit was not brought by any agreement with Mr Hamilton. Witness being shown the photograph verified the likeness. By the Chief Justice: I have been living since that time Avith my parents in Launceston. 1 heard the rumour of respondent’s second marriage some months before Mrs. Ellis, the mother of the girl he married, Avrote to my mother, but nothing definitely till tivo years ago, shortly before the date of that letter. Why did you not take proceedings then? He had not come to the colony then, and I did not think it Avas possible to do so. What Avas the cause of his cruelty at first? I cannot say anything led to it. I Avas ahvays very obedient ; but Ills nature is tyrannous, exacting and violent. You say he shut you up in your cabin ; Avhat led to that ? He did not Avislx inc to speak to the other lady passengers, having taking a violent dislike to them all. Did he communicate Avitli you after youleft him at Launceston ? Yes, he Avroto me many letters from Hobart ToAvn before he tried to seize me at the church, but I refused to go to him. Did you knoAV he Avas coming to Lunaceston this year ? I had not the slightest idea of it. Then it Avas a surprise to j’ou? It was quite a surprise to me when I got that letter. Had you communicated Avith him ? No, not since 18G1, when he sent uxe a letter, and I replied to it.

The Attorney-General: That letter i set out in the petition, but of bbufso I am not at liberty to put it in, _•, ] < . j Witness (in reply .to; Sir Francis) : I kneAv, nothing of his movements. Then this idea of a divorce did come from you ? No, it was suggested by him. The Attorney-General, oh that evidence, and on the affidavits, asked their Honors tojgrant a decree nisi,and proposod that they should follow the course taken in Mans; field v. Mansfield, and make it returnablo the first day of next Term. The Chief Justice said ho was of opinion the proof of adultery coupled Avith bigamy Avas conclusive. As they said on giving direction as to the trial, A’ery slight evidence of adultery Avhero there Avas bigamy Avas sufficient to support the charge. Here there Avas the evidence of the hotel-keeper at Ballarat to that effect, and the mother of the girl gave clear ovL deuce of cohabitation, after as clear evidence of bigamous marriage, assuming that the photograph Avas sufficient proof of identity, which lie thought iu that case, it Avas. The only doubt that Avould remain Avas Avhcther, in the discretionary branch of that clause of the Act, there was anything to operate agaiust the decree. The Act said the Court Avas not bound to pronounce a decree if they found the petitioner guilty of having Avilfully deserted her husband before adultery and without ressonable excuse. In this case there Avas proof of the petitioner having Avilfully separated before the adultery complained of, and the question was Avhcther that Avasdone Avithout excuse, or rather Avhcther it Avas proved that the separation Avas excusable. She had deposed to a number of acts of cruelty, at all events violence, on the pait of respondent. The offensh-o language and violence Avere reneAved after her return ; and it Avas established in a satisfactory manner that she could not return to him without apprehension of further violence. That Avas quite sufficient to ground a decree for separation, and therefore the decree nisi Avould go.

Mr. Justice Dobson concuiTcd in Avhat had fallen from his Honor. The only question Avas Avhcther there was sufficient excuse for her leaving him on their arrival in Tasmania, for if not, it might be said she contributed to his conduct. But the question Avas Avhether the facts proved Avere such as to create in a mind of ordinary sensitiveness an apprehension of injury. His Honor Avas satisfied that sho honestly apprehended ill treatment if she returned, and that apprehension avus a reasonable one, founded on the misconduct he had been guilty of. Under those circumstances the petitioner Avas entitled to the decree nisi. Decree nisi accordingly, returnable tho Ist day of next Term.