SUPREME COURT.

Evening Star, Issue 3483, 22 April 1874, Page 2

SUPREME COURT.

CIVIL SITTINGS. Tuesday, April 21. (Before His Honor Mr Justice Chapman and a Common Jury.) HEALEY V, HEKNAtf, This was an action to recover the sum of LSOO damages for slanderous statements published by defendant concerning plaintiff, and also for an assault committed by defendant on plaintiff. Mr Barton appeared for plaintiff, Mr Macassey for defendant.—ln opening the case, counsel for plaintiff said that his client, Philip Felix Healey, entered int® partnership in April, 1873, with one Michael Heeuan, as brickmakers. A piece of ground for a brickyard was leased of Mr Begg at Anderson’s Bay, for ten years, and the business was commenced. La February, 1874. defendant intimated that he wished to ter’minate the partnership and sell off the stock and plant, including horses and drays ; and without plaintiff's knowledge there was inserted in the ‘ Daily Times ’ the following notice “Notice.—l hereby caution all persons against buying a kiln of bricks, mill, tools, and other chattels from Philip Felix Healey, Anderson’s Bay. J. fleenan.” The two brothers also inserted a notice to t!<e effect thar. “ I, .wichael Heenan. h-jve dianolved the partnership heretofore existing between me and Philip Felix Healey. 1 ” They then went out to the brickyard and Michael Heenaa told plaintiff that John Heenan had bought the sto k and plant Plaintiff asked what price John Heenan was to pay for the bricks in stock, and defendant replied Li IBs per thousand, whereas the price of L2 15* was easily obtainable at the time. The result of these notices in the paper was to bring down on plaintiff all hia creditors and to ruin tKe business. The assault complained of was committed soon after this, the occasion being as follows Defendant and his brother went to the yard with a dray to take away some bricks, and on plaintiff wishi g the ieceiptfor tne bricks to be signed as Irom the iitm “Heenan and Healey, they refused. Plaintiff thereupon struck the horse with his whip and made it move | on, saying ho would not allow the brioks to* be takon. Defendant and his brother then ; rushed hiph and a vjolant struggle ensued. ' PMataff a?terwaVdi* retftfved a ftft'ter from

defendant’s solicitor, Mr Harris, to the effect that M. Heenan had disposd of the busi ness to John Heenan, aai that he was ready to settle up matters in a businesslike manner. Plaintiff then consulted him VI r Barton) and correspond nee passed between the two legal firms, the only satis faction plaintiff could gc-t being that, .“ for substantial reasons,” Michael Hesuan had dissolved the partnership. Plaintiff gave evidence to the above effect, saying that when the two brothers wont to the yard the first time, he asked John Heenan what he had given for the plant, who answered, “You want to know too much.” Witness considered his livelih >od was taken away by the conduct of defeudan" just when he was doing a good business and getting on prosperously. He did not damages so much for the assault, as that was only a trifling affair. At that time witness would have given his partner Ll5O for his share of the business, or would have taken that amount and sold out. Cross-examined : Witness had. known both the Hconana for about ten years. Did work for Michael on bis farm at one time, but was not doing so when it was proposed to start in the brickmaking line. Told MLeod that he had L 27 in cash, and that he understood the business ; but did not say he had LIOO. A dray was bought on credit, from Watson and Gow, for L 27. No member of that firm put L 27 into witness’s hand, for him to return it, so as to make it appear that he had paid for the dray. Michael Heenan never offered tobbury r out witness’s share in the business, nor was it a losing concern. Witness did not put the L 27 into the business, nor did Michael Heenan put in what he proposed. As soon as Heenan wanted to take away the

bricks in the drays witness stripped—even taking off his shirt—and prepared to fight. He said he would defend the kilns as long as he had blood in his body, and threw some brick-bats at the horse, one of which took effect. Mr Macassey : If the verdict passes against yon, have you enough money to pay the costs of this case ? Mr Barton objected. He understood from the question that Mr Macassey wanted to know whether his client had enough money to pay for his (Mr Barton’s) services. He was not afraid of his getting money. Mr Macassey explained that the learned counsel on the other side could not understand the question. What he wished to know was whether plaintiff had enough property to enable him to meet au adverse decision. Mr Barton still objected. Mr Macassey ; In the event of a verdict beingbrought in againstyou, have you enough property to satisfy that verdict ♦, Mr Barton again rose to his feet. He wished to know if the door of the Court was to be closed against all persons but capitalists. If so. when they sent him to Parliament he would— Mr Macassey could not see why Mr Barton should be allowed to indulge in parliamentary speech to the jury. This matter had nothing to do with Parliament Mr Barton said it could damage his oandidature. His Honor: Have you means to answer an adverse decision.

Witness : Yes, your Honor. Evidence was also given by 0. White, R. Hudson, D. M‘Gill, Andrew Watson, Patrick Watsou, Patrick Lee, and A. Begg. Mr Macassey submitted that the plaintiff should be nonsuited. It was incumbent is such a case to show that the statement complained of waa false, malicious, and productive of actual damage. There was no evidence whatever to show that there was anything false, malicious, or productive of damage in the advertisement giving a caution to the public. The evidence showed that Michael Heenan only effected the sale of the horses. In regard to the plant at the brickfield, the advertisement did no damage, because the plant waa now being used by plaintiff’s tenant. With regard to the b ioks, it was proved that Hudson paid the debt of the firm, and that no portion of the proceeds was paid to Heenan. As to the alleged assault, he maintained that there was no evi ence of an assault having been committed by the defendant.

His Honor said he thought that there was a case to go before the jury. • Wednesday, April 22. HEALEY Y. HEBNAN. This case was continued this rooming. Before calling witnesses for the defence Mr Macassey went over his client’s view of the transactions touched upen in the evidence, saying that the jury would eventually see whatever motives actuated plaintiff, those of defendant were simply to convert ohe property of tb.e partnership into money, and pay their liabilities. The only point which could bear against defendant was, after all, only a legal impropriety, viz. : selling the plant to hia brother, John Heenau. Michael fleenan stated that in 1873 plaintiff proposed to him that they should start a hrickmakiug business, saying he had LIOO. Ib was agreed upon, and a commencement was made, three kilos of bricks being turned out. A fter a time plaintiff sail l he had had enough of partnership, and would clear out. Witn as said, if ho took the horses and drays, plaintiff might keep the brick field :

but the latter declined, and no arrangement could be come to. Plaintiff then said he had the bricks secured, so witness could get nothing out of them—making him think they were sold. Witness, therefore, went to Mr Harris, solicitor, for advice. . Tho bnsi ness was a losing, more than a paying one ; it was not paying more than LSO a year. Witness did not tell plaintiff at all he had sold anything to his brother, but left that to Mr Harris. As to the alleged assault, that was occasioned by pliintift’s illtreating the horse and making it almost run over witness. On being remonstrated with, plaintiff took off his coat, shirt, and flannel, and exclaimed, “By the Lord of heaven I’ll either spill blood or have blood be spilled befor those bricks are taken away.” Witness and his brother then went away. —'Jross examined : The receipt produced, for L 47, paid witness by John Heenan for the plant is incorrect, John only paid LI deposit, not L 47. The date is incorrect, and it is not a fact, as stated in it, that John the tools. Witness sold the bricks to his brother, although he thought plaintiff had already sold them to another party. Witness went round after the advertised dissolution and collected the debts due to ihe concern, bat did not pay the liabilities. -J .bu Mowatt, wheelwright, said that he hid once offered defendant Ll 16s per l.OOt) f| r bricks.—John Heenau, defendant, saio bis brother pressed him to buy a kiln ol bricks fie had, and he did so, paying Ll deposit. The buying the plant was another Ci ausaccion.

[Left sitting 3