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

Hyland v Smith [1833] NSWSupC 20

slander, meaning of - nominal damages

Supreme Court of New South Wales

Dowling J., 4 March 1833

Source: Sydney Herald, 7 March 1833[1 ]

Hyland v. Smith. - This was an action for verbal slander, contained in the following words:-  ``I'll make you take the benefit of the Insolvent Court, and pay six shillings in the pound, as you did before."  The first count was with an inuendo, and the second without.  The damages were laid at £100.  Plea, the general issue.

The plaintiff and defendant are butchers in the town of Sydney.  In the month of January plaintiff sent a servant named Argent, up the Country, to purchase some cattle of a person named Owen Bowen.  While the servant was talking to him, Smith came up and wished to purchase, and asked Argent what he wanted, who replied, to purchase the cattle.  Smith said he had no right to purchase on the road.  Argent replied he had been sent by his master.  Smith rejoined, he'd make his master take the benefit of the Act, and pay six shillings in the pound again.  Argent returned to Sydney, and informed his master, who sent him to Parramatta, where he closed with Owen Bowen's agent, Jones, for the cattle, and drove them into Sydney.  Some days after, while defendant was talking to Mr. Roberts at the corner of Market-street, plaintiff passed at a canter on horse-back, and said to Mr. Smith, ``Have you seen Owen Bowen yet?"  Smith replied, ``I'll make you take the benefit of the Act again; you owe me £1 16s., and I wish you'd pay it."  This he called out to him several times.  These Acts were plaintiff's grounds of action.

Mr. W. Foster, on behalf of defendant, contended that the evidence did not prove the cause of action set forth; the words must be set forth accurately, and the variation of a single word would be fatal.  It was laid down in Roscoe on evidence, that although it was not necessary to prove every word, yet equivalent words could not be admitted.  Again, in Holloway's 8th Term Reports, 150, the words must be proved as laid.  On these grounds he contended his client was entitled to a nonsuit.

Mr. Wentworth contended that Mr. Roberts had proved the words set forth in the declaration - ``I'll make you take the benefit of the Insolvent Act again," and Mr. R. Understood him to mean the Insolvent Act.

Judge Dowling. - I must leave the case to the Assessors.  I shall reserve the point, if necessary.

Mr. Foster then addressed the Assessors, but called no witnesses.

His Honor Judge Dowling put the case to the Assessors.  If in this case so much of the alleged slander as was actionable had been proved, the plaintiff was entitled to a verdict at the hands of a Jury, but words of the same import or meaning could not be admitted.  Were they satisfied, any of the words declared upon had been proved, if not the plaintiff could not recover.  If words of this kind were spoken advisedly and maliciously, the case would assume a serious form, but if spoken in hot blood, without ill-will, they ought not to be the subject of a grave accusation against a person in a Court of justice.  They were two parties of the same trade, and it was an old saying, that two of a trade never agree, and in some dealings which had taken place, a little outwitting had occurred respecting the purchase of some cattle of one Owen Bowen.  A few days after, as plaintiff was proceeding down George-street, a little sneering had taken place.  Plaintiff asked defendant if he has seen Owen Bowen yet, when defendant, probably smarting under the recollection of the circumstance, used the words declared upon, and the very next day a notice of declaration was served upon him.  This should also be taken into consideration; he should leave the case in their hands.

The Assessors found a verdict, damages one shilling, subject to the opinion of the Court, whether the words proved in evidence varied from those declared upon.

Messrs. Wentworth and C. H. Chambers for plaintiff, and Messrs. W. Foster and F. Stephen for defendant.


Forbes C.J., Dowling and Burton JJ, 16 March 1833

Source: Sydney Herald, 18 March 1833[2 ]


Hyland v. Smith. - This was an action for verbal slander tried before Dowling Justice, and two Assessors, during the present term, when plaintiff obtained a verdict for one shilling.  At the time of trial, it was contended that the words were not proved as laid, and that they were not actionable without proof of special damage.  This point was reserved, and Mr. F. Stephen now moved to sit aside the verdict, and to enter a nonsuit, on the ground that the point was fatal.  Granted.



[1 ] See also Sydney Gazette, 9 March 1833.

[2 ] See also Sydney Gazette, 19 March 1833; Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264, p. 46.

Published by the Division of Law, Macquarie University