SUPREME COURT.—Civil Sittings.

New Zealander, Volume 9, Issue 720, 9 March 1853, Page 2

SUPREME COURT.—Civil Sittings.

Wednesday, March 8, J853, : His Honor the Chief Justice took his seat a£ the usual hour. Oh the Jury Roll being called over the following jurors, not answering to their names, had each a fine of £5 recorded against them: Edward Marsden, Jeremiah Malony, James Magee, James Macky, Thomas Macky, Daniel Lynch, Patrick Lundon, Willliam Lucas. \ Brodie v. White. This was action brought by Walter Brodie, Merchant, of Auckland, against William Bertram White, Resident Magistrate at Mongonui, to recover damages: for slanderous words used by the defendant, affecting the character of the plaintiff, in the Court House at Mongonui. The declaration set forth- that the plaintiff claimed £309 damages sustained by him by reason that the defendant, did, on the 27th October, 1852, in the presence ahd hearing of divers persons, speak of and concerning the plaintiff, the several fake, scandalous, and malicious words following, that is to say, " You (meaning the plaintiff} wejtf OA

shore at Qhura and stole from the native settlement there some fowls which you refused to pay for ;" and, also, " I consider you (meaning the plaintiff) guilty of committing such an act of theft." To this defendant pleaded that he did not speak of or concerning the plaintiff the words in the declaration mentioned, either the former or the latter. Before the case was entered on the AttorneyGeneral, on the part of the plaintiff, expressed a willingness that even yet the proceedings should he stopped if the defendant would apologise for the language he had used. The matter would thus be prevented from going further, the defendant bearing only the costs. ' Mr. Merriman objected that the offer came too late, after so much trouble and expense had been incurred. Besides, he denied that language had been used in such a way as to call for any expression of regret on the part of the defendant. The Attorney-General then proceeded to offer evidence in support of the allegation. Edward Sydney Yates, residing at Mongonui, was present in the Magistrate's Court on the morning of the 7th October last, when a case was tried in which Mr. Brodie was defendant; Mr. White was the Magistrate who heard the case and decided against Mr. Brodie ; as soon as the case Avas disposed of Mr. Brodie said to Mr. White "What made you write to the Governor and state that I went ashore at Ohura and stole some fowls !" Mr. White made answer " You did go ashore at Ohura, and you know you stole those fowls." Mr. Brodie assured him on his. word of honor that he never was ashore at Ohura. Mr. White said " You were." Mr. Brodie again assured Mr. White that he never was ashore at Ohura, and asked him if he thought him capable of such an act; Mr. White said "I think you guilty of such an act of theft." The witness had a conversation with Mr. White after he came out of Court on the subject of the language made use of, when Mr. White acknowledged it was wrong to use the expressions he did, but that he was very much exasperated at the time. Mr. Merriman cross-examined this witness at some length, in the course of which he stated that Mr. White had told him during the conversation to which he had referred, that he, Mr. White, had received information from natives of Mr. Brodie having; stolen the fowls, —hut witness did not hear Mr. White tell Mr. Brodie so in Court. Edward Penney, sergeant in the Police force, ■was stationed at Mongonui in October, and was present in the Court when the altercation took place between the plaintiff and the defendant; witness heard Mr. Brodie ask Mr. White why he "had written to the Governor accusing him of having robbed the native settlement at Ohura, of some fowls ; Mr. White's reply was " I wrote to the Governor the information I received from the natives, as Mr. Brodie was not residing in the district;" witness had occasion to leave the Court and did not return for about two minutes ; on returning he heard Mr. Brodie ask Mr. White if he thought he was capable of committing such -an act; those words were repeated a second time by Mr. Brodie, when Mr. White replied "I do believe you guilty of committing such an act of theft;" he did not observe any provocation on the part of Mr. Brodie at that time. By Mr. Merriman : Witness saw nothing wrong in Mr. Brodie's conduct during the hearing of the case, but when it was decided Mr. Brodie struck the table with his fist, and said he would Hot pay the £5 (the amount for which he had been sued) because he did not think the decision -was a just one; witness saw Mr. Brodie five or six days before the hearing of the case at Mongonui, when he, Mr. Brodie, gave witness some tobacco for Mr. White to give to the natives in payment for fowls they said he had taken from Ohura ; Mr. Brodie did not then speak of Mr. White in a very friendly manner; the natives gave a receipt to Mr. White for the tobacco which he (Penney) witnessed. (Receipt handed in and read.) Gilbert Mair of Wangarei, was also present in the Court at Mongonui, and the conversation respecting the fowds; Mr. White accused Mr. Brodie of having stolen some fowls from a native settlement; Mr. Brodiesaid it was vary wrong to accuse him so, and that it was false. By Mr. Merriman : Witness thought both Mr. White and Mr. Brodie were out of temper, they seemed both hot, Mr. Brodie not more than Mr. White. This closed the case for the prosecution. Mr. Merriman had only one witness to call for the defence. Andre Dezestre (a Frenchman) who had been living at Mr. Brodie's place, near Mongonui; he had occasion to sue Mr. Brodie in Mr. White's court for balance of wages ; the case was decided in witness's favor; Mr. Brodie had said to witness that he would not allow the case to go into court, but that he wanted to have a row with Mr. White, and he would have it. By the Attorney-General: Witness had applied at the Court for means of recovering the balance of money due to him by Mi*. Brodie, when Mr. White told him that if Mr. Brodie refused to pay the amount to summon him to that Court. The Attorney General addressed the Jury at some length, recapitulating and commenting on the evidence, and pointing out, on the one hand, the injury which might result to Mr. Brodie in various ways, especially as a merchant and commission agent from its being told that a Magistrate, of the country publicly charged him with the guilt of theft,' and, on the other, aggravation af the slander arising from the position of Mr. White as a Magistrate, sitting in his court at the time he employed the language. Mr. Merriman then addressed the Jury on behalf of the defendant. He contended that Mr. White did not mean to convey the imputation that it was attempted to draw from his words, as to Mr. Brodie's conduct, —that if he had regarded ot wished to deal with Mr. Brodie as a thief, he might as Resident Magistrate have caused the case to he tried in his Court, —and that he (Mr. White) had not been the person to introduce the matter at all, but had only spoken in reference to it when Mr. Brodie himself brought it forward. He denied that the reputation of the plaintiff had suffered any damage, commented on the animus manifested in the course which had been adopted, and appealed to the Jury to dismiss wdiat he would call a most trumpery case by giving a verdict for his client. The Chief Justice in summing up said :—lt was ta be regretted that either the plaintiff ■ had not earlier asked, or that the defendant had not offered (which the Jury would probably think better) an apology for what passed at Mongonui. As matters now stood, the Jury would exercise their wholesome and constitutional power, at least to terminate, if not to heal, the difference between the parties. His Honor then stated the matter in issue. It was for the plaintiff to satisfy them that sotne substantial part of the words on the record had been uttered by the defendant—some part sufficient to constitute a charge of having committed the felony referred to. If so much was established the words were actionable in themselves, without proof of any special 'damage accruing to the plaintiff, and without giving any express evidence of malice. The Chief Justice then read and commented on the statements of the several witnesses as to the conversation between the plaintiff" and the defendant at Mongonui. One of the witnesses "(Penney) stated that the defendant mentioned the source of the charge against the plaintiff, but that did not affect the case, if the defendant so expressed himself as to make the statement and the charge his own. If the substance of the words was proved, the plaintiff would be entitled to damages, for there was no justification set up ; but the Jury would see the necessity of using great care .in determining the amount. The plaintiff was to receive compensation for the injury he had sustained, such injury as they might deem to be the natural consequence of the words being used, under all the 'circumstances of the case. There

was no special damage alleged. They would take into their view all that preceded the conversation. Fowls had been taken, and that without payment at the time, as one of the plaintiff's own witnesses showed, though it is not contested that any thing had taken place which could rightly be called theft. Indeed there is no attempt made to justify the use of so offensive a word. If such language language was especially reprehensible as proceeding from a Justice of the Peace, yet the Jury would make some allowance for the irritation which might naturally be caused by Mr. Brodie's conduct, as stated in evidence, in reference to the case which had been just decided against him. Mr. Mair says, —" I think they were both out of temper, Mr. Brodie not more than Mr. White — both hot."