LAW REPORTS.

Dominion, Volume 5, Issue 1520, 16 August 1912, Page 2

LAW REPORTS.

SUPREME COURT. (Before His Honour Mr. Justice Edwards.) FRUIT MART SLANDER CASE. FINDING OF JURY. DAMAGES AWARDED-£250-Hearing of evidence in an action claiming .C5Ol damages for alleged slander was completed yesterday beforo Mr. Justice Edwards and a common jury of twelve. Tho parties to the action yvero: Thomas Hood; fruiterer,'of Wellington, plaintiff, and Griffiths and Co., Ltd., auctioneers and, general; merchants, of Wellington, and John Braid, auctioneer, of Wellington, defendants.

Sir, John Findlay, K.C., with him Mr.' D. M.-Findlnv, appeared for Hood, while Mr. C. P. Skcrretf, IC.C-, with him .Mr. E. J M-'itzgibbon, appeared for tho defendants. .

Particulars of the claim and the defence filed were published in Wednesday's issue. The alleged 'dialogue at the fruit market, which formed the basis of the action, Has given as follows:—

Hoad: Who'was the last bidder? Braid: Mind your own business. Hood: That is my business. Braid: Well, if it is your business, ■ it is the first business you ever had. Anyhow, it'is no use us taking your . bid. The chances are you won't clear your stuff. ■ Hood: Can you prove I never clear my-stuff? Braid: Our books' prove (hat you. never pay for your' stuff. We have the same opinion of you as your association has (meaning the Retailers' ■ Association). Further evidence for the defence yesterday was given by William Achison, head s'tbreuion for Thompson Bros.; John W. Scott, auction clerk for Thompson Bros.; Alfred Alexander Phelps, auctioneer, for Townsend and Paul; and John Larson, auction clerk for Townsend and Paul.

Counsel on both! sides addressed the jury. at length.

His Honour Sums Up. His.Honour, in summing up, referred to the fact that whatha'l licen a somewhat trilling affair at the outset had developed a very. serious aspect—serious in the amount of time occupied, and serious in the amount of costs incurred. It was -rather unfortunate that plaintiff's first reasonable request for an apology had been- ignored, for, if he had any cause of action, he had no course left, but to Eeek the legal remedy. His Honour then proceeded to direct the jury on the law ■bearing on the case, and on the facts as they appeared to him—and, in 6pcaking to them, he was speaking from a protracted experience at the Bar and from sixteen years'■ experience on that Bench. Referriug to the statement of claim, his Honour pointed out that sonic of the language in parts of the "innuendo" was extravagant, but it was not clear that somo of tho meaning alleged was not warranted. If the jury agreed with what had been put in.the statement of claim, the plaintiff was entitled to succeed on tliat basis. If they did not agree with' that, but were still of opinion that the words meant-something injurious, plaintiff was entitled to some damages. What was described by his Honour as an "astounding feature of tho case" was that, during the three days which had been occupied in tho hearing, they nail bfen dealing with matters which, in his opinion,. did not concern the action at all. He referred to matters introduced in regard to plaintiff's dealings with Thompson Bros, and Tmynscnd and Paul. Plaintiff's 'counsel had (perhaps for : a very good reason) not objected to this. It was not fqr plaintiff to disprove all that: had been pleaded in justification in the statement of' defence. It- was really for defendants to prove thiit Ills,transactions with the firms were such as'to justify the remarks nmde'iu the auction mart. In this action they wore not concerned with rings raising the price of goods, but they were concerned with' "rings" \f that meant a combination of , men formed for the purpose, of crushing one man. If it were so it was .mo;st unfortunate, and if it were not so iti'was equally unfortunate that the mat'tef had'not been limited from the start to-.(he issues between the plaintiff and defendants........

What the Jury Found. After a retirement of nearly four hours, the jury returned and answered the issues submitted to them in the following terms: Did the defendant speak and publish the - words alleged in the statement of ,' claim, or any of them—awl if so, , which?—" Yes, all of them." Do such words mean that the plaintiff ; cheated or was guilty of fraudulent, '-corrupt,' and 'dishonest practices in ;. hi.-i said trade, and, was unfinnucial ; and -did not pay his debts and -meet -. his engagements and tnke up his goods "-,' in. tho course of his said business, or any of such meanings?—" Such

■L words mean that tho plaintiff did not :''pay his debts and take up his goods i.- in tho course of his business." Do.,,sucb. words'mean that the plaintiff purchased goods from tho defendants and never paid for the same, and that the defendants' books contained records showing that the plaintiff never paid for. the goods he purchased from them,- or either of such meanings?— "Yes.?'',

If the said words hove such meanings I\s are •■ mentioned in the last two issues,'." or 'iiii'y of siich meanings, are the same tnuTm substance and fact? -"No."

Are such words in their ordinary meaning defamatory of the plaintiff in his trade or calling.—"Yes." Are such' words in their ordinary meaning true-of the plaintiff in substance and in fact?—" No." Were the words.spoken and published by ■the defendant Braid a fair and proper retort _ to- on accusation made by tho plaintiff upon his conduct of the auction and spoken and published by him ■ in self-defence in the honest belief of' their truth, and without malice?— *'No. ; ' . What damages (if any) is the plaintiff en- ■; titled to recover?—'.£2sl) damages." •The verdict on tho last issue "was a majority one—lo to 2. All the motions as to judgment, new trial, etc, were reserved by arrangement between counsel until a convenient date.

EDWYNE WALKER. AND HIS FATHER'S WILL. Mr. Justice Chapman delivered a reserved decision in. tho Supremo Court yesterday morning, deciding an action, which had been laiintficd to determine the construction of tho will of Alexander Henry Walker, dec-eased, lato of Auckland. The plaintiff in the action was the Public Trustee, while tho defendant was Edwyn'o Walker, of Auckland, a son of the deceased. ' Mt. ,T. W. Macdonnld appeared foT the< Public Trustee, and Mr. A. W. Blair appeared for Edwyno Walker. Tho deceased died while on a visit to St. Louis, in the. United States of America, on July 1, 1901, leaving a will dated Awjn.it 10, 1899, and a codicil dated July 80, '1902. Probate of the said will and codicil was granted to the Public Trustee on September 20, 190-1. Tho deceased left 'surviving his widow, Mary Rbbmsou Walker, and two sons. Alexander Howie Walker' and Edwyno Walker. By the will, after making provision for an annuity .to his vddow (which . annuity mis increased by an order made under the Testator's' Family Maintenance Act, 1909), deceased directed the Public Trustee to stand possessed of the trust, funds unon 'trust to nay his son Edwyno Walker JJIOOO, upon "his attaining tho ago of 20 years, and to hold the balance upon trust to accumulate, the surplus incomo during the life of his wife, and upon her death to hand over, assign, and transfer the fund and all accumulated income to his son Edwyno. The latter attained the aee of 26 years, and tho legacy was paid tn ■ him. The will went on to provide that "in case any child of mine shall predeceasn me. leaving issue, who shall survive me and die before ncouiring a vested interest under thin will, leaving i&sue. such iseuo shall taka and ii mora than one

equally between them the share to which his, lier, or their parent would have been entitled under this my will hud such parent survived me and acquired such vested interest." Edwyne Walker wished to deal with the rulilic Trustee on the assumption that ho had . a present vested interest therein. The point was raised as to whether his interest was onlv contingent on his surviving his mother, the words of the gift to his children being equivalent to a .gift, to his children if he died before acquiring a vested interest in possession.

By arrangement: between the parlies, Iho matier was taken before the Court, tj determine whether—

fa) The defendant Edwyne Walker takes a present vested interest in the estate of the said Alexander Henry Walker, or (b) Whether his interest in the estate is only contingent on his surviving his mother (who is alive).

His Honour, in giving judgment, said that tho words of the will were irresistibly plain. He upheld the contention of the Public Trustee that Edwyne Walker .had no present vested interest, but only an interest in tho estate contingent on his surviving his mother, who is still alive. Judgment was. accordingly given for the plaintiff.