SUPREME COURT.

Taranaki Daily News, 8 September 1916, Page 6

SUPREME COURT.

forgery and uttering. The sitting of-thc Supreme Court at New Plymouth was resumed yesterday luoruiug. Albert Thomas Skallie, alias Scully, who luid pleaded guilty oil Monday, in the lower Court, to charges of forgery and uttpring, appeared foi sentence. His Honor 31 r. Justice Edwards enumerated a number of convictions against the prisoner in various parts of the North Island. These might have been committed when prisoner was under the influence of liquor, but if so the man had the remedy in own hands, and should refrain from drink. It was quite plain that prisoner was a dishonest 'person. He would pass a lenient sentence, in that it was prisoner's own cheque that was endorsed, and he hoped that the leniency would act as a warning to prisoner to discontinue his criminal practices. Accused was sentenced to six months' hard labor in New Plymouth prison. ACTION FOR SLANDER, A PATEA INCIDENT. Ernest Neilson, for whom Mr. A, TI. Johnstone (instructed by Messrs Clarke, Douglas and Dunn, of Patea) appeared, claimed £5Ol damages from James Augustine McKenna (Mr. Cohen) for alleged slander, said to have been uttered on March '2B, in Egmont street, Patea. A jury was empanelled as follows: Messrs Henry Spurdle, Frederick C. Jull, Mark Sutherland, Henry Gordon, Robert A. Grimmer, Herbert F. Atkinson, Louis B. Olson, Richard F. Cornwall, Norman Balharry, John W. Lovell, John Rollo, A. E. Julian. .Mr. Rollo was appointed foreman.

On the application of Mr. Cohen, all witnesses were ordered out of Court. Mr. Johnstone said that this action was for slander and defamation of character. He outlined the plaintic's case. Ernest Xeilscn (the plaintiff) said he was a eal> proprietor at Patea, and he had a Government contract for carrying the mails from Patea railway station to the Post Office. The contract was current on March 28, when he attended 'the 1.30 p.m. train to fret the mails, and delivered them at the post office, which was about a mile from the station. Had delivered the mails, and his cab was drawn up near the post office. After delivering the mails he met a. Mr. Marter, who said that he was travelling for wines. Had brought Martcr up from tlie 5..30 a.m. train. Said to Marter, "Well. Lou., did you do good business?" He replied, "Very well, indeed.'' Witness asked, "Do you do business with hotels?" Marter replied, "No, just private business." Witness was standing facing the post office, liis back to tlie kerbing. McKenna came up from behind, and said, ">ou're a dirty b mongrel. You ought to be in gaol. I got you out of Nelson." McKenna went straight to the private letter-boxes, and witness went up to him, and walked alongside him. Asked McKenna what be meant by so insulting him. McKenna continued walking on with a paper in bis band, and repeated the words. McKenna appeared very angry. The words iverc spoken very loudly; they were shouted at witness.

To Mr. Cohen: Was bred and born at Patea. and lived there nearly all his life. Was well and favorably known in Patea. Knew McKenna had occupied many prominent positions in Patea; defendant was of good repute in the town. Patea people themselves would not place any ivliance on JlcKonna's statement that witness ought to be in gaol, but there were strangers there who' might have heard ar.d misunderstood MeKenna's remarks. MeKenna, he considered, should have eome and apologised to him. Did not know why McKenna had used the words; bad always been friendly with him. The outburst of language-was a surprise to witness, who could not account for it. McKenna had no companion with him. Saw other people in the street. First time he saw Sanson (licensee of the Masonic Hotel) was after the altercation bad finished. Did not know on the date mentioned that Sanson was ''after'' the hotel; thought he was staying in Patea for a few days. Knew McKenna had had to take over the hotel from the previous tenant. Was not ill the the habit, of "slinging-oft\" and never "slung-off" at McKenna. Was on good terms with defendant, and was taken aback by the language used. Knew and remembered that a brothei of his had been committee to a Nelson reformatory, and that on vvitness' father's death (20 years ago) McKenna had asked if be could do anything for his mother, and she asked him (McKenna) to get her hoy back. Jfi\ Johnstone here objected to several of Mr. Cohen's questions, and 'nis Honor held that these vera irrelevant. In farther cross-examination, by Mr. Cohen, witness stated: Did not say to Marter, "Have you got any hotels for sak>? Are you doing anything in hotels? Do you want any bailiffs put into hotels?" McKenna did not fay only the words, "Don't talk to me, you rotter." Did not sec McKenna and Sanson walking up the street together. (Did not follow McKenna, as lie came out of the post office, in an angry manner, and atk, "What did you say?" McKenna did not say, "I do not want to have anytiling to say to you." Did not follow him up, and say, "You b , I'll fix you yet. How many houses have you bur.it down?" nor any words to that effect. Nor did McKenna turn round and say. "That's my thank? for getting your brother out of Nelson." McKenna never said anything to him about obtaining liquor for men or prohibited persons, and defendant never mentioned any names. McKenna never mentioned anything about getting drink or <;arting it for the persons in question. Knew George Williams in Patea, and had a heated argument with him in Christmas week. May have used some bad language. Did not assault Williams' son; merely defended himself. Williams and he had a grievance, because of witness beating Williams in the mail contract. ITiul threshed out the argument with Williams, and had apologised for his remarks to Williams in the iPatea Press. Re-examined by Mr. .Johnstone: Had not lived in Patea all his life. It was over -20 years ago when his brother, as a small boy, got into trouble. Had been to Australia with UVbb, the sculler, and had lived in Wanganui, Taihape and (ireymoutli.

Leopold Irwin Marter, at present a 'member of the 20th 'Reinforcements, now encamped at Tauherenikau, was next called. He said tliat prior to going into camp was a commercial traveller living at Wanganui. Was in Patea on March 2S, travelling' for New Zealand Government wines. XeiUon dro"e him to the town from the station, and said -he would put witness on to two or three buyers of wine. Saw Neilson about 2 o'clock near the post office, and Xeilson said, ".What gort gj business are you doins?"

I itness replied, ''oool.l.*' Xoilson *'Do you .supply hotels?" and witness did not have time to answer when an argument started. Neilson was facing the main street. Next thing .was that witness heard McKenna use the words alleged. When McKenna came out of the post ollice Neilson went up and asked him why he was insulted. McKenna repeated the words, loudly, waving papers in hi-; hand as he walked away. Neilson said nothing provocative and did not see McKenna until the latter spoke. To Mr. Cohen: There was someone else (Mr. Sanson) with McKenna. Neilson was facing the main street. It surprised witness to hear McKenna's language. Philip Edward Eossiter, waterside worker at Patea. said that he was at the corner of the Patea post office on March 2S, at 2 p.m. Saw Neilson, who had just come from the back of the office, and saw him talking to Marter, Witness was four or five yards away. Overheard their conversation, lust then Melvenna and a stranger stepped between witness and Neilson, and used the words complained of. McKenna rushed into the private letter-boxes, and as he came out Neilson stepped up and said, "What do you mean by insulting me, Mr. McKenna?''; 'Defendant did not stop, 'but rushed across the road, repeating the words, and the other man also went away. There were other people over the road by the barber's shop, and witness heard them talking about the words. There was nothing in Neilson's demeanor to provoke the remarks. To Mr. Cohen: Had never been employed by Neilson. Was a casual hand on the waterside. Saw McKenna ant 1 Sanson come along. Did not hear plaintiff use any abusive remarks to McKenna. Re-examined: Had known McKenna for 21 years. Recognised his voice before he came up to Neilson. When McKenna went away, he seemed- angry. Julia Menhennet, a widow, who had resided at Patea for u0 years, gave corroborative evidence. To Mr. Cohen: Had no resentment against McKenna; just passed the time of day with him, but had nothing against him. 'Did not hear Neilson say anything in reply to McKenna. and did not hear any words other than those mentioned. Did not hear the words, " rim's niv thanks for getting- your brother out of Nelson."

11' is concluded the case for the plaintiff. Sir. Cohen submitted that there wa9 no case to go to the jury, on the ground that the words alleged were not, in their plain meaning, defamatory, and, if they "'ere, they could only be made so by innuendo. The first sentence, lie submitted, was mere abuse. The next set, "You ought to be in were mere suspicion and surmise. They did not make any specific charge of crime, aiul he contended that they also were not defamatory. The third set of words, "I got you out of Nelson," if connected with the second sentence, did not illuminate any charge oi criminality. In its plain English, the sentence had no defamatory effect whatever. Up submitted that the words complained of were mere abuse. He contended that the plaintiff's construction of tile words was that lie ought at present to be incarcerated at Nelson oil a criminal charge, and that defendant had assisted him to get away. If it were proved that the words were used he hoped that the jury would find that they were, only used as angry abuse. He trusted that the jury would keep an eye 011 the real purport of tile ease and see that the Court was not exploited for money purposes. .'Plaintill' considered himself slandered, and instead of asking for an apology, or going to the Magistrate's Court, lie came straight to the Supreme Court and. asked for heavy damages. This was scarcely the way to retrieve a character. It was extraordinary that a man of good character should so lose his temper and "explode" in a man's face, when talking to a friend, without any provocation whatever. It would be asserted on oatli that McKenna and his friend were seen walking down the street, and the plaintiff had 011 previous occasions "clnieked-ofT" at defendant. McKenna overheard plaintiff's remarks to Marter, and said, 'You rotter! I don't want to have anything to do with you." Neilson followed McKenna up and accused him-'if burning houses. Defendant felt outraged at and said, "That's my thanks for gelt '.:;: your brother out of Nelson."

■fames Augustine McKenna, the defendant, said tliat he had been a resident of Patea fov 30 years. Had occupied many public positions. Had known Neilson for about 30 years, and up to two year nago had been on very good terms with him. Some years ago witness sold out to his shop hands, on terms, but lie found two years ago that some of the men were drinking too hard. Witness beard that Neilson was in the habit ot supplying, or bringing, liquor to the men, two of whom wen; prohibited. Saw plaintiff at a Patea boarding-house and informed him that if he could catch him supplying these men with drink l(e would prosecute him. That broke up agreeable relations; and since then Neilson, when 011 his cab or on the street, invariably "chucked-off" at witness. On March 28 witness was in possesion of the Masonic Hotel, and Sanson had then arranged to take it. In Paten everyone knew every person's business. On the day named, witness and Sanson walked from the Masonic Hotel to the post office. Saw plaintiff in front of the Albion Hotel, speaking to Marter. Crossed in front of them. As witness passed, within a yard, heard plaintiff say: "Have you got any hotels to sell? l)o you deal in hotels? Do you want any bailiff's put in?" Neilson spoke so that the words could be heard several yards away, Was nearer to plaintiff than Sanson. Witness turned round, and said, "Yon damned rotter; don't speak to me." Walked across the street to the post office. Sanson did not accompany witness (o (lie private boxes. There was nobody within .TO yards when the words were spoken except plaintiff', Marter, Sanson and witness. Rossitor as not there. 'Rejoined Sanson on the footpath in front of the post ollice, and they walked over to Kenworthy's shop, on the opposite side. Neilson approached witness, and said, "You old b- —I'll fix you." Told him to go away, and Neilson then said, "You old b , liow many houses have you burned down?" Witness turned and said, "That's my thanks for getting your brother back from Nelson. Witness then walked away, accompanied by Sanson. Never used in. his life the words "dirty b mongrel." Did not say, "You ought to be iu gaol." Had known Neilson ever since he came to Patea, and never knew of anything that Neilson hart done to cause him to be gaoled, and knew that Neilson had never been in Nelson. Did not use the word "gaol" at all. Did not see Mrs. Menhennet on the footpath. Had no intimation, directly or indirectly, from Neilson that he was aggrieved until the writ was served. Witness was very sorry to have used any angry words, .but )TU irritated by plaintiff's action.

Witness, when Mayor of Patea, had many years ago used his influence with the Minister.of the day to get plaintiff's young brother .nut of a Nelson reformatory. Unfortunately for witness, Patea was not jirogressing as it might do, as he had a lot of property there. Was luiL on good terms with Mrs. Meulienuet. To Mr. Johnstone; There was no trouble between young Menhennet and McKenna. Witness was acting as manager, of a. brickyard at the time. Menhennet was given notice of dismissal from the brickyard. A valuable piece of machinery was missing, witness informed the police, Menhennet was charged, and the case was dismissed. Was positive that Neilson used certain objectionable expressions. Freehold of bis hotel was owned by Mrs. Hancock, who owed witness about £I7OO at that date. He had a mortgage over Smith's lease of £SOO, at 7 per eeiit. Mr. Johnstone; Will you swear it was not more ? Witness: It might have been 8 per cent., but I think it was 7. Mr. Smith went bankrupt, and witness entered into possession. Then Sanson came in, and entered into possesion of the hotel on j terms. Sanson owed witness about £ISOO for the goodwill of the new lease, which'will foe secured toy bill of sale and terms not yet agreed to. Had never had a mortgage on a pitblie-house property except that of Mrs. Hancock. Witness, not Sanson, held the lease of the hotel. Admitted a previous conviction and fine for assault and battery in 1880, also another conviction for a similar offence in 1593. Had always shunned plaintiff' lately, Because lie was always "throwing-off"; never replied to his taunts. _ Could not remember one person who was on plaintiff's cab when plaintiff taunted him. Would swear that he did not play bowls with Neilson last season. Plaintiff knew that 'Witness bad put a bailiff in the Masonic Hotel on account of the tenant not paying his rent. Eossiter was not on the street, and Rossitci's statement was absolutely false. Witness and Sanson were on most friendly terms, but had not discused the case frequently. He absolutely denied using the language complained of. Charles Arthur Sanson, occupier of the Masonic Hotel, Patea, said he took over the house on Ajiril .'!. Was in Patea on March 28, and "that afternoon walked down -with McKenna. towards the post office. Crossed over the street, and on the corner of the footpath, near the Albion Hotel, Neilson and Marter were standing. Just as defendant and witness passed they heard Neilson, who could have seen them coming, remark: "Are you doing anything in hotels. Do vou touch hotels? Do you effect sale) in hotels?" With that, JVKcnna turned round and said, "Don't dare to speak to me, you damned" rotter; you low blackguard." Went on to the post and when business was completed McKenna and witness .vent away together. As they came out. Neilson came up and said, "Look here, .McKenna; I'll fix you, you o ] ( | 1, ,Neilson appeared annoyed, and McKenna turned round and said, ''Go away; 1 don't want to speak to you at all ; ' I don't want to have anything to do'with you." Then Neilson said, "You old ii) bow many houses have you burned down?" McKenna then remarked, "That is the thanks I get for getting your brother out of Nelson." McKenna went on and witness waited for hini, and rejoined him within a few minutes. Bid not see nnvbodv else on the street. ■Did not see Kositer or Mrs. Menhennet; there were only the four persons concerned on the street at the time. To Mr. Johnstone: Was certain of Neilson's remarks. Rossiter might have been near the corner of the post office, hut witness did not see him. Had known ileKenna for about live months. Defendant was a fairly quick-tempered man. Mr. Colien, in addressing the jury, submitted that Mr. Sanson was an entirely independent witness. The numerical evidence in a case did not always count; it was the way in which the evidence was given. Counsel had -found it necessary to show that plaintiff, whose reputation lie sought to restore by trying to obtain substantial damages, had comported himself so much that he was engaged in three bouts of -fisticuffs, and for one had had to apologise through the press to one party. Plaintiff had not conducted himself with propriety. If Mr. McKcnna's story were true that Neilson used the words, it was natural that there should surge a cross-question in defendant's breast, and he should reply in angry terms. Which story was the most probable? Neilson's remarks about hotels as McKenna passed aroused McKcuna's ire, and he became angry and said "You damned rotter." It must have been a, poignant remark to have extorted that reply from McKenna, who acted unwisely in replying to Neilson. Plaintiff had not given any intimation till August 12, near live months, to McKenna that he wanted his character rehabilitated, in a belated Supreme Court action. Would the jury think that ail action for heavy damages was necessary? A man had 110 right to be made better off than be was, and the Supreme Court was one for heavy damages. Some wrongs could never be righted in any way. but there were some wrongs that people attempted to right by the securing of monetary consideration. The words alleged, be contended, were only angry abuse; there was no charge of crime in them. lie submitted that there was a direct conflict of evidence, and that someone was not telling the truth. This was not a secret, illicit, sneaking slander, but the -words used were used openly and straight to Neilson's face.

Sir. Johnstone .submitted that there was ample proof as to the statement made, and plaintiff and his witnesses had not been shaken in the slightest. If his witnesses' statements were true, those for the defendant; were not. Further, he submitted that it Sanson's evidence was true, then McKenna's was not. Sanson aid not hear anything about "hotels for sale" or "bailiffs in hotels." McKenna could not bring forward anyone who had heard Neilsou "chucking off" at him. McKenna's memory was very treacherous, as the jury had had evidence of; it was with reluctance that he (counsel) had had to bring up old incidents that were not creditable. McKenna's resentment was such that all at once lie bubbled up and referred to the little kindly act that he did nearly '2O years ago. What would bystanders think if they had heard the language complained of? AVhatever honors Pa tea people had heaped upon Mr. McKenna, the fact remained that he still retained the use of vulgar language that was common to many. The words "You ought to be in gaol," and "I got you out of Nelson," counsel submitted, imputed the commission of a criminal offence, and therefore damages should be assessed. Plaintiff was not out on a money-making mission, but ho wished his character rehabilitated; only reasonable and substantial damages were asked lor if the jury found that plaintiff and his witnesses were believed. ißlaintiff was a working man, in a position of trust; defendant was a well-to-do man, the contemptneus "big man of Pat est." The

word* wore spoken in the? public street, with shops and public buildings near by, and the slander possibly t'°t much further than was known. The only way that the plaintiff could set himself right iu the eyes of the public was to bring the ease to Court. JJ is Honor said that nine-tenths of Lhr evidence was irrelevant. There were only three (jnestious: Were the words complained of spoken; could they be construed so as to mean that plaintiff had committed some -.•rime; or, were they merely words of abuse. There was nothing in Nciison's remarks to provoke the language attributed to McKenna, which was quite unjustifiable and calculated to provoke a breach of the peace. If the words were not spoken, then it was plain that there was a deliberate conspiracy 011 the part of plaintiff and his witnesses, liarter was a young soldier, going to risk his life, a stranger to Neilson, and if his story was concocted he must have been got at through the post. He had nothing fear or hope for from either party. Neither Rossiter nor Menhennet luid anything to gain by swearing false witness. Tile words "You dirty b mongrel'' might be spoken with impunity by anyone who either wanted his head broken or himself to appear before a "bench of justices. The other statements, "You ought to be in gaol" and got you out of Kelson," could not be said to be abuse. One witness swore that when she heard them she immcdi-< ately asked what plaintiff had done to be in gaol. His 'Honor was of opinion that plaintiff had taken the .proper course to clear his character of any aspersions cast upon it by bringing it before the Supreme Court. Plaintiff was a man in a small way, while defendant was the great man of the neighborhood; lie had acted in several public positions, and could apparently occupy them again if he wished. Further, and most important. he was a J.P., and a mail in his position should lake-care not to le his tongue run away with him. Hillonor said he would not attach any importance to the old stories that had been revived during the evidence; a man might be very quarielsoinc, and yet be a perfectly upright man. Tile questions for the jury to answer were: (1) Were (lie words spoken? (2) Did tlicy impute a crime lo plaintiff? (3) If so, what damages is plaintiff entitled to? The jury retired at 4.22 p.m. and returned at. "i_p.ni. with a> unanimous verdict for thc'plaintiff for the full amount of damages claimed, £3Ol. Mr. Johnstone applied for judgment in accordance with the jury's finding. hi reply to Mr. Colien, His Honor said lie could not interfere with the amount of damages assessed. He had said, at the conclusion of the plaintifl s (Use, that he certainly would not non-suit at that stage. However, lie was quite willing to give Mr. Cohen an opportunity to argue his law points. The case was therefore adjourned for further consideration at Wangamii, to be heard on Monday next, at i p.m. This concluded the business of the sessions.