SUPREME COURT.

Globe, Volume IV, Issue 345, 21 July 1875, Page 2

SUPREME COURT.

SITTINGS AT NISI PRIUS. Wednesday, July 21st. (Before Mr Justice Williams and a Special Jury.) The Court re-opened at 10 a.m. , NEWTON V WILSON. Jury :—Messrs H. P. Murray-Aynsley (foreman), W. R. Brown, J. T. Fisher, H. B. Huddlestone, W. Townsend, C. G. Ross, F. H. Wilson, T. J. Maling, G. Hart, E. Pavitt, T. S. Fisher, andG. J. Leech. For the plaintiff, Mr G. Harper, with him Mr Thomas. ~,"'. For. defendant, Mr Joynt, with him Mr O'Neil. v - * " This was an action for slander. The plaintiff is Joseph Newton, of Christchurch, seed merchant, and the defendant Win Wilson, also of Christchurch, seed m( rchant. The declaration alleged that defendant had spoken slander of plaintiff in his capacity of a trader, by saying "Mr Newton will be a bankrupt in three months," and plaintiff claimed £SOOO damages. Defendant pleaded a general denial, and gave notice that he intended to produce evidence that plaintiff had written libellous matter of him, the defendant. The following are the issues : 1. Was the plaintiff at the time of speak ing and publishing of the defamatory matter in the declaration set forth, carrying on and from that time up to the commencement of this action has he been carrying on the trade and business of a seed merchanf ? 2. Did the defendant on or about the 22nd day of May, 1875, falsely and maliciously speak and publish of the plaintiff in relation to his said trade and business the defamatory matter in the second paragraph of the declaration set forth ?

What damages (** any) is the plaintiff eubitled to recover from the defendant in this action ?

J. T. Matson, examined by Mr Harper—- [ know plaintiff and defendant. On 22nd May, 1875, I was at Morton's Hotel, between 12 and 2 o'clock, Plaintiff wrs

there with others. Defendant came in about ten minutes before I left. Mr W. Wilson asked plaintiff to go over the same remarks in his presence as he had said in his absence. Mr Newton said that if Mr Wilson would state what he had said he would say whether it was true or not. There was a passage at arms between the two, and considerable amusement was caused. Mr Newton described certain quantities of seed which had passed out of his hands to several clients, altogether enough to sow 35,000 acres. Of course there was great laughter, and immediately Mr Wilson entered the room, and the conversation then took place that I have before stated; it wound up by their coming, to strong words. The words used by Mr Wilson were—" Mr Newton will either be a bankrupt or insolvent in the course of three months.'-' I understood that Mr Wilson wished the company to understand that in time Mr ISewton would get into difficulties, and the course would be clear; those words were uttered in a loud tone; I think Mr Newton remained and finished his lunch. Mr Wilson said " that if Mr Morton allowed such men as Mr Newton to dine at a public table, he (Mr Wilson) for one should not patronise him." Cross-examined by Mr Joynt—l think there were between seven and eight people ; if two bears or tigers were to meet they would growl at each other, and Mr Wilson and Mr Newton certainly did growl at each other; I do not consider it was all banter and chaff between them. Ido not remember Mr Newton'saying that he was in abetter • >flsition than Mr Wilson to supply seeds. I bJieve Mr Newton was saying " 35»0C3 acres," when Mr Wilson entered the. room. I have heard Mr Newton say that Mr Wilson had been a large purchaser of seeds from him. I do not remember Newton saying that 1300 acres of Wilson's land were under his (Newton's) seeds. I heard at some time a remark that Mr Wilson would be glad to have Newton on his boots for £2OOO. I do not remember. Newton saying that he would take care not to place himself in such a position. I have heard Mr Newton at times mention Mr Wilson's name in a reverential and respectful manner. I have heard Mr Newton say that if Mr Wilson's brains were in proportion to his guts he would be a clever man. Mr Wilson had previously left the room in disgust, and Mr Newton was walking up and down the room with a very red face. Mr Newton did not at tbat time remark that Mr Wilson had mistaken him for a fool, and he (Newton) had mistaken him (Wilson) for a gentleman. I think: there was and still is a rivalry between plaintiff and defendant. I have an indistinct recollection that a remark was made to Mr Wilson —" You have come'at an inconvenient time, as we were having some chaff at your expense." It was on hearing that the conver? sation began between plaintiff and defendant. I do not remember it being said by Mr Wilson, to Mr Newton —"Ton are the last man who ought to have spoken of me as I have befriended you." I believe before Mr Wilson left the rooms he said that he had been grossly insulted by Mr Newton, and if Mr Morton that, he (Wilson) would not come into the house any more ; I believe defendant said that plaintiff would he a bankrupt in three months. . Ido not know whether he said " from this time " or not. I believe Wilson used the word " bankrupt," but I can't distinctly swear whether it was "bankrupt" or "insolvent:" it was one of the two. Ido not remember what was said particularly after that. Mr Newton's manner did not show more bounce than usual: he is a man generally full of life ; his manner was not peculiarly offensive on that occasion. Re-examined by Mr Gv Harper—Mr Wilson was either just leaving or had left the room when Mr Newton said, "That if Mr Wilson's brains were in proportion to his guts he would be a clever man." Ido not think Mr Newton gave a reason why he made that rem ark. . : . ,;

Joseph Buggy, examined by Mr Harper—lam waiter at Morton's Hotel. I know plaintiff and defendant. I was at the hotel on 22nd May last. I recollect plaintiff and defendant, and Messrs Matsoh, Sawtell, and others, being in the dining-room. It was luncheon time. Mr Newton was present before Mr Wilson came in. I recollect Mr Wilson coming in. There was a conversa-. tion before he came in, and during that, the word "cabbage" was mentioned. Mr Wilson came in, and standing at the door said, " Newton, by the colour of your' facie you have been speaking disparagingly of me." "Mr Wilson seemed angry, and said to Mr Newton, " You seem, to forget the tjme B when you were in difficulties, and wished me to take your seeds, which were lying in Mr Matson's office." Mr Wilson got up from dinner and said that if Mr' Morton allowed such a ruffian and blackguard as Mr Newton to come there, he (Mr Wilson) would not enter the house again. I,was not present all the time. I recollect the following day (Sunday). Cross-examined by Mr Joynt—l could not tell who used the Avord "cabbage." There was no cabbage on the table that day. I have often heard the word "cabbage" used when Mr Wilson and Mr Newton were joking together at the bar; to the best of my belief Mr Newton used the word "cabbage;" : I suppose Wilson spoke abbut r Newton being in difficulties, because he'was angry.- I believe Mr Wilson said to Mr Newton, " You are the last person who ought to speak disparagingly of me, as I befriended you when you were in difficulties. " I did not hear Wilson say to Newton "You told me at that time you were insolvent." Both "Wilson and Newton have spoken to me about this case, both have subpoenaed me ; I have not got a guinea from each, but hope to get it.

Joseph Newton, examined by Mr HarperI am plaintiff, and carry on business as an importer of seeds and agricultural implements, and am also agent for Ransome and Sims. I know defendant. On 22nd May, about 1 p.m., I was at Morton's Hotel, lunching with Mr Millett, Messrs J. Matson, H. Sawtell, and two other gentlemen whom I did not know. After I had been there about ten minutes defendant came in and spoke to me first, saying—" I can see by the colour of your face you have been speaking disparagingly of me." I said—" You are very much mistaken, I have never spoken a word against you in my life." Mr Wilson was very angry and excited, and said distinctly " Mr Newton will be a bankrupt in three months." Millett, Sawtell, and Matson were chaffing me about my seed business before Wilson came into the room. When Wilson told me that I was to be a bankrupt in three months I said ".this statement is very disgusting," and I took out my note book, and put down the identical words, also the names of the four gentlemen who

were present saying "it is probable I may want you gentlemen at some future time. " [Memorandum read as follows :—" Newton will be a bankrupt in three months," then follows the names of the four gentlemen, and at the bottom the words " villian and blackguard. "] Just before Wilson came into the room Matson said to me " You must have a great number of acres of land under cultivation with your seeds up to the date of your last shipment ?" I said "Yes." I was not speaking of Mr Wilson before he entered the room. Mr Millett said, "It would pay 'Cabbage' very well to give you £IOOO to clear out of the colony." When Wilson said I should be bankrupt in three months, I said, "This is very disgusting, if your brains were equal to your guts you would know better." I had said so on a previous occasion, about a month before, when Mr Wilson provoked me at Morton's Hotel. Mr Joynt objected to this evidence. What had been said on a previous occasion could have nothing to do with the present. His Honour—Not unless the two occasions can be connected. Mr Harper said that he "was entitled to show malice. He was entitled to show who was the provoking party. His Honour —You are entitled to show previous slander as evidence of malice in aggravation, if you can connect the two slanders together. Examination continued —I have known defendant since I have been in the colony. I believe each of us is trying his best to get as much business as he possibly can. Cross-examined by Mr Joynt—l was not speaking about Mr Wilson when he came into the room. Millett was speaking about him just before. I only took part in the previous conversation very slightly. I do not remember what I said. Very likely I said Mr Wilson would be glad to have me on his books for £2OOO ; it was only joking before defendant came in. Very likely I said that I would take care not to place myself under obligation to Mr Wilson. I had spoken to Mr Matson just before Wilson came in. I said to him abont a month ago Wilson came into Morton's, and, taking hold of my waißtcoat, said—" lam surprised with all your profits on seeds you do not fill up your waistcoat." To this 1 replied to Wilson, "You need not be surprised at that, for guts and brains seldom go together." I was relating to Matson a previous conversation I had had with Wilson:— Mr John Matson has been a good friend to me. I do not think any conversation was going on at the time Wilson entered the room. I ean account for general laughter when Mr Wilson made his appearance on the old saying, " Talk of the devil and he's sure to appear. I recollect when Wilson came in some person said, "We were having a joke at your expense." I do not remember Wilson saying, " You are the last person who ought to speak disparagingly of me, as I befriended you by releasing some seeds when you wanted money." I did not hear him say so, if I had done so I should have snubbed him. I asked Wilson to join me in purchasing some seeds at Timaru in order to assist the Bank of New South Wales, as the Bank wanted to realise on the seeds. Mr Wilson refused to join me in buying those seeds. I have not been in the habit of enjoying a joke at Mr Wilson's expense. I have occasionally joked. I do not think I have indulged in a little writing at Mr Wilson's expense. I have not written anything calculated to bring Mr Wilson into ridicule and contempt. I was writing home to my brother, and I was describing the notabilities of Otago and Canterbury. Anything I have written against Mr Wilson I gave him to approve of or otherwise. He did not approve of it, and I struck it out. I did not give any thing to a gentleman in this town against Mr Wilson for publication. I did hand the document to Mr Valpy, but ths passage Mr Wilson objected to was struck out. Mr Joynt wished to put in the document in order to test the witness' credibility.

Mr Harper objected, contending that this was only endeavoring to get in a document by a side wind. Mr Joynt submitted that although the evidence might be somewhat irrelavent, yet inasmuch as it affected the credibility of the witness, it was clearly admissable. Cross-examined —The paper produced I do not think is the paper I handed to Mr Valpy. I handed the paper to Mr Wilton requesting him to strike out what he disapproved of, and he did so. That was before I gave the paper to Mr Valpy. I gave a document to Mr Valpy; I think the one produced is either the original or a copy of it I gave the document to Mr Valpy for publi cation at his own risk. I told him that if i was published I intended to buy 100 copies to send home to England, and it would save me the trouble of writing; either I or Mr Wilson struck out the passage to him. The document produced must be the one I gave to Mr Valpy. Mr Joynt submitted that he had now a perfect right to put the document in. Mr Harper said that he would not object to the reception of the document as affecting the credibility of the witness ; but when read, if it contained slander not connected with the present slander, he certainly should object to its reception. His Honor ruled that, the document must be admitted.

Mr Joynt said that he would tender in evidence pages 4,5, and the first six lines of page 6. He did not wish the whole of the document read unless the jury wished it. He put in the document in order for the Court and jury to see whether it contained evidence reflecting on Mr Wilson. Mr Harper submitted that it was unnecessary to read the document; it was only necessary to ascertain whether the passage affecting the question was struck out or not.

Hiß Honor said he thought that wonld be quite sufficient. Mr Joynt contended that he had a perfect right to have the portion of the document, affecting Mr Wilson read, in order to show whether what the witness had sworn, that the passage had been struck out, was true or not.

His Honor said he did not see his way to exclude the document.

The passages in the document were then read by the Registrar. Cross examination continued—l think that was the part Mr Wilson objected to. Re-examined by Mr Harper—l gave that document to Mr H. Valpy. It contains a history of my travels, and of Canterbury generally. |I gave it to Mr Wilson in his private office before I gave it to Mr Valpy. I told him that I was writing home describin i the notabilities of Canterbury, and I gave it to him to expunge anything which hi might think personally objectionable to him•elf or his trade. I left it with him, and the

next morning he returned it to me, objecting to certain words which I struck out and handed the document to Mr Valpy with the following words struck Jout " a certain costermonger barrowman who sold vegetables in the street." Tho&e words are struck out in the document now. Mr Valpy said that he could not publish the document. Mr Wilson never bought any seeds from me for the purpose of accommodation. This closed the plaintiff's case. . Mr Joynt called the following witness for defendant—

Henry Sawtell, examined by Mr Joynt—l am a merchant in Christchurch. I was at Morton's Hotel on Saturday, 22nd May last at luncheon in company with plaintiff and others. I was there about ten minutes before Mr Wilson came in. Shortly before Wilson came in Mr Matson was chaffing Mr Newton as to his line of business, and that resulted in Mr Wilson's name being brought up. I heard Mr Newton say that he (Newton) was in a better position to supply seeds than any other man in Canterbury; that Mr Wilson had been a large purchaser. Mr Newton made mention of an enormous quantity of land under crop from his seeds—something to the effect that Mr Wilson had upwards of 1200 acres under crop from his (Newton's) seeds, I think that was all in reference to the seed trade. Some kind of a remark was made to the effect, " Would not you like to be a customer of Mr Wilson." Newton said he was sure that Wilson would be glad to have him (Newton) on his books to the tune of £2OOO, but he (Newton) would take care not to place himself under any such obligation. Newton also said that if Mr Wilson's brains were proportioned to his guts, he (Wilson) would be a clever man. Newton said that a minute or two before Wilson came in; the bulk of the conversation was about vVilson before he came in; the speakers were Matson, Millett, Newton, and myself. When Mr Wilson came into the room, there was a kind of collapse. Wilson, on entering the room said—l think addressing Mr Newton—" From the redness of your face, and the apparent confusion you are in, evidently you have been speaking something disparagingly of me." I think Mr Lane said, " you have been Bpoken of." Mr Wilson said to Mr Newton " will you kindly repeat to my face words that you have been speaking behind my back." Newton said, "you had better repeat it yourself, fand I will correct you." Mr Wilson said it was not to be expected that be could do so, and again repeated the request that Mr Newton would do so. During the altercation, I only recollect Mr Wilson saying that he had been grossly insulted by Mr Newton, and if Mr Morton allowed such a man to come to the public table he (Wilson) would discontinue coming to the house. I did not hear either the words "cabbage" or "bankrupt" used. I was sitting about 4ft from Mr Wilson opposite him. I think I heard all Mr Wilson said. Both Mr Newton and Mr Wilson were excited. I remained there after Mr Wilson left.

Mr Harper declined to cross-examine the witness.

William Wilson, the defendant, examined by Mr Joynt—At five minutes to 3 p.m. on Saturday, 22nd May,. I went into Morton's hotel into the luncheon room; eight persons were present, including plaintiff. When I was walking along the passage I heard a person talking loudly and rapidly, and at once recognised the voice of Newton, who said, "if old cabbage Wilson's brains were as large as his guts, he would be an uncommonly clever fellow." There was a slight laughter. Newton then said "he has been endeavoring to get my name on his books, and would give me credit to a large extent ; but I will take care not to place myself in the power of such a man." I then went into the room, and there was a loud laugh, and I think Mr Sawtell said, " Mr Wilson, you have come at a very inconvenient moment." I said, "Fiom the redness of Mr Newton's face, and his embarrassed manner, I have no difficulty in discovering that Mr Newton has been following h s practice of speakii g disparaging'y of my character." Addressiug Mr Newton, I said—" It is extremely cowardly in you to speak disparagingly of a man behind his back at a public dinner table, if you are an honest man you will continue your conversation." Mr Newton said that he was not compelled to do so. I then said, " Then I can only brand you as a coward, and if Mr Morton permits such men as you to come here and insult me, I shall not enter the house again." I also said, " Mr Newton, three months ago you told me you were in insolvent circumstances, and you ought to be very careful how you speak of the character of others." I swear positively that I never made use of the work " bankrupt," and I never used the word " insolvent" only as relating what Mr Newton had told me. The document read in Court was read to me by Mr Newton, but it was never in my hands until I obtained it from Mr Valpy. I objected to every syllable in it relatingjto myself and family, and I said "if you publish it I will contradict it, and will prosecute you for a libel on myself and family." I gave Mr Newton no cause for speaking of me as he did on that Saturday. Gross-examined by Mr Harper—When I came along the passage I only heard Mr Newton's voice. I could have easily distinguished it from all the others. I stopped and listened when I heard my name mentioned. I did not hear any other person speaking disparagingly of me. When I entered the room I asked Mr Newton to repeat what he had said. Other people in the room could have heard when I said to Mr Newton," Three months ago you told me you were in insolvent circumstances you ought therefore to be very careful how you speak of the character of others." That could not have injured Mr Newton's credit, as he had none. Mr Newton has sold a good deal of seed, but I do not know what he has been doing now. I obtained the letter put in from Mr Valpy, about a fortnight after the 22nd May. Mr Newton himself told me that he did not think it would be published, but that he had read it to several persons. For six months Mr Newton has publicly and privately spoken disparagingly of my character. 1 have never spoken disparagingly of his character ; never said one word to Mr Henry Matson disparaging to Mr Newton's character ; I never, on the 22nd ' May, used the words " blackguard and villain," as applied to Mr Newton. I did not use those words with reference to him. I never told the waiter at Morton's that I would horsewhip Mr Newton. Gentlemen have told me that it would be a proper mode of treating him, but I never said I would horsewhip him. Re-examined by Mr Joynt—Mr Newton made me a positive promise that the objec-

tionable passages in the document should be expunged. Mr Newton wanted me to join him in the purchase of r.ecds at Timaru. He proposed that I should give a bill at four months, which he would endorse, and he had goods coming out in the White Rose, which would enable him to meet the bill at maturity. I declined to do so, as I thought it would be imprudent. [Left sitting.]