Edward Jabez Waters

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Edward Jabez Waters

Birthplace: Arthur Street, Wellington, New Zealand
Death: Died in New Zealand
Immediate Family:

Son of Thomas Waters and Elizabeth Habgood Waters
Husband of Isabella Waters and Elizabeth Waters
Father of George Edward Waters (McLaren); Ellen Elizabeth Sabiston; Ada Waters; Frank Thomas Waters; Fanny Waters and 4 others
Brother of William Alfred Waters; George Thomas Waters; Fanny Maria Wheatland Waters; Walter Charles Luxford Waters; Frank Robert Waters and 2 others

Occupation: Boot manufacturer
Managed by: Jason Scott Wills
Last Updated:

About Edward Jabez Waters

BUT !! PAPERSPAST Otago Daily Times - 4 November 1919, page 6 A DISPUTED WILL HUSBAND RECEIVES CERTAIN BENEFITS TESTATRIX'S FIRST HUSBAND STILL ALIVE A case presenting some rather peculiar features was heard by Mr Justice Sim at the last sitting of the Supreme Court in Oamaru. Under a will the husband was to receive certain benefits, but it was discovered that the testatrix was already married at the time of her second marriage, and that her first husband was still alive. Under these circumstances the sister of the testatrix brought an action to have an order already made as regards the benefits declared void. His Honour delivered the following judgement yesterday morning:- Isabella Fox died on December 12, 1914, leaving a will by which she devised and bequeathed her estate to trustees upon trust to convert the same into money and pay the following legacies: £500 to her sister Mary Ann Stewart, £500 to her sister Williamina Pope-Smith Carson (the plaintiff in the present case), and £1000 to her son James Duncan Alexander McLaren. She directed the trustees to invest the residue and to pay the income to her husband, Thomas Henry Fox, during his life, and after his death to hold the residue upon trust for the daughter of the plaintiff absolutely. Thomas Henry Fox applied for an order under the Family Protection Act, 1908, and on May 5 1917, the following order was made: "That the legacy of £1000 to James Duncan Alexander McLaren be paid out of the moneys available for that purpose. The whole of the remainder of the estate shall be held by the trustees of the will, and the net annual income therefrom shall be paid to the plaintiff, Thomas Henry Fox, for the duration of his life and so long as he shall not assign, transfer, or encumber such income or any part thereof. The payment of the legacies to Mrs Carson and Mrs Stewart shall be postponed until the death of the plaintiff, provided that if the plaintiff shall assign, transfer, or encumber any part of his income as above mentioned then the legacies to Mrs Carson and Mrs Stewart shall be paid to them and the income of the residue of the estate only shall thenceforth be paid to the plaintiff. If at any time the circumstances of the plaintiff shall materially improve, leave is reserved to Mrs Carson And Mrs Stewart, or either of them, to apply to the court for a modification of this order so far as their or either of their interests are concerned." On the hearing of the originating summons in which the order was made, the plaintiff and her daughter were represented by counsel. The plaintiff had brought the present action to have it declared that the order of the 8th day of May, 1917, was made without jurisdiction, and is and is wholly void. The grounds upon which the application is based are set out in paragraphs 4 and 5 of the statement of claim, which are as follows:-

4 The said Thomas Henry Fox was not at the time of making the said order and never was the lawful husband of the said Isabella Fox.  The said Isabella Fox was on the 2nd July, in the year 1878, was lawfully married at Wellington to Edward Jabez Waters, of Wellington, boot maker.  She lived with the said Edward Jabez Waters as man and wife until the year 1878 or 1879.  The said Edward Jabez Waters was alive at the date of the marriage of the defendant with the said Isabella Fox, and is now alive.
5   The plaintiff submits that the said order, dated the 5th May, 1917, was made without jurisdiction, inasmuch as the said Thomas Henry Fox was not at the date of the death of the said Isabella Fox, or at any time, her lawful husband.
A marriage between the defendant and Isabella Fox, the testatrix, was celebrated at the registrar's office at Christchurch on the 22nd day of March, 1833, and the parties had lived together, apparently as man and wife, until the death of Isabella Fox.  It had been proved that on the 2nd of July, 1878, Isabella Fox was married in Wellington to one Edward Jabez Waters. They lived together as for four or five months and then separated.  Waters is still alive, and gave evidence at the hearing of this case.  If the marriage with Waters was valid, it is clear that the marriage with the defendant was invalid, and that he was not the husband of the testatrix.  The plaintiff said that her sister (the testatrix) was married in Glasgow, that he died, and that after his death his widow came to New Zealand, bringing her two children with her.  There was no evidence beyond the plaintiff's statement as to the marriage with McLaren or as to his death, and she was not able to speak of her own knowledge as to either event.  It was suggested on behalf of the defendant that McLaren might have been alive when the marriage with Waters was celebrated, and that marriage, therefore, had not been proved to be valid.  But, in the absence of evidence to the contrary, the marriage with Waters ought to be presumed, I think, to be valid.  If, when the marriage was celebrated, the lady was not a widow, then she was guilty of the crime of bigamy, and, in in the absence of criminative proof, she is not to be supposed to have committed any violation of the criminal law.  Best on Evidence (11 ed.)  G.L.R., 365, 372. The result is that, on evidence before me, I must hold to the marriage with Waters to have been valid, and the marriage with the defendant to have been invalid.

It was contended on behalf of the plaintiff that if the defendant was not the husband of the testatrix, the order of May 5, 1917, was made without jurisdiction, and was a mere nullity. The power given to the court by Part II of the Family Protection Act, 1908, may be exercised in favour of certain specified persons - namely, the wife and children in the case of a testator, and the husband and children in the case of a testatrix. In every case where the application for relief is made, the court has to determine whether or not the applicant is, in fact, one of the persons specified in the ACT. If, in the present case, a question had to be raised as to the status of the defendant, the court would have to determine whether or not he was in fact the husband of the testatrix. No such question was raised, and it was assumed by all the parties that the defendant was in fact the husband of the testatrix. The order was made on this basis, and it must be treated, I think, as involving adjudication, by consent, that the defendant was the husband of the testatrix. I think, therefore, that the order cannot be treated as having been made without jurisdiction. The question, then, to be determined is whether or not the court had jurisdiction to set that order aside. It has been decided that where a judgement has been obtained by fraud, the court has jurisdiction to set aside in a subsequent action brought for the purpose: Cole v. Longford (1898), 2 Q.B. 36, and that this jurisdiction extends to the case of a judgement obtained by default: Wyatt v. Palmer (1899), 2 Q.B. 106. It is not suggested that the order here complained of was obtained by fraud, and the case, therefore, does not come within these decisions. The jurisdiction of the High Court to review its own decisions was considered by the Court of Appeal in the case of Charles Bright and Co., Ltd., v. Stellar (1904), 1 K.B. 6. It was there decided that, since the passing of the Judicature Act, 1873, the High Court had not the jurisdiction which the old Court of Chancery formerly possessed of correcting, on a bill of review, an order which was bad on the face of it. The only remedy in such a case is an appeal to the Court of Appeal. The court recognised, however, that there were some cases in which the High Court still had jurisdiction to review an order made by it, and this is what was said on the subject by Cozons-Hardy, B.J., in delivering the judgement to the court: - "Doubtless there is ample jurisdiction now to deal by fresh actions with some matters which were formerly the subject of a bill of review. For instance, where a judgement has been obtained by fraud, Birch v. Birch (1902) P. 130, or where fresh material evidence has been obtained since the judgement, which could not have previously been procured, Boswell v. Coaks, 6 R., 167, an action may be maintained. Actions of this nature do not invite the High Court to rehear upon the old materials. Fresh facts are brought forward and the litigation may be well regarded as new and not appellate in its nature, because not involving any decision contrary to the previous decision of the High Court." The right of appeal in New Zealand is much the same as in England, and I think, therefore, that the position of our Supreme Court is the same as that of the High Court in England with regard to reviewing its own judgments. If that is so, then an action may be brought to review a judgement where fresh material evidence has been obtained since the judgement was given. The conditions on which leave to file a bill of review was given by the Court of Chancery in such a case are thus stated by Lord Kingsdown in delivering the judgement of the Judicial Committee in the case of Hosking v. Terry (15 Moo., P.C., 493): "The rile which we collect from the cases cited in the argument is this: that the party who applies for permission to file a bill of review, on the grounds of having discovered new evidence must show that the matter so discovered has come to the knowledge of himself and his agents for the first time since the period at which he could have made use of it in the suit, and that it could not with reasonable diligence have been discovered sooner; and secondly, that it is of such a character, that if it had been brought forward at the suit it might probably have altered the judgement."

An action of review can be commenced now, it seems, without leave.  In re Scott and Alvery (1895, 1 Ch., 596), Charles Bright and Co., Ltd., V Sellar  (1904, 1 Q.B., at p. 13), but before a plaintiff can succeed in such an action on the grounds of discovery of fresh evidence he must comply with the conditions laid down in the passage just quoted.  The question then is whether or not the plaintiff has complied these conditions.  It is clear, I think, that she has not.  When she came to New Zealand more than 36 years ago she knew of her sister's marriage to Waters.  She admitted that she had heard years ago from her sister in Ashburton that Fox was not her lawful husband.  When the case was before the court in 1917 she was in a position, therefore, to deny the right of the defendant to any relief under the Act on the grounds that he was not the husband of the testatrix.  She, however, did not raise any question as to his status.  All that she has discovered since is that Waters is still alive.  "I made investigations," she said, "in Timaru, and found he was alive.  I did not make investigations before the case, as I was not well, and had not the time.  
I did not want to bring this up."  I conclude from her evidence that, out of respect for her sister's character, she abstained deliberately in 191 from raising any question as to the defendant's status, although she was in a position to do so.  

For the purpose of the case all she had to prove was that Waters was alive in March 1833, when the marriage with the defendant was celebrated. It was not necessary to prove that he was still alive in 1917 but apparently she could have found him just as easily in 1917 as she did in 1919. In the circumstances the plaintiff could not have obtained leave to proceed by bill of review under the old Chancery procedure, and it follows, therefore, that she is not entitled to maintain the present action. The only course open to her, if she desires to pursue the matter further, is to apply to the Court of Appeal to extend the time for appealing from the order in question. As to that I refer to the observations in the judgement of Cozen-Hardy, L.J., in Charles Bright and Co., Ltd., v. Sellar (1904, 1 K.B., at p.12). Judgement for the defendant, with costs on the lowest scale, with disbursements for fees of court to be fixed by the registrar.

Mr Ongley appeared for the plaintiff and Mr Lee for the defendant.

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Edward Jabez Waters's Timeline

August 24, 1855
Wellington, New Zealand
July 3, 1879
Age 23
Timaru, Canterbury, New Zealand
Age 23
Age 26
Canterbury, New Zealand
July 10, 1884
Age 28
Canterbury, New Zealand
Age 31
Age 33
Canterbury, New Zealand
November 20, 1891
Age 36
January 13, 1894
Age 38
Makikihi, Waimate District, Canterbury, New Zealand