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delivered: MAF IP 1 Friday, 14 December, 2012 at 21:30 HKT uk-cases-all Powell v Powell Current Document 1

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*177 Powell v Powell

Probate Divorce and Admiralty Division 30 July 1889

(1889) 14 P.D. 177

Butt , J. 1889 July 30 Judicial SeparationHusband convicted of Aggravated AssaultOrder of Justices for Separation and MaintenanceRefusal to admit of Husband's Evidence as to his Means AppealAffidavits 24 & 25 Vict. c. 100, ss. 42, 43 Matrimonial Causes Act, 1878 (41 & 42 Vict. c. 19), s. 4 . A husband having been summarily convicted of an aggravated assault on his wife within 24 & 25 Vict. c. 100, s. 43 , the justices before whom he was convicted made an order that the wife should not be bound to cohabit with him and that he should pay her a weekly sum for her maintenance; and they refused to hear the husband's evidence as to his means: Held, on appeal, that the justices were warranted in refusing to allow the husband to be called as a witness, as it was not the intention of the Matrimonial Causes Act, 1878 (41 & 42 Vict. c. 19) , that there should be any further hearing of the case by the justices after the conviction for assault: Held, also, that on the hearing of the appeal affidavits as to the merits of the case could not be admitted. Woods v. Woods (10 P. D. 172) followed . APPEAL against an order made by justices in petty sessions, after conviction of a husband for an aggravated assault on his wife, directing that the wife should be no longer bound to cohabit with her husband, and that he should pay her a weekly sum for her support. William Powell, the husband, was on June 24, 1889, convicted under the 24 & 25 Vict. c. 100, s. 43 , by the justices at Carmarthen of an aggravated assault on his wife, Jane Powell, and sentenced to pay a fine of 20s. or to be imprisoned in default for fourteen days. The justices further ordered, under the 41 & 42 Vict. c. 19, s. 4 , that the future safety of the wife being in peril, she should no longer be bound to cohabit with him, and that he should pay to *178 her the weekly sum of 20s. for her maintenance and support for such time as she continued to live apart from him. Before the making of this order the husband's solicitor tendered him as a witness as to his means, but the justices refused to receive his evidence. Toller , for the husband. The first ground of the appeal is the refusal of the justices to receive the evidence of the husband as to his means. They have no power under the 24 & 25 Vict. c. 100 , to make an order for separation and maintenance. That is conferred upon them by 41 & 42 Vict. c. 19 , and it is therefore an entirely separate proceeding. The separation order made by virtue of that Act is not a proceeding in any criminal charge. It is a separate proceeding, and the husband was a competent witness: The Attorney-General v. Radloff . 1 [BUTT, J. I am very clear that the justices if they convict for an aggravated assault may go on without any further hearing to make the order for separation and maintenance contemplated in the 4th section of 41 & 42 Vict. c. 19 .] The justices were bound by the words of the section before making the order to satisfy themselves that it was in accordance with the means of the husband. They ought to have taken evidence on this subject, and the order should have said that the amount so paid was proper, having regard to the means of the husband. The affidavits now before the Court shew that the husband was only earning 14s. a week as a weaver. [BUTT, J. I decline to receive affidavits on the merits.] Under 41 & 42 Vict. c. 19, s. 4, sub-s. 2 , there is an appeal to this Court against an order of the justices: Hetherington v. Hetherington . 2 Finally, the order for separation was wrong, because the justices only inflicted the penalty for a common assault under s. 42 . [BUTT, J. That is answered by Woods v. Woods . 3 ] Crosse, for the wife, was not called upon. BUTT, J. The principal point here raised in objection to the order is that the justices who made it were wrong, because they *179 did not receive, or refused to receive, the husband's evidence. Now, in my judgment, that contention is misconceived. The intention of the Act conferring this jurisdiction upon the justices is this, that they shall hear and

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determine the matter of assault, and if they find a man guilty of an aggravated assault upon his wife, they may go on to make an order giving the wife that protection which she would have under a decree of judicial separation, and also make an order upon the defendant to pay something for the wife's maintenance. That is what the justices have done in this case. I do not think it was the intention of the legislature or the meaning of the statute that there should be two separate hearings for the purposes of making the whole of the order. It is next said, that because the justices only fined this man twenty shillings, they have not found him guilty of an aggravated assault. I do not at all accept that view. They have fined him twenty shillings, and have gone on to order a weekly payment for the wife's maintenance. They expressly stated that they had found him guilty of an aggravated assault. Then as to the reception by me of affidavits filed by and on behalf of the husband. The appeal is given to this Division of the High Court by the concluding words of the Matrimonial Causes Act, 1878 (41 & 42 Vict. c. 19) . No rule or orders for regulating the practice with regard to these appeals appear to have been made; and I am not disposed to enter here into a controversy upon affidavits touching the merits of the case in relation to the decision of the magistrates. I therefore decline to receive the affidavits. That being so, I reject this motion and dismiss the appeal with costs.

Representation
Solicitors for the appellant: Indermaur & Brown . Solicitors for wife: Crosse & Sons . Appeal dismissed. (W. L.)
1. 2. 3. 23 L. J. (Ex.) 240 . 12 P. D. 112 . 10 P. D. 172 .

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