August 30, 1909.]
Sir Henry Berkeley-I must tell the jury why they should give me heavy damages.
His Lordship-You cannot say because the plaintiff is bankrupt that he must get heavy damages.
Sir Henry Berkeley-I can ask them to give me such an amount of general damages as will relieve him from financial difficulty for the future.
Mr. Slade Set him up for life! Sir Henry Berkeley-No, not to set him up for life. But the jury are entitled to give a man such damages as they think fit and right. and I can ask them to give the plaintiff such damages as will prevent him from lying under financial difficulties for years to come on account of the proceedings he had to take.
His Lordship-The utmost the jury can do, if they find the case is exceedingly bad, is to give vindictive damages.
Sir Henry erkeley said he would ask them to give vindictive damages to mark their sense of the gravity of the offence committed by the defendant.
After tiffin,
A
CHINA CVERLAND TRADE REPORT.- ineffective legislation the case was dismissed. Effective legislation had now come into force and that was the reason he took the present proceedings. He had been able to pay the costs of the divorce proceedings, and he was practically a bankrupt, his bankruptcy being brought about by the liabilities which he had incurred during those proceedings.
Cross-examined by Mr. Slade His wife was thirty-five years old when she came to the Colony.
Were you on friendly terms with Mr. Lemm up to 1904 P-I was never intimately friendly with him, because I did not like the man.
But your terms of friendliness were sufficient- ly intimate to allow you to ask a favour of him? -No, I never did. I would not like to put myself under an obligation to him. I may have done so during the earlier stages of our acquaintance, but I do not remember.
Questioned with regard to the ricsha incident which he had mentioned, witness replied that he stated it because he considered it a significant fact.
-
And in support of this claim you are putting forward this incident of 1900? I don't quite follow you. I mention this incident to support my opinion of what the man has been doing.
Quite right. Yet you did not consider it sufficiently suspicious at the time to make a remark to Lemm about it?-No, it was hard to judge the man.
His Lordship-Tell me frankly what you want to say about this incident? -I did not think it sufficiently strong to take action and make a scandal over it
Both Lemm and Mrs. Mitchell come from New South Wales ?--Yes.
Do you consider it any harm for fellow countrymen, even if they are of opposite sex to be friendly with one another?-To a certain extent, no.
Are you one of those people who hold the opinion that people of opposite sex should not be friendly-To a certain extent.
What do you mean by that?-People may be on friendly terms and yet not implicate them- selves.
Do you consider it any great harm in a man paying a visit to a friend after dinner? To, a lady friend?
Yes It depends on circumstances,
Why are you bringing these proceedings? Mr. Mitchell, examined by Sir Henry Berke-Simply to get money out of wir. Lemm. is it ley, said he did not know that the defendant was not P-I am bringing the action against him occupying a room in his house when the messing because of his relations with my wife. I did arrangements were in progress. If he had not bring the action for any other purpose known of it he certainly would not have ap. Than what? Than to be remunerated for proved of it. He remembered the month of the loss I had sustained. May, because it was then he was appointed master of the Fausang. He went to Moji from Hongkong and returned about the month of June. He found his wife Was not at home and he sent the boy to look for her. He came back and said Airs. Mitchell was at No. 8, Granville Avenue. Witness was away from June till úgust, 1899, and his wife shortly afterwards went to Australia, returning în 1900. In July of that year he got back from Java two days before schedule time, and as the night was wet he and his wife retired about nine o'clock. A bout half an hour later a ricksha came to the door and someone got out of it, whereupon Mrs. Mitchell became excited and said that someone had stopped at their door. Witness remarked that surely no one would come to their house at that hour, especially as it was raining. The bell was rung, and the boy went to the door. Witness heard the boy say to Mrs. Mitchell," master have come." She turned to witness and said, “Oh, yes, r. I emm has come to pay you a visit." Mr. Lemm re- marked that having seen the captain's boat at the anchorage, he had called to see him. Witness remarked that his boat was not anchored at the Jardine buoy, so he did not know how Lemm had seen it. Lemm replied that he could not remember at which buoy he had noticed the but he had seen it somewhere. On steamer, witness asking why Lemm had paid off his riosha coolia, Lemm said he did not like to have him standing in the rain. Lemm did not remain long in the house on that occasion, and when Lemm left witness spoke seriously to his wife about it. He did not say anything to Lemm because of his child and because his wife pro- tested her innocence. In eptember, 1900, his wife
live went to
at Rose Terrace, witness being then sent to England, to bring out the Choysang, returning in Sep- tember. Next month he went on a coasting cruise and was absent for three and a half months. When he got back his wife was ill and on the advice of Dr. Jordan he sent her to Chefoo. He knew the second Mrs. Lemm, whom he met while Mrs. Mitchell was away. She was in great grief and made a statement to him and showed him a letter. In conse- quence of what he was told and what he read he wrote to Mr. Lemm stating that he wished Mr. Lemm to understand that in future they were strangers. He also wrote to his wife. In May, 1904, Mrs. Mitchell came back from Chefoo, but he did not see her. He had not spoken to his wife since he wrote to her, although he had seen her in the street and other places and also in company with Mr, Lemm. He remembered going to Macao in
How old is she?-I don't know. I never ask November, 1904, and inspected the hotel register.a girl's age. It is a breach of etiquette. He saw a certain entry and when he took divorce Can you guess her age? It is hard to guess proceedings he obtained the leaf of the register. a lady's age. They fake themselves up so. Divorce was pronounced. Up to the time he Was she little I should say she was about broke off communications with
wife sixteen. he was on most affectionate terms with A well-grown girl?—Yes. her. He brought
action against Nice looking girl, eh ?—Oh, that is a matter Mr. Lemm for damages, but owing to of opinion.
his
Is there anything extraordinarily suspicious in a lady calling on a near neighbour, even if he happens to be a man, at 11 o'clock on Sunday morning ?-No, but it gets suspicious when the visits continue from 11 o'clock on Sunday, morning right through the week.
Have you any knowledge of it?—I have no personal knowledge.
A boy who had been in the service of rs. Mitchell spoke to Mr. Lemm staying at the house as a boarder and to Mrs. "Mitchell frequently calling at Mr. Lemm's house.
Tustin, master of the steamer Wangchai for some time until she foundered in the ty- phoon of September, 1906, was called.
You are Thomas Austin? No, Austin.
Tom
Witness then spoke to having seen Mrs. Mitchell and Mr. Lemm on board his steamer when they went to Macao. They usually stayed the night there. He had also seen them together in Hongkong. Once they entered the circus together late and once he saw them in the chemist's together.
You have seen them in Watkin's together? -Yes.
Mr. Slade-How awfully wicked. (Laughter.) Cross-examined by Mr. lade-Were they alone? - No. Mrs. Mitchell's daughter was with them.
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187
I want yours?-Yes, fairly good looking- can pass.
The case was adjourned.
Tuesday, 24th August.
The hearing was continued of the action in which Captain T. A. Mitchell, of the Indo- China Steam Navigation Co., proceeded against John Lemm to recover $15,000, damages,
$17,187.23 general moral special damages for money paid and payable in connection with divorce proceedings in Edinburgh.
and
Sir Henry Berkeley, K.C., instructed by Mr. . W. Looker (of Messrs. Deacon, Looker and Deacon) appeared for the plaintiff, while the defendant was represented by Mr. M. W. Slade, who was instructed by Mr. P. M. Hodgson (of Messrs. Ewens and Harston).
The jurors were:-
Messrs. E. J. Hughes (foreman), J. W. Bolles, E. Shellim, M. S. Sassoon, M. S. Northcote, G. C. Moxon and E. H. Hinds.
Captain Mitchell, recalled, was further cross- examined by Mr. Slade. He said he was captain of the Fau Sang on August 17th, 1903. "The letter produced, which was not signed, appeared to be in his handwriting, and he remembered certain circumstances which may have prompted him to write such a letter. In that letter he asked defendant to look after his house, and his wife had given Mr. Lemm a power of attorney. I put it to you that is a copy of what you wrote to Lemm, made by yourself and given by you to your wife That may be.
And that the original was returned to you at your request?-I cannot recollect that.
Mr. Slade then produced a letter dated 8th March, 1904, which witness admitted was in his handwriting. The letter requested Mr. Lemm to return a letter witness gave him, and to note that in future they met as strangers.
Witness then asked, and was granted" per- mission, to explain the circumstances which prompted him to write that letter When Mrs. Mitchell went to Chefoo in April, 1903, he said, she left instructions with Mr. Lemm to look after her house. She sub-let the house to a man by the name of Keeney, and she did this without consulting witness in the matter at all. Mr. Slade-I think you told us yesterday knew all this before Mrs. Mitchell left ongkong ?-The day she left. I came into port that day.
that
you
There was no secret about it?-She told me Mr. Lemm was to collect the rent. In the meantime Mr. and Mrs. Keeney left the house in charge of a man named Logan, who took When this came several people to live there.
to my knowledge I was anxious as to whether the furniture in the house would be looked after, and in some way or other I asked Mr. Lemm to give on eye to it.
Besides Mr. Lemn you have accused, have you not, a number of other men of committing wife P-I have accused adultery with your nobody.
Have you accused Mr. Lemm? I took pro- ceedings against Lemm.
His Lordship - Making people co-respondents is accusing them.
Mr. Slade-Have you made other people co- respondents? No. Other people were brought
into the action.
Have you accused your wife of committing. adultery with other people besides Lemm?-No.
What? When I took those proceedings they were entirely on account of Lemm. In the meantime other knowledge came to me and I, took advantage of it.
Therefore, taking advantage of knowledge given to you, you charged your wife of com. mitting adultery with other people ?-Purely on account of Mr. Lemm.
+
Will you answer the question, and don't fence? Yes
.
Remember you are on your oath--I am on my oath and that is why I want to tell the truth.
Don't fence with my question then-There is no fencing at all about it.
How many people besides Lemm?-Three. Did you take the photograph shown you yesterday ?-Photograph of whom?
The one which represented your wife and your daughter?-Certainly not.
And the other, is that your photograph ?- No.
L