SUPREME COURT.

Globe, Volume XXIV, Issue 2425, 13 January 1882, Page 3

SUPREME COURT.

NISI PRIUS SITTINGS. [Before his Honor Mr Justice Johnston and a special jury.] This Day. The Court re-opened at 11 a.m. SAVILLE V WILLIS. In thij case Edward Saville was plaintiff and B. B. Willis, of Southbridge, defendant, and the oause of action an alleged libel. The plaintiff's case was that himself and wife, in April last, were engaged|as domestic servants by Oapt. Willis and went to his house. The wife went as cook and the husband as general farm servant. Shortly after entering upon the service the plaintiffs left, and on the 20th May Capt. Willis wrote a letter, which contained the alleged libel. Tbe letter was addressed to plaintiff, care of Mr Laurenson, proprietor] of the registry office where defendant engaged the plaintiffs. The letter mentioned that unless they returned the property they had taken away, carriage paid, he should put the matter in the hands of the polioe. This, it was alleged, was published by the faot that the letter was sent open to Laurenson, and that therefore he must have seen it. A second letter, addressed in a similar manner to the plaintiffs was sent by Captain Willis, stating that he did not desire to be hard upon them, and if the property was returned to tbem he would look over the offence, being willing to believe that they had taken his property by mistake. The plaintiffs, feeling that their character had been libelled by the imputation of dishonesty, brought the present action, and now sought to reoover £SOO as damages for the alleged libel. Mr Holmes for the plaintiff; Mr Geo. Harper for the defendant.

Edward Saville, the plaintiff, deposed to having with his wife entered the service of defendant on the 13th April, |lBBl, and remained therein for five weeks. At the end of that period they left. They took nothing away from Captain Willis' except what they brought there with them. Some time after they had left his wife gave him the letter produced, which was in tho handwriting of the defendant, and he also received a seosnd letter of a similar character through Mr Laurenson from the dofendant. Subsequently plaintiff met defendant in the presence of Mr Laurenson and defendant asked him if he was going to return those things he had taken away. Witness asked what things. Mr Harper objected to this line of examination. The conversation now being given evidence of was not charged in the declaration as a libel. If his learned friend went on, be (Mr Harper) should proceed to justify. His Honor thought there was something in the argument of Mr Harper ; the statements in the conversation proposed to be put in were somewhat vague. Mr Holmes said that he was asking these questions with a view to show malice, i His Honor said ho would not exclude this I evidence. Mr Harpor could of course take I tho lino he had indicated.

Examination continued Defendant «aid,

"Yon know very well." Witness said that he did not know. Defendant said, " A blanket." Witness replied that he took nothing whatever away. They had taken nothing whatever from Captain Willis* place except what they took there. Laurenson said, " There must be something in it if Captain Willis says so; there has been time to do away with it." Witness walked'away, and said that defendant would hear more about it. He then went to Mr Holmes and gave instructions to oommence the aotion.

In cross-examination by Mr Harper witness said that he was not at Lsurensen's labor office when the letters oame. Laurenson read the letters to Mrs Saville. Witness was in a situation at the Lincoln Agricultural Sobool. He got it through Mr Parker. Laurenson had tried to get him a situation but had failed.

Sarah Saville, the wife of the plaintiff, deposed that they took nothing away from Captain Willis, except what they had brought with them. After they had left she went to Laurenßon's office to see if there was a situation for her, and Laurenson handed her a letter from Captain Willis. Witness asked Laurenson to read the letter to her, and he did so. The letter produced was the ens. It was open as now when Laurenson gave it to her, and before she asked him to read it to her. Laurenson had the envelope in his hand, and said that belonged to him. Witness took the letter away, and gave it to her husband. On a subsequent occasion witness went to Laurenson's again and received another letter, which she gave to her husband. In oross-examination by Mr Harper, the witness deposed that Laurenson had the letter in his hand. It was folded up. Witness asked Laurenson to read the second letter, and he did so. She did not ask Laurenson whether he had read the letter before giving it to her. Witness never had a conversation with Laurenson as to making money out of the present action. Mr Holmes submitted that even if this was so, it would not bind the plaintiff. Mr Harper said they would be prepared to prove that the witness had been the moving Bpirit in the case.

Cross-examination continued—Witness saw Laurenson the previous evening, but not about the present case. Laurenson had said something whioh was not proper about her, and she went up to see him about it. Mr Harper admitted the handwriting to be that of the defendant.

Morgan Laurenson deposed that he kept a labor office. The plaintiff and his wife were engaged by defendant through his agency. Some five weeks after this he reoeived a letter from defendant to be given to the plaintiff. This letter was enclosed to the witness. The letter produced was the one. There was also a letter to the witness. He did not read the letter addressed to Saville. It appeared to have been without an envelope. Witness gave it to Mrs Saville, and afterwards read it to her at her request. Some time after this he received another letter from Captain Willis for Saville, enolcsed in one for witness.

In cross-examination by Mr Harper, the witness deposed that both letters were folded up in the covering letters. To the beat of his recollection, he never read the letters prior to his reading the one to Mrs Saville. Witness was not aware until he read the first letter to Mrs Saville that they were charged with taking any property. Mrs Saville said subsequently that they did not care to take a billet, as they were expecting to get some money from Captain Willis. Witness was present at a conversation between Captain Willis and tbe plaintiff as to some property whioh the former alleged the plaintiff had taken away, but which the latter denied. The letters from Captain Willis came in envelopes addressed to tbe witness.

Be-examined by Mr Holmes—The conversation might have taken place some two months after the receipt of the letters. This dosed-the plaintiff's case. Mr George Harper submitted that a nonsuit should be entered, as the plaintiff had not proved sufficiently according to law that there had been a sufficient publication to Laurenson of tho letters. It was not contended that the letters had been published, except to Laurenson, and this oertainly was not proved at all, because Laurenson stated that he had not read the letter until asked to do so by request of the wife. His Honor said the test of publication was, did the defendant intend Laurenson to read the letter, and that he did do so. If not, then he did not think there had been publication. There was this to be looked at, that Laurenson was an agent between the parties. Mr Harper quoted Chutterbuck v Ohappers 1 Starkey 471; Day v Bream 2 Moody v Bobinson 54. Delaoioix v Teranotte 2 Starkey 3. His Honor said that he thought it must be held that the plaintiff was bound to show that the defendant intended that the letter should be read by the keeper of the labor office. Therefore he was not quite sure that this was not a nonsuit point. Unless the plaintiff was prepared to show affirmatively that Laurenson read the letter before reading it at the request of Mrs Saville, he was inclined to believe that this was a nonsuit point. Mr Holmes submitted that the defendant was not entitled to a nonsuit. His learned friend had carefully omitted all reference to one very important case, Wyndham v Ash, 22 L J., C.P., in which it was held that the publication of a letter to the wife containing libel was a publication. [Case quoted.] He should submit, on the authority of the oases cited by his learned friend, that it been laid down that the permission given to read a letter containing a libel by a third person constituted publication. This had been done by Laurenson, and, therefore, he contended there was a case to go to the jury. His Honor said he had very carefully considered the case, and he thought that as no question of privileged communication had been raised, Laurenson was a third party. Still, the oaso was on the border-line of the authorities, and, after all, perhaps it would be better to allow the case to go to the jury for their decision whether Captain Willis intended or expeoted that Laurenson would read the letter. Therefore, he should not direct a nonsuit.

Mr Harper asked his Honor to reserve the point, and proceeded to call evidence for the defendant.

Bobert Bruce Willis deposed that after Mr and Mrs Saville left his service he sent the letters produced. He sent them enclosed to Laurenson. He never made any formal oharge to the polioe against Mr and Mrs Saville.

Mr Harper addressed the Court for the defence, contending that even if the letters were libellous there was no evidence of publication, and there was no evidence of any lobb of reputation by the plaintiff, or of his having sustained any special damage. Mr Holmes replied, quoting cases in support of his several contentions. .

His Honor addressed the jury. They would have to say whether the letters were libellous or not, whether there was publication, and whether there were any damages sustained. The jury retired to consider the issue. Mr Holmes asked his Honor to reserve the point, which was a very important one, whether if a person sent a libel through another person in suoh a way that that person might read it, and it was read, even though Buoh might not have been the intention of the Bender it would be sufficient publication. His Honor thought he bad stated the law correctly to the jury, namely, that it was publication if the sender intended, anticipated, or expected that tbe letter would be read by tho third party—or if he took such steps as to make it pretty certain that the letter would be read. Libel was a malicious offence, and malice must apply to the publication. Mr Holmes said there were two doctrines —one was that malice would be inferred from the fact of the letter being a libel, and the other was that the sender was responsible for the consequences of his own aot. His Honor—l say he is responsible for the consequences. I hove told the jury that if a person sends a lettor in suoh a way that it must be read by a third party who receives it, that amounts to publication. Mr Holmes—l think that goes hardly far enough, your Honor. It should be that if the person sent the letter in such a way as would be likely to, and in fact did, lead to its being read.

His Honor—l addressed the jury on the point to that effect. I oannot reserve the point, Mr Holmes. The jury, after an absence of forty minutes, roturned into Court with answers to the issues, to the effect that there was a libel, and there was a publication to the plaintiff 'b wife at her request, but that the plaintiff was not entitled to damages. His Honor «aid, having found that there was a libel, and that there was publication, the jury would have to say that there were damages. The jury, after a brief deliberation, found damages to the amount of a farthing.