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Decisions of the Superior Courts of New South Wales, 1788-1899

Cooper and Wife v Best [1825] NSWSupC 38

married women's legal disabilities - slander - defamation - appeal - nonsuit

Supreme Court of New South Wales

Stephen J., 3 September 1825

Source: Australian, 8 September 1825


This was an action brought by the plaintiff, Mr. Daniel Cooper, in the name of himself and wife, for the recovery of damages spoken of and concerning the latter.  The defence set up was that the action ought to have been in the name of Mr. Cooper only, on account of the words spoken of and concerning himself, and that another action ought to have been brought in the name of husband and wife for the words spoken of the wife.

Mr. Justice Stephen held that the question whether the words proved were or were not of themselves actionable was a question of law, and ought not to be left to the Jury; and, as he thought the words were not actionable, he nonsuited the plaintiff.



Forbes C.J., 3 October 1825

Source: Australian, 6 October 1825


Mr. Wentworth moved why a non suit in this case should not be set aside, and a new trial granted.  An action was brought for slander.  After the case had been gone through for the plaintiff, some objections were taken on behalf of the defendant to the record.  The action was brought in the name of man and wife, and it was contended that they ought not to have been joined; and further, that the words proved, which had reference to them, were not actionable.  The Court had held the objections to be good, and had accordingly nonsuited the plaintiff.  The words which related to the action were "robbing and swindling the public."  The learned Counsel now submitted, that whether the words were actionable or not was with the Jury to determine - he therefore submitted that a rule should be granted on the grounds of misdirection on the part of the Judge. - Rule granted.[1 ]



Forbes C.J. and Stephen J., 20 October 1825

Source: Sydney Gazette, 24 October 1825


This was an application on the part of the plaintiff, to set aside the nonsuit obtained in this case, on the ground of misdirection by the Judge, who decided the words as proved, were not actionable.

Mr. Norton, for the defendant stated, that there were several objections taken on the trial; one objection was, that there was a misjoinder, as it was an action brought by Cooper and wife, for words [s]poken of the plaintiffs, in which case, there should have been separate actions; one by the husband, for words spoken of him; and one by husband and wife, for words spoken of the wife.  Cooper and wife could only sue for words spoken of the wife[,] but it was contrary to every principle of law, that a wife could recover for damage to her husband.  Another objection was, that the words, as proved, were not capable of sustaining an action for slander.  The word thief in itself, was not held to be actionable, except with reference to some particular fact.  Where the words were not in themselves clearly libellous, the Court, and not the Jury, were to decide as to their liability to sustain an action.  If a party were called a thief with such circumstances as would point at some particular fact, then the fact of their so pointing would be for the Jury to decide, but it was impossible for the Jury to decide whether words, used on the broad and general principle, were in themselves slanderous or libellous; it was a question of law, and not solely for the decision of the Court.

Mr. Rowe followed on the same side.

Counsel for the plaintiffs contended, that the meaning of words was always a question for a Jury, the words must be always taken in their popular acceptation, and it was for the defendant to rebut such acceptation being put on him; and also, that a case of slander against man and wife, stood in a different situation from slander against any other persons.  The true test was, would the judgment which would be given, survive to the wife or go to the executors of the husband?  If it survived to the wife, then there was no misjoinder.  Judgment deferred.


Forbes C.J. and Stephen J., 31 October 1825

Source: Sydney Gazette, 3 November 1825


His Honor the Chief Justice proceeded to deliver the opinion of the Court on this case, which was an application to set aside a nonsuit, and to grant a new trial, and observed that, together with Mr. Justice Stephen, he had considered the points that were raised in argument in support of the rule, and he would briefly state the grounds upon which he was of opinion that the application could not be granted.  It was contended by Dr. Wardell that the learned Judge (Stephen), who had tried the case and directed the nonsuit, should have allowed it to go to the Jury.  Upon looking into the practice in such cases, it was laid down, that where a Judge on a trial discovers an error, he is to direct a nonsuit, which was the more convenient way, unless the plaintiff insisted on sending it to the Jury, which he had the power to do, but in that case it was possible that the Jury might find a verdict contrary to the direction of the Judge, which would notwithstanding remain till afterwards set aside by the Court, on application for that purpose; it was therefore more convenient for the Judge to direct a nonsuit.  It was in the power of the plaintiff to insist on the case going to the Jury, but if he did not do so, it was considered an assent on his part to the decision of the Court.  Two other points were also argued, one that the words as laid in the declaration were not actionable, and the other that if they were, there was a misjoinder, inasmuch as the words spoken applied to the husband, and that the wife could not join in an action for damage done to him.  It was a clear point of law, that there were words actionable in themselves, and for using which the onus probandi would lay with the defendant, to shew that they were not used in that sense in which they were imputed, in which case it was clearly for the Jury to try if the words were used in an actionable sense.  But there were also words which were in themselves not actionable, excepts [sic] where they tended to injure a man in his trade or calling, in which case there should be an averment of some particular injury, which was not so in the case before the Court.  The only point then was, whether the words were in themselves actionable, which was clearly a question of law, and solely for the consideration of the Court.  It had been held that all words imputing crime were actionable; it had been held, that to call a man a thief was actionable, but not so to call him a swindler, the one was a more specific accusation, the other was vague and indefinite; and it would therefore appear, that to say of a man generally, that he had robbed the Public, would require some specefic [sic] charge to affix liability on the defendant.  Still he (the Chief Justice) would feel some difficulty in laying down as a position, that to say of a man he had robbed the Public was not actionable, and he was more pleased at being relieved from the necessity of deciding on that question, seeing that there were other grounds upon which the decision of the Court might be supported.  When the words spoken of affected the husband, it was clear the wife could not join in the action.  If the declaration contained several counts, some good and some bad, then the Jury might have assessed separate damages, but in that declaration they were joined in all the counts, so that there was no assessing of separate damages.  The defect was, that in every court [sic] there was a joinder of the wife, for words which might be actionable or might not, but where the words are laid as spoken of both, though imputing only to him.  He was therefore of opinion that the non-suit was properly entered, and that the rule should be discharged.  Rule discharged.



[1 ] See Sydney Gazette, 6 October 1825.

Published by the Division of Law, Macquarie University