THE SLANDER CASE.

New Zealand Herald, Volume XXVII, Issue 8178, 13 February 1890, Page 6

THE SLANDER CASE.

HUMPHREYS V. RAE. THE JUDGE'S SUMMING UP. VERDICT FOR DEFENDANT. The hearing of this action'for £1250 damages for Blander, which had occupied' the Court and jury the whole of the two previous days, was resumed yesterday morning. Mr. Tole appeared for the plaintiff, and Mr. Button and Mr. Hesketh for the defendant. Counsel on both sides had addressed the jury on the previous afternoon, and His Honor now summed up. His Honor said that he had been desirous for more reasons than one that his summing up should be deferred until that morning. In the first place he did not think it desirable that the mry should be compelled to give consideration to their verdict after a long day's sitting, to which probably many of them were not used, and another reason was that after hearing the very able addresses of counsel on both sides, it was just as well that there should be a short interval elapse in order that they and he might consider thr questions before them with the perfect coolness which they required. Before proceeding to sum up the evidence, he had to refer to the statement made by the counsel for the plaintiff, that at one time he felt inclined to throw up the brief, but that on mature consideration he felt it his duty not to desert his client, and he (the learned Judge) entirely applauded that decision, for although a counsel may and should before taking a case feel that it was right, still having taken the case there should be very strong reasons indeed for abandoning it, and he entirely applauded Mr. Tole's conduct. Perhaps his statement ought not to have been made to the jury, but it ought not to prejudice his client's case, and the jury would no doubt give full weight to the addresses of counsel, and to any remarks which he himself might feel called upon to make, and in any remarks which he had to make he would bo as impartial as possible. His Honor then proceeded to point out the law on slander and the difference between written and spoken slander, or libel and slander, and dealt with the facts of the case in question. He said if it was proved that the words alleged were spoken and applied to the plaintiff in his professional capacity, and were slanderous, then the jury must say they were false, and being false they were malicious in law. But beyond this there might be evidence of express malice, and whether that applied it was for them to judge. If the exact words were not proved, then the par* proved must be slanderous, and they must consider whether they were qualified in such a way as to deprive them of their slanderous meaning. His Honor then proceeded to deal with the three counts, and the evidence in support of them. As to the first count in which defendant was alleged to have said ; to Meyers, "You are in bad hands, &c.,' it would be well to consider the relationship of the parties at the time. Meyers had been charged with an offence, and emploped the plaintiff Humphreys to defend him, but he pleaded guilty, and was sentenced to nine months' imprisonment. When he employed Humphreys Meyers had no money, but a sum of £250 was coming to him, and he handed an order for this to Humphreys, who had a lien on it for his costs. This was collected through Rao, and came to his hands on the 22nd of March, and on the 23rd of March he wrote to Humphreys, who called and took the money, less 30s for exchange, and £10 deducted for money owed by Humphreys to Rae, recoiving in all £238 10s. As between plaintiff and defendant it was the handing over of £238 10s, but as between Humphreys and Meyers it was the receipt by the former of £248 ids. The defendant in his evidence said that he immediately wrote to Meyers, with whom he was not then acquainted, and the reason was that Humphreys said that he would not give a penny of it to Meyers. This was, however, contradicted by the letter itself. He did not write immediately it was a fortnight or three weeks afterwards that he wrote. It was alleged that in the meantime Rae was irritated at receiving a bill of costs from Humphreys, and it was suggested that the letter was written through spite, but Rae's version was that his heart revolted at what Humphreys had said, that Meyers would not receive a. penny of the money; but however that might be, the letter itself was a proper one. That was written on the 12th of April. On July 3 Rae again wrote, but the letter was not delivered to Meyers until the 17th September, the day on which he Was discharged. This invited him to call at Rae's office when he was discharged. There might have been, and no doubt were, disputes and ill-feeling between Humphreys and Rae in the interval, but the defendant apparently always bore in mind what Humphreys had said, that Meyers should not receive a penuy of the money. Meyers' evidence did not of itself amount to a confirmation of the alienation that defendant had said to him, " You are in bad hands," expressed bo that it could be construed intoslander. His Honor read over the witness' testimony from his notes. His Honor referred to the aotion which had been brought to recover the balance of the £250, viz., £186, from Humphreys, but when this claim was put in Humphreys put in a bill of costs for £180, thus carrying out as far as he could the threat that Meyers would never see a penny of the money. That bill of costs was in evidence before them, and it was for the jury to look at it and say what they thought of it. He felt called upon to say that, considering the services rendered in undertaking the defence of a man charged with a crime such a bill of costs was a disgrace to any solicitor. This bill was monstrous and extortionate, and the plaintiff must have known it to be so, and this should go to discredit him in his claim for damages. This bill was taxed, and £115 was struck off it, and from the day on which it was taxed the balance of the money (£115) was trust money in Humphreys' hands for Meyers. But what did they find? He gave £50 in cash and two bills for the remainder, one of which was met, and the other, which was not yet due, might be paid. Now, with regard to Meyers' evidence t he was examined as to making an affidavit and an apology. These documents would not have been unmissable, only that counsel for the defence had crossexamined on them. Now, there was something curious in regard to this affidavit in the conduct of the plaintiff: very peculiar indeed. Before this date plaintiff must have heard from Meyers or someone else that Rae had said something about him. He took down in writing Meyers' statement There was nothing wrong in that or irregular, but he was not satisfied'with that. He tried to get Meyers, Brassey, and other witnesses to make affidavits, and failing that, except in the case of Meyer, he tried to get them to initial the statements which he had written, so as to hold them in terrorem over them. His Honor said the second charge was that on the 11th October the defendant said," I am just going to Hesketh to get him to bring the matter before the Law Society. He deserves to be struck off the rolls," and he proceeded to review the evidence in support of it. The only evidence was that of Mcllhone and Brassey, both of whom swore that it was qualified by the phrase, If he did not act fairly to Meyers he deserves to be struck off the rolls," and if the jury found the words were used with thatqualilication they mustconsider they were deprived of their slanderous meaning. The third offence was that defendant, on the 3rd of June, and on various other occasions, said " that damned scoundrel Humphreys has robbed me of £200." There were four witnesses who swore to this. Mr. Rae denied that lie ever swore, but that was immaterial, for the words scoundrel or damned scoundrel were not actionable for slander, being merely abusive. His Honor then dealt with the evidence in chief of Armstrong and Lorain, and remarked that he should have something to say about'the evidence of these witnessWafterwards. He commented on the frequency with which Armstrong had contradicted himself. This, His Honor said, was one of the. witnesses put forward by the plaintiff, and he felt that he would not be doing his duty if he did not express himself strongly on the character of his evidence. Then, as to Loram, he was credited by the witnesses who had been called to contradict him with being a man of good character, but his evidence was very peculiar. ' He said Rae came up to Armstrong and him outside Buckland's and said, " That damned scoundrel Humphreys has robbed me of £200." He could recollect that, but could not recollect the conversation that led up to it, nor any other portion of it. but though so distinct on that he could recollect nothing of the conversation which took place in the Nevada Hotel on the 12th December relative to the promissory note. His Honor then read over Bright s evidence, and also that of Kelly, There were, His Honor said, one or two matters on which he should make a few remarks in regard to the evidence given in support of the charges, Humphreys was not content with merely taking down the statements of the witnesses, but he endeavoured to get them to make affidavits, and to gut them to initial their statements. He was continually looking them up, and was most anxious that they should stick to the statements which they had initialled. Beyond this there was evidence of extraordinary conduct on the part of the plaintiff, for not only did he take down the statements of witnesses, and impress upon them the Necessity for stioking to those statements, but he hold out inducements to them which it ought not to be necessary to hold out to any witness to get him to tell the truth. The plaintiff seemed to think that there should have been greater inducements than the love of truth in the minds of the witnesses, rod that he should hold out to

them that it would be to *£ substantial advantage if they swore unto the mark. Meyers said that he was to receive a very substantial advantage.by it. Mcllhone said fhMame and Kelly said the same, although lew. nitely. Kelly said that on one occasion Humphreys had given him a written statement and slid, "You stick to that ::it willbegood for you and good for me." Then there was the evidence g of Brassey. which was most minute and most particular and either true or most elaborately false. Brassey related a lengthy interview between Humphreys and himself at Northcote, and stated that Humphreys asked him to name a price for his evidence. Mr. Humphreys was called for the express purpose of contradicting this statement, and said, "I never gave any inducement to anyone to give evidence. He aeniea the conversation with Brassey altogether. Now, it was impossible that Brassey could have been mistaken. Brassey had either invented all that story or it was true. But was there anything to show that liumpreys was willing to compensate witnesses. Let them take the evidence of Loram, who was described as a publican residing in Mercury Bay. He came up to Auckland on the 11th of December, and owing to the vacation coming on, this case was adjourned on the 19th of December. He was, it appears unwilling to remain to give evidence, but they should recollect that he was subpoenaed in Auckland, and Humphreys gave him a promissory note for £50 to compensate him for his loss of time. In the interview with Mcllhone and Glover on the 12th, Lorain admitted that they met in the Nevada Hotel, but he denied any recollection of having spoken to them about the promissory note. He was absent from his home only five days and he had not presented the promissory note for payment although it was a mouth overdue, and he gave as his reason for not presenting it that Mcllhone said he would not get a penny for it. He gave as his reason for claiming £50 that he had to leave his bar to strangers ; but that was not the reason given by Humphreys, who said it was beoause he was engaged in mining speculations. That a witness whose expenses should not exceed £10 should get a promissory note for £50, which was not presented, was peculiar, and it appeared to him that the reason must be that lie had not earned his money. His Honor then referred to the evidence of Glover and Mcllhoiie { and pointed out that the plaintiff in his evidence in chief simply denied the statements of Meyers, Mcllhone, Brassey, and Kelly. He (the learned Judge) warned Mr. Tole that he had called these witnesses to support his case, and that he could not say " All that they say against me is false, and all that they say against Rae is true." That was utter nonsense. Humphreys said that they all swore falsely. Well, let them take him at his \¥brd, and set their evidence aside. They were his witnesses, and if they were put aside where was his case left ? The only witnesses left were Armstrong, Loram, and Bright—Loram with his £50 promissory note in his pocket and his unexplained connection with the plaintiff; Bright with his very peculiar evidence, which was entirely denied by Rae, and Armstrong's very extraordinary statements. He would now leave the whole case in the jury's hands, with a very few comments. Mrs. Hall was called as if for the purpose of proving express malice; but he again reminded them that the word "scoundrel" was not actionable, and Rae did not deny having used the word on several occasions regarding Humphreys. They must be satisfied that the words alleged in the statement of claim were spoken of the plaintiff in the exercise of his profession, and they would bear in mind the discredit which the plaintiff had cast on his own witnesses, and the evidence of the men whom he had not discredited. If they found that the words were slanderous lie was entitled to damages. It was not necessary that he should prove any especial loss ; in fact, that would be impossible for a professional man, but they would consider the whole circumstances, and the plaintiffs very peculiar conduct, in awarding damages. He might add, in justice to the plaintiff, that he should not have been asked some of the questions which he had been asked in cross-examination. _ He was asked whether he had not been divorced, and whether he had been a bankrupt, but these questions had not been followed up by showing that it was through any fault of his that he was divorced, or that lie was bankrupt, and the questions should not have been asked. The jury might find separately on the three claims or generally, and he did not think it necessary to place before them any specific issues. The jury retired at twenty-five minutes to twelve o'clock, and returned at ten minutes to twelve with a. verdict for the defendant on all the counts.

His Honor, therefore, gave judgment for the defendant with costs on the highest scale. Mr. Button applied for costs for extra counsel, and for an extra day. Mr. Tole objected, but His Honor allowed the costs. Mr. Button asked that the promissory note for £50 given to Mr. Loram should be impounded, in order that it might be laid before the Law Society. His Honor said he did not think he could do so. It was Mr. Loram's property; whether it was worth anything or not was another matter.