LAW REPORTS.

Dominion, Volume 1, Issue 242, 6 July 1908, Page 9

LAW REPORTS.

SUPREME COURT. CIVIL SITTINGS. ALLEGED SLANDER. E. J. SEARL v. T. P. LYONS. CLAIM FOR £1000 DAMAGES. VERDICT FOR DEFENDANT. The bearing of tho case of Edward John Searl v. Thomas Patrick Lyons — a claim for £1000 damages for alleged slanderwas continued on Saturday before. Mr. Justice Cooper and a jury of twelvo. Mr. A. Dunn appeared for tho plaintiff, and Mr. Skerrett, K.C. (with him Mr. Bunny) for the defendant. _ FURTHER EVIDENCE FOR THE DEFENCE. Further ovidence was given on behalf of tho defendant as follows:— Walter Weston, engineer, Ngahaurauga, stated that ho entered into partnership with plaintiff in the Cuba Street business. Ho 1 was introduced to the business by an advertisement. At tho time witness had £300, tho savings of his whole life. First of all, ho purchased a half share for £100, then ho put another £200 into tho business, and eventually, fearing insolvency, an additional £100, which he borrow-ed from his father. Witness then referred to the circumstances surrounding the dissolution of partnership. Mr. Skerrett: You received information about a statement made by plaintiff upon his public examination in bankruptcy?— Witness: Yes.

In consequence did you see plaintiff?— Yes.

What took place? —I asked him to deny tho statement in public —to admit that it was not true that I had taken £100 out of tho business. Ho admitted that I had not received anything, and promised to deny tho statement.

Mr. Dunu: You and plaintiff are pretty good friends?— Witness: Friendly—so far as that I don't want to do him any harm.

Did you ever consider it necessary to chargo plaintiff with being a blackmailer?— No.

Or did you ever considor it necessary to call him a robber or a thief?— Well, I could havo dono so honestly, but I did not.

Did you pay Searl the £100 when you went into tho business? —Yes.

AVhere did it go ?—lnto his pocket principally.. Did you not buy a half share from ono Bain for £100? — I bought a half sliaro of tho leaso of tho Cuba Street business; I paid plaintiff.

Did you not pay an agent?— Through an agent. ' _ -■ is it not a mistake that plaintiff got the £100?— No."

Continuing, witness stated that he had the capital, and plaintiff tho brains. During the timo that you were in the business what did you draw out of it?— Nothing: . i , i Is defendant a friend of yours?—He is. Georcina Palmer, a waitress in tho employ of defendant, stated that she was formerly in tho employ of 'Searl and Lyons. Plaintiff told witness that ho had duplieato keys of all tho premises ho had occupied, and could get into thoso places whenever ho liked. After plaintiff moved from Cuba Streot ho mado reforenco to tho electric light fittings, saying that after tljat night tho fittings would ba back in tho building again.. Witness had, had chargo of tho casli register, ./and had seen plaintiff take money out of it almost : ov'ery day. As a'rulo, .'after lunch ,he took gold : 'and notes out, and left' only • silver in tlio register. Plaintiff had given witness tq .understand that lie had destroyed the dockets. Provisions wero removed, from tho Cafo daily by plaintiff or his children.Mr.. Skerrott: So tho business was practically liiifljiing plaintiff and his family?— Yes. ■ Cross-examined by Mr. Dunn witness stated' v thjtt her namo was not Palmer but Sutton.Slio had changed her namo to please : licrsolf. Slio had' never asked plaintiff.'for a penny-pieeo; except what, iva's duo to hor. Defendant had liefer, lent witness any money. Whenever dofendant took away provisions ho paid for them, but . when plaintiff took any away he never mado any mention, of paymont.' Florence. Lyons, daughter .'of defendant, and formerly in tho employ of Soarl and Lyons, deposed that plaintiff had said in her presence that ho would win tho case brought against him by Mr., Hannah because tho only thing that;ho had dono was to take away somo clectric light fittings, which he intended to put back. Next morning plaintiff told witness that ho had put tlio fittings back. He also said that ho possessed duplicate keys for all the premises ho had occupied, and that was how he was going to get into Hannah's promises. The conversation took plaeo tlio day before Hannah's ease camo on. In cross-examination by Mr. Dunn, witness said that slio heard plaintiff say to her father that lie would havo to pay half tlio rent for May. Plaintiff objected to witness being employed'in tho Cafo, and told her that ho would kick her and hor father out of tlio promises. Plaintiff took away provisions from time to time; Witness's father also' took away provisions, but ho always paid for them. ',

Mary Shepherd, barmaid at the Wellington Hotol, gave ovidcnco that she was employed by Soar! and Lyons in July as a waitress. One morning plaintiff remarked that sixteen dockets were missing. Sho had some difficulty in obtaining her wages,, but not doprcss her spirits. (Laughter.) Eventually sho got £0 ss. 6d. from plaintiff. Threo entries in tho wages book showing payments stated to have been mado to witness wero incorrect, as she had never received the full amouuts mentioned.

Cross-examined, witness, stated that tho figures had been altered since witness initialled tho amounts. j

Michaol O'Eano, stationer, stated that ho answered an . advertisomcnt inserted by plaintiff who wanted a partner. Plaintiff told witness that his liabilities consisted of a bailment oytr part of the furnituro and £12 on a cash register. Witness was to pay plaintiff £160 cash and £40 within a woek. After making certain inquiries ho did not enter' into tho partnership. Cross-examined by Mr. Dunn, witness state'd that ho thought the investment was not a suitable one. Ho did not want to quarrel with plaintiff, and that was all ho told him. Tho draft deed of tho proposed partnership was not submitted to witness by counsel, but ho received an account for it. Re-examined, witness stated that ho wont to Mr. Dunn at plaintiff's request. Sir. Dunn did not tell him anything to put him on his guard; nor that ho held a security over tho chattels himself. Witness did not know at that time that plaintiff had ever been a bankrupt. , This concludcd tho evidence for the do fence. EVIDENCE IN REBUTTAL. Plaintiff was recalled by his counsel to givo ovidcnco in rebuttal. Ho said, inter alia, that ho never refused to givo defendant any information as to tho partnership books, and' defendant had never made any; complaint excopt as to tho dockets. The dockets wero to a certain extent a check, but did not provido an effective check, as customers did not always bring a docket to the counter. Defendant had only onco complained of a shortago in tho cash, as compared with tho amount registered. Plaintiff had never refused. to open tho cash register in defendant's presence. Frequently it was necessary to tako money from the register to pay current accounts. When defondant wanted to tako charge of tho cash register koy, plaintiff told him that he could do so on condition that ho remained there till tho last thing at .night, but defendant said that he ras not going to stop there until all hours at night, and ho told defendant that matters would have to remain as they wero. Plaintiff denied tho other allegations made by defendant and his witnesses.

Evidence was also given by William Ernest Clark (salesman in tlio employ of Messrs. Wardell Bros.). Ethel Souper (waitress), Vco Le Marsenay (a waitress), Alfred Dakiti (accountant for Messrs.. Tnrnlnill and Jones). Leo do Laval (cliof at one time for Searl and Lyons), Ethvin Wood (builder), Percy Searl, and Fred Searl (sons of plaintiff).

HIS HONOUR OBJECTS. Mr. Dunn: If your Honour has no objection, I propose to go into the box and make a statement on oath with reference to a statement that has been mado with regard to myself His Honour: Well, I see the very stronger,t possiblo objection to such a course being taken. Mr. Dunn: AY ell, your Honour, as theso charges have been made,' and I think they aro reflections upon my personal character, I should have an opportunity of refuting them on oath. llis Honour: I don't know that I have tho power to cxcludo the evidenco if you tender yourself as a witness. Mr. Dunu: Well, your Honour, I do tender myself. His Honour: Very well but you must disrobe. 1 cannot hear your evidence whilst you aro wearing counsel's robes Mr. Dunn: Yes, if your Honour sees no objection.

His Honour: I say I see tho very strongest objection, and I may say I shall endeavour to get tho. judges to mako a rule prevent; ing such a thing from being done in tho future. ' Mr. Dunn: In tho circumstances, I think I should bo allowed to tender evidenco. His Honour: Very well; I don't think I can cxcludo your evidence. EVIDENCE OF DEFENDING COUNSEL. Mr. Dunn, having, disrobed, went into tho box, and deposed that on several occasions be had lunched at tho Willis Street Cafo and sometimes Searl and Lyons dined at tho same table; but ho never on any occasion heard Searl say that he bad taken clectric light fittings back to Mr. Hannah's premises. ' In answer to Mr. Skerrett, the witness said that when O'.Kane came to his offico ho know that he was acting practically for both parties. Ho did not know at tho time that Searl was heavily indebted.

Mr. Skerrett: Didn't you know what his reputation about town was?— Witness: No, I didn't. i'

Didn't you know ho had boon bankrupt?— Yes, but I did not know his repute. _ I knew he had had troublo with Mr. Hislop in connection with the Hotel' Cccil.

Wasn't it your duty as an honourable man to tell O'Kano when'ho came to your office that before entering into this business lie should -make inquiries ?,—I knew nothing of Mr. Searl's business. If I had thought it was a swindle I would not have had anything to .do with it. This concluded the evidence. QUESTION OF PRIVILEGE. Counsel, after having briefly addressed the jury, advanced argument on the question as to whether or not • tho ■ occasion when the statements wero alleged :to lmvo been mado was a privileged one. His Honour hold that the occasion was one whore there ivas qualified privilege. Under cortain circumstances'privilege might bo lost if a statement wero mado. in tho. presence of strangers. Whother defendant was present as a creditor or at tiro invitation of, the Official Assignee, he was not a mere stranger, but a person who had an interest in what was about to.be done with roferenco to tho undivided half-interest of his former partner in tho estate. It would be for tho jury to say 'whether'the privilego had been exceeded. Tho presence or tho solicitors for .the parties and tho newspaper representatives did not destroy tho qualified privilego. The reporters had not been invited to attend by defendant, but were present becauso it had becomo customary for newspapers to bo represented at meetings the kind. Whether they had a legal right to bo present.did not outer into tnc argument. " If,", observed His Honour, in. conclusion, " tho fact of the presence of the reporters' at a mooting of creditors would prevent tho privilege from attaching to tho occasion, then it would bo impossible to discuss tho affairs of a bankrupt at any meeting. of creditors to which the Press wore admitted." ' FINDINGS OF THE JURY, Tho jury, which retired at 4.30 p.m.,-re-turned at *5.20 with the following answers to tho issues submitted to them':— ■ Question I:—Did'tho words spoken by tho defendant on November. 28, 1907,, at,., tho mooting of tho creditors of tho plaintiff, "arid referred to in paragraph 1 of tho amended statement of claim, mean' that the plaintiff had, been guilty of theft and blackmailing,, and' had fraudulently and criminally coil-' verted to his own uso or stolen tho sum . of£loo, the property of the partnership, and that tho plaintiff had fraudulently and criminally converted to his own uso or stolon tho first month's ,rent of tho premises occupied by the partnership?— Answer: No reply. ; Question 2:—Did the words .spoken by the defendant on November 28, 1907, at ,tho said meeting, and firstly referred to in paragraph 3 of tho amended statonient of claim, moan that thb plaintiff had been guilty of illegally entering Mr. Hannah's premises and of committing tho criminal offences of housebreaking, burglary, and mischief?— Answer: No.

Question 3: —Did the words spoken by tho defendant on November 28, 1907, at the said meeting, and secondly referred to' in paragraph 3 of the said amended statement of claim, mean that the plaintiff had been guilty of illegally entering May's cafe, and of committing tho'criminal offenccs of housebreaking and mischief ?—Answer.: No reply. Question 4:—Did the defendant at tho time ho uttered tho words referred to'in tho amended statement of claim honestly believo'in tho truth of tho statements made by him, and did. lie make such statements in good faith and without malice? — Answer: Yes. .. .'

His Hoiiour entered up judgment for tho defendant with costs on tho highest scalo, and allowed two extra days at ten guineas a day and certificate for second counsel, also costs of interrogatories and other,disbursements. ■ '