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3 corrections, most recently by doug.butler - Show corrections

Thursday, June '3rd.

Hi3 Honour, addiessii i; Mr MUtier Stephen, suid thnt his remark tbe night before, tbat .Mr Stephens')) conduct in the ense of the li'itl on Di Von Summer was unjiistifi-tble, and tint therefore he had certified for costs, was not nude with

inly uesiic lo ^u uui u* |mi.t »»«j iv nijuie .'*? wi.*, pbens, but only :is the matter had been referred to by Mr Alilner Stephen in the wuy of precedent, to explain that he had certified in that case in consequence of Mr Stephtns's having repeated and persisted in the libel after notice. STEPHENS V. MURRAY. This was an action for libel. Damages £500. For the plaintiff, Mr Hanson and Mr G. M. Stephen;   for the defence, Mr. Bartley. Mr Stephen opened the case, by reading ihe declaration* Mr Hanson addressed the jury /or the pltsintifi. He said tbe names ;ind positions of the parties to this suit were well known, ami ai.-o rise object lor which the action w.is brouglu. The plaintiff exercised the profession of a news paper editor, and it wns in that point of view he wis.btd to be judged by his fellow-colonists. The libel of which he complained was published not only on him in his public character, but in the exercise of his trade and calling, and was intended lo represent to t!-e world that he made his newspapers the ordinary vehicles of slander, or of pandering to the depraved tastes of his readers. The circumstances of the ground of this action were detailed with some degree of fulness iu the declaration, tu order to enable the defend ant to piove the allegation of the libel. The report which the defendant bad made the foundation of his stiicturcs was contained in the South Austraian Register, of the 24 :h Anril. mtA was as follows: —

POLICE COMMISSIONERS' COUHT. Friday, '2Hd April. Michael Cook, saddler, of Hindley-street, a married man with a     family, was charged (at a private hearing) with having committed a capital offence on the person of Louisa Raker, a girl of twelve years of age, who lived in his family as servant. The act of violation was proved, but the prisoner (for whom Mr Stephen appeared) escaped committal by proving, on crossexami-   nation of the prosecutrix, that she had not only permitted the inde- cent familiarities of her master on former occasions, but that in this instance it was with consent. Mr Stephen submitted that, even ad mitting the assault proved, the girl being above twelve years of age,   and a consenting party too, the magistrate had no power to commit the prisoner, whatever right of action the parents might have against him for his improper conduct. Mr Finnish having consulted a brother magistrate, determined to dismiss the charge. [It is saying littie that we cannot congratulate the prisoner on his escape; but we must add tbat we felt very considerable regret that the law could not reach him. The severest legal chastisement would have been richly merited. A master, a husband, and a father, purchasing the 'privilege' of abusing the person of a mere child   in his domestic service, is a wretch on whom society must look with   loathsome disgust, and whom it were gross calumny to call a man.] Now it was not denied by tbe defendant that Michael Cook was charged with the crime of rape. The fact of the violation of the child's person was proved, nor was it denied that she was in the service of Cook, and therefore, that he was bound in decency and morality to protect her not only against himself but everybody else.   Mr Bartley said he did not admit the statements. He had not taken issue on the question of that person's guilt as in- nocence, which was not before the Court. His Honor — You do not deny the truth of the report. Mr Hanson said Mr Bartiey might have traversed the de- claration. After some remarks from Mr Bartley, His Honor said as he had put no pleas of justification on the record, he was not in a position to deny the facts of the report. Mr Hanson resumed — It would be his duty to show to the jury tbat the report being correct, the plaintiff was justified     in his comments, severe as they were ; and he felt sure tbat every gentleman in the jury-box who was a husband, a father, a brother, or standing in the responsible relation of a master, would feel bound to protect a female domestic, not only from the rude approaches of himself, but every body else. It was stated that the girl was a nursemaid to Michael Cook's own child, and yet he violated her person, and only escaped punishment because she was above twelve years of age. Now he (Mr Hanson) would ask them to place themselves in the situation of the plaintiff, who, in the exercise of bis professional duties, was made acquainted   with an offenoe of so revolting a chiracter, and being besides

a gross breach of trust towards her natural protectors — an offence involving the deepest injury upon a child of too tender years to appreciate its immediate effects or its physical consequences upon her future prosperity and well-being. Would not they have felt themselves bound, by every principle of duty and humanity, to   throw around injured innocence the protection of pub licity ? There was something disgustingly unmanly and inhuman in a man having a wife seeking to gratify his lust upon a child, and he (Mr Hanson) would say that it was a calumny upon human nature to call such a one a man. No one. he was sure, could say that the plaintiff's remarks were too strong for the occasion, or that the foul comments which followed the expression of these natural feelings of indignation at such an offence could be justified (Mr Hanson here read our police report of Cook's case). It was saying little, that such a man could not be congratulated upon his escape, which was only effected by means of a mere legal technicality. The report of tbe affair was no- thing but the plain unvarnished truth, and the comments nothing more than the natural impression created after hear- ing such a recital. There was something not merely base but unmanlike—that one calling himself a man— should thus abuse a child— that a master should take advantage of bis servant at those tender years, before she could be said even to be bursting into womanhood— to attempt to excite her undeveloped passions before she had either the knowledge or the feelings which might make her aware of the conse- quences of such an act upon her constitution— her charac- ter—her prospects. And who could say, after such an out- rage upon humanity, that the language of the plaintiff was too strong ? They (the jury) were bound to admit as true that such was the case, because the defendant, who had an opportunity ot justifying, had not dared to do so. Then hear tbe libel ( Mr Hanson then read the libel as it appeared   in the South Australian of the 27th April.) THE LIBEL. One of the most brutal and cold-blooded attempts to ruin a poor and unoffending man we have ever seen, occurred in the Register, of Saturday. Mr Ccok, saddler, of Hindley-street, was on the previous day charged, by a girl in his service, with a very criminal offence, but on appearing before the Magistrate, the case was dismissed before an opportunity was given to the defendant to adduce his witnesses who were in waiting, and who would have proved the utter impossibility of such an offence being committed. It was alleged to have occurred in a small room closely adjoining tbe room in which Mrs. Cook was lying awake, directly in front of her room door. The beds in these rooms are not three yards apart. There is a large opening for a window between tbe rooms, and tbe door was open, so that a whisper almost in one room could be heard in the other. At the back, there is a window looking into a back shop, in which men were working, and who could at the time see the scene of the alleged offence. Notwithstanding the dismissal of the case as frivolous, and the above circumstances, which must convince any one who takes an opportunity, as we have done, of inspecting the premises, of the utter impossibility of such a crime being committed at the time and place sworn to by the girl, the Register, and of course the Observer (the reports of one paper being always the same word for word with those on tbe other), both assail Mr Cook in the foulest manner, and make him out to be a wretch unfit for society. It is a common re- mark that great evils frequently cure themselves and it is fortunate for Mr Cook that the papers in question have been notorious for endeavouring, for years, to ruin men's characters, and that now, according to the common phrase, their tongue, or rather that of their common Editor, is no scandal. But it is dreadful that there should be a possibility of innocent men being ruined, and tbe peace of fami- lies destroyed, by such means. How long are these scandalous chronicles to be suffered to disgrace the province ? Hear that, Gentlemen. The plaintiff was charged with a cold- blooded and brutal attempt to ruin an unoffending man. The cold-bloodedness consisted in the warm and in- dignant language in which be had characterised the offence —the brutality in regretting that tbe protection of the law could not be afforded to this child against the brutal out- rage to which she had been subjected, and tbe man who had been guilty of such conduct was tbe unoffending per- son for whom the sympathies of the defendant were enlisted. It was no excuse to say that there had been no   violence committed upon tbe girl, nor could any am-   biguity follow in consequence. The plainifif states tbat. although Cook was charged with a rape (for the term

might mean that, or some other highly criminal offence), he was discharged, the girl happening to be a few months above the age of twelve years, at which time the law supposed consent possible. But the defendant, in his publication, wished the public to believe that the charge was altogether false, in order to create a prejudice against the plaintiff, who, in this respect, had stated that there had been no violence, but that the girl was a consenting party. (Coun sel then proceeded to read the libel.) ' Both of the papers assault Mr Cook in tbe foulest manner,' and represent him as a wretch unfit for society. Was not this warranted? Was   such a man fit for society— was he one whom the jury would wish to see as the associate of their wives and daughters — and was it any offence thus to characterise him ? ' The tongue of their common Editor,' so said the de- fendant, 'is no scandal.' On the part of tbe plaintiff, he would defy the defendant to the truth of the assertion. He knew that statements of this kind had been made, and the plaintiff was anxious to afford tbe amplest opportunity of proving their truth, if it could he done. He, therefore, challenged his learned friend to put in any paper of the plaintiff's which could justify the imputation ; and in order that there might be no technical difficulty, he would admit any paper which could be produced, bearing the defendant's   imprint, or being published by him. After this challenge he had a right to treat the assertion as a fabrication and a malignant calumny, unless it was supported by proof. The plaintiff, as had been stated, looked to his papers as a provi-

sion for his family; and he could not be indifferent to arti-   cles of this sort, especially when they were made the ground of recommendations to stop tbe circulation, for the libel proceeded — ' How long are these scandalous,' &c. The public were thus called upon to interpose to suppress these papers, and were incited to do so by being told that their continued circulation was a disgrace to the province. Surely if a libel of this sort were to be left without any at-   tempt to justify it, by showing that the publications of the plaintiff were of the character attributed to them, the jury would feel themselves bound to give such damages as would mark their sense of the injury which the plaintiff had sus- tained. The libel was published on the Tuesday following the publication of the report, so that the defendant had abun- dant opportunities of ascertaining the truth of the statement which the plaintiff had made. The plaintiff would then   have been justified in regarding it as a deliberate act ; but   he thought it was due to the defendant that an opportunity should he afforded him to retract or to explain that which he had published, as it might have been published in ignorance or misapprehension. With this view, a letter was addressed by the Solicitor of the plaintiff, which he should put in evidence, and would now read. The letter was as follows :— Rundle-streel, 27th April, 1847. Sir — T am instructed by Mr John Stephens to address you on the subject of your article in the South Australian of to-day, respecting the case of Cook, who was recently charged with rape, at the police office, and whose case was dismissed on a mere legal objection. Mr Stephens instructs me to state that he feels it impossible to disregard the libellous nature of that article as affecting his character and the conduct of the newspapers of which he is the Editor and Proprietor, calculated as it is so deeply to injure his reputation and   the usefuluess and respectability of his journals. And as your re- marks are wholly unwarranted by the facts of the case as he knows them to have been elicited ; and as he only discharged a conscien-   tious but painful duty, in drawing public attention to the matter, — he must require from you tbat you publish in your next number a retractation of your comments, with such an apology as is due to him for the aggavatcd, unmerited, and wholly unprovoked attack. Unless you comply with the terms of this letter on Friday next, I am to intimate to you that an action for libel will be commenced against you od Saturday morning. I am. Sir.

roars oDciuentiy, G. M. Stephen. Andrew Murray, Esq. Tbey would see from tins that the plaintiff hnd not rushed hastily before them, but had given to the defendant an op portunity of informing himself of facts of which he might have been ignorant. By a recent Act adopted in the colony, it was competent to the defendant to have offered an apo logy ; and he murht have paid into Court any sum of money which he thought would cover damages. Tbe defendant thus had the option either to have ascertained that the facts were such us had been stated by the plaintiff, and then to have apologised — with which the plaintiff would have been satisfied, or to have justified, and, in proof of the justifica tion, to have produced any paper which the plaintiff had been guilty of attempting to ruin mi-n's charac ters. He (Mr H.) did not deny that in reporting pro ceedings he might have inserted repoits painful to indi viduals ; but he would again repeat his challenge lo produce any instance of unfair or slanderous atttrkj. But the defendant had adopted neither the one course nor the other. He had not denied i he truth of the matter alleged by the plaintiff as he might have done, nor hid ho admitted liis error and tendered amends. As, then, the facts were ad mitted to 1)0 true as stated by the plaintiff, it would be for the jury to decide whether the comments of the plaintiff were not such as every manly and right-minded individual would have made. Mr Hanson then read the libel with the inuendocs, for the purpose of showing that they were found out by the fair and natural import of the words. He did not know that any attempt would be made lo alter the sense given to it in the declaration, and if not, it would not be easy to imagine a more unwarrantable and injurious attack, or one less justified by the circumstances out of which it arose. Would the deftiidant now attempt to say that a person like Cook, who was guilty of an offence of the worst and most nsnrravated description— one that struck at the founda

tions Ol oUUlttl iiiUiiiiiL^ ? luata |ji;ioun guiuj ui ou^,u a uinai; did not merit the comments, strong as they were, which the plaintiff had published ? Or would he deny the truth of the allegations? Would he venture to put the Clork of the Magistrates, who had taken the depositions, or the girl who had been outraged, or even Michael Cook himself, into the box, for the purpose of showing that the report of the plain tiff was partial and distorted, or that it did not fairly represent the character of the transaction? Or would lie put the Ma gistrate into the box for the purpose of showing that the case 'was dismissed as frivolous? If he did not, he would. The libel had two parts— the first was the allegation that the plaintiff had been guilty of a cold-blooded and brutal attempt to ruin an unoffending individual. If this was true, then undoubtedly the plaintiff had no claim to their conside ration ; but in that case it was in the power of the defendant to prove Us truth, and he would be bound to do so. But if it were false, and this was for tlie present at least absolutely admitted on the face of the record, then the libel was most unjust and injurious, and entitled the plaintiff to ample damages. This was the first view of the libel ; and unless it could he proved that the plaintiff had wilfully falsified his report, if the facts were even doubtful, why should the Editor of the South Australian come forward and make the case his own ? He might have opened the columns of the paper to Mr Cook, and would have been fully warranted in doing this, but he was called upon for nothing further. Bui instead of this, he made it a matter personal to himself, and he must now abide the consequences. The second part of the libel was that the plaintiff had been for years notorious for endea vouring to ruin .men's characters. He would again chal lenge the defendant to produce any evidence of the truth of this allegation. His Honor. — The defendant cannot do this, as he Las not pleaded these previous publications in justification. Mr. Hjnson understood the law to be, that in mitigation of dam»ges he might offer any evidence which would not, if pleaded, have mounted to a justification ; but at any rate he would not take that objection. He regretted that the de fendant barf not put himself in a .'osition to offer the evi dence upon this point. But if the law was as the Jud^e had stated it, then th» circumstance that the defendant bad not, as he might have pleaded these matters in justiBcation, shewed;that he felt that no such matter existed as would war rant his attack. The only matter, therefore, for the jury to consider was tbe question of damages. In this they would estimate— 1st. The nature of the injury. The libel was de signed not merely to ruiR his character, but to injure the business and destroy the prospects of the plaintiff, and this object was avowed ; 2nd. They would then consider the absence of excuse, since the defendant had not attempted to offer any justification ; and in default of proof, the allega tions which the libel contained were aggravations ot the original offence ; and they would then take into account the intention of thedefendent, who, as be should shew, had been for some rime post endeavouiing to represent the plaintiff in the same lirht in which tbe libel bad described bim, and had thus shewn that the present attack was tbe result of a deliberate system. He would leave the case in their hands, satisfied that the result would prove tbat libels of this cha racter could not be published with impunity. John Michael Skipper, attorney, proved the purchase of the paper containing the libel, and also that the libel re ferred to the Editor of the South Australian Register and of the Adelaide Observer newspapers. By Mr Bartley.— Knew that they referred to tbe plaintiff because he was the Editor of thone papers. William Caddy Cox was overseer of the plaintiffs print ing-office. The plaintiff was the proprietor and printer of the paper, dated the 24lh of April, produced. Mr John Stephens was the Editor, proprietor, and manager of both the South Australian RegisUr and the Adelaide Observer newspapers. By Mr Bartley. — The 'Editors' of the South Australian Register were concentrated in Mr John Stephens., Thought it was the word ' Editor ' only which was used in the imprint of the Observer. _ ; Mr Hanson took the objection that the Observer paper not being produced, the best evidence of the fact was re auired. *

Resumed. — Mr Allen was Editor of tbe Register before M* Stephens was connected with it. Witness never edited arti cles. There was no editor but Mr Stephens. Charles Bonney, J.P., had seen the libel before. Consi dered it referred to tbe case of Michael Cook, in which he had acted as a magistrate with Mr Finniss. The article in the Register produced of the 21th of April referted to the case of Michael Cook. Fdward Thornton, clerk to Mr M. Stephen, served a copy of notice to produce a letter on the defendant's solicitor by puuiuj^he same under the door of bis office at half-past eight o'clock the previous nigh . Mr Baittey objected to the insufficiency of the service. Mr Hanson would not press it — it was not very material, Mr Baitley submitted that Mr Hanson was out of couil by reason of. his not having proved the meaning of the inuen does. Upon that point not a tittle of evidence had been given, nor one won! that the construction put upon the alleged libel was true. It was necessary that such evidence should have been given upon the part of the plaiiitiff when the defendant had pleaded the general issue. His Honor. — What Lnuendo i3 not ntovedi Mr B-rt'.ey. — Not one of them. His Honor considered it had been fulli proved by the evidence of Mr Skipper. Mr Bartley contended that the plaititiff was bound to prove

maims worn 3 were to nave oeea appueu to .ur oiepneiis iu his capacity of Editor, pi inter, and publisher of the South Australian RcaUter newspaper, and which had not been done. The plea of the general issue traversed the act of | the plaintiff, as he had alleged it. The words of the inuendo were not justified in being considered to apply to the plain tiff as such Editor, &c. The large and comprehensive manner in which the plaintiff had put his construction upon the libel was wrong, but now, having adopted that course, and, so to speak, tied up his own hauds, he must either stand or fall by it. His Honor said it was not necessary for a witness to st»»te his impression as to the meaning' of words in an action of libel. If he thought such proof necessary, he would not allow the case to be stopped upon that account, but would allow the plaintiff to produce additional evideuce. Mr Bartley.— Then as to another inuendo: it set out that the meaning wa9 that ' innocent persons were ruined and the peace of families was destroyed,' whereas the words 'might possibly be destroyed' were u'jed. His Honor thought it did not require wiuieg9i s to prove the meaning of a libel. When the meaning was distorted and out of its ordinary course, it was another affair. Mr Bartley had, after mature deliberation, put the plea of the geuerhl issue upon ,the record. Otherwise he iniifht have raised such a traverse as would have proved fatal Jo the plaintifi'. His Honor.— The question is, who it applies to, and it had been proved to apply to the defendant in this instance. Mi Bitrtley then addressed the jury, fie had considered it his duty as a lawyer to take the objections which be bad done, not Irom any want of merit in the defendant's case, hut irom a duty which he owed to his client, and also for the purpose of saving the time of the Coutt, in this trumpery and vindictive action. Tlwy (the jury) had to determine whether the words which the defendant had used were applicable in the particular sense imputed to them by the plaintiff, but he maintained that those words never were intended to apply to him personally, but only to him as the Editor of a paper, and if they were intended to injure him as such Editor, they never were intended to injure him in any oteer character, nor was the plaintiff ever referred to by name. He could not hesitate for one moment upon the verdict which they would return. It was no libel, but was an article penned upon a warrantable and justifiable occa sion, aud. unless the phinutf could show that it was a cloak used by the defendant for the purpose of assailing his charac ter (he was under the direction of the Judge if he spoke wrongly) and which it had been shown he had not attempted, then it could not have been written with a malicious inten tion. Tho plaintiff had not been personally attacked as 'Honest John Stephens,' or 'Dishonest John Stephens,' or was he charged with having used any ironical or personally gross expressions. The plaintiff came before them a gross slanderer and a libeller, seeking to recover damages from the defendant, for the writing of an article which it was fairly his province to write, and which it was his duty to do, upon a most foul attack made upon Michael Cook. The conduct of tlie plaintiff in that transaction, whether Cook had been guilty or not, was highly censurable, and it was neither the duty of the plaintiff nor of his Counsel to pronounce a sen tence of guilty upon any man until he had been tried by a jury of his country; and, until so, he had a right amongst free-born Englishmen to be considered innocent. Both Mr John Stephens and his Counsel had done that which was both indiscreet and improper, in pronouncing such a judg ment. He (Mr Bariley) did not know Mr Cook, nor any thing about him, nor was he there to justify him, for that was a matter which rested entirely with himself, but he could not help calling their attention to the fact that tlie case had been dismissed by the Magistrates. The matter of Cook was one with which the plaintiff should not have interfered. Why was it privately heard, and. not in open Court ? Because public feeling and public decency might not be outraged by the recital of obscene evidence, 'and yet the plaintiff had. thought proper to drag Ihe case before the pnblic. He could appeal to Mr Finnis, as a Magistrate, and to every other Police Magistrate of any experience, and ask whether the publication of these revolting charges did uot tend to produce bad effects, and, instead of serving the cause of morality, deeply prejudiced it ? The report of the plaintiff had said that a criminal offence was proved, but how could that bo when the man was acquitted? And, as he before remarked, it was the duty of a Jury to determine the question of guilt, and, until they had done so, he must be considered innocent. These observations he had made for the purpose of doing away with any feeling or prejudice which might have been made upon the minds of the Jury by the high- wrought ad dress of Counsel on the opposite side. The question which the Jury had to try -was, did the publication of Mr Murray injure the private and personal reputation of the plaintiff? The case of Cook, and the report which had been made upon it by the Register was the subject of the defendant's.remarks, and he had exercised nothing but a fair right of criticism in animadverting upon the Register's report and comments. The question was, had the defendant a right in so animad

verting, or am ne use mat ngnt lor tne purpose oi a cioax to wound tlie personal reputation of the plaintiff ; and had he any personal malice or ill feeling towards him. It was held that the publication oi' exparte reports, especially those made at private hearings, was a misdemeanor, and there was no principle of law which recognised the position that a person doing a wrongful act could bring an action and recover dam ages for such wrongful conduct being properly exposed. Personal ill feeling must be shown before the plaintiff could -ecover, and tlie article called a libel only alluded to him in his capacity of Editor of a Newspaper. In order to show that the plaintiff was correct in the report which he had made of Cook's case, and of the justice of his observations thereupon, why did he not put Mr Finniss, the Magistrate who heard the case, into the' box? (Council here rend the libel and commented upon it j The plaintiff hoped that every person would look upon such a man as a 'wretch, but he had no right to make use of such an expression until such period as he had been tried by a Jury of his country. If \3ook had done wrong he had brought it upon himself, and he himself had to take the consequences. Why did not Mr Stephen call witnesses, if Cook were guilty, to prove that he was so, and then ask for damages from a Jury ? - Was a Goliah of the Press to raise Ms hand whenever ho thought proper, and upftn whomsoever he thought proper, and then, having done so, was he to come- into Court, and ask damages from the defendant who had fe:t and expressed all ihe feelings of an Englishman for a slanderer ? It was no libel but was a publication upon a proper occasion, and no personal or improper conduct had been made use of. What was the publication? He-would read it. (Counsel here read the libel). What right bad the defendant to be attacked and brought into a CourUof Law, even supposing that bis observations were not tbe truth ? Tbe quebtion as be before said was, whether or not tbe libel was written for the purpose of personally in jurintr the plaintiff, and if they found it not to be so, be confidently asked foi a verdict for the defendant, and if tbey gave damages thut those damages should not be more than one farthing. . His (counsel's) position was that tbe defendant was entitled to a verdict because be had merely done his duty ; and had only used a due and fair criticism in his observations. (Counsel here read from an authority showing tbe benefit which society derived from tbe criticis ing of books and papers). In this ca-je no malice had been attempted to be shown, and tbe plaintiff's counsel, knowing the badness of bis cause, bad not attempted to prove it. What tbe defendant bad written was nothing but a fair and justifiable criticism and comment upon tbe paper of which tbe plaintiff was the Editor In respect not only of this action but also in respect of hie attack upon the Govern ment, tbe paper in question put in by tbe plaintiff was oi buch a character and was therefore justifiable. He (Mr Bartley) did not think it at all* necesitary to place any evi. deuce before them. Tbe first day of the sittings a libel had been tried iu which great personal feeling existed and per sonal malice bad been expressed ; on tbe second day of the sittings a case of slander bad been tried, wherein the law implied malice, and upon which a jury had given a farthing damages, and on tbe third case on that day, tbe action was different from the former because no personal ill feeling existed, and also that the law implied no malice. He fell he would only be insulting their sense by making any fur ther observation* upon the case, but would leave itwiti confidence in their hands fully and justly expecting i verdict

His Honor then addressed the jury, and observed that ' the defendant pleaded what was called the general issue, and under such circumstances it was merely for the plaintiff to prove the publication and that tbe libel bad tbe meaning given to it by the inuendos in the declaration. (His Honor here read the libel). It had been objected that the libel had not been written against the plaintiff personally, but as an Bditor, but it had been shown in evidence that it not only referred to the plaintiff himself but also to the report which was as follow* ( Hie Honor then read the report and com ments in the case of Michael Cook). The piaintiff alleged tbe correctness of tbat report, which the defendant in his strictures upon it said was false, and published a libel upon it. The libel was divided into two branches, and for convenience he would separate tlem. The first part as to the ipport itteli, end the other as to the plaintiff's {general publication in the SoutJi Australian Register. He would now look at the first: As to the duty of the Editor of a ** newspiiptr in making such a report upon cases, it could hardly he considered fair, tecause it was not a perfect re port, the whole not being published so that the public could not judge of themselves, but only from the impression made upon them by the plaintiff's comments. He hoped he would never be considered one who would interfere with the liberty of the Press ; but upon some particular occasion the Editor of a newspaper might go too far as well an . peieons in private life. The Editor of a newspaper par ticularly should not take the statement of any man when the character of another was to be impugned, but should l.»ok and judge for himself. But whether upon the whole in thit case the Editor had been fair in his report or not did not seem at present to be the ques'ion. It appeared that the case had been beard before Mr Finniss in bis private room, and under such circumstances tbe Editor of a newspaper would not have had admittance for the purpose of publishing the evidence. Mr Stephens, it appeared, did not publish the evidence in his report ot the ease.. but bad published an abridgment with bis own comments. Tbe question for their consideration however did not turn upon the truth or falsehood of that report, or upon the justice of the comments. It would be their duty however to say that the report was true, and with no comment not warranted by the facts of the case, because the defendant had admit ted it by not pleading specifically to it. The comment upon the case was a relation of what took place in the mind of the plaintiff upon heating the case. He must lay that if the facts weie as tbey were represen ted the comments were not too severe but justly merited. He could conceive no'hing more gross or more morally criminal than for a married man, who was tbe father of a family, to take such uii advantage of a mere child, and that chiM standir.g in the relation of bis servant, and to whom he should have been a protector; end he would say again, that if true, the langUHge applied to him was only expressed with that me uly warmth and indignation which would cha racterise any generous mind. But that was a question be tween Cook and Mr Stephens, and as he was not the de fendant, they could only look to the fare of the libel itself,'; and to see how far it was justified. (His Honor here read \ our report from the pleadings) and continued — Whether it * was tiue or not did not appear, and they had no means of judging whether Mr Cook had bis witnesses present to dis prove tbe charge- or not. Then tbe defendant bad set forth dicumstinces to shew that Cook was innocent, such as tbe proximity of the room to the place where tbere were work men, but no proof had been advanced of such fact, or of his innocence, but they had a right to look at the particulars in order to get light upon tbe matter in question. But the. defendant did not refer solely to tbe observations published in the Register in respect to this case, but adverted to other topics. Suppose that the libel bad ended here (with Cook's case), notwithstanding that tbe. language used by the de fendant wus very strong, he would have been disposed to view the ense in a very mild point of view, for it divi not appeal that the witnesses of Cook had been called, and they might have established his moral innocence. Then again, if Mr Stephens had published anything wrongfully, be him self ivould have to answer the consequences. But Mr Ste phen ( ompained of anot' er charge — ' It U a common remark that great evils frequently cure themselves, and it is fortu nate for Mr Cook that the papers in question have been notorious for endavouring for years, to ruin men's charac ters, and tbat row, according to the common phrase, their tongue, or rather that of their common Editor, is no scandal. But it is dreadful thbt there should be a possibility of inno cent men being ruined, and the peace of families destroyed, hy such means.' Upon tbat charge, Mr Hanson had culled , upon them for damages for an unfair and unjustifiable attack upon tbe plaintiffs property and papers, and Mr Battley had endeavcured to shew shal it was nothing but fair critique. However that might be, he could not say such language an the following was that of fair criticism—'- How long ate these scandalous chronicles to be suffered to disgrace the province ?' It was only justifiable by the proof that it -vas deserved, and must be considered gro&sly libellous- The Editor ol a newspaper must r.ot say tbat ot any person which is not true and which he cannot ju.Mify ; and ihey were entitled to redress one against the other as other per sons. Mr Bartley rose and said thnt it had been held that tbe expressions ' tbe mont scandalous, acurrulous, and ignorant rag in Great Britain' were not libellous words. , ?, His Honor — The words here go far beyond that meaning. They went so far us to say that endeavours had been made to ruin innocent men's characters, and such language could only be warranted by sh'wing it was so by proof. That was bis impression of the libel.' They must be satisfied that the words bore the interpretation put upon them in the de claration. Mr Bartley had said tbat the words did not fairly meun thut innocent persons' characters were destroyed, but (he jury could put their own construction* upon them. But be cou d not Hay !iu;. it did bear that interpretation ; be must say that upon the whole it appeared to be a libel. By tbe law it could not be a libel without having a malicious tendency, und if they thought so, it was their peculiar province to award damages. , He had already said that Mi Stephens was in eiror in publishing bis own view of tbe matter. The newspaper quoted hy Mr Hanson tending to show the animus did not -?mount to much. It would be better for the public t and themselves if tbe gentlemen conducting tbe colonial I newspapers would write with as good feelings tewaids each I rtfnP'* OG Iliav mnnifacta/1 l»i iYt** *v*»it»a»A »fk)n*«An« *vf IiIa \

The Jury, after a few minutes, returned a verdict for the plaintiff— Damages, One Farthing. Mr Hanson askod his Honor to certify for costs. . His Honor said he would do so. - The Jury stated, ?hat they had intended each party to pay bis own coats. His Honor could not attend to that. After some considerable .pause, and some conversation, : His Honor said he would certify, and, calling for therre cord, 6aid he would give more fully his reasons. Here he read the last part of the alleged libel. Tne last sentence showed personal malice. He did not accuse Mr Murray of being a mal;gnant person ; but it appeared that that sentence showed a wish and intention to injure, and there had been no retractation, or apology, by himself .or his Counsel. There would be nothing derogatory, but the reverse, in per sons maicing an apology, when they bad fallen into error. Mr Bartley — But we could not retract, as that sentence spoke of publications, not of persons, and no malice against a person was shown 'His Honor said, that if the publications were of that cha racter, it should have been proved. If be conceived a publi cation of a tendency to injure, he must certify. He would much rather not, as he did not .wish persons to leave the Court with rankled feelings, but he felt it his duty to certify. As it was, neither party could boast a triumph Saykbs r. Pooldb-v. Mr Fisher moved, upon affidavit by defendant, the post ponement of this trial, in consequence of tbe absence of a material witness, Mrs Burton, who is expected shortly to return to this province. : Mr Milner Stephen said be was instructed by his client to oppose tbe application, as his client felt assured it was mide for the purpoae of delay. Tbat tbe matter had been standing over for years, and tbat be bad been at last com pelled to bring on the action to *ave the operation of tbe Statute of Limitations. Tbe action was brought upon a Bill of Exchange for £220, to which tba defendant bad pleaded ' payment,' and that his client was prepared to make an affidavit, in opposition to the motion,' denying that be had ever received one farthing. His Honor said that he thought there could be no hi»rm in granting the application, upon payment of the costs of the day by the dsfendant, the plaintiff having leave to in crease the damages laid in the declaration to £300. . Richmond v. Stevenson. Mr Milner Stephen, for tbe plaintiff, stated that tbe de fendant's counsel and himself had consented that tbti. cause ?bould be referred to tbe arbitration of Alexander Lang Elder, Esq., with the usu«l powers to examine the parties themselves and their witnesses. Ac, the award to be .made on or before 1st July nexr, and the costs to abide .the event. Mr Stephen added that he would withdraw tbe record so as to save the parties the expense of taking a ver diet subject to the reference. His Honor granted the application. '..,''. .-..'.

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