SUPREME COURT.

Wairarapa Age, Volume XXXII, Issue 10421, 12 September 1911, Page 5

SUPREME COURT.

MASTERTON—MONDAY.

(Before His Honor Sir Robert Stout, C.J.) ALLEGED SLANDER. J. H. Langley, bricklayer of Masterton, claimed from A. 0. Levien, tailor, of Master-ton, a sum of £2OO for alleged islander. Mr H. O'Leary, linisltiructed 'by Mr G. H. Cullen, appeared for the plaintiff, and Mr H. C. 'Robinson tfior the defendant. The following jury was empanelled:— Messrs G. Watson (foreman), C. D. Carley, T. MicMll and J, C. Brewer. Mr Robinson, for the defendant, urged that the first (statement of claim, which did not disclose a c'aus-e of action, had 'been amended iii such •a way iljtoat it realy constituted a ■new. .cause of 'a<cition. The original statement had alleged that a. charge of "dropping" had beeetl -made iii respect ito a No-license district. The statement had isdnce been amended so that it would include & district dt'lier than, a No-license district. The amendment was a very importantone. His .Honour stated that it did appear thiat the amendment would create (a new cause of action. Mr O'Leary said he would confine the action to the No-licer.se cis-t-riot. Mr O'Leary 'briefly istiated the oircaunistanoes: of (the case. JosephH. Langley, plaintiff, stated ithat he had known the defendant for a number of yearns. In May last he leased la cottage iirom defendant in Church street, Masterton. Defendant was agent for the Druid's. Witness did not take immiedia'to possession of.the cottage. On June 7rfch he met defendant in Queen Street, in front of Groombridge's shop. Witness wag in company with Herbert and Arthur Jones. Defendant ietopped and said, "Joe, -what about that house?" Witness replied"■lf it's the rent you want, you can have that monthly." Defendant said it was not a question of the rent, but it had been brought up at a meeting that witness, was a. "droper." Witness isaid "You're a d—— liar!" Witness said a rnan named Elder had a room in the house, and hie wias a. imemjber of the Lodge." Defendant replied that the statement liiad mot been made in .the Lodge, but before a committee. Witness asked for the name of a per von who. had made <ttoe accusation. The defendant mentioned a man named Gourlay, but witness said he knew a memlber of the Ooman'ttee, and kne.w it -was mot iso. Witmess then offered to return fthe key of the house, istatdng that he would have nothing to do with it. 'Witness asked if it was not Brown the "bobby" who had Itold him. Witness also asked' why defendant had gone through the premises. Defendant tiMeto isa-id, "You are a dropper, and everybody knows *t; if not, why haven't you shifted into the place '{' Witness 'understood a "dropper" to mean a penson who was selling liquor about the place. Witness had never isold liquor, and had never been charged with am ; offemce. The Jones'is would he. within, two or three feet of Levien "wftien he made the statement. Witness had no liquor near the cottage. He had Hived in Masterton for thirty years, on and off. By Mr Robinson: Before issuing the writ, witness demanded an apology, iand la letter was received through Mr Robinson, expressing regret that the words .should have been taken to mean what witness" placed upon <them. Witness would mot aocept that as am. apology. Witness did mot istiate tlhe exact words used' iat the conversation with Levien early in (his examination, because it had islipped his memory. Witness had never before been charged with (being a "dropper." He had been in rthe company of the Jones'is on several occasions. He Ihfad been in the Jones's house on one occasion. lie was aware tfiiat (the Jones's had b(-en conivioted of certain offences. Thsre was no illnfeeliing between witness and Levien. When Levien' "feid the mnattea* of the "dropping" had be-vi brought up <at the meeting, witne ts said, "Don't make yourself a liar!" Witness had not taken posisessioni of the cottage, .because he hlad been living -wilth his sister while her husband wias away. Witness told the defendant of this. The reaIson 4ihat iwitness imentioned ' the name of Constable Browmi was that , the police had ibeen wiatohing him wherever he- went. He did not know <why it-he police had been shad- : owing him. | Re-examined by Mr O'Leary: The i Jones's were not friends of witness. He had seldom 'been, in their company, tand had only been once to their house. The reason, that he had 'been in -tihe company of the Jones's om the night in question' was thiat they were arranging about a drag for a football; lteu.m. Herbert Jones, painter's 'labourer, deposed that ho knew .the plaintiff and defendant. On the evening of June 7th last, he was in the company of Langley in rthe main .street, together wilth his brother. They met ijevien under Grooniibridge'is. Levien said to Langley, "What about that house, Joe?" Langley replied, "Is it the rent you're getting at? If it is, I'mi to pay moniMy." Levien replied that it was not the rent, but it Iliad been mentioned at a meeting that the house had been used' for "dropping." Langley asked for the name of one 'who had mentioned the (matter at the meeting, amd Levien mentioned tthe name of Gourlay. Langley asked Levien if it was not Constable Brown who had told him. !>evien replied' that it was not. He ■further said, "You know yOu are 'dropping,' Joe; everybody knows, it." Something was said by Levien about visiting the house, and that 1 was all rthe witness heard. He heard <t(b!e conversation distinctly. Cross-examined, witness admitted that he had been convicted for various offences, and had 'been sent to Wellington. Mr O'Leary: But your iSrips to

Wellington have not affected yomr hearing ? Witness: Not in the feast. (Laughter). Arthur Jones, describing himself a "canvasser," gave evidence which, in the main, corroborated, that of tibe last witness. This -witness, under (Cross-examin-ation, also admitted having been convicted for various* offences. This wasi the case for the proseontioif. Mr Robinson contended that there was. no case to go to the jury, on the grounds that ■Mastterlton being a No-license district, a first offence for J. breach, of the licensing Act was not punishable by imprisoniment, 'and consequently the words .used couilld not be .considered .slanderous; that the words, of used, were privileged; and 'that there was not a scintilla- of evidence to show m&tice. Mr O'Leary, in reply, maintained that the charge made against Langley -was that he bad .been guilty of "dropping" generally, and consequenibly lie was Liable to imprisonment far. Slaving committed more tnan. one offence. ■' Moreover, Mr O'Leary contended that it was possible for tiie plaintiff to lhave 'been. | charged under section 195 of the L censing Act, a conviction under which was punishable by imprisonment, lit was further urged, that privilege could mot be pleaded, as the words complained of were uttered Ito imore than one person. His Honour .said he was of opinion that the plaintiff must ibe nonsuited. He wias not satisfied that section 195 of the Licensing Act did not. apply. 3jt- the same time, ihe would not give his decision, on this point. He regarded itihe remarks of the defendant as .privileged, by reason of the ifaot that tihey were addressed as a result of a conversation on a. specific subject. The plaintiff would be nonsuited, with coats on> tihe usual scale. A CARTERTON SLANDER CASE. A case was then, called on in which F. W. Burling, farinar, of Carterton, claimed from T. Olliver, farmer, of itihe same place, a sum of £5Ol for alleged slander. Mr C. A. Powinall appealed for the plaintiff, and Mr T. E. Maunsell for the defendant. The following jury was> empanelled : MessrsT. Newlands (tforeman), T. T. Denby, ! TJ. T. Wellington, G. H. Stokes, D. T. King, W. G. Hawthorne, J. C. Brewer, L. G. Kyle, C. D. G. Carley, J. A. McEwen, F. Kilminster and J. P. Thompsona. Mr Pownall briefly stated the circumstances of the case. It was al'leged that, on the night of May 13tth), in the- main street of Carterton, the defendant, in a loud voice, and in the hearing of others, called '. the plaintiff a rogue and a thief. Frederick WiMiami Burling, on oaith, deposed that he was a, farmer ■residing at Carterton. The defendant was a farmer in the same district. Witness had purchased <a property from the defendant, with the .stock upon it. When 'the sheep were mustered!, (there was a dispute about the number to 'be paid for. Witness .plaid'a cheque into the Bank for defendant on May 11th. On the night of lath Mdy defendant came up to witness iii front of a •shop in Carterton. Witness was in company with his. "wife, Mirs Do Lacey and Mrs Holes. The band was playing in the street adjacent, and there were about two hundred people about. Accused oaine up to witness and said, "Here's the hill for the amount." Witness replied, "Oh,» ith'at was paid inrto the Bank on Thursday." Defendant asked, *'L*id you pay the full amount?" Witness (replied that he had paid for .seventy sheep, wQmdh. was five more than fie had taken delivery of. Defendant began to perform, and witness advised him to keep quiet. Witness said he had paid for all the sheep that were there. The accused caflled witness a " liar, a rogue, and a thief." The -words could be heard by people standing about, and were- addressed particularly to ■witness, fitness had been sixteen .years' in/the district, and •was well-knowm/ By Mr Majthisell: Witness waited for ten- weeks before asking the de-. (fondant for an apology. He expected that the defendant would hlave (apologised. He brought • this aotioa because he .wanted l satisfaction. /Witness had bought the sheep on the flairon the day after he •boughlt the property. He took delivery of 65 sheep, and! paid for iseventy. There had been a dispute over the mumiber of sheep, and defendant would not accept a cheque for the sheep delivered. On the night of the alleged occurrence, witness did not lose has (temper, and did not use bad lanIguage. The defendant said he wanted to be paid for three more sheep ..itham he had been paid for." t (When defendant called witness a thief, (witness smacked himi across the face (with his open hand. Witness .was mot excited prior to that. He could not tell why the defendant should have used the language towards him. Thyrza Burling, wife of the plaintiff, gave evidence as to hearing defendant call her husband a " liar." Her husband stepped towards the defendant, and, catching him by the coat, ©aid, "You call me that!" The plaintiff said, "No, Tom,, it's only another of your dirty tricks; you're a mean hound!" Witness subsequently heard defendant call her husband a " thief" and a " rogue." By Mi- Maunseflsl: There had been a dispute over the number of sheep bought. Witness understood frcm the remarks of the defendant that he had charged her husband with not paying for the right number of sheep. The plaintiff may have been excited, as we'll a® the defendant. He niay have spoken in a loud voice, but witness did not hear him use bad language. The affair ended by witness' husband striking the defendant. Catherine Holes, widow, and sister of the plaintiff, gave corroborative

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evidence. She added that 'both men were angry. Thiisi was the case for the .plaintiff. Mr Maumisell asked for a nonsuit, on the ground that mo cause of action ibad been, shown. The words used were not actiona/ble. It could not be .suggested that they implied anything criminal to the plaintiff. They had 1 been employed in connection -with 't>ne (specific sheep transaction.. His Honor said .the case was a slight one, but he did. not propose to withdraw it from the jury. Mr Maunsell then addressed the jury at some length, claiming that there was no evidence to warrant a verdict for damages. It would be shown that the plaintiff, who was a brother-in-law. of the defendant, was the aggressor. Thomas OHiveir deposed) that he was a farmer residing at Cartoon. He wla& brother in law of plaintiff. He had •sold; a property to the plaintiff, with the stock upon it. The plaintiff Quad asked for a minster, about six weeks after .the sale had been made. There were .seventy-nine sheep on the property. A irjuslter was mad© by witness, and only sixltyfive were mustered. An agreemeit was come;to that they should each meet half the difference of twelve sheep, and) that witness should be paid for seventy4hree. Witness I brought the account for the seventythree, but vae plaintiff paid into the (bank for only seventy. When they met on the Saturday night, witness said he had been paid for three sheep short. Burling said that was ! alright. Burling used some very bad language towards, witness, who then called him a rogue. Witness did not make use of the word ' 'thief.'' After some discussion, witness called (plaintiff a "liar." The plaintiff then struck witness in the face wilth his fist, cutting his faoe. The argument was fairly heated, but neither spoke particularly loud. Witness had heard nothing of this case for some- weeks after the langague was alleged to -have been, used. By Mr Pownall: Witness called plaintiff a rogue dor having beaten him for three sheep. Witness had received 1 a letter asking for an apology, hut had (taken no notice of it. Arthur Bishop, farmer at West Taratahi, deposed that he was standing within a few yards of Olliver and Burling on the night in question. He saw (that there was a row, bait the Band was .playing, and he could not hear what was said. Both of the men appeared to be excited. Burling struck Olliver on tl.e pye, inflicting a nasty wound. Burling was waving his hands about a good deal. l(hore was no crowd attracted. "" Charlotte Bishop gave corroborative evidence. Annie Elizabeth De Lacey deposed to having been in the street on the night in question with Mrs Burling and Mns Holes. Witness did not take any notice of anything that transpired. The sound of Mr Burling's voice attracted .witness. She looked round and saw Burling strike CWiiver in the face. She heard no bad language, .and could not say if either of the parties were angry. She should think they were', judging by their actions. (Counsel for plaintiff and defendant haying addressed the jury at considerable length. His Honor isiumtmed up strongly in favour of the defendant, expressing the opinion that tins was a case wfliidh ishould not have been brought to Court. He stated that the defendant had already baeni punished, and it 'was for ihe jury to say if the plain'tiff was entitled to further damages. This had been .purely a family squabble. Th'& ; jury retired at 5.25 p.fm., and returned at 5.40 to as>k if a verdidt for t/he plaintiff carried costs against th!e defendant. His Honor ©aid that a verdict of 40s for the .plaintiff would carry coats. This, however, should not wteigh with the* jury. The jury again retired, and returned <at 6.15 with a verdict for the pflaintiff, with £s'damages.' Hps Honor entered" up judgment accordingly, with costs on the lowest scale, and with expenses of a jury of four. Hisi Honor remarked that he did not think a jury of twelve had .been, necessary.