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

Smith v Egan [1835] NSWSupC 46

slander - discipline of attorneys

Supreme Court of New South Wales

Burton J., 5 June 1835

Source: Sydney Herald, 8 June 1835[1 ]

Before His Honor Mr. Justice Burton and a Special Jury.

Smith v. Egan. - This was an action brought by the plaintiff, a butcher, against the defendant, Master builder of H. M. Dock Yard, for verbal slander in charging him publicly with having committed a felony.

The damages were laid at £100.  It appeared from the evidence of Hannah Willoughby, servant to the  plaintiff, that on the 1st January, defendant went to her master's house about the hour of nine o'clock, and rapped her master out of bed; plaintiff enquired who was there, when a person outside, which she heard her master say was defendant, enquired who owned the horse which stood in a stable at a short distance from the kitchen door.  Plaintiff answered that it belonged to him; defendant then said, ``where's the hay which you brought here on your back about an hour ago? my stable has been robbed and you are the man who stole the hay, and brought it up here; I know you well and can swear to you."  At that time, a man in an adjoining yard said, ``you are accusing that man wrongfully, Mr. Egan, I am the man who brought some hay about an hour ago, but I can satisfy you that I got that hay honestly."  Defendant had taken two constables with him, but on hearing that statement, defendant appeared satisfied that he had made a mistake as to plaintiff, and a Mr. Hanson subsequently stated with regard to the other man, that he had seen him gather a quantity of hay which had been scattered about opposite to his door and carry it away; the matter thereupon dropped.

A witness named Peter Egan was called, but for a considerable time refused to give his evidence on the case, without his expences being first paid; he stated that he had been summoned to attend last term, it being expected that the trial would come on, and as he had been assured by the attorney in the case, Mr. Sheehy, that his expences would be paid him; he gave him a trifle and an I. O. U. for the remainder, but after waiting for ten days, and finding the trial did not come on, Mr. Sheehy refused to pay it: under these circumstances he wished to be paid his expences beforehand.  His Honor, Mr. Justice Burton observed, that as he lived in Sydney, he was not legally entitled to more than 1s., but yet, when an attorney gave a special undertaking for the payment of a sum, by way of compensation for attendance, it was certainly unhandsome conduct, to say the least of it, to refuse to comply with such special agreement; there was great shew of reason, therefore, for the unwillingness of the witness, but as it was a duty which every citizen owed to the  community, it could not be allowed to serve as an excuse for withholding his testimony; the witness was then sworn, but his evidence was so unsatisfactory that after a few questions he was discharged from the box.

Mr. Wentworth briefly addressed the jury, regretting that their time should be taken up with a case of so paltry a nature, as that now before them, and could only have been instituted with a view to the costs; they had heard that defendant, whose stable had been frequently robbed of hay, had been informed that a man had been seen carrying a quantity of hay on his back, and going in the direction of Smith's house; defendant followed, and seeing a horse and stable there, naturally concluded that his information was correct, and made some enquiries, at the same time, calling for a light in order to enable him to see the party, so as to avoid falling into an error; when a man appeared, who stated that it was he who had taken the hay, at which defendant was quite satisfied, and although he took two constables in the first instance, proceeded no further in the matter; the only persons present on the occasion were the constables, the plaintiff, and another man; they had no proof that defendant repeated the imputation on any other occasion; the learned gentleman fully relied upon their verdict, under these considerations.

His Honor in putting the case to the Jury observed, that he felt the justice of the observation which had fallen from Mr. Wentworth, that it was to be regretted their time had been taken up by a case in which ample justice would have been administered by a Judge and two Assessors; the best advice which a party could have received from his attorney, would have been to retract the offensive words which would, no doubt, have been all that was required; but it was to be regretted that there existed in the world, an unhappy class of individuals who were ever ready to fan the flame of discord and foment misunderstanding for the purposes of self-interest; in this way trifling matters were magnified, and parties, tenacious of their legal rights were through the agency of wicked advisers forced as it were into a Court of Justice.  There was in this case no evidence of special damage; the law presumed malice in the act, but from the evidence which had been adduced, it would be for them to say how far the defendant had been actuated by a malicious intention in making use of the expressions imputed to him.  The Jury returned a verdict for the defendant.

His Honor then called the plaintiff and informed him that he wished to ask him a question, which he was not bound to answer unless he thought proper, but it was a question which he felt it his duty to ask him.  His Honor then asked the plaintiff if he had paid any money to Mr. Sheehy, on account of the present action.  Plaintiff replied that he had, but he had been informed that in the event of the cause being decided against him, he would be held harmless for the costs.  His Honor desired him to go to the office and make an affidavit to that effect, stating his determination to bring Mr. Sheehy's conduct before the Court; he had entertained an idea during the course of the proceedings that the case was founded on that principle, which he was determined to use his utmost endeavour to check, as a curse to the community.[2 ]



[ 1] See also Australian, 9 June 1835; Sydney Gazette, 6 June 1835.

[ 2] See Ex parte Smith, in re Sheehy, 1835 for a continuation of this complaint.

Published by the Division of Law, Macquarie University