The Sun.
London, England, 1862-04-05 00:00:00

ASSIZE INTELLIGEACE.

HOME CIRCUIT.-KINGSTON, APRIL 4.
CIVIL COURT.

(Before the Lord Chief Justice Erie and Special
Juries.)
WALROND V. LONG AND ANOTHER.

This was an action against the printer and pub-
lisher of the Morning Post newspaper for a libel,
the nature of which and of the case generally will
be best understood by the simple statement of the
case as it arose.

The defendants pleaded only "Not Guilty," not
justifying the alleged libel.
Mr. M. Chambers, Q.C., and Mr. Holl were for
the plaintiff; Mr. Lush, Q.C., and Mr. Hannen
were for the defendants.

On the 3d of January there appeared in the Post,
under the head of the " Westminster Police Court,"
the following report, which it was admitted was a
fair report :
" Mr. Arnold was occupied the whole of the afternoon in
the hearing of a case in wl.ich Miss Walrond, tho daughter
of Lady Janet Walrond, was charged, on a summons, with
the illegal detention of a valuable terrier dog, by Miss
Caroline Norton (niece of the Hon. George Norton), whose
case was conducted by Mr. Gadsden, barrister.
" Mr. Gadsden having opened the case, as afterwards
proved in evidence,
" Mr. Arnold, both at this and a still further stage of the
proceedings, when it became obvious that there would be a
conflict of testimony as to whether the dog was a gift, urged
that the matter should be placed in the hands of a mutual
friend to determine, instead of being pressed before him.
The parties had evidently been on terms of intimacy, and
the whole case would, in all probability, have to depend
upon the memory of the ladies who claimed the dog; and
he thought that if they named any gentleman with whom
they were both acquainted, and were bound by his decision,
a most satisfactory result could be arrived at. Some con-
versation took place between the parties, but, as it was found
the case could not be arranged, it went on."

[The report then stated the contradictory evi-
dence on both sides, and ended thus :—]

" Mr. Gadsden said he did not fir a moment wish to im-
pute anything like perjury for the defence, but he thought
the ladies acted under a misapprehension of what had oc-
curred.

" Mr. Arnold said that after such circumstantial evidence
as he had just heard from Lady Walrond and her daughter
it was quite imposs' ble there could be any misapprehension
on their parts. They agreed with the complainant that the
dog was at first left with them, and next positively proved
that the dog was afterwards given to Miss Walrond by
Miss Norton, who appeared to have entirely forgotten that
fact. The summons was accordingly dismissed."

The Miss Walrond here mentioned was the plain-
tiff in this action.

In Punch of the llth'of January appeared some
humorous verses on the case, headed " Arma
Canemque." And in the Post of the 16th appeared
the following, headed" Spinsters and their Idols,"
which was the first libel sued for. It was in the
form of a letter to the editor of the Morning Post.
(We omit immaterial passages) :
" Sir,—A case was decided on Thursday which really de-
serves attention, however ridiculous may seem the conduct
of the principal parties concerned. A dispute arose between
two ladies of quality' as to the possession of one of those
canine favourites who may be justly termed the spinsters'
idols,' and are often (failing a human admirer of
the male sex) beloved with quite as intense a passion, and
striven for with as eager a rivalry as the favoured two-
legged mortal. . A tall spinster taking a fancy to a
wee spinster's dog, driving constantly in the wee spinster's
carriage, and pouring flatteries into the wee young spin
ster's ears, at length became possessed of the much coveted
little animal, it having been confided to her care during the
temporary absence of his mistress. The wee young spin-
ster, on her return, demanded her dog. The tall spinster
refused to give it up. The wee young spinster wrote sev -
ral notes and made several attempts to obtain admittance to
the presence of the dog and his detainer, but the tall spin-
ster, keeping watch from an upper window, kept
the wee young spinster on the safe side of the door. The
wee young spinster, irritated at the detention of her pro-
perty, . . actually summoned her quondam friend to
show cause why she refused to return their mutual idol.
The tall spinster, accompanied by her mother, obeyed the
summons, and appeared in court, swearing that the wee
young spinster had given the dog; that she had, in fact,
presented it with a formula strongly savouring of the mar-
riage ceremony, to wit, ' I, Caroline, give you, Harriet, this
dog.' The wee young spinster earnestly denied both the
speech and the gift, and still clamoured for the idol. The
other spinster persisted in her version of the story. The
dog, neither better nor worse than his fellows, remained ab-
solutely dumb. The magistrate, more puzzled than Solo-
mon when he decided on the experimental order of slicing
in two a living object of dispute, dismissed the summons,
on the doubt that the young spinster might have given the
dog and forgotten it. Now, although this supposition is
in the teeth of evidence proffered by the butler of the tall
spinster, to the effect that he had been ordered to watch over
the safe keeping of the disputed favourite, and prevent its
being reclaimed—in fact, to keep the dog in seclusion, like a
gentleman who fears a sheriff's officer may tap him on the
shoulder as he sallies out—yet it is not to the rights or wrongs
of these ladies I particularly wish to call attention in this
letter. If they like to pull caps for the spinsters' idol, let
them ; but I wish to know why a different measure of justice
is meted out to poor and rich, to ladies of quality and persons
in fustian jackets. A short time ago a remarkable decision
was made. A man, suspected to be a d ogstealer,was seen walk-
ing in Regent's Park, followed by a remarkably handsome
Maltese spaniel. A constable inquired how he became pos-
sessed of it. The man's reply was that he knew nothing
about the dog. The constable listened with incredulity,
acted with prompt energy, took the sauntering promenader
before the magistrate, and although it was not proved who
the dog belonged to, or that it was stolen at all, the fustian
jacket was sent to prison for six months, and I presume is
in prison now. Now the question is, could that man have
satisfied the magistrate by affirming that a lady had given
him the Maltese treasure; that, with a solemn formula she
had made it his property, saying, I, Louisa Brown, give
you, John Snooks, this dog'—would such a statement have
quieted the magisterial doubts, and, if not, why not ? The
parties in the case decided on Thursday are a niece of the
Hon. G. C. Norton, plaintiff (the wee young spinster), and
the daughter of Lady Janet Walrond, of Dulford-house,
Devon, a defendant already known on a former occasion.
I will not ask your readers to consider whether, even sup-
posing the spinsters' idol to have been really given, and
then reclaimed, the merest schoolgirl would not have re-
turned the animal to her capricious schoolmate instead of
affording the absurd spectacle of a public brawl as this ma-
turer dog-fancier has done ? I leave these ladies entirely
out of the pale of inquiry, and I merely repeat the question
is the man in the fustian jacket still in prison because a
nameless Maltese spaniel ran sniffing at his suspected heels,
and could he have cleared himself by any such explanation
as has decided this case in fashionable life ? . . The
amount of grief this dog has caused is probably to him a
matter of indifference, as, indeed, it is to me; but the ad-
ministration of justice, even in small particulars, can
never be a matter of indifference; and, meanwhile, it is a
pity some author does not write a book on dog worship, in
imitation of Carlyle's Hero Worship,' for it is a very curi-
ous phase of the human intellect.
"A LOOKER Ort."
The plaintiff's' attorneys hereupon wrote to the edi-
tor of the Post a letter, in which they characterised
the above as

"A gross and vindictive libel upon our client, Miss Wal-
rond, not only seeking to hold her up to public condemna-
tion, by giving an intentionally untruthful report of the
circumstances of the ease, of the evidence adduced upon
the hearing of the summons taken out by Miss Norton, and
of the magistrate's judgment, and most unwarrantably
imputing to Miss Walrond perjury and dishonesty, but also
seeking to make her a mark for public ridicule;"
- - -

and they demanded the name and address of the
author. Upon this the editor of the Morning Post
published the following paragraph, which also was
complained of as a libel, and formed the subject of
the second count in this action. The paragraph,
which was in conspicuous type and position, ran
thus:—

" Norton v. Walrond.'—This case, in which a claim for
the extradition of a dog seems to cause in the hearts of two
young ladies a fiercer passion and a more certain war than
a like demand for two bipeds has raised between Britannia
and Columbia, has not been consigned to the oblivion
which we think it deserved. It has brought down on our
heads an ultimatum from a legal firm, who require from
us the name and address of the author of a letter headed
' Spinsters and their Idols,' which was inserted in the
' Morning Post' of the 7th inst."
and characterise it as a gross and vindictive libel
upon their client (quoting the letter of the attor-
neys as above)
New, it is not the custom of respectable journals to
give up the names which are communicated to them in con-
fidence, and we shall, therefore, not depart from the este •
blished rule. In the next place, we cannot for one moment
admit that the letter in question deserves the severe terms
applied to it. We gave it insertion as a clever and banter-
ing comment on what everybody regarded as a very absurd
proceeding. Nothing could be further from our intention
than to permit the publication of anything approaching to
a libel on either of the young ladies concerned. Indeed, so
careful have we been upon this point that we declined to
insert a letter from James Brightwell, a witness in the
case, who wished to correct the evidence he had given, and
who made further serious allegations against Miss Wal-
rond. We refused to give his letter, on the ground that
a court of justice was the proper place for his statement,
and not our columns. In another instance we abstained
from printing a letter from J. G.,' assigning as our reason
that we could not be responsible for publishing statements
of so personal a character against the client of the firm who
have addressed us, unless the author chose to authenticate
them by allowing us to give his name to the public. Hav-
ing thus proved our good faith and freedom from ill inten-
tion in the matter, we repeat that we looked upon the letter
as possessing only an amusing
Spinsters and their Idols,'
character, such as might be attributed, for instance to the
,
witty ballad, ' Arms Canernque,' which appeared on this
very subject in last week's Punch, and we considered it,
therefore, fairly entitled to the publicity it sought."
Upon this the present action was brought.
Mr. M. Chambers, in opening the case for the
plaintiff, admitted that the report was fair, but
urged that the letter was not a fair comment on the
report, and dwelt very much upon the phrase "ma-
applied to the plaintiff, and in-
tured dog fancier"
sisted that the scope of the letter of " A Looker.on"
was to impute to his client that she was a dog-
stealer. He had no doubt there were gentlemen of
the highest honour and character connected with
the Morning Post, and he thought it was a pity
they had not inserted sows anode. Even at the

present moment he was willing to accept it ; but if
it ivas refused, of course the ease must go on.
Chief Jirticc, Erle, lookin7 at the counsel for the
defendants, asked if the case could not be arranged.
Mr. Lush said that his clietils could say no more
than they had al-eeady said-01:4 t they never meant
to make any imputation upon the lady, and that the
letter was mere humorous comment and banter
upon a report which was admitted to be fair.
Chief Justice Erle observed, that it was quite in-
telligibie to any lawyer what the counsel for the
plaintiff wanted.
[lt was understood to mean an apology and
nominal damages.]
Mr. Lush could say no more than he had done.
The case then went on.

An attorney's clerk was called to prove the pub-
lication of the alleged libels ; and this was the case
for the plaintiff,
Mr. Lush, in cross-examination, elicited that the
plaintiff, Miss Walrond, was not in court, and was
about to ask some other questions of the witness,
when

Mr. Chambers objected that the witness could
only know anything as the attorney for his client,
and the communications were confidential. _ _

Mr. Chambers, in summing up the case for the
plaintiff, pressed that the letter did not give a fair
version of the report, in regard especially to the
magistrate's decision, which he said was in favour
of his client.

Mr Lush then addressed the jury en behalf of the
defendants, and ridiculed the idea that the alleged
libel was likely to do the lady any real injury. His
clients had fromthe first declared that they had no
deeign to make any imputation upon her. The
scope of the letter they had published was to call
attention to a case they deemed worth noticing;
and if it was a ridiculous case it was the fault of the
ladies in bringing it forward. Both the ladies were
commented upon, and there was no imputation on
the moral character of either. There was nothing
more than mere humorous banter, which could do
no harm to either of them, which had not already
been done by their appearing before the public in
such a case. It was admitted that the report was
fair, and therefore no action could be maintained
for it, The comments upon it were equally fair,
and so far from the object being to make any
imputation upon the plaintiff, the scope of the
letter was the very reverse. It was argued
that the magistrate in the former case was
wrong in holding that there had been any dog-
stealing, and the fair inference was that the magis-
trate would have been wrong in so holding in the
case of the plaintiff. There was nothing libellous,
and, even if there was, there was no real damage.
Chief Justice Erle, in summing up the case to the
jury, said that they were to determine the question
whether the letter was a libel, and he was bound
to tell them that a publication might be libellous,
although it imputed no moral offence or miscon-
duct, if it tended to bring the plaintiff into ridicule
and contempt, and make her position in society less
pleasant and comfortable. The lady probably occu-
pied a certain position in circles of society in which
the Morning Post was supposed to have a consi-
derable circulation, and which, to her, might be the
world, just as to mercantile men, who never moved
much in drawing-rooms, the City or the Exchange
might be the world, and the question was whether
these publications tended to lower her position in
such society, or make her position uncomfortable.
The whole letter was conceived a little in the spirit
in which ladies might be supposed to write of one
another. (Laughter.) The tone throughout was
rather against the plaintiff, who was spoken of as
the " tall" spinster, whereas her opponent was called
the "young" spinster—(laughter)--a very marked
distinction, made still more invidious by the phrase
" failing human admirers of the male sex." (Great
laughter.) The scope of the letter seemed, more-
over, to be dissatisfaction with the magistrate's
decision in favour of the plaintiff, and showed a dis-
position to suggest that it ought to have been
against her. It was contrasted with the decision
in the other case, and the argument appeared to be
that, as the man had been convicted in the former
case, she ought to have been convicted in this.
Then there was the phrase "dog fancier," and, if
the scope of the letter was to hold the plaintiff
up to ridicule, it did not matter whether or not
there was any charge of dishonesty or perjury. No
doubt it was important to maintain the liberty of
the press. But all the members of society had
their rights, and it was important that these rights
should be maintained. One most important right
to which they were entitled was the protection
of that place and position and estimation in
society which fairly belonged to them. Now, if a
newspaper violated this right, then the almost om-
nipotent power of the press must be controlled by
the law. If redress was demanded and refased (as
it had been in this case), then the appeal lay to a
jury. The jury, then, must consider whether the
alleged libel tended to hold this lady up to ridicule,
arid was such as to make her uncomfortable in
society—that is, such as would make, not an over-
sensitive, but a rational and sensible person less
comfortable in society. If se, they should find for
the plaintiff, with such damages as they thought
she was reasonably entitled to.
The jury consulted a few minutes, and then re-
turned a verdict for the plaintiff—damages, one
farthing.
Mr. Chambers asked the Judge to certify for
costs, but

His lordship said, the tho matter being one for
the jury, he did not like to appear to differ from
their decision, but he would consider of it.

THE KENNINGTON TRAMWAY.
THE QUEEN V. TRAIN AND OTHERS. _

This was an indictment against the well-known
Mr. Train and a number of gentlemen, members of
the vestry of St. Mary's Lambeth, for laying down
his iron tramways in the roadway leading from
Westminster-bridge to Kennington-park, and mak-
ing it dangerous to the public.
Mr. M. Chambers, Q.C., Mr. Hawkins, Q.C., and
Mr. Joyce were for the prosecution ; Mr. Bovill,
Q.C., Mr. Knapp, and Mr. C. Pollock were for the
defendant Train ; and Mr. Lush, Q.C., Mr. Serjeant
Ballantine, and Mr. Garth were for the other de-
fendants.

The case excited the greatest interest, and the
court was densely crowded with inhabitants of
Lambeth.

In November, 1860, a committee of the vestry
recommended the vestry to adopt Mr. Train's
proposal to lay down the tramway. In this re-
port the committee contended that " the vestry
have the right to pave the streets and roads of
the parish either with wood, stone, or iron, pro-
vided it does not interrupt the public traf-
fic or be productive of danger." " That there
would be no obstruction to the ordinary traffic, but,
on the contrary, the facilities of transit are in-
creased. The rails are laid down almost at a
level with the pavement, and so constructed as to
present no ridge of any kind, and the whole surface
of the road is just as available for ordinary traffic
as it would be if no line of rail were laid down.
Any vehicles passing along can use the line of rails
on tlae side of the road as the drivers may think
proper. If they are using the rails and overtake
the omnibuses they have to move off and keep to
the outside, as in ordinary cases, and when they
have passed they can re-enter the line of rails, there
being just as much room to pass and repass as if no
rail had been laid down." The committee also
stated that " no danger to the traffic could be ap-
prehended. The rails are roughed, so as to prevent
slipping, and the ridge to contain the sides of the
wheels does not proje-A upwards more than five-
eighths of an inch, while at the same time the lines
of rails are kept upon the same level as the surface
of the road." The committee then considered the
practicability of the scheme, the benefit to the pa-
rish by its adoption, and the convenience it would
he to the parish,winding up thus:---" To the public
the new omnibuses will not only prove to be a con-
venience, but also a luxury. They are very highly
esteemed both in America and at Birkenhead, and
are very superior to the omnibuses inriowuseroomWhen full there is ample room for
each
passengers to
walk up and down without
motionln
the utmost incommoding
and a
other. They have an ease of
regula-
rity of speed that cannot to givesa-
tisfaction. There is an absence of loitering and
furious driving, without the possibility of there
being any of those dangerous omnibus races that
now take place in the streets of London. Indeed,
the committee are fully convinced that many of the
objections which have been urged against the
project will vanish so soon as the first new omni-
bus makes its appearance in the Westminster •road."
(Dated Nov. 8, 1860.) This report, which was
produced in evidence on the part of the prosecution
(to show the complicity of the vestry), states the
nature of the tramway, and the ground on which it
was sanctioned by the vestry,
vestry havinc,
adopted the report and resolved to sanction the
tramway, on the 13th of March, 1861, a contract
was entered into between the vestry and Mr. Train
within three months, and he indemnified
by which he was to complete the laying down of the
tramway
them against all indictments or actions for
laying it down, and also against the expenses of re-
movingit if he should be required so
oa do. Thend replacing
tramway
Was completed in September,
1861, and the trains began to run. In November,
1861, this indictment was found. A struggle arose
at the outset as to the formal proof of the liability
of the different defendants who were sought to be
made liable, as having
voted in favour of the reso-
lutions sanctioning the tramway.
The Lord Chief Justice said the resolu'ions and
proceedings of the vestry would speak for them-
selves, and their legal effect, together with all
questions of law which might arise, would be re-
served for the Court.
Mr. Loh eborved that the liability of each de-

Pendant would be very important with a view to
responsibility for costs, as each of them might be.
severally liable for the costs of the prosecution it
they were fond guilty.
The necessary tormal proof having been given,
Mr. Boviil, 3n cross-examination, elicited that
there had been a petition from the parish signed by
11,500 persons in favour of the tramway.
Mr. Chambers objected that this could not be
stated until the petition had been regularly proved.
Mr. Davin thereupon produced the petition (a
huge document), and desired to know if he should
have all the names read. (Laughter.)
Mr, Chambers required proper proof of the peti-
tion, and if his, learned friend proposed to make any
use of it he must put it in evidence.
Mr. Bovill—At all events, let it lie on the table.
(Great laughter.)
Mr. Chambers asked if there had not been a peti-
tion against the scheme.
The witness said there had been two, and he pro-
duced a wretched-looking sheet of pAper, which he
said was one of them.

Mr. Bovill thereupon held it up, amid roars of
derisive laughter and cheers, evidently in favour of
the defendants; of which
Mr. Chambers complained; and
The Lord Chief Justice desired that such manifes-
tations of feeling on one side or the other should be
repressed, as unsuited to a court of justice.
Mr. Chambers elicited that there was another
petition, signed by 400 persons, against the scheme.
Witnesses were then called on behalf of the pro-
secution as to the nature of the tramway, and the
objections made against it, as interfering with the
traffic and causing danger to the public.
Mr. Bovill, however, elicited from the first of the
witnesses that the carriages were extremely com-
fortable to ride in, and had advantages for the pas-
sengers therein. This was not disputed, but the
substantial question in the cause was whether or
not the tramway caused danger or difficulty to the
general traffic of the public. On tnis question a vast
number of witnesses on both sides were in attend-
ance to be examined.

The objections stated by the witnesses on behalf
of the prosecution were—that it was not possible to
keep the flanges level with the road ; that the stone
part was worn away, while the iron flanges re-
tnained; that thus the repair of the road would be
interfered with, and that it would not be safe for
traffic, the level of the surface constantly varying;
and the action of wheels passing from the iron flanges
off on the lower and softer materials, tending to
make deeper cuts and ruts in the road, and thus
wear it more away.

Mr. Greig, Clerk of the Peace for the County of
Surrey,?the prosecutor, was one of the first witnesses
called. He said he prosecuted not in his public but
in his private capacity. The tramway ran along the
front of Surrey-lodge, the official residence of the
Clerk of the Peace. There were 16 ft between the
edge of the road (on his side of it) and the tramway.
Driving from Westminster-bridge, on his proper
side, he almost always found it necessary to go on
the tramway, and his wheels clung to the flanges,
so that it was difficult to get off; going in the other
direction, towards London-bridge, he crossed the
tramway at right angles, and he always suffered
from severe wrenches. He had not had any acci-
dents himself, but he had seen traces of accidents.
He had seen cabs, &c., damaged with their wheels
off, on the sides of the tramway.
Mr. Bovill objected to this. How did they come
there P

The Lord Chief Justice asked if the witness had
seen the accidents occcur.

The witness said no; nor could he state that
they had arisen from the tramway.
His lordship said he could not take the evidence.
The witness stated he had known horses to slip
on the tramway.
Mr. Bovill—Have you seen them ?
The witness said he had heard the horses' feet
slip while in his carriage, and had felt them slip
and, become restiff. The witness went on to say
that he considered the tramway "at times dance'
rous and always inconvenient," to the general traffic.
Cross-examined by Mr. Bovill—The witness said
he considered the chief source of danger was the
clinging of the wheels to the flanges. Asked if he
ever knave the wheels cling to the iron gutters at
the sides of the city streets, he said he was not
forced always to go into the gutters ; he had found
no danger from them. As to the horses being rese
tiff, he admitted that horses did not at first
lik-
what they were not used to, but they became in
time more or less accustomed to it. Asked as to
jolts, whether he did not know of terrible jolts all
about town, he said he did not know of four suc-
cessive jolts; and, besides, some jolts were legal.
(Laughter.)
Mr. Bovill—And we say that these are legal,
you know. Then as to holes, &c., the witness ad'
mitted that they were to be seen on other roads,
but not so much on a continuous line. The water
collected all along the sides of the rails.
The case occupied the court until the close of its
sitting, and will probably occupy all to-morrow
(Saturday).