| Newspaper Report | Croucher v Croucher
Tuesday, 19th October.
This was a petition on behalf of the first wife Emily Anne Croucher, against the respondent Elijah Hays Crouoher, for bigamy and adultery, but not of an incestuous character.
The respondent, who is a master mariner trading from Wellington, and the owner of the cutter Glimpse, was married, it appears, to his first wife, then Emily Anne Cauty, at the Registrar's Office, at Wellington, about nine or ten years ago, and, after a brief cohabitation, they mutually separated. Nob long after this mutual separation, a person of the name of James Cauty, who was a seafaring man, and the brother of respondent's first wife, was drowned in Wellington harbor, and the respondent subsequently married the widow, his first wife, by whom there was not any family, and who has been residing at Wanganui ever since the mutual separation, being still alive.
The case came before the Court to-day under the following circumstances.
On a previous occasion Mr Travers, on behalf of the petitioner, had applied to Mr Justice Johnston under the 44th rule of the Divorce and Matrimonial Causes Act for an order prescribing the mode or form of trial, and also appointing the place whore the trial was to take place, and his Honor upon that occasion granted the order in the terms prayed for; but the order was not acted upon, as Mr Travers subsequently found that, under the 60th clause or section of the act, it was not competent for one Judge to adjudicate in the matter, because that clause expressly provides that the case should be heard before not less than three Judges, and he (Mr Travers) therefore thought that it would be better not to prejudice or jeopardise the interest of his client by acting upon the order, but to make a fresh application t to the full Court for another order, upon similar' terms as the previous one. The delay could not by any possibility have injured the interests of Ms client, and if he (Mr Travers) had used the utmost diligence in the matter, and had obtained a decree nisi under the order made by Mr Justice Johnston, he still should not, in all probability, have been prepared to have moved to make the decree absolute during the present session of the full Court. The petition had been verified in the usual manner. Notice of filing the petition, and the citation to appear had been duly served upon the respondent in the beginning of February last, and there was the usual affidavit of service, and an appearance had been entered for the respondent, but no answer had been .filed on his behalf. With regard to the allegation of bigamy as set forth in the petition, it would be necessary to assume that everything requisite had been done in the Court below in that respect. It was proposed, and it was also the desire, he (Mr Travers) believed of both the petitioner and the respondent that the usual course of trial by jury should in this instance be dispensed with, and that the evidence should be taken by affidavit under the 54th rule of the act, and this therefore renders it necessary to apply to the Court under the 44th rule, which gives the Court power to prescribe the mode or form of trial, while the 60th section provides that the cause must be heard and determined before not less than three judges.
Mr Travers concluded his observations by moving for an order upon similar terms as had been previously granted by Mr Justice Johnston, viz., that with regard to the form or mode of trial, the evidence on both sides should be taken by affidavit before Commissioners, under the provisions of the 54th rule of the ach, and that with regard to ! the place for the trial to be heard, Wellington should be appointed, as the greater part of the witnesses on behalf of the petitioner were resident in Wellington.
The Court declined to make an order today, and the application is to be made again on Monday week, the 1st November, which day the sittings under the Divorce and Matrimonial Causes Act stand adjourned, until 10 o'clock, when the case of Jessop v Jessop and Nicholson will also be heard.
Monday, Nov. 1
This was a petition promoted by the first wife Emily Ann Croucher, against the respondent, Elijah Hays Croucher, for a judicial separation, on the grounds of bigamy and adultery.
Mr Travers appeared for the petitioner, and Mr Borlase for the respondent.
The issues of fact were not in dispute, and therefore there were not any issues to be tried, as all the facts were admitted, and all that was necessary was to prove tho allegations of the petition.
The Court thought that due notice should be given to the other party, the respondent.
Mr Travers said that the respondent was represented by Mr Borlase, and that he (Mr Travers) had given him notice of his intention to apply for an order to-day as to the mode and place of trial. Mr Borlase said that his client, the respondent, could not possibly appear, for he had sailed this morning from Wellington, but not in order to avoid appearing before the Court, as the respondent was most anxious that the matter should be thoroughly investigated.
The Court ruled, however, that the respondent had not any locus standi, and that, therefore, it could not hear Mr Borlase, as the application was an ex parte one, and the respondent had not thought proper to put in an appearance when Mr Travers first applied for an order.
The Court granted an order in the terms asked for by Mr Travers, and appointed next Wednesday week, the 10th inst, for the hearing of the case, the evidence to be taken by affidavit, to which day the Court accordingly stands adjourned.
Wednesday, November 10.
This was a petition for a dissolution of marriage, presented by Emily Anne Croucher against her husband Elijah. Hays Croucher, on the grounds of bigamy and adultery.
Mr Tracers appeared for the petitioner, and Mr Quick for the respondent.
Mr Travers, in opening the case, said that the respondent had entered an appearance , but had not filed an answer. The following witnesses were called and examined by Mr Travers on behalf of the petitioner:
Frank Morton Ollivier : I am a solicitor practising in Wellington. On the 2nd of February last L served a copy of the citation as well as of the petition on the respondent personally.
W. T. L. Travel, examined by the Court, said that on the 28th of October last he served a copy of the petition upon the Attorney-General, but that there was not any answer.
Rev. Arthur Stock : I am a clergyman of the Church of England, and incumbent of St. Peter's Church. I was officiating in 186? under licence of the Marriage Act, but I do not remember marrying the respondent to his first wife, but the certificate now produced and shown to me is in my handwriting, and I never by any chance write or sign such a document before performing the ceremony of marriage. I married these people by license, and the certificate is a true copy from my register. It wus registered on the 26th September, 1860.
Eliza Cauty: I was the widow of one James Thomas Cauty. I know Emily Anno Cauty (the petitioner in this case) and Elijah Hays Croucher, the respondent. I am now married to Croucher, and was married to him at Christchurch. I knew Albert Sedcole; he is my brother. I was married before the Registrar. I knew that the respondent was married to Emily Anne Cauty. I have known the petitioner ever since she was ten years of age. When I married her brother, who was my first husband, we took the petitioner to live with us, and we brought her up. I tried to persuade her not to marry the respondent, because she did not. like him. They did not live together after marriage more than three months. My husband and Croucher were partners. The petitioner persuaded her husband to go away, because she did not like to live in Wellington, and in order to make her happy, he went away to Port Cooper. He went first to get a vessel, and he promised his wife, in our presence, that as soon as he got a vessel, he would send for her. A week afterwards she came and told me that she had received a letter from him, and I asked her when she was going to him, and she said that she did not know. A week afterwards she received another letter, but he did not any when she was to join him. He again wrote h(>r word that he had got a vessel, and sent her ?18. and told her that she was to come to him directly, and to leave her house just as it was. She accordingly left Wellington on 24th December, in 1860, and I never saw her afterwards until I saw her in Court this morning. The respondent returned to Wellington on the 27th December, just, three days after his wife had left, and we searched every place for her, for we thought that she had made off with herself, but we could not find her. She did not tell me where she was going when she left, but I of course supposed that she was going to Port Cooper to join her husband. About six months after she disappeared, I heard that sly was at Wanganui, living under the name of Miss Neville. I wrote to her, and she answered my letter, but did not tell me what she was doing. I did not see the respondent for many months afterwards, as he never came near my house. He came to Wellington very often, but I never saw him, and I never told him that his wife was living at Wanganui. My first husband was drowned in this harbor on 26th January, 1861, and after his death I kept a shop in Willis street, and the respondent dealt with me, and 1 supplied him with all his groceries. He very seldom came to the shop himself, but generally sent for what he wanted. My husband at the time of his death owed the respondent ?14. He never owed him any more than that, and the respondent never pressed him to pay it; I am quite sure of that. My husband's name was James Thomas Cauty ; my maiden name was Sedeole, and my brother Albert was present at my marriage to Cauty. I have had three children by the respondent. Croucher tried to find his first wife out, but could not, and I never told him that I had heard, or that I knew that she was living at Wanganui under the name of Miss Neville. She went away from Wellington under that name.
The Court here observed that there was very great reason to suspect collusion, for the petitioner did not like Croucher, while his present wife did, so she might have acted as she did with the view of getting a hold upon him. Mr Travers however denied any collusion, and said that the petitioner could never have suspected that there was anything wrong between her husband and her brother's wife, for the Court must remember that when the petitioner went away to Wanganui, her brother was alive, and did not die until 6ome time afterwards.
The Court however was of opinion that the petitioner did very wrong in not preventing the marriage, for Wanganui was not a very great distance from Wellington, and she must have heard of it, and it did not appear that she had even endeavored to obtain a restitution of conjugal rights.
Mr Travers submitted that it was impossible that she could have heard of it, for although Wanganui was certainly near Wellington, the communication nine years ago was not so frequent nor so easy as it is now, and it was evident that she could not have known it from report, as the respondent was cautious enough never to be seen near Mrs Cauty's house; and then again he took her down to Canterbury to be married, and this assisted in keeping the matter a secret, and the petitioner could not have moved for a restitution of conjugal rights, for at that time there was not any tribunal in the colony to apply to for such a purpose, and the Divorce and Matrimonial Causes'. Act only came into force in 1867.
Emily Anne Croucher: I left my husband because I had heard that he was committing adultery, and also because I disliked him very much, and I considered myself perfectly justified in leaving him. Henry Sedeole told me that the respondent was living in adultery, but I did not charge him with it. I said nothing to him about it. Henry Sedeole is the brother of my brother's wife, the present Mrs Croucher. Ho told me this just after my marriage to the respondent. I never heard it before I was married to him, but I made it an excuse for leaving him, as I hardly believed it when it was told to me. The reason why I disliked him so much was because he was nearly always drunk. He lived with me about a fortnight after our marriage, and then he was away for a month. We lived together about six weeks in all. I had known him about a year. I never saw him drunk before our marriage, and I never heard of his being so. I was then only eighteen years of age. Albert Sedeole was fifteen years of age, and ho was the brother of my brother's wile. I never thought that Albert meant to marry me, and he never asked me to be his wife. We had been brought up together, and were very fond of each other. The respondent and I were engaged about three weeks before we were married. He asked me to become his wife about a year before, but I then refused. I never heard of his disreputable life before my marriage to him. He was not exactly cruel to me, but he was not kind and attentive. He was very frequently drunk, in fact, whenever he came home, he was more or less intoxicated. He sometimes came home early, and sometimes very late at night. Ho came home, in fact, at all hours. I did not hear of his marriage with my brother's widow, until eighteen months after it had taken place. Ho was very low and vulgar in his language and conduct to me, and was about twenty-nine years of age when we were married.
The Chief Justice, in delivering judgment, said that the Court had decided upon making the decree absolute, but that under ordinary circumstances the relief of the Court would not have been granted, because the grounds on which the petition had been presented were not sufficiently strong in warranting the Court in granting a dissolution of the marriage, but that the Court considered this as not only an exceptional, but also as a specially painful case, in which a young and inexperienced girl had been induced against her inclination to marry a man, whom, directly after, she discovers to be a drunkard and a disreputable fellow, and the Court could not wonder that she was disgusted with her short experience of matrimony ; but still the Court did not wish it to be thought that this case should be or was to be a precedent, for drunkenness and vulgarity cannot of themselves form grounds for a dissolution of marriage or for a divorce, but in this case the Court was disposed, under all the circumstances, to be lenient. The petitioner had given her evidence with great clearness and candour, and the decree for dissolution would therefore be granted, with costs against the respondent, leave being reserved to him to appear at the next sitting of the Court of Appeal, or within three months after the issue of the decree, to show cause why he should not pay the costs.
The other Judges having concurred, a decree for a dissolution of marriage was then pronounced.
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