THE COURTS—TO-DAY.

Evening Star, Issue 7474, 19 March 1888, Page 2

THE COURTS—TO-DAY.

SUPREME COURT.-CIVIL SITTINGS,

(Before His Honor Mr Justice Williams.)

M'Kinnon and others v. Otaoo Dock Trust. —Dr Fitchett, counsel for plaintiffs, intimated that this case would not come on at this sitting.—Sir Robert Stout understood that the case would come on.—No date was fixed for the hearing, but the court will sit to-morrow should it be decided to go on with the case then.

Gray v. Equitable Insurance Association. —The hearing of this case was fixed provisionally for the 10th of April, the understanding being that it shall not come on before that day, but os soon after as can be. D’Albedyiill v. Brdnton.— Dr Fitchett said that in this case there was a summons for discovery. Pending that, plaintiff wished the case to stand over. His Honor remarked that this was obviously not a case which should be tried without a jury ; and it was eventually decided to fix the ease for the 9th April, before a jury of four. Driver v. M‘Donald. —This was fixed for Wednesday, the 28th inst. Rutherford v. Park and Others.—Set down for Tuesday, the 27th inst, M'Lellan v. Minister for Public Works. —lt was decided that this case, to come before the Compensation Court, should be fixed for some day after the criminal sittings. (Before His Honor and a Jury of Four.) JOHN BROWN V. JOHN DWYER. Action for damages for slander. The statement of claim set forth that on the 29th February, at Dunedin, the defendant falsely and maliciously spoke and published of the plaintiff the following words: —“ You are a thief; you are a rogue and a crawler; and if it was not for the law I would make small meat of you, and you would not be able to tell the tale. ” The plaintiff therefore claimed by way of damages the sum of L2OO. Defendant admitted that he spoke and published the words complained of, but denied that he spoke them maliciously or with the intention of seriously imputing any specific criminal offence to the plaintiff. Plaintiff had greatly aggravated and annoyed the defendant by interfering in certain business arrangements, and a wordy altercation ensued, during which defendant used the words complained of. The words were used by defendant to plaintiff merely as general terms of abuse, and were so understood by all who heard them used. So far as defendant knew, Coughlan was the only person present at the time when the words complained of were used, and he was aware of all the facts and circumstances of the matter.

Mr F. R. Chapman appeared for plaintiff; Dr Fitchett for defendant.

On the application of Dr Fitchett all witnesses were ordered out of court.

In addressing the jury, Mr Chapman said that this case would not occupy their attention very long, but he asked them to give their earnest attention to it, because, so far as plaintiff was concerned, the case was a very important one. Mr Brown, the plaintiff, was a furniture dealer, carrying on business in George street, and in February he had some business which brought him into contact with Mr Dwyer, an hotelkeeper, There was a transaction—the particulars of which he (the learned counsel) would not trouble the jury with—in which plaintiff, defendant, and one Maurice Goughian were interested. They had occasion to come up from the other end of the town to this end of the town, and Dwyer used to the plaintiff some such language as that set out in the statement of claim. Brown came to the court simply to claim reparation and damages at the hands of the jury for having been publicly accused in the public street of being a thief. Dwyer proposed to defend himself by saying that in calling Brown a thief he did not mean to impute dishonesty, but that he used the words complained of in a playful way and without malice. When the jury came to hear that defence they would consider it ns somewhat impertinent, ns insulting, and as aggravating the injury done to Brown. It was all very well for Dwyer to say that he did not impute dishonesty, and used the words in a playful manner ; but these were the sort of words that stuck to a man.

Dr Fitchett suggested that his learned friend should quote the defence rather than give it a meaning that it did not bear. It was not said that the words were used playfully, but in the course of an altercation.

Mr Chapman : Very well; they were used in an altercation, but without malice. Counsel read the defence, and went on to say that the words complained of were not used as general terms of abuse, but were used in such a way that any outsider hearing them might come to the conclusion that Dwyer imputed that Brown was a bad character, and in short a thief. They were used directly to impute dishonesty. Furthermore, the jury were told that so far as Dwyer knew, Goughian was the only person present when the words were used. But it would be shown that the words were used in the public street, and so loudly that there could be no difficulty in persons in the street hearing what was said. He (Mr Chapman) asked the jury to deal with the case as one that demanded some substantial reparation, and by their verdict to protect the plaintiff and show that the language complained of was not to be used with impunity. Evidence was given by John Brown and Maurice Coughlan, Dr Fitchett would not trouble the jury long. A more contemptible case had never been tried in the Supreme Court. The evidence showed that there had been an unseemly squabble between plaintiff and defendant, the proper place for settling which was the Police Court. He (Dr Fitchett) trusted the jury would by their verdict discountenance the bringing of such cases in the Supreme Court. If the case had been brought in the Police Court, on a charge of abusive language, Dwyer would have made a counter charge of the same character, the magistrate would have knocked their two heads together, and there would have been an end of the matter. The case which he would submit to the jury was that Brown had followed Dwyer about with the object of preventing Dwyer selling the furniture of the Grange Hotel to Coughlan, the incoming tenant, and that Dwyer at last got angry and used strong language. He (Dr Fitchett) did not justify Dwyer in using the language attributed to him, but would submit that Dwyer’s language could not be construed into an imputation that Brown was a thief. There was nothing in the expressions as used to justify a charge of slander.

Evidence having been given by John Dwyer, Dr Fitchett addressed the jury on the legal aspect of the case. It was not sufficient to entitle a man to recover in an action for slander that it should be said to him “You are a thief.” The words must be used in a sense importing an indictable offence, ff used in general terms of abueq, no actiop would He. Counsel quoted authorities on the subject, and went on to say that Dwyer had used tho expression “ You are a thief ” 5 but went on to sg,y “ Because you tried to charge me twice for a carpet.” Jf the jury found that Dwyer called Brown a fhief because Brown had tried to charge Dwyer double, an action for slander could not be maintained, unless special damages were claimed. Dwyer was accused of calling Browu & rogue, a thief, and a crawler. " Thief ” wag the only word that it was suggested was actionable { and he (Dr Fitchett) put it to the jury that, interpreting thig expression by the context, it

was merely part of a torrent of abuse which Dwyer in his wrath had directed at Brown, and that Dwyer did not mean to impute that Brown had been technically guilty of theft. Was it likely that Brown would comport himself as such a martyr of meekness under such a charge ? He (Dr Fitchett) asked the jury to believe that Dwyer and Brown had had an altercation, and that Brown had used bad language to Dwyer, and thereby brought the whole thing on his own head.

Mr Chapman, in replying, said that the only remedy Brown had was by applying to the Supreme Court, Dwyer had in his evidence admitted nearly all that Brown alleged md when asked whether, when he used the word thief, he meant what he said, he had replied in the affirmative. The word had been uttered under such circumstances that it could receive no other interpretation than that Dwyer wished to make out that Brown was a thief.

His Honor, in summing up, said that this was an action for verbal slander. The law of verbal slander was this: that mere verbal abuse was not actionable unless there was special damage. In the present case no special damage had been proved, and no special damage had been alleged. Therefore, if defendant had merely used abusive language to plaintiff, plaintiff was not entitled to recover anything. In order that plaintiff should succeed, the jury must be satisfied that the imputation amounted to the imputation of a crime. None of the words used were actionable in an action for verbal slander except the word “thief”; and the word “thief” was only actionable if the meaning which those who heard the word would attribute to it was that it amounted to an assertion that plaintiff had been guilty of the crime of theft. The question was not what the person who uttered the words meant, but the meaning which those who heard the words would probably attribute to them. After reviewing the evidence, His Honor said that the question the jury had to determine was: whether, in using the word “thief” in the sense in which it was used, bystanders would understand that the crime of theft was imputed to plaintiff. If they would not have understood that the crime of theft was imputed, but that the word “ thief ” was used merely as the words “rogue” and “crawler" were used—as terms of abuse—then the flaintiff was not entitled to recover, f, however, the jury thought that the word “thief” was understood by the bystanders as imputing crime, then the plaintiff was entitled to recover some damages—the amount was for the jury to determine.

After about a quarter of an hour’s retirement the jury returned into court, and the foreman (Mr W. H. Taggart) announced that the verdict of the jury was for the plaintiff; damages, one farthing. His Honor: Very well; judgment will be for plaintiff for one farthing. There will of course be no costa.

DIVORCE AND MATRIMONIAL CAUSES. (Before His Honor Mr Justice Williams.) Sarah Emma Kilpatrick (petitioner) v. Joseph Kilpatrick (respondent).—On the application of Dr Fitchett a rule absolute, with costs, was granted in this case. The court rose until II a.m. to-morrow.

RESIDENT MAGISTRATE’S COURT.

(Before E. H. Carew, Esq., R.M.)

Charles Cooper v. William Jackson.— Claim, L 7 Cs lOd, on a judgment summons. —Defendant did not appear, and an order was made for him to pay the amount by monthly instalments of LI each ; in default ten days’ imprisonment. R. Swan v. J. S. Houlder.— Claim, Ll9 13s Bd, for watchmaking work and labor done. Mr James appeared for plaintiff; Mr Dcnniston for defendant. This partlyheard case was resumed, and after evidence had been taken, His Worship gave judgment for L 5 18s sd, including L 3 3s 5d paid into court. CITY POLICE COURT. (Before Messrs S. N. Brown and A. Bartleman, J.P.s.) Drunkenness. For this offence James Dakiel was fined ss, with the usual alternative. Henry Wilson and Robert M‘Donald were convicted and discharged. Obscene Language. Charles Harding was charged with using obscene language within the hearing of persona passing in the public streets.—Accused was sent to gaol for forty-eight hours. Petty Larceny. John Fisher (16) pleaded guilty to a charge of stealing two pigeons, the property of Edwin Stellead, and valued at Is Cd. Mr Denuiston, who appeared for accused, said that the latter had hitherto borne a good character, and that he was led into this affair by other boys after he had been indulging in drink. He and a brother were the only support of their widowed mother, and counsel submitted that under all the circumstances the case was one in which accused might be discharged under the terms of the Probation Act.—The prosecutor stated that he had no desire to press the charge, as he thought he had been drawn into the affair by other boys. —Accused’s employer, a fellmonger named Gatfield, gave him a good character for honesty.—The Bench cautioned accused severely and discharged him on condition that he comes up for sentence if called on.

Assault and Robbery.— James Charles M'Grath and George Anderson were charged with violently assaulting William Slattery and robbing him of the sum of 17s Gd on Saturday last.—Detective Henderson said that he would ask for a remand, as complainant was in rather a bad condition from the effects of the assault; Dr Fleming, hospital doctor, certifying that it would not be safe for him to attend the court for two or three days. He was in a very weak condition from loss of blood, one of the arteries in his head having been cut. The offence seemed to be a very serious one, the doctor being unable to say at present what turn the complainant’s condition might take,—The case was adjourned till Wednesday next, A Row tn a House of 111-fame. Elizabeth Smyth was charged by Bessie Woods with smashing a looking-glass, vase, sugar-basin, wine-glasses, etc., the property of the latter, and valued at LI 17s 6d. Mr Stuart appeared for complainant; Mr Macdonald for defendant.—After hearing evidence, the Bench fined defendant Is, without costs, and ordered her to pay LI 10s for the damage done, in default seven days’ imprisonment. There were two crossactions between the same parties for assault, but the evidence in the case of the first was taken as evidence in the last two also,—The Bench decided to dismiss these two cases ; each party to pay her own costs. In giving their decision, the Bench said that the locality (Filleul street) where the parties lived was a hotbed of disorder, and that the police would do well to keep an attentive eye on it. ______