[slander, "swindler" - insolvency - jury, inability to agree]

Wise v. Kemp

Supreme Court of Van Diemen's Land

17 October 1835

Source: Tasmanian, 23 October 1835[1]

This was an action brought for slander by the plaintiff, John Wise, against Anthony Fenn Kemp, esq., for making use of certain offensive expressions in reference to plaintiff’s business as a publican. Mr. Attorney General opened the proceedings, by an eloquent address to the gentlemen of the Jury, after which, the Solicitor General proceeded to call the witnesses.

Mr. W. Wise is brother to plaintiff who was a publican; plaintiff has been a publican upwards of two years; knows defendant; about 4th or 6th of April; saw Mr. Kemp near the Commercial Bank; he said, I have received another circular from your brother. Mr. John Wise, calling his creditors together; he said he was a swindler, and nothing else but a swindler; witness said he himself was a creditor, and was satisfied there was 20s. in the pound for them all; he again repeated the words; he then said he (Mr. Wise) had six casks of Porter from him, (Mr. Kemp) and now wants to swindle me out of it; there was a great many people in the street.

By Mr. Gellibrand. - John Wise owed him near £100, at the time of calling his creditors together; he had frequently consulted witness respecting his affairs; did not know, nor believe he had several bills overdue; was not consulted respecting an advertisement in the Courier; knows he tried to raise a sum of money from the Derwent Bank; it was in order to pay bills as they came due, and save law expences; his debt was then due; he had no security; had security for part of it, by a bill; he gave the bill up at the meeting, and took bills for it to the amount of about £100, at 6, 9, 12, and 15 months; there was a meeting of creditors on the 10th April, when time was given to plaintiff for 6, 9, 12, and 15 months. Plaintiff’s debts at that meeting was about £800; it did appear then that plaintiff was unable to meet his payments as they came due; on a prior occasion, his brother had craved time from his creditors; does not know what time was given; there was no person present but witness; when he, Mr. Kemp, made use of the word; most positively asserts that the expressions were used by Mr. Kemp before the meeting, and not in the presence of Mr. Clare; it did not appear that the meeting was called in consequence of any losses recently sustained; does not know that at the time of the negotiation with the Derwent Bank, that they held an overdue acceptance.

By Mr. Solicitor General. - Plaintiff could not have paid his debts as they came due without assistance, and that was the reason the meeting was called; Mr. Clare was not present at the meeting.

C. Swanston, Esq., examined. - Recollects a negotiation being carried on between Mr. Wise and the Derwent Bank, about the latter end of May, or beginning of April; it eventually failed; it was for a loan of £300 to the plaintiff; witness thinks he was not satisfied with the securities offered.

Mr. Gellibrand then addressed the Jury at considerable length, and would leave his case in their hands.

His Honor summed up the evidence, and directed the Jury, that if they were satisfied that the expressions complained of, were used by the defendant to the plaintiff, with respect to his business, that they may according to law find a verdict for the plaintiff; but it was not actionable to call a man a swindler who is not in business, or unless it is respecting his business.

The Jury then retired, and after some time returned a verdict for the plaintiff. One farthing damages, on each of the four counts, on the second special plea of justification - found for the defendant on the first and third special pleas of justification.

His Honor was requested to certify as to the costs; he would consider on the subject.

Pedder C.J., 17 November 1835

Source: Hobart Town Courier, 20 November 1835[2]

The Attorney General moved to make Rule absolute for a new trial, on the grounds that the Verdict was inconsistent and contradictory.

Mr. Gellibrand argued against the Rule.

Rule made absolute, Costs to abide the event of the second trial.

Pedder C.J., 11 December 1835

Source: Hobart Town Courier, 18 December 1835

This was a new trial of the cause which was tried at the sittings after the last term. In was an action for slander; and on the last trial the jury gave a verdict for the plaintiff - damages, one farthing.

The jury retired at 3 o'clock, and after remaining out 12 hours, being unable to agree, were discharged. The cause will be tried again at the sittings after the next term.

Notes

[1] See also Hobart Town Courier, 23 October, 13 and 27 November 1835. For the significance of this case see A.C. Castles, An Australian Legal History, Sydney: Law Book Company, 1982, pp. 290-92. For the Caveat Board see R. Snell, ‘The Caveat Board: An Overview of a Key Colonial Tribunal 1835-1859’, Tasmanian Historical Research Association Papers and Proceedings, vol. 42, no. 4, 1995, pp. 192-213.

[2] See also Hobart Town Courier, 4 December 1835. The Tasmanian, 4 December 1835 published a long editorial on the decision, followed by this report of the judgment and the further commentary published here.