SUPREME COURT—CIVIL SITTINGS.

Evening Star, Issue 7496, 14 April 1888, Page 1

SUPREME COURT—CIVIL SITTINGS.

Friday, April 13. (Before His Honor Mr Justice Williams and a jury of twelve.) The case of D'Albedyhll v. Brunton was concluded at 5.20 p.m. When we went to press Mr Adams was addressing the jury on behalf of the defendant. In the course of his remarks, Mr Adams said that he would first of all show how it was that the defendant said that the publications of the alleged libel made by him were made bona fide, and in pursuance of what he deemed to be his duty, and not maliciously with the object of injuring the plaintiff. He hoped, however, that by this time, without argument upon his part, that was fairly clear to the jury. The plaintiff, by her counsel, in opening undertook to prove that the defendant made statements in the letter false to his own knowledge, and tkat, therefore, they were malicious. Of course it was admitted that if the defendant did make use of tlan- ' ders thac reflected upon the plaintiff which were false to his own knowledge, then of course the ingredient of malice must be assumed. The plaintiff also undertook to show malice from outside matters and from the publications and expressions of the defendant. The learned counsel on the other side had said that the defendant, till this action was brought, insisted upon his bona fide belief in the matters stated in the letter, but he (Mr Adams) would point out that that was the position still taken up, and that upon it the defendant asked for the verdict of the jury. „In the pleadings he asserted his bona fide belief in the truth of the matters stated at the time when he stated them. In order to come to a conclusion on the matter the jury would have to take into consideration the attitude of the defendant at the time the letter was written, and at the time when its publication took place. They had not to consider the circumstances as they now existed, and which might induceareasonablemanto draw certain conclusions, but they must consider the circumstances at the dates mentioned to ascertain whether the defendant acted bona fide. The plaintiff said the letter to Colonel Lethbridge contained statements which proved the existence of malice. They had heard the letter read, and he would ask them whether from beginning to end the letter was not such as the documents before the defendant at the time justified, and whether there was anjr ground to suggest malice in connection with any statement in the letter. Having seen these documents and heard the evidence given, would ask the jury if they were not of opinion that at the time the letter was written the defendant, as a reasonable man, had not very i good grounds for writing as he had done ? The learned counsel then went through the various points of the letter, and commented upon the relating to them, and maintained that in respect tonosingle statement made could the suggestions of mala fides be maintained. As to the reason for writing the letter, that had been set out in the pleadings, and must be sufficiently evident. They had seen the man for whom it was written in the witnessbox, and must have observed tbat he was heart-broken and miserable; and they might to some extent imagine the agony he must have felt owing to the horrible position in which he had found himself. They had learned, too, from the evidence that up to the time when this letter was written he had not breathed to a soul anything about this dreadful family skeleton, for there was not a tittle of evidence to displace that statement. It might be said that Mr Brunton ought not to have written the letter, that he should have left D'Albedyhll to battle on his own account or to be crushed by the misery which unfitted him to make an effort for himself. When people heard of acts of bravery, of a man risking life or limb to save another from death or danger, they were loud in praise and talked of decorating the hero with a ribbon or medal or setting up a subscription for him, and surely if a man tried to save another from great mental tor* turo and from crushing tronble be did not merit punishment, but commendation. Moral courage Was more than physical courage, and a man who was willing to rusk social odium to assist a brother in need was deserving of praise. He aiked the jury by their verdict to say that hot only was the.

defendant entitled to do what he had clone, but that he had performed a duty, and that a. man in trouble had a right to expect that a minister of the Gospel should be allowed to extend to him sympathy, counsel, and help, and that the defendant had not been guilty of a wrong act, had not shown malice, but that he had done an act that was praiseworthy in its object and in its design. The learned counsel then commented upon the evidence in support of the contentions in the defendant's plea, and in concluding said that the whole of the unhappy circumstances in connection with D'Albedyhll and his wife had been seething in their minds for years, and had produced a morbid condition which led them to do and say things which they would not do or say were it not for those unhappy circumstances. There was a good cteal to show that. There was the memorandum of the 4th February, 1885, in which the plaintiff said that the neglect of a certain duty had been the root of the unpleasantness of their married life. Ihen there was the written statement in which the plaintiff said she despised her husband, and, in reply to a question, she had said in the'box she despised him now and always had done so. That was the secret of the whole of the unpleasantness that had arisen between husband and wife, and that had ultimately culminated in the present action. He asked the jury to say if there was the slightest reason for the suggestion of malice on the part of the defendant. The husband's life bad been embittered by the jealousy, distrust, and contempt of hiswife. The defendant had tried to assist him to lay a connected story before his relatives, and surely ho was not to suffer for that, done as it evidently had been in perfect good faith, nor on account of the unhappy circumstances which had rendered it necessary. Dr Fitchett said that he at once admitted what his learned friend had just told the jury, that the plaintiff and her husband had for years past been in a morbid state of mind, that there had been terrible jealousies between them, and that generally their married life had been a hell. There was no escape from that, but he would impress it upon the jury that this had been so to the knowledge of Mr Brunton. He (Dr Fitchett) was prepared to grant this: that if in the earnest and honest discharge of a duty Mr Brunton had written this letter, they should acquit him. But on the facts adduced and on the admissions made a moment since by the defendant's counsel, could Mr Brunton have been acting honestly in writing the letter? Although the defendant knew of the terrible relations between Mr and Mrs D'Albedyhll, and that Mr D'Albedyhll's feeling against his wife had been accentuated by an unsuccessful action> he took the husband's unchecked, and made no attempt to verify the statements the husband placed in his hands, but sent them all over to Tasmania. Mr Adams : That 13 not so ; there are the documents in evidence. Br Fitchett said the defendant took no evidence save that which came from the poisoned well of the husband's malignity. What would the jurors have done if asked to make such horrible charges ? Here was a minister of the Gospel of Peace, who scattered slander, and yet carefully avoided saying a word about it to the woman concerned or to anyone connected with her. D'Albedyhll's malice was admitted. (Mr Adams: "It is not.") Mr Brunton's was denied ; but what were the facts ? Friends in Tasmania had written urging, as good Christian people should, that tiie D'Albedyhll's should live in peace. The husband then went to Mr Brunton, and that minister of the Gospel of Peace, instead of urging him to live afresh for the future, threw oil on the flames. Was that the attitude of an honest man? Impossible ! Mr Brunton would fain have them believe that he had had no quarrel with the plaintiff, and was friendly with her at the time the letter of August 11 was written. He would test the whole man by that statement. He told them he was then on friendly terms with her, and yet they had it in evidence that on May 5, three months before that, he had written a letter to the relatives in Tasmania as scurrilous as the letter upon which the action had been brought; and this letter of May 5, which was distinctly scurrilous, concluded with the suggestion that it should not be communicated to Mrs D'Albedyhll, as he feared any attempt to mediate would be useless. Then it was not in that letter alone that he stabbed, and wanted to conceal the stabber, but in his evidence he said that Mr Green had thrown him off his guard. If he was an honest man, who had simply done his duty, what need was there for him to have been on his guard at all ? That showed that he had done something which in his heart he knew he ought not to have done, and no more evidence than that was needed to show that malice moved him to write the letter, and that he was conscious of it. Throughout the letter there were, the learned counsel contended, manifest misstatements and carefully-devised misstatements. He was disposed to believe that the defendant did credit these things; but given malice, and they could get credulity. If any person hated another it was very easy to credit slanderous statements concerning the one towards whom malice was felt. The statements in the letter were monstrously inconsistent and contradictory, and the letter possessed abundant intrinsic evidence of the malice of the man who wrote it. It had been suggested that there must be a motive for malice, and that here no possible motive could be inferred. Here they had the fact that the plaintiff and defendant were not friends at the time the letter was written ; and given two people who had been and were not friends, and they had all the potentialities of malice, for there was no neutral ground. The learned counsel commented upon the evidence at considerable length, and in concluding said that the plaintiff had displayed no vindictiveness. She had claimed but a nominal sum as damages, for if she had claimed money damages in proportion to the wrong that had been done her or the malice shown towards her, she would have claimed not L2OO but L 2.000. But the plaintiff did not want money, but to clear hereelf, and he was certain they would do that, and would teach Mr Brunton that a meddlesome and malicious man could not with impunity scatter slander in the way defendant had done. With this remark he would leave the matter to the jury. His Honor summed up at great length, and in the course of his remarks directed the jury that the primary question for determination was whether the letter was written by the defendant under an honest sense of duty. If that question were answered in the affirmative, then the publication in the first instance was justifiable, and they would probably find that the second and third publications were also justifiable as being no mere than an honest defence by the defendant of his conduct in writing the first letter ; but, as a matter of law, it was not necessarily the ease that if the first publication was justifiable, therefore the second and third publications were. If, His Honor remarked, the jury were satisfied that the defendant had been actuated by an honest sense of his duty as a Christian minister for the purpose of rendering help to a man who was in trouble on the one hand, and for the purpose of conveying information to the friends of the man who was in trouble, which the man himself wanted to communicate, and might have communicated, then the defendant was entitled to say that the letter was justifiable. If, however, they thought that, looking at the whole of the circumstances, they could not say that it was written from an honest sense of duty, and that there must have been some wrong motive animating the defendant in writing it, then the plaintiff was entitled to their verdict, and the question of damages was for them to consider. The jury retired at seven o'clock, and at 8.20 returned with the following finding : First, Is the letter libellous ?—Yes. Was the defendant justified in publishing it ? No. Damages as asked, L2OO (LSO on the first, LSO on the second, and LIOO on the third claim for the several publications). Dr Fitchett asked His Honor to certify for a second and third day. Jndgraent was entered for the plaintiff accordingly; casts as per scale, disbursements and witnesses' expenses, and ten guineas a day for each day after the first. His Honor, in addressing the jury, said : I am very sorry, gentlemen, that you only receive 10s each for the hearing of this case. The amount is strictly limited by law, but it certainly does seem to me to be only reasonable that the law should be altered, fortunately a common jury case extending

over three clays is, like a pesti ence or an earthquake, a visitation that seldom occurs; in fact, I do not remember one having occurred for many years; but it does seem to me that when it occurs the jurors shouiu have something more than 10s for the time they have given. I make this observation in order that the attention of the lress should be called to the law, and also because there is a member of the Legislature present. The Court then rose.