MAINTENANCE
Emma Barrows v. J. Dew.
The
defendant was required to show cause why he should not support the child of the
plaintiff, he being the punitive father.
Mr.
Dawson for plaintiff, Mr Burton for Defendant.
The
case had been before the bench on a previous occasion and dismissed, but what
was considered, important evidence having being since discovered, an order for
a rehearing had been obtained.
Emma Barrows, plaintiff - Was in Mr. Dew's employment
in 1867; defendant took liberties on a Sunday morning; he went with the others,
going to Chapel, and returned about half-past 11; I was alone; he came up to
the chair on which I was sitting and kissed me; he then carried me into the
bedroom and had connection with me; he used to come to my bedroom afterwards;
told the defendant the state I was in, in December last, he laughed at me and
said he would make it all right; he did nothing to that effect; he gave me some
gin and asked me to take it and see if that would do; it was to destroy the
child; he said so; took the bottle home to my brother and showed it to him;
defendant did not deny that he was the father of the child; heard the defendant
give evidence at the last trial; he said he was in receipt of 8s. a day; the
child was born on 23rd of August last.
Cross-examined by Mr. Burton - The bedroom he carried me to
was in the house, and I and Miss Dew slept there; I was sitting in a chair
reading the Bible when he carried me into the bedroom; I saw him fasten the
door and the window; he locked the door when I was in his arms; can't say where
I was when he fastened the window; I screamed out once; know Wilkinson and
Underwood; Wilkinson lived at Dr. Wehl's; never went to see him there; told my
state to defendant first, and then his sister and mother; it was in January; it
was not with my consent the first time, but it was afterwards; did not tell Dr.
Graham and ask him for medicine to destroy the child; he asked me so often that
at last told him who was the father; did not tell him defendant was not the
father; went to church every Sunday; was never out at one o'clock at night, nor
do I think at 11 o'clock; was never out with Wilkinson or Underwood at that
hour. Re-examined - Wilkinson said if I had not been with child he would have
married me; he was in a good position.
To the Bench - Mrs. Dew told me I might go out every night if
my work was done; used to be late on some occasions at the Baptist Chapel, as
after service there might be singing classes; did not think it affected my
character being out late; defendant had connection with me several times after
the first; was sometimes late when going to a party, but Mrs. Dew knew where I
was going; did not stipulate with her that I might go out certain nights in the
week, she had said I might go when I done my work.
James Gersham Smith, livery stable-keeper - Have
seen plaintiff and defendant together at and before November, 1867; have seen
defendant 'larking' with plaintiff; it was after tea; he was not kissing her;
he met her in the porch and I think she caught him by the hand and he caught
hold of her, that was all; never saw them larking on any other occasion;
remarked at the time that I thought he was rather thick with her; had a few
words with him about it; can't say defendant was engaged to be married; did not
say I would not give much for the other young lady's chance; defendant always
denied to me being the father of the child, and never admitted it; the only
words I had with him were that I said I would tell 'Mary,' and he told me to
mind my own business.
Cross-examined - Live close to Dew's, that was the only net of
familiarity at the time that I saw; it did not lead me to suppose that there
was any improper intercourse between them; have see plaintiff walking out with
Underwood at half past eight o'clock; never saw her out with Dew; when I said 'at
that time,' I meant any time; I swear that I never said to Mr. Billing that I
had seen improper proceedings between plaintiff and defendant; we had a
conversation after the first trial; did not say I wondered I was not called as
a witness; never told Billing that I had seen Dew pulling and rolling her
about; never did see anything improper between them except the larking to which
I have alluded.
Alfred Billing - Since the trial, that day or the next morning,
Smith told me that he had seen improper proceedings between plaintiff and
defendant, and that he had seen defendant pulling or rolling plaintiff about;
he said he was afraid he should have been called as a witness.
Cross-examined - Feel certain that he used the words 'improper
proceedings'; we only spoke for a few minutes; defendant is Smith's brother in
law.
William Barrows - About January, when my sister came home
to me, I went to defendant and told him that he had got my sister into trouble
and he should get her out of it, was he going to do anything? he said no, he
would do nothing; asked him if he had any connection with her, he said if he
had he was not the only one, and if it came to Court I could not prove it; he
admitted giving the gin to my sister; I tasted it and there was something more
than gin; I poured the rest away; he said he gave her the gin because she was
not well; told him he gave it to her to destroy the child; he said he did not;
Gersham Smith told me before the previous case that he had seen plaintiff and
defendant very thick; he said he had seen defendant's arm around my sister's
waist and that they were behaving very improperly; and that he and defendant
came to words about it; he said he had seen improper conduct between them more
than once; never knew anything light in my sister's character; defendant did
not say where he got the gin; the features of the child are like Dew's; the
eyes are dark; if the child was undressed the limbs would speak for themselves;
it is the very image of him; Wilkinson left for the diggings after the case had
begun but before it came off; he used to work for me; if the case had not been
adjourned Wilkinson could have been present.
Cross-examined - My sister gave me the gin after she had been
home two days; did not get it analysed; did not think it necessary, the bottle
was used for yeast afterwards, and rolled off the dressed, and was broken.
To the Bench - Thought there was something besides gin in the
bottle; did not think gin would be brought in question; have known my sister to
go out at nights to chapel.
Re-examined - Never thought the bottle would be brought in
evidence; never knew it was criminal to give a girl medicine to kill a child;
know it now.
Ann Walker who first declined to give evidence, on the
grounds that she could not swear that the child was Dew's on account of
physiognomy, was reassured by the S. M. informing her that she was only to
swear to what she knew, and was thereupon sworn) - Have known plaintiff for two
years; never knew anything against the plaintiff; the child bears a great family
likeness to the Dew's; it is about two months old. Mr. Davidson offered to
produce the child, although they had no notice to produce.
His Worship declined to admit such testimony.
Cross-examined - The face and eyes and all over are like John
Dew.
John Underwood, shoemaker - Have known plaintiff two
years; never saw nor heard anything against her character; I was keeping
company with her; she broke it off herself; she wrote to me telling me why she
discontinued keeping company with me; believe I should have married her had it
not been for this; she told me in December or January that she was pregnant.
James McRostie, contractor - Have known plaintiff seven
or eight years; she bore a good character.
This was the plaintiff's case. Mr. Burton said there was no
corroborative testimony to support the direct testimony of the plaintiff and
did his worship think there was a prima facie case calling upon them to reply?
The S. M. said he could not say there was no evidence, but it was very slight,
nevertheless he would hear evidence for defendant before giving a decision.
Dr. Graham - The plaintiff consulted me on two occasions
within a few days of each other, about the time she left Dew's; thought her
symptoms related to pregnancy, and told her so; she denied it stoutly and a
doubt arose in my mind; spoke to Mrs. Dew to send her back again to clear up
the doubt; she came and again denied it; about a fortnight afterwards I was
visiting a patient, and plaintiff was there with others; returning home, passed
her, when she said 'you were right in what you told me the other day, and I
told who it was last night;' I asked who it was, and she said John Dew; she
asked me if I would give her something to put it away, when I told her it could
not be done; she said she knew the Dew's would try to put it on Dick Wilkinson,
but, she remarked, 'I don't think it's Dick's;' never spoke to her since; could
not tell by the features of the child that John Dew was the father; I don't
think anyone could conscientiously do so; there are family likenesses.
Cross-examined - I had previously told her what my suspicions
were; asked her the name of the father of the child two or three times; when
she asked me for the medicine, I told her it could not be done and rode away;
the conversation lasted four or five minutes; at previous meetings she was very
boisterous, and denied her state; she said 'I don't think it's Dick's;' I and
Dr. Wehl joked about it afterwards.
Mr. Davidson then addressed the Bench, contending that he had
fixed the paternity on the defendant. His Honour would make an order of
dismissal with costs, the case could not be sustained; also, on the application
of Mr. Burton, he would grant a certificate which would be a bar to all future
proceedings.
Costs 1 pound 17 shillings.
