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  • Spearth 9 Feb 2013 at 14:18
    Removed added [sic] from corrected text to conform with Trove Text Correction Guidelines.

    For Elizabeth Colly read Elizabeth Colley.
    For Elizabeth Collins read Elizabeth Colley.

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4 corrections, most recently by Spearth - Show corrections

Registcr Office, Hindley-street.

28th October. 1846.

Dear Sir — As I decline to accede to the terms of your letter of the 24th instant, G. M. Stephen, Esq., my solicitor, will accept any process you nay be instructed to issue against me on behalf of Dr Von Sommer.

I am, Dear Sir, Yours faithfully, JOHN STEPHENS. To B. D. Hanson, Esq., Solicitor, King William-street. On the same day that the defendant replied to his letter, he published the second libel complained of:— [Since this article was written (an article on the case of Joseph Budd, tried for rape) we have received a letter from Dr Vou Sommer's solicitor, threatening us with an action, unless we consent to retract the charges made and implied, in our publication of the 21st instant. As we have never yet made an accusation of a grave character but upon the best authority, and never once retracted one, we shall do no such thing; and have instructed our solicitor to accept process accordingly. We are prepared with the damning proofs. Will the dirty-minded and lustful Doctor shirk us ? If not we will promise him that the next Civil Sittings shall not be a maiden one.— Eds. S.A.R.] He (Mr Hanson) would remind them that the libel com plained of was not what occurred in a Court of justice ; and there were two considerations still more important to be borne in mind. The first was this, the right the defen- dant had to intermeddle with private or domestic quarrels ; and secondly the injury done his client, as the defendant stated, Dr Von Sommer was about to carry his case before another tribunal. Now he thought he might venture to say that the liberty frequently made use of by the press in pub- lishing ex-parte statements and evidence before a cause came into Court, often obstructed and perverted the course of justice, or at all events was calculated to operate in juriously upon the minds of a jury, and even of the counsel and the Court. It would be difficult if not impossible for them to abstract their minda and not be biassed by newspaper reports and comments. No comment which charged the defendant with the conduct attributed to him could be justified until it came before the Court. The cir- cumstance of that libellous charge being adverted to after having once received intimation of the action being carried into another Court was scandalous in the extreme, and ought to expose the defendant to very heavy punishment in the shape of damages. But there was another con sideration, the case might hare been very different from what Mr Calton supposed it to be. The ulleged circum stances which occasioned a rupture in Mr Calton's house (but which the plaintiff had instructed him to deny) in- duced Mr Calton to give his client a sound horsewhipping. But he woutd ask what light had any Editor of a news- paper thus to enter into the household matters of any family either to increase the sale of his paper or to pander to the prurient taste of his readers ? What householder would be safe under such a state of things? and where was the man who would not occasionally be afraid of being dragged before the public eye ? The jury would, he trusted, convince the Editors of papers whenever they acted in such a manner, either to gratify theit own malignity tr to become the tools of others for the purpose ot private slander that they did it at the risk of incurring heavy penal ties. He «ould not state any facts then that were not within the issue, and he would detain them but a very short period longer, leaving it to the defendant to justify his libel. They would remark however thai it was alleged there had been an endeavour, (he could hardly gravely speak it) to make the young man Harris a pandereror procurer to the plaintiffs lustful appetite. The circum- stances described in the pleas were so opposed to anything within the range of reason or even human passion that it would be impossible for them to believe the statement that day about ro be brought forward. He asked them as men having some of the weaknesses and passions of human nature, but still possessing the strength of men, was it possible if 5000 persons came to swear to it, to believe that a man in his senses would go to a faithful servant and ask him to endeavour to prevail on n virtuous young lady the daughter of his master to be guilty of such an offence. The mere circumstance of asking a servant to carry a mes sage to either of the females would leave an impression on their minds that neither one nor the other would deign to say a word to him. Then, for the sake of argument, was it desire by which the Doctor bad been actuated! Was it as alleged, that he was lustful ? Then could they for a moment suppose that any woman, especially one whose character was above suspicion, could yield to such over tures, or that he would trust his message to a servant who would blazon his purpose over the town? How such a plea could be placed on the record by the defendant's counsel, he was at a loss to conceivp. it was so furcical and absurd indeed, that nothing less than a miracle would prove it. But the defendant not satisfied with pleading an absurdity had clinched it by going on to assert that whilst the Doctor held Frank Harris down he swore with an oath (as though a man could swear without an oath) that if he did not grant him what be wished he would not release him. In other worda that if he did not go there and do something he desired, he should not get up. He only had one further observation to make, namely, if the defendant had stated simply in his paper what was then in the plea he would have laughed at him and recommended his client to have done the same. The laugh would thus have been turned against the defendant and not against the plaintiff. But supposing all that had been stated should be sworn to, be doubted it. They would murk that no injury had oc curred to Mr Calton, but on the contrary his client might, and no doubt would, receive irreparable injury. It would be for the defendant, if he dare to put into the box patties who could swear to the facts alleged, and be would beg them to consider whether £500 was too much to ask at their hands for the injury sustained by bis client whose character was his living. If however he was guilty the plaintiff ought to be scouted from the company of gentle men ; never again suffered to go into any respectable house ; and be hooted out of society. Mr Stephen then addressed the jury for the defence. He said he had the honour to appear before them that day as counsel for Mr John Stephens, the editor of the South Aus- tralian Register and the Adelaide Observer, papers well known for their pre-eminence in the colony, and which he had reared and maintained by his fearless advocacy of up right principles, and reprobation of everything that was dis honourable in private or public individuals. Such a course, they must be ready to admit, whilst it in one sense might enhance the circulation of his journals, was calculated to make enemies, and to do him considerable mischief, inas- much as every man brought under his editortal lash would naturally conceive a prejudice against him. Indeed, to such an extent had private malice operated, that he knew, and waB prepared to prove, that the action they were about to try bad been brought by subscription. His Honor stated that Mr Stephens was travelling out of the record, as there was no such evidence on the pleas, Mr Stephen resumed.— Well, gentlemen, the question which first arose was, whether the plaintiff had been actuated by malice, or whether he had probable cause for writing it. All he could say was, that he had been instructed to plead the justification which had just been read, and, he had no fear in saying it, would be proved to a letter ; or if not in the very words, at all events in substance. His friend bad asked them to give heavy damages considering the attack was unprovoked ; but he would ask — had the defendant printed that article without sufficient grounds ? If so, it would then indeed be reprehensible. The circumstances which led to it he would shortly detail ; and if they didn't then give his client a verdict they would be lost to themselves, lost to their wives, and lost to their families. He contended the plaintiff's conduct was grossly improper and immoral, more particularly as he was a physician,- and in attendance on Mr Calton's family ; and for the merited exposure com- plained of, his client was entitled to applause, not only from a jury, but every man in the country. The plaintiff was a German,, who had been occasionally mixed up in mining speculations, but lately had not followed any fixed calling. Where he was now it was not in his (Mr Stephen's)

power to tell, for be had evaporated ; or, in common, plain, and unvarnished language, he had' bolted from the colony; and if his counsel, by dint of talent, could wheedle a few shillings extra out of the jury beyond the costs, it would no doubt form a very acceptable remittance. The plaintiff had lodged at the respectable house of Mr Calton ; and being at one period a well couducted man in his address, he had gradually insinuated himself into Mr Calton'a confidence and professionally prescribed for him and his daughter. It was the habit, they all knew, for families to receive medical advisers into the full confidence of themselves and their fami- lies. The plaintiff, whilst in that confidence, heard Mr Calton announce his intention of going into the country ; and on that unlucky evening for the doctor he went out, got a little fresh, and came home excited. Miss Calton happened to come into the tap to receive the money taken during the day from the till ; and after she had retired from the bar, defendant asked Harris, the barman, if he would try to induce her to sleep with him that night. Harris, like a good servant, would not listen to the proposal, and then the Doctor asked him to procure Elizabeth Collins, the servant. His filthy overtures being rejected, be rushed upon the young man, knocked him down, placed his leg across his person, and his hands upon his breast, and swore with an oath (for those were the witnesses's own words), that be would not release his grasp until he granted him what he wished. It was not for him (Mr Stephen) to give a meaning to his words; but the fact that he threw his leg aoross his person justified that part of the libel which the editor did not wish to particularise. He hoped, however, for the sake of humanity, that the purpose was not the one alleged. On the same evening, Dr Von Sommer went into the apartment in which Miss Calton was sitting, and put his hands upon her shoulder. She shrank from him, telling him to be off, as she would rather have his room than his company. He replied, "Miss Calton, I would rather have   both." She then left the room, and the servant girl entered shortlyaf rerwatds. He placed his hands and feet in an indecent   and lustful manner about her person, which called forth the remonstrance of a witness whom he would put into that box. Upon Mr Calton's return from the country he gave the Doctor a horsewhipping, for which the Doctor summoned him. Mt Calton attended the summons, and it was sup posed the Doctor would have done so too. But no ; he (plaintiff) did it whilst under the writhing of the lash, and he thought it the best way to suffer it to drop. His friend argued it was wrong to advert to proceedings before they came into Court, in order to add aggravation to the injury. Mr Calton did not state the plaintiff was going to carry the case into another Court; but Mr Calton, knowing he was an adventurer, without a pice, and not choosing to go to law with Jack Straws, and knowing he would have to pay his lawyer like an honest man, applied for that certificate to enable him to ensure his protection against other proceedings in that Court. [Mr Stephen read the paper containing an account of the Police Court information.] He contended bis client was unquestionably exercising the legitimate jurisdiction of the press in shewing that Dr Von Sommer was a person whom the public could not safely suffer to attend their wives or their families ; and it would have been well for the Doctor had he put up with Mr Calton's horse- whipping and Mr Stephens's editorial thrashing, rather than provoke the terrible exposure which that day's proceedings would inevitably involve; and well would it have been if the plaintiff's counsel had allowed his fugitive client to live in obscurity wherever hehad sought an asylum. The de- fendant had spoken of the case, in language full of meaning, as being an affair not cognizable by statute law ; and there was no other means than through the intervention of an honest and fearless editor by which Mr Calton could punish the Doctor for his grossly indecent and insulting conduct under his own roof, and the licence of his profession. The press was one of those great powers in a state that steps in where the law does not give the means of redress, and is properly directed against public characters who enjoy great powers ; and the same might be said of its exposure of private delinquents ; and if a man like Dr Von Sommer was guilty of immoral practices of a similar character to those alleged, it was the duty of an editor to expose him to public infamy. His Honor stopped Mr Stephen, saying, when you state what is not law, Mr Stephen, which I believe you to be saying now, it is my duty to correct you. I have often delivered my opinion upon the duty of editors, and I maintain the same opinion now that I have always done, namely, that editors are no more privileged than other people to interfere in private matters and family secrets ; but if what is pub lished against men of bad character is proved, they cannot recover damages. Mr Stephen, continuing, said— His Honor had told them all, in very eloquent language, which of course he could not attempt to gainsay, the latitude allowed to editors of papers. If an editor believes a man has a bad character, he is not morally entitled (he would say nothing about the law, that his Honor would tell them) to recover damages. The com- munity of England very lately had known the benefit of the fearless exposures of the press, and had come forward to support   honest journalists. He alluded to the ' Times testimonial ;' and in consequence of what took place, all classes united and subscribed enormous sums ; and it was not a testimonial alone for one paper, but for all placed in similar trying circum- stances, by the exposure of such moral delinquencies as could with ditficulty be brought before a judicial tribunal. The Act regarding libel had not been, he believed, extended to this colony. His Honor — Yes it has, Mr Stephen, and you could have taken the benefit of it if you had liked. Mr Stephen, continuing — He was not astonished his Honor should have made the remark relative to the press so warmly, considering the errors he (Mr Stephen) had fallen into. His Honor said he never meant to express the least re flection on the press, but sat there to direct the law with which Mr S. had clashed. Mr Stephen. — When an editor or any other person stepped out of his course to libel an individual, he should take sure he is justified, and do it for the public good, and not with malice. He (Mr Stephen) that day claimed the protection of the jury by their verdict for his client, whose conduct had been precisely such as he described ; and if by the evidence it should appear that Dr Von Sommer was not a fit person to be received into the houses of themselves and their friends, then he would confidently put it to them whether Mr Stephens ought not rather to be applauded than punished. The learned gentleman then proceeded to call the witnesses for the defence. Frank Arthur Harris, barman to Mr Calton, stated it formed a portion of his business to receive moneys for Mr Calton. He knew plaintiff and defendant. On the 12th of October last, Dr Von Sommer was residing in the house. He knew Miss Sarah Calton ; she was residing at her father's house at that time. Mr Calton was not at home when the circumstance referred to took place. He was at Willunga, and Dr Von Sommer was present when he intimated to wit- ness his intention of going thither. About half-past ten o'clock in the evening, as he was fastening the side door, the Doctor came in and said he wished to have some conversation with him. He asked him what it was, and he answered he wanted him to procure Miss Calton's consent to sleep with him. He replied he would have nothing to do with such a proposition. The Doctor then added, by way of induce ment, he would reward him handsomely, and that he should never want money or a friend. He answered that would be no inducement. The Doctor kept following him about the room whilst he was fastening the doors, and he went into the kitchen as soon as he had fastened up. The plaintiff fol- lowed him, but did not say anything until he returned to the bar, when he reiterated his proposals, to which he firmly re fused compliance. He then said, ' Well, then, if you will not procure Miss Calton's consent, I will reward you if you get the girl's consent' (meaning Elizabeth Colley). Wit- ness said he would have nothing to do with him, and desired him to go to bed, as it was time the bar was closed for the night. He said, ' Well, you will do nothing for me, then ?' and he he replied ' No !' when he sprung upon him (wit- ness) and threw him down. He put his hands on his breast and his leg across his person, and kept him there, saying he would not let him loose until he consented to do what he wished him. As witness was struggling with him on the ground, he said, ' If you don't do it, by God I'll make you.' Witness then regained his feet, and ordered him either to go to bed or to leave the house He acquainted Mr Calton of the circumstance as soon as he returned from Willunga. The Doctor was not sober, nor yet so drunk as not to know what he was doing. By Mr Hanson—He had been Mr Calton's servant about two years. Dr Von Sommer had been living at Mr Calton's on two occasions. The plaintiff was not at home when Mr Calton returned. He had been out about half-an-hour be fore. Nothing took place particular in his presence until the facts spoken of. Doctor Von Sommer made the pro- posal alluded to without preface. He had never before made such a proposal, aud he was quite surprised. He had not deemed it necessary to mention the circumstance of Dr Von Sommer's placing bis hands upon his shoulders when in the bar, because he was not asked it by counsel. He had confined himself to answering the questions put to him. The next time be spoke to him was in the parlour, when he offered to handsomely reward him. He did not know how far he was gone, but supposed him to be half gone, that is half drunk. The Doctor followed him into the kitchen. Venis Martin, the cook was present. He asked   him if he would endeavour to assist him in peocuring the servant girl, if he could not get Miss Calton. No one was present when the conversation occurred. The cook came in once whilst Dr Von Sommer was there, to fetch a glass of beer. He first mentioned the circumstance to Mr Butcher. He never told any one that Dr Von Sommer had  

applied to him to introduce him into Miss Calton's bed room. By his Honor. — There was a front room, middle room, and three side rooms on the ground floor. It was in the back parlour he was thown down. It was possible for the parties in the kitchen to have heard him call out to the Doctor to leave him alone. He did not call for any assist- ance as he found he was able to master him without. Charles Calton, landlord of the 'Royal Admirai,''stated   he knew the plaintiff. Sarah Calton the young lady alluded to, was his daughter. Frank Arthur Harris was his bar- man. He had the whole management of retailing his goods, but nothing to do with purchasing any. His situation was a very confidential one. He knew the defendant Mr John Stephens, the Editor of the South Australian Register. Har- ris mentioned to witness two or three hours after his re turn from Encounter Bay what bad occurred with Dr Von Sommer during his absence. The Doctor had been absent from his house on various occasions whilst in the country on business, but always stopped there when be came to town. Dr Von Sommer had been his medical adviser and had heard he had attended Miss Calton, but of bis own knowledge could not swear it. There was about 22 feet between the bar and the kitchen. It would be possible for   a person to see what occurred at the bar in the event of their looking in that direction. Henry Knight Holding stated be was an accountant, re siding at Mr Calton's. He knew the plaintiff in the pre. sent actiou, and was residing at the ' Royal Admiral' at the period the occurrence alluded to took place. There was a servant who went by the name ot Elizabeth Colley living   there also, and he saw her on the evening in question. The Doctor placed a book, which had been lying on the table, in a very indecent position on her person. He believed he caught hold of her by the shoulders but he would not be certain. The plaintiff lifted his foot towards her, but could not be certain whether he touched her. It appeared to be done in a vevy playful manner, but bis conduct towards her was indelicate. By Mr Hanson ? It was in the evening about nine o'clock. The plaintiff behaved improperly to Miss Calton at the same time. Mr Stephen then put Miss Calton in the witness-box ; not with a view to ask her any questions, but to deprive the opposite counsel of the opportunity of telling the jury that he had kept back a witness that might have been con sidered a material one. Mr Hanson addressed the jury for the plaintiff He felt almost some degree of diffidence in addressing them upon the present occasion, because be hardly knew how expedient it might be to advert to the several irrelevant matters brought out. The remark he was about to make ought not to bave this effect upon their minds that it was a matter of no importance whether the plaintiff had left the colony for a shorter or longer time. As it was of no importance it it could not affect the amount of damages which he hoped to get at their hands. He felt not merely with the sanction of his Honor that be was right, but it was absolutely un- true that his client had bolted, and that his learned friend who had hazarded the statement well knew. He said from his own personal knowledge the plaintiff was willing to meet the action ; but he put the case simply in this manner. Supposing a person possessing considerable geological knowledge, is offered a tempting appointment and a free passage to a neighbouring colony, &c. If after such a cir- cumstance would any counsel have a right to say be had bolted ? His learned friend seemed to insinuate he (Mr H.) waa carrying on the action on the speculation of pocketing the damages; or at least, the imputation would be that be was carrying it on without the plaintiff's au- thority. He thought be had shewn both himself and the plaintiff hud some reason to complain of Mr Stephen's treatment. The action was brought upon implied malice, namely, the evil intention to do an act whereby another sustained an injury. The action had been solely brought upon that ground. It was admitted that the libel was pub- lished to prejudice the plaintiff in his practice; and he would ask the jury if the facts not published ordinarily as in police courts, but with a view of injuring bis client, was not an aggravated circumstance. The counsel for defendant deliberately stated that the object was to keep the plaintiff out of other persons' houses. Therefore it was the more a severe aggravation to the charge. The plaintiff, to get a verdict at their bands, must be taken to be a person of unim- peachable character. He would impress upon them there- fore the facts that plaintiff lived at three distinct times at Mr Calton's, and was received there on the footing of a friend, as well as the landlord's medical adviser. Sup- posing everything that had been stated and attempted to be set up, proved, the plaintiff had been of unimpeachable character, but got drunk and once forgot himself, but would the defendant be justified in his conduct? If they looked at the libels, neither stated exactly what he was charged with. He was called ' the lustful and dirty minded Doctor.' It was not right on particular occasions only to make use of such expressions as it was not a true index of any person's mind. Supposing all they had heard was strictly and ab- solutely true, even then it was no justification, as it stated it was done deliberately, and not in a moment of weakness, under the effect of intoxication. But the justification was not complete, because it omitted a material fact. To say a person did this and that, and publish it, with- out saying also he was drunk, was not true; and though he put it to his Honor as a point ot law, he put it to the jury as a point of common sense, nothing could justify the Editor of any paper to refer to it as a general justification of general character. To wit, supposing his learned friend was going home one evening late, rather elevated, (he would not say he ever was so) but only sup posing he kissed bis servant girl, would Mr Stephens be entitled to interfere in it? He did not know who had constituted the defendant guardian of the morals of the community. Mr Calton gave Mr Stephens a statement of the alleged facts, it appeared, and it was the defendant's counsel's wish to prove them. But it was quite clear Mr Calton himself had not received a proper statement though every body would feel that he had acted under excitement and had no doubt done as most men would under similar aggravated circumstances ; but the Editor of the Register made himself a partizan, and deliberately ratified that which Mr C had done in excitement, A case in which the injury was more deliberate could hardly be found on record. Mr Calton, it was certain, went home absolved from any imputation at the Police Court through the non- appearance of the plaintiff. He might have said had the defendant succeeded in driving his client from the colony (which was not the case), he might justly have pleaded that circumstance in aggravation of damages. But sup- posing he had temporarily left the colony it would not be right to insinuate he had ' bolted.' The mode in which his client's absence had been referred to was discreditable. There were very many points on which he (the learned gentleman) might prefer to comment, but he anticipated the summing up of his Honor would embrace any point he might overlook. His learned friend had not dared to put Elizabeth Colley the domestic servant alluded to in the box. There was no necessity to introduce the name of Miss Calton at all on the plea. The young lady might have been spared ; but she had been put there he trusted because the defendant's counsel did him the justice to sup- pose be would not ask her any question. The proper witness would have been the servant girl of the house. He produced Miss Calton because he supposed he was safe, and for no other reason. Mr Holding might have looked on at Dr Von Sommer's toying with Elizabeth Colley for all he knew with a very jealous eye, consider- ing Dr Von Sommer was a much older man. The testi- mony of Holding was not worth one farthing because it was not the best testimony. He (Mr Hanson) saw how his learned friend was going with the case and thought if he gave bim enough rope he would get into a dilemma. There was no evidence of an assault for it would depend upon the feelings and wishes of the female Elizabeth Colly, whether or not she was a consenting party. The next question was the assault on Frank Arthur Harris, who admitted the plaintiff was intoxicated. The amount of damages was a point for their considera- tion and he had to comment upon the inherent improba- bility of Harris's statements. The plaintiff must bave known that his putting such a question to him would lead to a dismissal from the house. The utter incapacity in the feeling and mind of the man to act in such a manner must likewise be inferred, if he were drunk. And was it not more likely he would bave closer opportunities of conversation and intrigue witb Miss Calton than through the barboy, especially as it had been sworn that he had attended upon her professionally. But He would for a moment suppose that Frank Harris was tipsy himself that night, and that his imagination did some thing towards conjuring up this case, and liquor did the rest. Frank did everything so quiet, that nobody beard it: The Doctor was perfectly quiet also in the kitchen, never so much as adverted to the matter. From the words in the libel, ' condign punishment,' it was shewn that Dr Von Sommer premeditated a rape upon the female inmates. The council for the defendant had spoken as though it was the duty of every editor to go about and poke his nose into every private apartment. He had spoken of the 'Times Testimonial,' forsooth, as a case to vindicate his conduct, but it was a matter they knew little or nothing about. Looking at the whole case, the libel was one of an aggrava- ted nature. There was an insinuation that the assault on Harris was intended to be a Sodomical one. From the weakness of the facts brought before them, he trusted the jury would allow him tbe very highest damages laid in the declaration, namely £500.

His Honor then summed tip— Mr Ferdinand Von Sommer was plaintiff, and brought an action against Mr Stephens for libel, contained in the South Australian Register. There were three questions— 1st., whether the defendant had   published the paragraph in question; 2dly., whether the matter was libellous; and 3dly., whether the pleas of justi- fication put on the record were proved. If they were of opinion the justification pleaded proved, they would find a verdict for defendant. On the 1st question, tbe general is- sue, whether or not it was a libel, it appeared it must be found against the defendant. It applied to him, it was libellous, and by him admitted to be printed. The duties of editors of newspapers were precisely the same as that of others, and they ought to be guided by the golden maxim of doing to others as they would be done by. A well-conducted news paper was honourable, and conducive to the welfare of society ; but nothing was more base and sordid than issuing a publication for the purpose of showing up the failings of others. He thought the conductors of such papers ought not to be, and were not, admitted into respectable society, and he trusted such papers would never exist in the colony,   or that his observations should be supposed to apply to any journal in the province. He did not conceive it was merely the duty of a judge to sit to listen to the facts, but to ani- madvert upon them. With regard to the first libel, he would read it to them. The second libel was contained in the Re- gister of the 28th October, and which he would also read. These two paragraphs constituted the libel, and no observa tions had been made that his Honor considered set it aside. It had been stated that the object in the last libel was to prejudice the minds of a jury, and ought not to have been published. It had been admitted that the publication had been made by the defendant, and he thought it was certainly libellous; but the jury were to be the judges, of the law and the facts. Then the defendant relied upon the justification — had it been proved or not ? His Honor recapitulated the whole of the evidence. No doubt Dr Von Sommer, had he been sober, would not have acted as he had done. Were they satisfied the assault had been conmitted, and with what intent? He was puzzled, he must confess, to form an accu- rate opinion: many persons, unfortunately, were not so strictly moral as they ought to be. The plaintiff stated he would do Harris an injury. He said, ' By God, I will make you.' They had heard what the witness Holding had said ; and when one witness said one thing, and another another, they must take the first as not proved. If he or any other man were to lay his hands upon a female with a view of exciting her passions, or gratifying his own lusts, it was an assault. Miss Calton's presence was a mere parade ; but Elizabeth Colley might, have been produced, and the defendant's counsel was rather to blamo for not having brought her into Court He thought the justification was not proved. Failing in one justification, they failed in all. That was not only law, but justice. It was his duty to tell them that witnesses had been produced to bear testimony to the pleas of justification being correct ; and if they believed Dr Von Sommer to be guilty of some misconduct, that be lief would regulate the amount of damages to be awarded. It was said Dr Von Sommer was not in the country. The absence of a person from a court of justice ought not to affect a jury in their decision. The law in respect to libel had been altered; and the best alteration was, that an apology properly offered would have to be accepted. Had Dr Von Sommer been guilty, it would hardly have been beneficial to publish it. The Jury retired for about a quarter of an hour and re turned into court, saying, they could not come to a decision, but were desirous of finding a verdict that each party should pay his own costs. His Honor said, he could not instruct them what amount of damages to find for the plaintiff. If they thought the justification was partly proved, of course the defendant would be benefited. He had put tbe case to them, as far as he could, and they must give what they thought proper, and no more. Tbe Jury again retired for about an hour, and returned, finding the defendant guilty on both counts, damages'— ONE FARTHING. Mr Hanson immediately arose and applied to his Honor for a certificate under the 3rd and 4th Victoria, authorising costs, if his Honor was of opinion the libel was wilful and malicious. His Honor replied all libels were to a certain extent wilful and malicious. He must confess he felt himself in some difficulty, for the libel itself as charged in the declaration, was not covered by the plea. Mr Stephen — The plaintiff's council ought to have. de- murred to it, your Honor. His Honor — Yes, certainly, Mr Stephen. Mr Hanson excused himself by saying he was somewhat perplexed, as the plea of justification did not answer the libel. He was at a loss what step to adopt. His Honor, after comparing tbe record with the plea of justification, said be felt it his duty to certify. The libel complained of was of a very gross character, aud after writ- ing it, publishing it, and receiving a letter, requesting its retractation, the defendant had aggrevated it, by stating that he was prepared with ihe damning proofs. Such a course took away the chance of saying it was done without malice. He thought it was wilfully done, and if so maliciously; and therefore be should award costs. The court closed about half-past 6, the trial having occu pied the whole day, during whicli time it presented a scene of unusual excitement.

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