SLANDER CHARGE.

Otago Daily Times, Issue 20501, 31 August 1928, Page 7

SLANDER CHARGE.

BROWN v. HERBERT.

JUDGE’S STRONG COMMENT.

DEFENDANT’S CONDUCT

INEXCUSABLE.

POLICE TO INVESTIGATE.

VERDICT A POINT OF LAW,

His Honor Mr Justice Ostler gave judgment yesterday morning in -the action tinder which Thomas Henry Brown claimed £SOO from George Augustus Herbert for alleged slander. When the case was heard Mr A. G. Neill appeared for the plaintiff and Mr J. g. Sinclair for the defendant. The judgment is as follows: — This is an action for £SOO damages for slander. The plaintiff is a company manager, and the defendant is manager of Todd’s motor garage. The plaintiff alleged that on December 30, 1927, the defendant falsely and maliciously spoke and published to Frederick Carter, of Dunedin. motor salesman, the following ■words of and concerning the plaintiff:— “The car has done a bigger mileage. Henry Brown got me to wind the speedometer back 5000 miles before selling it. He told me he was to demonstrate it that afternoon." , . ~ , , ' The defendant admitted in his pleadings that in substance he spoke three words, to one Stedman and another man, and he pleaded justification. The first question lor decision therefore is whether the defendant has discharged the onus resting on him of proving that these words were true in substance and in fact; and after closely studying the demeaour of both the plaintiff and the defendant and of the various witnesses when giving their evidence, and after carefully considering the whole of the evidence given, I have been forced to the conclusion, not only that the defendant has failed to justify, but that, as intimated at the hearing he haa been guilty of committing perjury and suborning at least one other witness to commit perjury in order to induce the court to believe that the words that he uttered were true. It is necessary that the relevant facts should be stated in order that the true significance of the words used should be understood and the reasons for the conclusion I have reached fully stated. Those facts are as follows: — _ On January 30. 1926, the plaintiff purchased a new Chrysler motor car from the Todd Motor Company at Dunedin. The speedometer when he took' delivery showed on its record of miles run that the car was new. The plaintiff used the car very freely, for by the end of March, 1927. i.e.. not more than 14 months after the delivery, the speedometer showed that the car had travelled some 17,000 miles. The car was not used for business purposes, such as those of a commercial and therefore a mileage of 17,000 in 14 months is unusually large- It means an average of 40 miles a day. There is clear evidence, which I accept as true, that late in March and early in April, 1927, the speedometer showed this record. Not only does the plaintiff so swear, but two witnesses are able to corroborate him with evidence which, to my- mind, bears the impress of truth. As the matter is of such importance I shall refer to that evidence more fully, and give my reasons for accepting it as true. The first witness -who corroborates the flaintiff’s evidence on this point is 'rederick Carter, motor salesman for Adams, Ltd., in Dunedin. He knew the plaintiff, and during this period he tried on several occasions to induce him to purchase a different make of car. in which case he no doubt knew that he would have to take the plaintiff’s car in part payment. Therefore he looked at the car from time to time with a critical and appraising eye, and the crucial point a* to its value in exchange, as he well knew, was the mileage that the car had run. To ascertain that he would naturally lo6k at the speedometer, and he says he did ■o from time to time, on some occasions while being driven in the car, and that he kept in touch with the car in this way from time to time. Then, in March, 1927, the plaintiff told him that he was going abroad, and asked him to sell the car for him. Carter was then in touch with a Mr Newell, manager fof Methven’s Distributors, Ltd., who wanted to buy a second-hand car. He recommended the plaintiff’s oar to Newall. Newall was acquainted with the car and knew the plaintiff. Carter then suggested to the plaintiff that he should see Newall. The plain tiff, on April 4. 1927. as he says, drove down to see Newall, and Newall looked at the car. At that time Carter says that he looked at the speedometer, and it was then registering some 17,000 miles. It was a natural thing that he should do so. in Order to make an appraisement of the value of the car, and it was a natural thing that he should, being a motor salesman. remember roughly the mileage shown With regard to the exact date, however, when the car was shown to Newall Carter admits that he is relying on his memory, and he might well be mistaken as to the date. But Newall. who gave his evidence clearly, and. as I think, honestly, was able to fix the date upon which he first viewer, the Car with the idea of becoming its purchaser. He swore that it was either on April 3 or 4. He was ctoselv crossexamined as to how he fixed this date, and he gave reasons which, to me. seemed quite satisfactory. He said that he went te Oamaru in the plaintiff’s car with the plaintiff on April 8, and that he was able to fix this date from records he had looked up in his office, which showed the date Upon which he went to Oamaru- Now. the purchase of a car is an event which a man Is not likelv to forget within 10 or 17 months. He would remember whether when he drove in it on April 8. ho had agreed to purchase it several da.vs before and was then an owner or net. and he swears definitely that when he took this drive he had both inspected the enm end had agreed to buy it some four or five days previously. I seee no reason to doubt him.

Nowall swears that when the civ wabrought for his inspection on Anvil 3 or 4. he looked at the speedo-petor and noticed that it registered some 17.000 miles, Vow this is almost th-» first thine that a pros pective purchaser of a second-hand ca> would do. and the figire he rend would naturally be imor"s=r>d ep h*s tremor 1 - fo-the-value would d«.rv»pd upon tv-t-f fi-nive and his mind would he husv with ca'culctions as to whether he was Imipo off-merl a bargain or not. Therefore not onlv the plaintiff bu+ two renntable are ah’° to eot.ehli.sh that not later than April 4 1927. the speedometer on this ear showed So greater mileage than 17.000 odd Apparently, no memorandum ot agre—jnent of sale and nurchnse was prepared and Newall agreed to purchase the cawithout having any prior demonstration Counsel for the defendant contended tha* these two circumstances are strong to shov that Newall’s evidence is untrue, and that •when he was driven to Oamaru by the plaintiff on Anril 8 that was a demonstvre tion run which preceded the agreement to buy. Seeing that Newall knew the plaintiff and also the car and had been driven in it on prior occasions, and seeing also that this car had been recommended to him by Carter, upon whom he was apparently relying. I do not think it strange that he did not stipulate for a demonstrn tion before buying, and that he did not deem a written agreement necessary. He was evidently prepared to trust the plain tiff and Carter.

Xewall did. however, stipulate as part of his bargain that the car should have certain repairs and adjustments made, and that it should be touched up and “ simonised ” —i.e., cleaned and polished by that process—at the expense of the plaintiff. Accordingly, on April 3 the plaintiff called at Todd’s garage, saw the defendant, and obtained an estimate for the cost of the repairs and the adjustments he had agreed to make. The estimate proving acceptable, he took the car into the garage on April 6, and left it there for the work to be done. This fact is borne out by the production of an invoice sent to him by the garage charging him for the work. That invoice b dated April. 6, and it charges the

Elaintiff for the work that Newall says e stipulated should be done when he agreed to purchase the car. The plaintiff says that he went to the garage on the afternoon of April 7, found the work completed, and took the car away. The defendant swore that he took the car away on April 6, brought it back on the afternoon of April 7, saw the defendant, and asked him to have the speedometer wound back as he was going to sell the car and was going to demonstrate it that afternoon. Thereupon the defendant says that he called one Mercer, his chief mechanic, and instructed him to wind back the speedometer. He swears that Mercer at once uncoupled the speedometer from the car, took it over to the bench, took off its face and wound back the dials some thousands of miles by placing one of the internal sprocket wheels on a rapidly spinning buffing wheel, and revolving the sprocket at a high rate of speed. He swears that the operation of uncoupling the speedometer, taking it to pieces, winding back the dial, reassembling the instrument, and replacing it in the car took no more than some 15 minutes, and that while it was being done he was talking to the plaintiff most of the time, and an apprentice named Beattie was doing some small jobs to the plaintiff’s car. Mercer was called and swore that he did this work, and Beattie was called and swore that he saw Mercer replacing the speedometer while the plaintiff was standing by the car. The plaintiff swears that he never asked that the speedometer be wound back, and that was never done, and in my 'opinion he proved this conclusively by the evidence he called. I shall proceed with a narration of the facts proved by that evidence, and then refer more fully to the evidence as to this alleged winding back, and give \\y reasons for holding that it is untrue. On April 8, the day after the plaintiff got the car from Todd’s garage, he drove Newall to Oamaru in it. Both, the plaintiff and Newall swear that on that trip the speedometer recorded a total mileage of 17,000 odd, practically the same as on April 4, when Newall inspected the car and agreed to biiy it. It was arranged between the plaintiff and Newall that the plaintiff should have the use of the car until his departure from Dunedin, and the plaintiff swears that he actually handed it over to Newall at the railway station at Dunedin on April 111, and the speedometer was then recording some 18,000 miles. Newall corroborates this. Newall says that he kept the car until December 17, 1827, when he purchased a new car from Carter, and gave this Chrysler car in part payment:. He says he drove the car some 9000 miles, and when he handed it to Carter the speedometer was registering a total mileage of some 27,000 miles. Carter says that he used the car, driving it some 1000 miles, until March, 1928, when he sold it to one Corrigan, of Palmerston. The speedometer was then registering some 28,000 miles. Corrigan corroborates the fact that when he purchased the car from Carter in March, 1928, the speedometer recorded about 28,000 miles. He drove the car for about 500 miles, and then ran it one day without oil, and it naturally broke down. He caused it to be towed into Smith’s garage at Palmerston, and left it there. It then had the same speedometer which had not been touched by hiPi. Smith,, the proprietor of the garage, was called, and he swore that about the middle of June, 1928, Corrigan’s car was towed Into his garage and bad remained there down to the date he gave evidence. He say# that the speedometer, which was on the car when it came n, remained on it until a party of men came from Dunedin and took it away. The party of men consisted of the plaintiff, his solicitor, Carter, and a man named Shiel, an expert in the mechanism of speedometers. They drove out on July 15, 1928, removed the speedometer, and took it back to Dunedin. It was given to Shiel to be kept till the trial. When removed, the mileage registered on the dial was some 29,000 miles. Shiel produced the speedometer, which he swore he had removed from the ear, and had kept in his possesion ever since. It registered when produced Borne 29,000 miles. Moreover, it showed that its face had never been removed, and when, opened in the ceurt it was proved, and admitted by the defendant’s expert, that it had never been wound back. It will thus bo seen that if these two witnesses are to he believed, the mileage recorded on the speedometer was observed by various witnesses from time to tiihe in such a way as to show that the story o;; its having been wound back is untrue. It was observed by three witnesses three clays before tlie alleged winding back, and by two witnesses the next day. It was observed again by Newall when he took possession. It was observed by Newall and Carter when the car was delivered to Carter. It was observed by Corrigan when he took delivery, and while he was driving it. It was observed by the narty which removed it. And, filially, it was proved that the Speedometer produced had never been opened or tampered with. Is it 1 be thought for a moment that all these witnesses, most of them without any interest in the case at all, have allowed themselves tp be suborned to give fake evidence? If not. then the only alternative is that the defendant’s evidence is untrue.

The defendant was bold enough to suggest through his counsel that the speedometer produced at the trial by Shiel was not the same speedometer as was on the car on April 7. 1927, when he aPeges the winding back was done. But _ when can it be suggested with any plausibility that the change was made? The slander was uttered in De-ember. 1927, but the plaintiff did not return from abroad till Slay 23. 1928, and did not hear of the slander till after his return. Consequently no one had any motive for the removal of the speedometer and' the substitution of another until the slander had come to the plaintiff’s knowledge. By that time the car was the propetry of Corrigan, and very soon after that it was taken to Smith’s garage. After it got there Smith says that the speedometer was not touched till the Dunedin party came and took it away. It cannot be suggested that the speedometer was removed and another one substituted while the car was in the possession of Corrigan or Smith without their knowing about it. They are both absolutely independent witnesses, and have no motive in giving false evidence. If it is suggested that a different speedometer was substituted after its removal surely the plaintiff went about his plot in a curious way. He took three people with him to see the speedometer removed. If his intention had been fraudulently to hide the speedometer and to substitute another for the purpose of misleading the court, surely he would want an few witnesses is possible, unless it can be suggested that all four of the party, including his solicitor, were in the plot. If they were not, then, as the speedometer taken off the ear registered some 29,000 miles, and it w. s observed when taken oJ tha: it had never been opened, there was no motive for the plaintiff to conspire with Shiel to substitute another. Moreover. Shiel swore that wh n he removed the speedometer it had a rim of rust around its face as though it had been in positmn for the whole life of the car. and it also had a piece of red ruboer tubing on the shaft casing. The speedometer he produced had a piece of red ru - ber tubing on the shaft casing, it had never been removed, and it registered the same mileage as the one r<!mov ®“: r view of this evidence the suggestion ol substitution is absurd. It is ■ last desperate suggestion of a man .J pr fflntv the clearest evidence to have been guilty ° f Resuming the narrative of events; When the plaintiff on his return to Dunedin heard of the slander uttered against him he at once went _f° r^; oter^ 6 °?’ the manager of the Todd Motor Company, and complained to him of the defendant’s words. He and Robertson went together to see the defendant about it. There is a sharp conflict oi evidence between the plaintiff and the defendant as to what took place a. that interview. The plaintiffs evidence is as follows: x . “I said, ‘ Why did you tell Stedman that you wound back the speedometer 5000 miles? ’ He said, ‘ How do you know? I said, ‘ Never mind how I know. Why did you say it? ’ He said nothing to that. I said ‘ It is a hell of a thing to say about a fellow. That implies that I am a party to a fraud.’ He said, ‘ I made the remark to excuse the condition oi the car, and I am very sorry and will do anything to fix things up.’ I said, ‘ Very well, if you go along to Stedman’s and tell them that what you said is false, and give me a written statement to that effect, I won’t say any more about ot.’ He said, ‘Very well, I will do that for you.’” The defendant’s evidence as to that interview is as follows: — Brown asked me if I told Stedman that I had set his speeodmeter back, and I said that I had. He then said, ‘Why did you tell them ? ’ I said that I was having an argument with them, and they were passing remarks aboui; the bad condition of the car for that mileage, and I

then told them that the car.had done a bigger mileage.’ He did not ask me why I told then I then told them that that Chrysler had done the biggest mileage of any Chrysler in Dunedin. I deny that Brown said that it was a hell of a lie. He asked me to apologise, and I said that I would. . . . Brown did not mention about me going to Stedman’s and my giving him a written apology.” It will be seen that defendant gives a very different account of that interview from that given by the plaintiff. The defendant would have the court to believe that the true cause of the plaintiff’s annoyance and the gravamen of his complaint was not that the defendant had made a charge of fraudulent conduct against him, but that he had been guilty of a breach of confidence in disclosing the winding back of the speedometer. Unfortunately for the defendant, however, he called Robertson to corroborate his version. Robertson was certainly a friendly witness,, and did his best for him, but Robertson says plainly that the plaintiff said, “That makes it appear '>B if I had the speedometer wound back for *he purpose of deceiving the purchaser.” It is clear from this evidence that the gravamen of the plaintiff’s complaint was that the defendant had published a statement which imputed fraudulent conduct to him. It is true that Robertson says that he got the impression that Brown was only complaining about a breach of confidence on the defendant’s part. All I can say is that if, in view of the words he admits were employed by the plaintiff, he really thought this, then his powers of perception must be very_ limited. One would have thought that if it was only a breach of confidence the plaintiff was complaining of it would have occurred to him that he would have gone straight to the defendant to make his complaint, and not dared to go to the manager of the company. From his demeanour and his obvious partisanship, I cannot place any great reliance on Robertson’s evidence. What struck me as most remarkable about it was that, although in a responsible commercial position as manager of a large motor company, and believing, as he would have the court believe, that the manager of his garage had consented to set back a client’s speedometer for the pur pose of aiding him to defraud a prospective purchaser, he should have uttered not a word of condemnation of such conduct in his subordinate. My own belief is that Robertson _ appreciated very clearly that the plaintiff was complaining of a statement published by the defendant imputing fraud, and I believe the plaintiff when he says that the defendant did at that interview agree to apologise and to sign a written apology. The defendant never did so, however, and he later set up that the reason he had not apologised was because the statement be had made was true. It was suggested by his counsel that it is not likelv that the defendant would go to the trouble of fabricating such a story wbeu, by signing a written apology nml paying n small amount of costs he could have satisfied the paliutiff. That certainly would have been his easiest way out of the difficulty. But all men are not reasonable. Probably the defendant got into a hole by tolling the manager a falsehood about the matter. Whether that was so or not, however, I uni convinced that in his mind was hatched the scheme of making up this story. He had to get Mercer to help him and he suborned Mercer to commit perjury to support his story. He knew there was no record in writing in the garage of the work being done, although written records of all work done for customers must be kept, so that they can be charged. He knew that the plaintiff came to the garage on April 7, 1927, by himself to take away his car. He therefore fixed that date as the date, and, in order to account for no record being kept, he stated that the whole- of the work did not take more than a quarter of an hour, and therefore it was not deemed worth making any charge for. He was extremely vague as to the number ot miles he was instructed to wind the speedometer back, but he said that when instructed it registered 24,000 or 25,000 miles. Mercer, on the other hand, does not remember what it registered when he removed it. but he says that he wound ,t back some 10,000 miles. If R <’, then it must have shown 14,000 or 15,000 miles when he put it back. But, three days before, it was proved to have shown 17,000 miles, and the following day it was still showing under 18,000 miles. The story, moreover, has every mark of improbability. In the first place, the plaintiff took his car into the garage on April 0, and then signed an instruction card stipulating all the work that he required to be done for the sale of the car. If he had not then already sold it and wanted to induce a purchaser to buy it, and was dishonest enough to think of setting back the speedometer as an extra inducement, why was that not thought of by him whtiu he gave the other instructions. Secondly, why was he not charged for the work when he subsequently gave instructions for it (if he did) ? Thirdly, in my opinion the evidence shows that, it was impossible for Mercer, however expert a mechanic he might have been, to Have done the job in the short time that he said he took. Not only Shiel. but another expert in speedometers was called for the plaintiff, a Mr Darcy. He is a master of engineering of the University of Liverpool, and has specialised in mechanical research work for the great firm of Vickers. Ltd. He says that although by the method which Mercer says he adopted it is theoretically possible to wind buck the mechanism of a speedometer like the one in question in the time 'that Mercer says ue took, practically it is impossible to do so without breaking the mechanism. A speedometer is a delicate instrument, with fight brass sprocket wheels designed to move at a certain comparatively low speed. It run at even double the speed at that lor which they are designed, i.e., at 150 miles per hour, it would take some 40 hours to wind the dial back 5000 miles. Therefore, in order to wind it back thamount in a quarter of an hour it would have to be run at such a tremendous speed that, mechanically, the sprockets would not be able to stand the strain. The defendant’s counsel produced the meehan sm of a speedometer, and stat - that hw wit* nesses could demonstrate , that it chuld be turned back 5000 miles in a very >■ -ort time. Doubtless it had been used experimentally by the defendant. It was not Observed, however, by the defendant or any of his witnesses that the sprockets of y this speedometer had been < la ™a. ed and broken just in the thnt Mr Darcy said would happen. Therefore ui mv opinion, it was impossible for Mfrcei u» the time he said he did it in. ine a fendant was, however, in this difficulty. He had to cut down the time to quarter 5 an hour or less in order to account for no record of the work being kept and no charge having been made. Even had it been done in a quarter c,. an hour, tne apprentice Beatty says that while it was beine done he was working on the car, attending to the lights and the battenes. i nutting on some touches of paint rS which he says took him the greater part of half an horn There is no record produced oi this wort either and no charge was made for it either! But in the invoice sent to the plaintiff by Todds for work done on August 6 there is a charge made for painting some rusty spots. In view of these circumstances, and in view of the proof that -the speedometer was neverset back, and in view of the demeanour of the defendant and Mercer in the box, which was unsatisfactory, in view also of the unsatisfactory vagueness ot their evidence, I have no hesitation in concluding that their evidence was false. So far as Mercer is concerned, he is a young man, and probably would not see so clearly the gravity of the oftence he was committing. Moreover, his motive was probably a mistaken sense of loyalty to his superior officer. His moral responsibility is not so great as that ot the defendant himself, who first invented the story and induced Mercer to help him. The defendant’s conduct is inexcusable, and I should feel that I should be failfailing in my duty did I not send the matter on to the police for investigation with a view to criminal proceedings, bo far as Beattie is concerned, it may well be that he was unaware that his evidence was false. He is very young and not a vouth of remarkable strength of mind. It “would, I think, be easy to persuade him by skilful suggestion that he did actually see Mercer replace the speedometer. At any rate, I am prepared to give him the benefit of the doubt. There are other circumstances in the evidence that have helped me to form the conclusion I have come to in this case. I do not propose to refer further to them, however, except as to one matter. Although the defendant admitted that he published the words complained of in this action he swore that he published them in Steelman’s garage in the presence of two of the Stedmans and Carter. Carter swears that the words were published to him in Todd’s garage. As I have no

confidence whatever in the truth of the defendant’s evidence, I accept Carter s evidence on this point. At the hearing I was expecting the defendant to call the Stedmans who, he said, were present. He did not do so, however. When ,in Invercargill I received a communication purporting to be signed by three persons of the name of Stedman protesting against the defendant’s statement that anv such words were published to them. I think it right that both counsel should see that statement. I have accordingly handed it to the registrar, so that it can be inspected before it is sent to the police. The letter referred to his Honor read as follows: Dunedin, August 21, 1928. His Honor Mr Justice Ostler, Supreme Court, Invercargill. Your Honor. —We, the undersigned, do solemnly declare that we are the Stedmans mentioned by the defendant Herbert in the case of Brown v. Herbert, heard before you last week. We take strong exception to the statement made by Herbert that at a discussion of the merits of the Chrysler car we provoked him into stating that he had wound back Mr Brown’s speedometer. Such a statement is absolutely false, for neither at our garage nor elsewhere have we ever discussed with Mr Herbert Mr Brown’s speedometer. On Friday evening last we asked the counsel for Mr Brown to have us called so that we might have an opportunity to deny this statement, but Mr Neill said something about it not being his job to call us. and that in any case the evidence had finished. We feel that, in the interests of justice, and also in our own interests, you should know that the statement made by Herbert in his evidence is false. We solemnly declare this statement is true in every particular.-—Richard Trevor Stedman (garage manager), Dunedin; Roy Livingston Stedman (motor salesman). Dunedin; Herman Hille Stedman (motor salesman), Dunedin. Declared at Dunedin this 21st day of August, before me, Eardley C. Reynolds, J.P. It may be asked, what motive had the defendant for making this false statement about the plaintiff, seeing that he had no animus against him at the time? I think his motive was apparent. It waS not malice against the plaintiff at all. The Todd Motor Company had been trying to sell Newall a new car. They were unsuccessful. Their trade competitor succeeded in selling Newall a rival car. The defendant was annoyed, and he made the statement to Carter to induce him to think that he had made a bad bargain, by allowing too much for the Chrysler car he had taken in exchange. The defendant at the same interview led Carter to believe that he was not sorry he had not “ got the deal.” This explains the reason for the invention of the story. I should like - to say that no blame whatever rests on the defendant’s solicitor or counsel in this matter. They were entitled to believe their client, and to build their defence on the truth ot his statements. It is probable that they did not know the strength of the evidence that the plaintiff would be able to produce to prove that the defendant s statement was false. The responsibility in the matter rests with the persons who have given false evidence. I now proceed to deal with a ognl defence raised on behalf of the defendant, viz., that the words uttered do not impute a crimo, nnd, therefore, ns there was no proof of the plaintiff having suffered uhv special damage, hss action must fail. With regard to the words themselves, apart from the innuendo, 1 have come to the conclusion that they do not impute a crime. The words certainly do not impute a completed crime, but the question is, do they impute an attempt to commit the crime of obtaining money by a false pretence. An attempt to commit a crime is in itself made a substantive crime by section 93 of the Crimes Act, 1908, but it is always a question of law whether an act done with the intent to commit an offence constitutes an attempt or ;s only preparation for the attempt, nud too remote to constitute an attempt in itself. So far as the crime of obtaining money by false pretences is concerned, that question of law has been decided by the Court of Criminal Appeal in England in Rex v. Robinson (1015), 2KB 342. It was here held that in order to constitute an attempt to commit that crime the false pretence must be communicated to the person whom it was intended to defraud or his agent, and that until that stage was reached any act done for the purpose of making that false pretence, although it clearly showed a fraudulent intent, was no more than preparation for the offence. The ratio decidendi of this ease is not very clearly stated, but 1 think that it must have been decided on the principle 1 have stated. It is difficult to reconcile the case with the decision of our Court of Appeal in Rex v. Barker (10241. NZLR 805, but it is directly in point in this case, and ns it is of high authority I think I ought to follow it, and regard it as an exception to the general rule laid down in Rex v. Barker—-an exception applicable to the particular crime with which it deals. For the reasons stated, the words used do not in my opinion impute a crime, but at the most only fraudulent conduct preparatory tc the commission of a crime. Slanderous words conveying such an imputation are not actionable without proof of special damage. But plaintiff has pleaded the following innuendo: —“Meaning thereby that the plaintiff nnd the defendant had agreed to wind back and the defendant had wound back the speedometer of the said car before the plaintiff sold it, thereby to induce the purchaser of the said car to believe that the said speedometer had not registered more miles than appeared on the said speedometer, and that plaintiff had been guilty of the crime or conspiracy to defraud.” The question is: Could the words reasonably be held to impute a conspiracy between the plaintiff and the defendant to defraud? The definition of that crime is contained in section £59 of the Crimes Act, 1908. A person is guilty of the offence “ who conspires with any other person by deceit or falsehool or other fraudulent means to defraud the public, or any person ascertained or unascertained. . . .

whether such deceit or falsehood or other fraudulent means would or would not amount to a false pretence as herinafter defined.”

There arc many sections in the Grimes Act dealing with conspiracies to commit crimes, see sections 89, 94. 97, 118, 119, 133, 137, 180, 219, 239, 347, and 348. But nowhere in the Act is ‘conspiracy ’ defined. The essence of a conspiracy to commit a crime is an unlawful agreement between two or more persons to commit that crime, or it seems even do some act lawful in itself if that act is for the purpose of committing that crime; see 8 Mod. 320. In this case if the words spoken had been true they would not have proved any agreement between the parties to defraud anyone. The agreement must evidence a common intention in both or all the parties to it to commit the same crime before that agreement can amount to a conspiracy to commit that crime. Here the words spoken, if true, would have shown at the most a fraudulent intention on the plaintiff’s part, but no agreement by the defendant to join in that fraudulent purpose. The mere fact that one person does a lawful act for another person for the purpose of enabling that other person to commit a crime which only that other person has formed an intention to commit, does not render the first person liable for conspiring to commit that crime. To render him liable it must be proved that the intention of committing the crime had been formed also in Ins mind, and the fact that by doing a lawful act be makes it easier for the other person to commit the crime, is not sufficient evidence in itself that he had formed any similar intention. For instance, if a burglar intending to use it for the purpose of his trade procured a locksmith to make him a skeleton key, then even though the locksmith knew that the key was to be used by the burglar to commit crimes, so long as the locksmith had no intention of joining in those crimes, he would not be guilty of conspiring with the burglar to commit them, and the mere fact that he made the key would not be sufficient evidence to prove an intention on his part to join him in the commission of these crimes. There must be the common intention to commit the same crime, and the words published in this case are not reasonably capable cf showing any such common intention. One person cannot alone be guilty of a conspiracy. Therefore the words are, in my opinion, incapable of the meainnc ascribed to them in the innuendo. For these reasons judgment must be for the defendant on the action, but, in the circumstances, without costs.