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

Spicer v Bigge and wife [1832] NSWSupC 64

libel, civil - damages, nominal

Supreme Court of New South Wales

Forbes C.J., 20 September 1832

Source: Sydney Herald, 24 September 1832[1 ]

 

Thursday. - Libel. - Spicer v. Bigge and Wife.

This was an action to recover a compensation in writing, printing, and publishing in the Sydney Gazette, a false, scandalous, and malicious libel, of and concerning the plaintiff, in the words and figures following:-

 

NOTICE TO THE PUBLIC.

Whereas a Promissory Note for the sum of £72 5s., drawn by Joseph Bigge, in favour of Thomas Spicer, dated the 29th of March, 1832, payable twelve months after date, was fraudulently obtained from the said Joseph Bigge, while in a state of intoxication, and no consideration having been given, the said Promissory Note is invalid, and I hereby caution the public from receiving the same.ESTHER BIGGE.

 

The damages were laid at £300.

The defendants pleaded the general issue, and a notice of justification.

The publication of the libel having been proved, witness were called who proved that Bigge was, at the time of signing the bill, in a state of intoxication.

The Chief Justice in putting the case to the assessors, held that the variance between the justification and libel complained of, as pointed out by Mr. Williams, was fatal; at the same time, they might consider the evidence in justification in mitigation.  It was quite clear that the alleged libellous matter had reference to a bill dated 29th March, 1832, payable twelve months after date; whereas the bill put in evidence for plaintiff, was dated 30th March, and payable six months after date.  The text quoted by Council in 2nd Starkey, was too strict upon that point, plaintiff was entitled to a verdict.  Damages, one farthing with costs.

Mr. Williams for plaintiff; Mr. George Allen for defendant.

 

Notes

[1 ] See also Australian, 28 September 1832.  The case was heard in banco on 13 October 1832, when the Sydney Herald, 15 October 1832, reported that "the Chief Justice observed that he should simply certify under the statute of Elizabeth."

Published by the Division of Law, Macquarie University