The Sun.
London, England, 1842-12-10 00:00:00

KENDILLON V. MA LTBY, ESQ.

This was an action brought by the plaintiff, who
had been a police sergeant, against the defendant, the
police Magistrate of the Marlborough-street Police
Court, for slander. _ _

Mr. C. CLARK opened the proceedings.
Mr. KELLY, in stating the case to the Jury, said,
that the plaintiff, who had always borne an irre-
proachable character, held the situation of sergeant in
the police force in the month of June, 1841, and
that his beat was in the parish of St.
George, Hanover-square. It appeared that at
that time, a number of persons of abandoned cha-
racter resided in Woodstock-street, which was
on the plaintiff's beat. The plaintiff had been very
active in endeavouring to get these women of aban-
doned character out of that locality, and at length he
had succeeded in clearing the street. On the 21st
June, there was a disturbance in Shepherd-street, to
which these women had removed from Woodstock-
street. The plaintiff in quelling the disturbance had
been assaulted by a person named Woolridge, -who
was charged before Mr. Maltby with the 'assault ; in
fact he had given the plaintiff a very severe blow.
Same of these abandoned women had been called
by Woolridge, and Mr. Maltby had dismissed
the complaint. On the 29th of June another
disturbance had occurred at the same spot. Two gen-
tlemen, Sir Thomas Moncrieff and Captain Ormsby,
had complained to the plaintiff that one of them had
been robbed. The plaintiff made inquiries on the
spot, and offered to take any one into custody whom
they would charge as having robbed them. One of
the gentlemen immediately afterwards found the arti-
cle of which he stated he had been robbed, and with-
drew the complaint. The women became very vio-
lent, and attacked the plaintiff, and Sir Thomas Mon-
crieff and Captain Ormsby took part with the women,
and gave the plaintiff a blow. They were taken
into custody-, and on being brought before the defend-
ant they denied the assault. Now, Captain Ormsby
had not been in a state, at the time the transaction
had taken place, to know anything about it. In fact,
he was drunk—he had been fined by Maltby him-
self for drunkenness. The case was then adjourned
to procure further evidence ; and on the 3d of July,
when the case came on for final hearing, evidence
having been given corroborating the evidence of the
plaintiff, Mr. Maltby fined Captain Ormsby ss. for
being drunk, and ss. for assaulting the plaintiff, and
dismissed the case against Sir Thomas Moncrieff.
At the conclusion of the case Mr. Maltby made use of
the language which was the subject of the present
action. The words made use of by defendant were,
"I feel myself bound to say, with reference to this
charge, and also to one before me a few days since,
from the same spot, that I do not believe Sergeant
Kendillon on his oath ? " This was said in the open
Court, in the presence of men belonging to the Me-
tropolitan Police, and ofnewspaper reporters, who would
report the words to the public. He would defy Mr.
Maltby to prove the truth of the words he had uttered.
The nature of the pleadings was such as to allow of a
justification being put upon the record, but the de-
fendant had not attempted to justify. These words
of the Magistrate had been communicated to the
Commissioners of Police, who in consequence had
dismissed the plaintiff. He had remained for some
time out of a situation, but had at length been for-
tunate enough to obtain employment in the Surrey
police. The Learned Counsel then called witnesses to
prove the use of the words by defendant, and the
dismissal of plaintiff by Mr. Mayne, the Police
Commissioner.

The case for the plaintiff having closed,
The SOLICITOR-GENERAL, for defendant, said that
as no evidence had been given of malice on the part of
Mr. Maltby, as the observations had been uttered by
him on the Bench in the execution of his duty as a
Magistrate, and as there was no evidence of special
damage, for the evidence of Mr. Mayne did not go to
that extent, he submitted to the Court that there was
no ease to go to the Jury, for the observations had
been made by him in his judicial capacity in giving
judgment in a case before him, and he was entitled to
the protection of the Act of Parliament.
Mr. KELLY, in reply, contended that the expres-
sions themselves were sufficient to show malice from
the manner in which they were used. It was neither
decorous nor right in a Magistrate, because the per-
sons brought before him happened to move in the
sphere of gentlemen, and denied the truth of the
charge, to state that he did not believe a witness on
his oath, when at the same time there was nothing
whatever to impeach the veracity of the witness.
Mr. CLARK followed on the same side.

Lord DENMAN said that in his opinion no Judge
was entitled to any protection for uttering slander,
and if he uttered it either during a case or beside a
case, he must be held responsible, but in this case it
appeared to him that Mr. Maltby was acting in some
measure both as judge and jury, and in the exercise of
his discretion as a Magistrate, having to form an
opinion of the conduct of the officers under him, it
appeared to the Court that Mr. Maltby was bound to
state, as his reason for dismissing the case, that he did
not believe the officer on his oath, if such was really
the case, and he was also bound to make that observa-
tion in the hearing of the superintendent, in order that
information might be conveyed to the Commissioners.
Under these circumstances, he thought plaintiff could
not maintain his action without giving express proof
of malice. None such had been given, and therefore
there was no case to go to the Jury.
Plaintiff nonsuited.

COURT OF EXCHEQUER, Dec. 9.
CRII.I. CON.-ALLEN U. 'NICHOLSON.
This was an action brought by the plaintiff, a
baker, at lloxton, for criminal conversation, on the
part of the defendant, with his wife. The damages
were laid at 1,0001.

Mr. Platt and Mr. Chambers appeared for the
plaintiff; and Mr. Humphrey and Mr. James for the
defendant.

It appeared that the plaintiff carries on his business
as a baker, at Agnes-terrace, Horton, and the de-
fendant is a corn-factor, residing at Dockhead. The
parties were in the habit of transacting business with
one another, and some intercourse consequently took
place between them. The wife of the plaintiff was
very assiduous in the shop of her husband, and the
defendant had thus frequent opportunities of seeingher.
An intimacy sprung up between them, which
ended in criminal intercourse. The plaintiff,
who had heard in the neighbourhood reports
injurious to the character of his wife, had procured a
promise on the part of the defendant that he should
not visit her after the husband's suspicions had thus
been awakened. The defendant, after having given
this promise, was found with the wife of the plaintiff
in a situation which left no doubt of their criminality.
A witness, a young woman of the name of Horton,
stated that she had acted as an assistant at the plain-
tiff's shop, and he and his wife lived together upon
affectionate terms. This witness, however, admitted
in cross-examination that Mrs. Allan had complained
to her once of ill-treatment, and that her husband had
kicked her.

A witness'of the name of Carter deposed to having
received a promise from the defendant that he should
not visit the plaintiff's house. Witness had, however.
seen him there afterwards. The foreman of Mr.
Allen stated that the plaintiff and his wife had been
married for the last twelve or thirteen years, and had
three children, of whom the eldest girl was about
eight years of age, and the youngest about four or
five years old. They had lived happily together until
within the last eight or nine months, when the plain-
tiff thought he had reason to complain of the visits of
the defendant. Plaintiff once or t‘ vice remonstrated
with his wife upon the subject, when a violent alterca-
tion took place between them.

No further witnesses were called on the part of the
plaintiff, as the criminal intercouse between his wife
and the defendant was admitted on 'the pleadings.
Mr. Humrimmt then addres2ed the Jury in miti-
gation of damages. The Learned -Gentleman alluded
to the fact, that female witnesses ht d not been called
who might prove that the plaintiff and his wife had
always lived upon amicable terms.. It appeared on
the contrary, that there had been disagreement be-
tween them, and he trusted that the Jury would con-
sider that very slight damages wipuld compensate the
loss sustained by the plaintiff.
Lord ABINGER, in addressing the 'Jury said, that,
although no female relatives had been called who
could prove the terms upon which the plaintiff and his
wife lived, other witnesses were produced who de-
posed that they lived happily
t og
the last eight or nine montl
is, when
until within
when the plaintiff
thought he had reason to conyg lain of the visits of the
defendant. It was to be expo ;ted that some differen-
ces would then take place o etween them. The fact
of the criminal intercourse having taken place was
jot denied by the defendant, -who suffered judgment
to go by default. It woulel, th, n-efore, be for the Jury
to .decide upon the fair :and emperate damages to
which plaintiff was entitled in tile case.
The Jury after deliberating- for a few minutes re-
turned a verdict for the plaint iff- -damages 3001.