SUPREME COURT.

Globe, Volume I, Issue 56, 4 August 1874, Page 2

SUPREME COURT.

SITTINGS AT NISI PRIUS. Monday, August 3. (Before his Honor Mr Justice Gresson and a Special Jury.) The Court resumed at 11 a.m. DKURY V PAIN. This case was continued. Francis Irving, schoolmaster at Waimate, gave evidence as to the resignation by Dr Drury of his appointment as medical officer to the Sods of Temperance, having been requested to do so by the Lodge on the sth. The witness went on to say that he was at the public meeting in September, standing close to defendant, who did not say anything respecting Dr Drury's diploma. This concluded the defendant's case. Mr Garrick proceeded to call rebutting evidence. Courteny Nedwill deposed that bilious 'ever and pneumonia might be present at the same time. In the earlier stages of bilious fever' it might be difficult to differentiate between bilious fever and pneumonia. There was always febrile symptoms accompanying bilious fever. [The evidence of Dr Drury was then read over to the witness by his Honor.] From the symptoms there detailed there was not the slightest appearance of bilious fever. If the deceased had bilious fever the prescribing of sulphate magnesia ; severe purgatives should not be given in bilious fever. The prescription as read would be a severe purgative for bilious fever but not pneumonia. It was a common complication for a person to have typhoid fever and for pneumonia. If the deceased had typhoid fever complicated with pneumonia the giving of sulphate of magnesia would be improper. The witness on being cross-examined by Mr Harper, said that in the first week of the disease in some cases it would be exceedingly difficult to tell whether a man was going to have bilious fever or pneumonia. This was in very exceptional cases; dn answer to his Honor, the witness said that he would never have given the aperiant mixture.

Dr Prury was then re-called, and denied the charge of having been intoxicated on the .Sunday as spoken of. At that period he was a member of the Sons of Temperance, and a total abstainer. It had been raining on that night, and the ground was very sloppy. The witness also denied having told '.Mrs Pain to continue the aperient medicine, or that she had informed him on the Monday of the effect of its administration,

On cross-examination by Mr Harper, the witness stated that he was a teetotaller white attending the deceased, and for some months previous. Mr Harper then proposed to ask the witness whether he was not fined in May, 1873, for being drunk by the Sons of Temperance.

His Honor ruled that the question could not be put, as the occurrence was on a date prior to the treatment of deaceased. In reply to a question from his Honor, the witness stated that the defendant came to him on the Monday, and told him that the aperient had not acted. He had never been told of the excessive purging. James Somerville Turnbull deposed that fever of a bilious character might be associated with pneumonia, and called bilious pneumonia. The administration of an emetic in pneumonia was one recognised mode of treatment. The exhibition of Dover's powder and an aperient would be the proper treatment.for a patient suffering from bilious fever and influenza, with constipation. In influenza and bilious fever he would use sulphate of magnesia as an aperient. The witness was then examined respecting the prescription for the aperient, and expressed himcelf as satisfied with it. From his experience the administration of half the quantity, or four ounces, during forty-eight hours could not produce purgation to the amount of seventy times during that period. The whole quantity of salts in the mixture was only two medium doses for a healthy man. In his experience he had not, as a rule, found bilious derangement present with pneumonia ; but he had seen cases of it. There was a disease recognised as bilious pneumonia. ■

On cross-examination, the witness stated that there was a difference between brlityus pneumonia, and bilious fever accompanied by pneumonia. It would be easy to distinguish between bilious fever and pneumonia in the earlier stages, but difficult in the later ones. In answer to Mr Garrick, the witness stated that it was very common for pneumonia to supervene on any fever of a typhoid type; Charles Edward Salter deposed to eight table spoonfuls having been measured by him out of the bottle produced which was the whole it would contain.

George Randall Freeman gave evidence as to meeting Dr Drury on the Sunday afternoon, about 5 p.m, when he was perfectly sober. He did not appear to be under the influence of liquor in the least. This closed the rebutting case of the plaintiff. Mr Harper then proceeded to address the jury for the defence, contending that the defendant's plea of justification had been fully borne out by the evidence adduced. Mr Garrick then addressed the jury at great length for the plaintiff. His Honor summed up, and the jury retired to consider their verdict. On the jury returning into Court, , \ Mr Garrick obtained leave from his, Honor to amend the record, so as to insert an issue as to whether the words "Drury has purged my poor boy to death," were true in substance and effect. Mr Harper protested strongly against this course being taken. The issue was wanted to be put in by him at the settlement, but his learned friend objected. It was how too late. •"•' : '■ His Honor ruled against Mr Harper, and the issue went to the jury for their finding. The new issue sent to the jury was as follows:—Where and are the words complained of in the seyenth paragraph of the. plaintiff's declaration, viz., " Drury treatedl my poor boy for a different disease ; Drury' has purged my poor boy to death,", true iiii substance and effect ? The jury returned an answer in the negative. The jury then returned the following answers to the other issues : 1. Was the plaintiff at the time of the speaking of the slanderous words in the declaration mentioned a member of the Royal College of Surgeons of England, and duly registered as a duly qualified practitioner according to, and in pursuance of, the provisions of the Medical Practitioners' Registration Act, 1869 1 Yes. 2. Did the plaintiff at the time of speaking and publishing of such words as aforesaid practice as a duly qualified medical practioner at Waimate, and had he, and did he, enjoy a practice of value, and did he hold the appointments as stated in the plaintiff's declaration 1 Yes. 3. Did the plaintiff, before the time of the speaking and publishing of such words as aforesaid, professionally attend upon George Walter Pain, a member of the Oddfellows' Society, in the declaration mentioned, and did he treat him with all professional skill and diligence, and did he prescribe 6uch. medicines as were adapted for the disorders under which the said George Walter Pain.. was languishing? Yes. 4. Did the defendant, on or about th» fifteenth day of September, 1873, falsely* slanderously, and maliciously speak andpublish of the plaintiff, in relation io his. said profession and the carrying on and conducting thereof by him, the words in thefifth paragraph of the plaintiff's declaration,, and were such words spoken and published with the meaning and inuendoes set forth iru the declaration ?—No. , 5. Did the defendant on divers days and times between the 15th of September and the 22ud of September, 1873, falsely, slanderous 1 , y, and maliciously speak and publish of the plaintiff, in relation to his said profession and the carrying on and conducting by him, the words complained of in th« sixth paragraph of the plaintiff's declaration, and were such last-mentioned words spoken and published by the defendant with the meaning and inuendoes set forth in the plaintiff's declaration ?—No. 6. Did the defendant, on the 22nd of September, 1873, speak and publish to David Cunningham, and divers other persons, of and concerning the plaintiff in relation to his said profession and the carrying on and conduct of the same, the words complained of in the 7th paragraph of the plaintiff's declaration, and were such last-mentioned words spoken and published with the meaning and inuendoes set forth in the said declaration I —Yes.

7. Were and are the words set forth in the sth paragraph of the declaration true in substance and effect I —No. 8. Were and are the words set forth in the. Gth paragraph of the declaration true in. substance and effect ?—No. 9. Were and are the words complained of in the 7th paragraph of the plaintiff's declavation, viz, " The doctor has no diploma:; ; if he has I should like to see it " true in substance and effect '! —No. 10. Were and are the words complained of in the 7th paragraph of the plaintiff's de-

claration, viz, "I can bring witnesses Jto prove that Dr Mclntyre has said if he had been called in sooner he could have saved ijiy son," true in substance and effect ? No. 11.' Were the words set forth in the sth paragraph of the declaration spoken and published upon the occasions, and under the circumstances in the plea in that behalf set forth? Yes.

12. What damages (if any) is the plaintiff entitled to recover ? One farthing. His Honor then asked the jury to find whether the slanders were wilful and malicious. •"'"

The Foreman ; No, your Honor: not wilful and malicious. . ~

The jury then under direction of his Honor added the following to their verdict :—" We find that the slanders in respect to which this action has been brought were not wilful and.malicious.

The Court, at 7 30 p m., adjourned sine die