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THE HONGKONG WEEKLY PRESS AND the Boa Vista Hotel, Macao; (e) On the make Mr. Lemm a party to the divorce proceed. 11th and 12th December at the Boa Vista ings. The defendant, therefore, had no oppor Hotel; (f) On occasions in the months of tunity of being represented on those proceedings | way April, May, June, July, August, Septem-in Scotland. He is not a party to those pro-sive ber and October, 1905, at Eran Bungalow, ceedings, and whatever happened there cannot that otherwise known as Cherub Villa. Observatory be referred to in this case. Road, Kowloon. In consequence of the said misconduct of his wife with the defendant, the plaintiff on November 7th obtained a decree of divorce from the first division of the Court of Sessions, Edinburgh. The costs and expenses which the plaintiff had paid
to become liable
amounted to pay $14,359.14, and particulars of the special damage were set out.
or
At this stage Sir Henry Berkeley stopped reading to inform the Court that the amount paid by the plaintiff to Messrs. Deacon, Looker and Deacon, $2,828.00, had been omitted, and he asked permission to add it to the claim.
Mr. Slade stated that as there was an application for amendment he would ask that the claim be amended by striking out very substantial amount. There was much that could not be recovered in this action.
His Lordship thought the best thing would be to treat the question as a question of law.
Mr. Slade asked for particulars as to how the $2,000 odd plaintiff now wished to add to his claim was made up.
Sir Henry Berkeley said it was costs paid to Messrs. Deacon, Looker and Deacon in respect of the Scotch divorce. Counsel then concluded reading the statement of claim, which stated that the plaintiff claimed for damages for the misconduct of the defendant with Henrietta Mand itchell $15,000, and special damages for money paid and payable in connection with the Edinburgh divorce proceedings, $17,187,23.
In the statement of defence the defendant denied unlawfully debauching and carnally knowing at any time the plaintiff's wife. He was not a party to any divorce proceedings commenced by the plaintiff, and was in no way bound by any decree made in such proceedings. He did not admit that the plaintiff became liable to pay the costs of or incidental to any such proceedings.
Counsel then proceeded to tell the jury that the facts in the statement of claim formally set out all the grievances which Captain Mitchell had to lay before them, and in respect of which he claimed at their hands substantial damages. In addition to the special damages he was asking the jurors to give him a substantial sum of money as general damages, for what might be called moral damages for the great wroug Captain Mitchell had sustained at the hands of Mr. Lemm, and for the intolerable insults he had suffered at the hands of the defendant. The jury would give such damages as they might think justified, and, so to speak, would make the punishment fit the crime. They were not bound by any limit claimed in the writ, but were at liberty to give any damages they pleased.
His Lordship pointed ont that it was not permissible to discuss the amount of damages with the jury.
од
Sir Henry Berkeley, proceeding, said this was an action for what was commonly known as criminal conversation; that meant an action in which a husband claimed compensation and damages against another man for having com- The term mitted adultery with his wife. "oriminal conversation was no longer in use at home, because in England the Divorce Court had jurisdiction which enabled
a petitioner it to give damages to his petition for divorce. Although actions for criminal conversation were no longer necessary in England, they had to be brought in Hong- kong, because, while the Supreme Court here had jurisdiction in matrimonial affairs as far as ordering a judicial separation between the parties, it had no jurisdiction in divorce itself. In November, 1906, Captain Mitchell ́obtained a decree of divorce from his wife in the Court of Session in Scotland on the ground of her adultery with Mr. Lemm.
Mr. Slade-My friend really should restrain himself. It is perfectly incompetent for him in this action to make any use of the proceedings in Scotland for the purpose of establishing the guilt or otherwise of the defendant in this case. His Lordship-What is the nature of your objection?
Mr. Slade-For reasons of his own, rightly or wrongly, the plaintiff in this action did not
His Lordship called on Sir Henry Berkeley. The fact of adultery with anybody was not proved by the Scotch judgment. In the circumstances it could only be held to prove the fact of adultery, but it did not prove against the present defendant.
Sir Henry Berkeley said he was entitled to prove the fact of the divorce in Scotland.
His Lordship-If you could do that you need not call any witnesses.
ir Henry Perkeley said that would not be sufficient. He was entitled to prove the fact of the divorce, and he could prove it by means of the Scotch judgment. That judgment, as a foreign one, was admissible in evidence in the Court of England.
His Lordship Between the parties? Sir Henry Berkeley Yes.
His Lordship - Mr. Lemm was not a party. Sir Henry Berkeley said he desired to prove the fact of the divorce for what it might be worth; just merely as the fact of the consequence flowing from the defendant's act. He produced the judgment of the Court of Session for that purpose, and argued that all judgments of the Court of Scotland were admissible.
His Lordship-You will prove the fact that the Scotch Court filed a divorce with some per- son unknown.
Sir Henry Berkeley said he must be allowed to prove the fact that the plaintiff's wife was divorced. He submitted that ho could put in the judgment of the Court of Session.
His Lordship How does it affect this case? It is not relevant.
Sir Henry Ferkeley- It is relevant to the a divorce was granted. Then fact that I can proceed to show with whom, apart from the judgment.
His Lordship-That is irrelevant to this issue. One of the points which is not at all settled is how far the finding of fact does bind. Either it is evidence or it is not.
Sir Henry Berkeley-A fact may frequently be evidence for what it is worth. The whole of the circumstances in this case is made up of facts from which adultery is to be inferred. I Will formally tender the Scotch judgment. you rale it out?
His Lordship-The mere fact that the defen- The dant was not a party rules it out at once.
cotch divorce must be fact of there being a entirely removed from the mind of the jury.
Sir Henry Berkeley-I will have to allude to it for the proceedings here. I will have to point out that these proceedings are brought. against Mr. Lemm in this Court because Mr. Lemm could not be made a party.
His Lordship-You cannot do that. My opinion is that the judgment should not be reforred to, and I said so from the very first. I don't see how it can be mentioned.
Sir Henry Berkeley said he understood that his learned friend had just raised the point that plaintiff ought to have made Mr. Lemm a party to the proceedings in cotland.
Argument on the point was deferred. Sir Henry Berkeley informed the jurors that in July, 907, when an action was commenced in this Court by Captain Mitchell against Mr. Leium, claiming damages as he was now claim. ing, those damages included a sum of money which Captain Mitchell was liable to pay on account of proceedings he had taken elsewhere charging his wife with adultery with Mr.
Lemm.
88
[August 30, 1909.
Sir Henry Berkeley said he was proposing to do it in a much shorter way, and in 8 which would be more comprehen- to the jury. Proceeding, he stated B result of the proceedings which the plaintiff had taken in consequence of the wrongs done him by the defendant, the former had incurred such liabilities as to cause him to become bankrupt. Therefore, to-day he was a bankrupt, and that fact was due to one of the direct consequences of the wrongs done him by the defendant. Captain Mitchell had been in the employ of the Indo-China Steam Naviga- tion Company for 19 years. He entered the a mate in 1891, and worked his service as way up by his steadiness, good conduct and ability as a seaman until he now commanded About seven the fine steamer Fook Sang. years after he entered this service Captaiu Mitchell was in a position to bring his wife to ustralia. About that time Hongkong from
L
or ten
he took the lease of a house at No. 4, Granville venue, Kowloon, for four years, and furnished it in a way suitable for the wife of a shipmaster. In bringing his wif, and child here, Captain Mitchell decided to make Hongkong his head- quarters, and naturally looked forward to years of happiness and comfort with his family. Mrs. Mitchell left Australia sometime-in 1898, accompanied by her little daugh- ter, who Was some eight. nine years old at that time. y the same steamer, the Guthrie, by which she travelled to Hong- kong, the defen lant, John Lemm, also travelled. He was accompanied by his wife, who at that time was a great invalid, and who shortly after- wards returned to Australia and unhappily died. Mr. Lemm married again. The acquaintance thus formed between Mr. Lemm and Mrs. Mitchell on the Guthrie lasted for thing like six years, ripened into timacy which ultimately resulted in crim. inal
taking place between them on `several occasions while Captain Mit- chell was away at sea with his ship in the performance of his duty. Mrs. Mitchell was an Australian, and Mr. Lemm, Counsel ander- stood, was also an Australian. On Captain Mitchell's arrival here Mrs. Mitchell introduced Mr. Lemm to him, and the Captain received
intercourse
some- Bn in-
r. Lemm as a friend of his wife's, opened his house to him, and extended the hospitality which he would extend to any friend of his wife's. In return for that confidence and
Mr. Lemm had in- hospitality flicted wrongs upon Captain Mitchell of which the latter complained now. Counsel said he would offer evidence of acts by which the jury would be bound to draw the inference that the parties took the opportunity offered them to do the acts of adultery charged against them. He should have, in order to bring home the charge to the defendant, to call the servants. That was a distasteful thing to have to do, but in this case it was almost unavoidable. Euro- peans living in the neighbourhood at the time would also be called to give their testimony. Counsel said he would call evidence to show that Mrs Mitchell decided to form a gentlemen's mess in her house, and this was done without the knowledge of Captain Mitchell. He would prove that while a Mr. Watkins and another member of the mess only had meals at the house, Mr. Lemm not only had his meals there, but slept there night after night during the time Captain Mitchell was away. He would also prove that while Mr. Lemm was in the house at night the only other occupants, barring the servants, were irs. Mitchell and her young child. From that fact he would ask reasonable men to draw the the jury as conclusion that adultery was committed by the parties. When Captain Mitchell return- was informed by his wife that she had formed a gentlemen's mess. He strongly disapproved of it and requested her to stop it. It would be proved that Mrs. Mitchell never told her husband that Mr. Lemm slept at the house; that she kept it as a secret from him, and that he never heard of it until some three or four years afterwards. Counsel then pro- ceeded to ask the jury for substantial damages.
Mr. Slade If my friend is stating these things he ought to state them accurately: charged home he ing her with adultery with Mr. Lemm and several other people.
His Lordship-Even that is premature. The case has got to be proved.
Sir Henry Berkeley said he was aware of that. In order to proceed with his action in 1907 Captain Mitchell had to find security for costs. This he had to do because he was rarely in Hongkong. He was ordered to give a sum of $2,000 as security for the costs of the defen- dant, Mr. Lemm.
His Lordship-The tail of the horse is on the head. Don't open with damages first, but open the case of adultery.
His Lordship-It is utterly out of order to discuss damages with the jury.
Sir Henry Berkeley-I havs the right to ask the jury to give such a sum.
His Lordship said that · ounsel could say no more than ask for heavy damages.