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(Sittings in Banco, before the Lord Chief and Baron and Baron Cleasby)
Kingsman versus Kingsman.
In this case Mr Oppenheim moved to rescind an order of Baron Pollock in Chambers refusing to order a stay of proceedings in the action until the plaintiff, a married woman, either appointed a next friend, her husband, being beyond the jurisdiction of the court, or gave security for costs.
Mr Cole, QC, and Mr Cooper appeared to oppose the application.
The facts of the case were novel and peculiar. The action is brought by a lady against her father in law to recover £250 for rents of house property received by the defendant during the absence of the plaintiff in New Zealand. It appeared that in the year 1875 the plaintiff, who was then a widow, by name Langlois, went out to New Zealand with her son, aged 16 years, taking with her also her present husband as companion to her boy.
Mr Kingsman was then aged 17 years, and was married to Mrs Langlois on 25th December, she being 36 years old. The day before the marriage the younger bridegroom entered into a written agreement with his intended wife to assign to trustees any property which his wife might possess before the marriage, and any she might subsequently acquire.
The marriage did not turn out a happy one, Mrs Kingsman alleging that her husband's conduct was cruel and brutal. Accordingly, Mrs Kingsman obtained, in April 1877, a protection order from the magistrates in Auckland, by which she was ordered to be treated as “femme sole” and all her property was pronounced to be for her separate use, safe from her husband or his creditors.
The plaintiff asserts that the defendant only send her £100 during the two years he collected the rents for her, for she returned to England shortly after the above protection order. The learned counsel contended that the assignment by the infant husband was invalid in law as not having been sanctioned by the Court of Chancery, and that the magistrate’s order in New Zealand could not control the rules of the High Court of Justice to hear or affect the plaintiff’s status or property in this country; for the order of protection affected to allow her to sue in her own name.
The defendant contended he had dispersed moneys relating to these houses and other sums for repairs that made the matters nearly square between him and the plaintiff. Part of the rents claimed were claimed by the plaintiff as trustee for her son; and this she could not do without joining her husband in the action.
The Lord Chief Baron, without calling on the other side, said he would not pretend to lay down the law in all cases. It was enough to say that it was claimed that a competent authority, in a colony where Law was supposed to prevail, had made an order protecting the plaintiff's earnings and her property from her husband and his creditors and this was to date back to the marriage on 25th December 1875. The effect of this order and its validity could be discussed at the trial. This was not an application by the plaintiff to appoint a next friend, or for her to give security for costs under rule 8 of order xvi. The Court might prejudice her right to do so hereafter by interfering now with the discretion of a judge properly exercised. The appeal would be dismissed with costs.
Baron Cleasby was of the same opinion and said this decision would give no particular effect to the magistrates order made in Auckland.