STEVENSON v. STEPHENS.
For libel. Damages laid at two thousand pounds.
The following gentlemen were sworn as a Special Jury :
Philip Levi, merchant, Sooth Terrace ; John William Holmes, farmer, Fourth Creek ; Joseph Gilbert, Esquire, J. P., Posey Yale, Barossa; William Wilkins Blyth, farmer, Dry Creek; William Slater, gentleman, Wakefield Survey ; Charles George Everard, farmer, Ashford, Black Forest; Samuel Kearney farmer, Oakland, Start Uiver ; Samuel Livesly Phillips, miller, Gilbert street; Edward Roberts, farmer, Salt Creek, County Light ; Edward Loud, sheep-farmer Wil lunga ; Charles Philip Brewer, Esquire, J. P., Morphett Vale ; Joseph Keynes, sheep.owoer,
William Rankine, farmer, Finnis Vale, was called, but did not answer to his name.
For the plaintiff, Messrs Fisher and Gwynne; solicitors, Messrs Hardy and James. For the defendant, Mr Hanson ; solicitor, Mr Milner Stephen, who also appeared as barrister.
Mr Gwynne opened the proceedings in the usual formal way, by reading the allegations of the declaration and the libel complained of. The latter has been printed often enough in other papers, but not in the " South Aus
ralian." It is as follows :
Honest George Sieyenson.foi^etu^ordisregarding the etiquette of tho profession, to abstain from any reference to judicial proceedingscommenced against contemporary journals until the case actually comes before the Court, announced, with apparent glee, in his Saturday's Gatettè, that Dr. Von Somer had brought an action against the proprietor pf this journal for libel, which was to be tried at the next Civil Sittings ; but the immaculate editor forgot to tell his readers that at that moment he himself was being threatened wi h an action at law for certain alleged deficiencies, in the nature of defalcations,
to the tune of several hundred pounds, in connec- j tion with his management of the financial concerns of the Glen Osmond Mines, whilst acting under power of attorney from Lewis Gilles, Esq., during 1 he temporary absence of that gentleman from the colony, and which proceedings he has only averted by a reluctant consent to submit to a reference to arbitration. We have boldly incurred a civil action in defence of public decency and morality, and are ready to abide the issue. How has he incurred his arbitration, and is he prepared to discharge the award ? It will be well for this slippery gentleman, if he should pass through his financial ordeal with as clear hands and as clear a conscience as we go into Court to justify a libel, with truth alone for
Mr Gwynne read this with much emphasis ; lie suffered not a word to be lost. He then stated that the defendant had pleaded the ge neral issue, and thus had to support three ne gative allegations. First, that he did not pub lish the libel. Secondly, that he did not publish it maliciously ; and thirdly that the words of the libel had not the. meaning attributed to them. The jury, he said, would have to decide on these, and he thought their task would be an
His Honor discharged the Common Jury, but hinted to the members of the bar that he hoped they would not think it necessary to occupy a Whole day, because they had a whole day before them. He did not think the ease need occupy much time.
Mr Fisher then addressed the Court and Jury on behalf of the plaintiff After some prefiminary remarks, he informed the jury that he should be able to show them express and deliberate, malice on the part of the . defendant, whose libel he termed the most gross, un warrantable, and unprovoked, that he remem bered to have seen published by one editor against another. The matter arose from trans actions between Mr Lewis Gilles and Mr Ste venson, which he recounted, emphasising the fact that the arbitration was proposed, not reluctantly consented to, by the plaintiff j that it -was pending at the time the übel was published, and that its result was favourable to the plaintiff. He commented on the heedless way in which the defendant had put forth thc libel, without even having attempted to as certain the truth of its allegations. He had sought to justify by various pleas, the whole of which were disallowed by his- Honor the Judge, and had afterwards published them with comments, which showed express, determined, and continued malice. The local Act, No. 2, 1845, adopted the recent English Act on the subject of libel, which, amongst other things, allowed the plea of absence of malice, Or gross negligence, and alie wed the defendant the benefit of snaking n public apology and paying into Court a reasonable sum by way of com: pensation. Mr Stephens had, therefore, the opportunity of expressing his sorrow for ha ving published so gross a libel, and the oppor tunity of tendering amends. But, so fax from that, bis attacks had been repeated, and that in language so grass, that he could in no way so weU describe them as by reading them at length. Thia the learned counsel did, and called attention to the paragraph in the. plain tiff's paper, of the 16th January, to show how utterly unprovoked the attack of the plaintif!
LIBBX.-An action for libel has been commenced by Dr. Voa Somer against the editar of the R*.
gister, and will be tried at the ensuing sittings ol the Supreme Court.
This paragraph was simply a piece of in formation to the public. It showed no feeling expressed no opinion, and certainly exhibitec no apparent glee. And, what did the defen dant say about that action himself?- * '
We haye boldly incurred a civil action in defence of public "decency and morality, and are ready tx abide the issue. How has he incurred his arbitra' bon, and is he prepared to discharge the award ; It -willie well for this slippery gentleman, if he should pass through his -financial ordeal with as clean hands and as clear a conscience as we go into Court to justify a libel, with truth alone foi
He boasted'of it-and with a proper feeling, perhaps, in that respect-if he had come for ward, as he said, in defence of public decency and morality. Was there anything in Mr Ste venson's paragraph to show that he thought otherwise? So far from its carrying with it any provocation, it was a simple announcement j of a fact, and, rather than anything else, enti
tled him to the thanks of the defendant, as well as of the public. The learned counsel then read the libel. The word"Honest" governed the whole of this paragraph. It was italicised, by which public attention was particularly called to it, He must anticipate the defence, as far as he could, for he should probably not have an opportu nity of addressing the jury again. The defence would be all argument. It might probably be urged that the paragraph was a mere allega tion, and not intended to injure the plaintiff. In answer to this, he would only ask tile jury to read the libel, and to say honestly what im pression it would leave upon their minds. The language shewed the inventive mind of tile de fendant. The assertions and insinuations were ¡ clearly his own-not the result of anything which i had been told him. They all knew the mean
ing of the word defalcation. What was a de faulter? A man who received money, and im properly applied it. Then, some stress might be laid upon the words "action at law," as not implying fraud. In answer to this, he would quote a case in point
STUART t*. LOVELL.
This waa an action brosght by the plaintiff, one of the proprietors of ute Courier newspaper, against the defendant, who was the sole proprietor of the Statesman newspaper, (or libels contained in the latter
Two passages were principally insisted on bv the plaintiff as libellous. In the first, the plaintiff was described as the prostituted Cornier, the venerable apostle of tyranny and oppression, whose full-blown baseness and infamy held him fast to bis present connections, and prevented him I rom forming new
The second passage was as follows:
"The Courter, lifts his band against every man, and, except the caterpillars of the state, every man's hand is lifted against him. Among his other freaks, he has lately taken it into his head to catechise the Lord Mayor respecting bis lordship's conduct to Spencer and Hooper, the former secretary, and the latter treasurer, to the Spencean society. " Now, we recollect that the Courier himself filled both these offices to the society called * The Friends of the People/ in 1793, and, if our memory fails not, we rather think be had the good fortune to pocket six or seven hundred pounds of money belonging to the fund of that society. This to be sure happened before he betrayed his friends, and perhaps before even his treachery was suspected. Either of the Lords, E or G-, could throw much light on this subject, and it was certainly rumored at the time that some steps of a legal kind were in agitation to compel the Courier to disgorge the money ; now, whatever may be the other sins of Spencer and Hooper, we have not heard that they can be charged with betraying their em ployers, and seizing the common fund."
In the progress of the cause, Mr Tierney was called as a witness, and the counsel for the plaintiff were .proceed ¡og to examine, him, for the., purpose of falsifying the assertions in the alleged libel.
Lord Ellenborough.-I cannot allow'him to be called for the purpose of falsifying the assertions complained of. There is no plea of justification on the record, and therefore I can no more hear a falsifi cation on the one side, than a justification on the
Marryatt, for the plaintiff, afterwards tendered in evidence subsequent publications by the defendant ia the Statesman newspaper ; these be contended were admissible, to shew, quo anima, the defendant published the paragraphs in question ; they would have been admissible in that point of view, in case of an indictment, and were equally so (he contended) in the case of an action ; they were not, he said, io themselves substantively actionable.
Lord Ellenborough.--No doubt they would be admissible in the case of an indictment, and so they would here shew the intention of the party if it were at all equivocal, but if they be not admitted for that purpose, they certainly are not admissible for the purpose of enhancing the damages.
The evidence was accordingly rejected.
Scarlett, for the defendant,-io the course of bis address .to the jury, referred to the case of Heriott v. Stttart/where it had been held that an action is nol maintainable by one editor of a newspaper against another for^mere vulgar abuse, unless it operated sc as to affect the sale of the paper ; and he contentee that the present publication was not libellous, sine« great part of it related merely to a supposed chang« of opinions on ibe part of the plaintiff, and it ougfa not to be imputed to any man as a crime, that he ha« ohanged his opinions. The editor of a newspapei might at one period of bis life be of opinion that om political line waa right, and afterwards change tba'
.With respect to the latter part of the publication lie contended that the writer merely contemplate« such conduct on the part of the plaintiff as migo - subject him to a civil action, and to say that . mai
bad withheld money until'it beeame necessary li commence an action ia order to recover it, was ver different from saying that he had embezzled it.
Lord Ellenborough informed rle jury tba! th publi ration contained two' passages which-were pat ticalarly the subjects of complaint. - To the first, th< plaintiff was described as the prostituted Courier and bis - full-blown baseness and infamy wer represented as holding him fast to his present con nèctions, and preventing liim from forming new o net It was certainly ^competent to one publie writer li criticise another, exerting his talents in all the latitud of free communication belonging to a public writei and so it appeared to Lord Kenyon in the case c Herriot v. Stuart ; that the opinions and principle of a controversial writer were open to criticism a» ridicule in the same way as those of any othc author, .but that the privilege did not extend t oalamnions remarks on the private charaoter of tl individual. Io that respect, the editor of
newspaper enjoyed- the rights of protection ia commo with every other subject.
Since, then, lira defendant in this ease had stigtni Used the plaintiff aa the venerable apostle of tynon and oppression, and as a' man whose full-blow baseness mud infamy held him fast to his presei connections, because they left him without the pow« of forming new ones; in-all thia, lie ondaabtedl had overstepped the limits which had been drawl and by which his condsct ought to bare bee regulated.'
But there was «nether part of the publrcalio relied on, in which tba aüeged libel charged ti plaintiff with misconduct in respect of a pecuniar trust, when be was acting m the capacity «
His Lordship afterwards intimated bis opinion th? this charge against the plaintiff did not merely mea that he had received so much money, en account « which he was liable to an action, but was rather- i be understood aa a charge of- embezzlement ; for
waa'stated, that it was certainly rumoured «at th time that some steps of a legal kind were in agita fion to compel the man of the Courier tb disgorg the money. Tho term disgerge was certainly a
offensive one, atad if the jury were of opinion that I fraud was meant to be imputed to the plaintiff in the j latter passage, on that ground also thej ought to fiad
for the plaiutiff.
Verdict for the plaintiff, damages £100.
Marry alt, Guraej, Curwood, and Cbitty, for the
Scarlett for the defendant.
The present case was exactly like that quoted. There was a clear insinuation of fraud to the " tune" of several hundred pounds.
His Honor remarked, that the terms in the two libels were not exactly the same. In one, the words used were, "legal proceedings," and
in the other " an action at law."
Mr Fisher admitted this, but insisted that they were the same in effect; and repeated a few words from Mr Scarlett's speech in the case quoted in support of bis opinion. He then re turned to the libel now in question, which I should be taken, he said, as a whole, and not
argued on particular points. The word " tune" ¡ gave a tone to the whole, and he thought they would agree with him in giving a " sound" con struction to it (A laugh.) Couple them with all the rest, tbe statement, not a fact, that de fendant went reluctantly to arbitration. Then, " How has he incurred his arbitration ?" That is, "How has Hom st George-immaculate George-incurred it ?" and " How is Honest George, how is the ' immaculate editor' pre pared to discharge the award ?" Did not these words allude to a defaulter. Then,. " clean hands," " clear conscience." They were not to scrutinize the words separately, nor should he so much allude to each in particular; but that he was obliged to anticipate the sophistry which would no doubt proceed from the acute mind of the learned advocate of tbe defendant, who did not attempt, as they would find, to justify the libel, but would deny that it was one. On this subject, all he could say was, that if that learned gentleman succeeded in persuading the jury of this, he should give him very great credit. He regretted the present proceedings, and must observe that it detracted, from the usefulness of papers for their conductors "&o to write, as to give occasion for such actions. He would now proceed to shew the subsequent cir cumstances, proving the-malice of the defend ant's mind. In the course of tbe legal pro ceedings, he had put in various pleas, which his Honor had declared to be bad, and which, therefore, ought not to have been made public ; but on the 24th March he had printed all the proceeding and the pleadings from beginning to end-the arguments on both sides, and the decision of the Judge, on which he commented in a way which shewed his malignity of mind. The learned counsel then read the leading ar ticle of the " Register" of the 24th March :
THU SECOND LIBBI. . CASE AGAINST THE " SOUTH
AUSTRALIAN BEGISTEB"-STEVENSON V. STE
We solicit from our readers the favour of an atten tive perusal of the full report which they will-find in other columns, of the proceedings which took place yesterday before his Honor the Judge in the above cause» upon the arguing of the plaintiff's demurrer to our pleas of justification.
At present we shall not tust ourselves to do more than allude to the extraordinary decision pf the ' Bench as to the indivisibility of the alleged libels, notwithstanding the plaintiff had divided them in his declaration, and we had made a manifold justi fication, especially as it was so strongly and pro perly put by our counsel that if a jury had found that we had not been guilty of a libel tn our com ments respecting the rumours about the plaintiffs management of the Glen Osmond alines, he would still have been entitled to a verdict for that portion
whick,imputes dishonesty .pf character, tirougl the ironical appellation of "HonestGeorge Steven, son,** had we not justified the allegation t)y plead ing* specific acts of dishonesty.
His Honor, it will be observed, laid stress upoi thé word Honest, as if used on this occasion for th« first time, and specially to point the .libel;-bu what will Judge Cooper say when we info m hin that we twice applied the same epithet (if it bi j one) to Mr Stevenson eighteen months ago, an<
and that so far from his considering it any slur ol his character, or anything novel, he reprinted without note ox comment, one of the articles (ac cusing him oí literary theft), apparently disregard ing the ''stringing" personality, sines pronouncei so actionable? And surely his Honor has not no\ to learn, that long before we put the soubriquet int black and white, it was orally current among th plaintiff's fellow, colonists and friends.
But we sha 1 revert to this subject at length i our next, when we hope to have fully recovere fi om our surprise.
Mr Fisher urged tbe injustice of printing plea of justification, which, not having been allowee the plaintiff had no opportunity of answering
His Honor took occasion to observe, that th libel upon him (his Honor) could not be put ii as evidence to the jury, nor did he think th pleas could be read from the papers.
Mr Fisher thought them relevant. In reac ing from the paper, he was taking the defend
ant's own account of the affair.
His Honor had decided that the libel was nc divisible, inasmuch as the plaintiff had onl complained of the insinuations against him wit reference to the Glen Osmond Mine, wnic could not be defended by allegations agaim his general character and. conduct.
Mr Fisher then read his Honor's judgmei on tbe demurrer, from the " Register" of th
24th March :
His Honor said that it appeared to him tha taking the whole article-first the words "Honest, Sic, then the " defalcations." ¿cc.-that it meat to impute to the plaintiff dishonest conduct. ] was impossible to point ont any part of a libel an say what part was demurrable. In one of tbe eas« which has been quoted it was shown that the into ductory words gave a colour to the whole libe and in the- other case, quoted for the pw pose < showing that it was divisible, there were th« separate and distinct acts, which, made it divisibL In this instance the words " Honest George .St« venson/' in his opinion, gave a colour to th I whole libel, and rendered it not divisible, (fe di not think that the defendant was entitled to Tali
up flaws from a man's entire life and plead theo in jttstification to a libel of this description ; an .erren if such were necessary, it should have, bee differently. It should be something in the na un of dishonesty.and be so stated with clearness, an precision. That part of the plea was clearly ba< if he saw clearly that the words af the libel wei not susceptible of the interpretation which had bee put upon it in the declaration, still he would prc ! pounce those pleas bad. In all cases where tl
innuendo was thought too large, and meant tc much, yet it was a case for a jury, and it shoù' be brought before them in a proper manner, Bl Hanson had sud that the innuendo was n< warranted. Perhaps if die libel had not con menced with the words ' ' Honest GeorgsStevenson, the innuendo would not have been warranted ; hi then came the other parts, suck as " defalcations, which, taken with the others appeared certainly him to mean something more than a mere defm in the payment of money. It appeared to hi taking all together, that dishonesty was impub to. the plaintiff. His opinion was that the plea justification w¿s bad.
Mr Hanson asked leave to amend. It was a together the error of the plaintiff in his pleadii that had caused the migrnfe« in the pleadings na thrown upon the defendant, and he confident
asked for leave to amend.
I His Honor had looked through the dedaratio and could not say it was bad. He would grant a Hanson leave to amend as to his plea, respecth the declarations in the Glen Osmond Min and also to plead the general issue/ but 1 could not again permit lum io amend as to tl other pleas.
' Permission had been given to defendant 1 amend h|s pleas, but of this he had not thong! lit to ayaü wmselt Mr Fisher then read tl
more coolly considered remarks of the defen dant, in his paper of the 27th March :
THE SECOND LIBBI. CASE AGAINST THE " SOOTH
AUSTRALIAN MOISTER"-?«TEVEMSON V. STE
In our paper of Wednesday last we published a full report of the argo ment on the demurrer to our plea of justification in the action for libel brought against ourselves~by'the editor of the South Aus tralian Gazette ; and in order that the whole case might be before our readers, we inserted a verba tim copy of the pleadings from the commencement to the conclusion. According to our promise, we now proceed to offer such comments as occur to us upon the decision of the judge upon the subject.
The alleged libel was in reality a mere retaliatory charge upon a contemporary, provoked, and, as we imagined, justified by a breach of professional etiquette. Mr Stevenson had taunted us. for so we understood his announcement, with the fact that an action for übel had been commenced against the editor of this paper, and we retorted upon him that he was himself at the same time threatened with an action, under circumstances
which upon the face of them, gave him no reason to boast himself as against us. This wes our sole purpose, and as we really knew nothing of the facts of the case which could entitle us at that moment to pronounce a judgment upon if, we care fully, as we imagined, avoided all expressions that might appear to imply any decided opinion of our own upon matters then subjected to reference; and we have the satisfaction to find that the Judge con sidered we had succeeded in this object since he stated that but for the term " Hottest George Ste. venson," he should not have thought that any actual default or dishonesty was imputed. We need not tell our readers that as this epithet was not now used for the frst time,* no inference as to the meaning of the other portions of the para graph can be fairly drawn from whatever inference it might furnish as to our opinion of the private character of our contemporary.
As our remarks originally stood, therefore, any one but a lawyer would have said that though they might imply a low opinion of the general cha>acter of " Honest George Stevenson," they contained nothing in the shape of a direct charge in reference to the management of the Glen Os
To our surprise, Mr Stevenson thought fit to commence an action against us for a libel, and on receiving his declaration (in which, his trumpeter being dead, he did not fail to sound his own praises as a good, true, honest, just, and faithful subject of the realm during all time) we found that he accused us of having made two libellous charges against him,-one that he was not an honest man, and the other that he had been guilty of fraudulent and (¡dishonest conduct in reference to the management of the property of Mr Lewis Gilles during that gentleman's absence from the colony.
With regard to the first accusation, we confess that there appeared some ground ; for the words we had used did appear to us to be susceptible of the meaning put upon them, and, notwithstanding, the good name, fame, credit, and happy condition which, according to his own account, he has always enjoyed, here and elsewhere, might imply a charge of dishonesty ; but that charge we thought we could justify. The second accusation we regarded as unfounded, and th«t consequently we were prepared to deny. Acting on this impression, we proceeded to prepare our defence. We collected wi!h some trouble a mass of evidence of certain transactions extending over every year of Mr Ste* venson's residence in South Australia, which we thought justified us in saying that he was not an honest man, which was the meaning Hr Stevenson himself attached to the words " Honest George Stevenson," and we embodied a portion of them in our plea. With regard to the latter part, we contented ourselves with stating the fact, that an action for deficiencies in the nature of defalcations had been threatened, without stating anything as to the truth of the supposition that there had been
such defalcations. To this plea the plaintiff de. murred, on thé grounds set forth in his demurrer,, and -which 'in substance were" two, namely, first, that the libel was not divisable ; arid, secondly, I that we had not justified the charge of fraud and
-dishonesty alleged by the declaration to have been I conveyed by the second sentence of the libel. The
objections thns taken were in effect that our plea was bad as td the first part because we had, and as to the second part because we had not, justified the words used in the sense which the plaintiff by his innuendo had affixed to them. We were advised that in substance the plea was good, since the first innuendo which we had justified was warranted by the words, and the second innuendo which we had not justified was vicious, inasmuch as the words we had used did not warrant it-and that if the
j libel were not divisable, the declaration of the I plaintiff, which had in fact divided it, was bad. i We could not, of course, pronounce upon the legal
correctness of this advice ; but it seemed sound common sense, and we were prepared to act upon it,
To our surprise, however, we found that the 1 Jndge was of opinion, not only that the libel was sot divisable, and had not been divided by the declaration, but that we had not expressed or im. plied that charge of general dishonesty which we and the plaintiff, and the plaintiff's ia wy e. s and counsel, thought when the declaration was framed that we had made ; and further, that we had im plied that very charge of specific fraud which we had intended carefully to avoid. His Honor ap pears, moreover, to hare decided that the words, " meaning the plaintiff was not an honest man," did not mean what-they said, and had no independent meaning ; and that, consequently, we had no right to prove that they were true; and, also, that the words threatened with an action at law** (not an indictment) " for alleged deficiencies in the nature of defalcationst" implied a direct charge of fraud and dishonesty. On these grounds the demurrer was allowed, and our pleadings were prononncedbad.
We are, however, in a singular position, ff the jury should happen to entertain a different opinion from his Honor, and should think that we had not made any charge of fraud in reference to the Glen Osmond mines, but had insinuated that the plain tiff's character for honesty was worse than doubtful, in what position should we be placed ? Would his Honor venture to set aside a verdict so given ? AB we are not lawyers, we cannot tell what course would be incumbent upon him ; but as men of an ordinary share of judgment, we doubt if he could do this. And if not, we should have been mulcted in the first instance in costs, because the Judge took an opinion as to the meaning of the libel, which, until our plea of justification was -put in, neither the plaintiff nor his advisers had ever entertained ; and in the second instance, in damages, because the jury would have taken what, after all, we must confess appears to us to be the
common-sense view of thiKmatter.
- And, again ; we cannot understand how we could have been wrong in both parts of our pleas. In the former part, we stated we did justify the innuendo. In the latter, we did not The Judge says we were wrong in both. We think that this can hardly be right. There is such an obvious in consistency ia the two propositions, that we cannot reconcile them. We had aa excuse for our coarse, because we held thatjas the second innuendo wai vicious, we were not bound to answer it; but hu Honor had no such justification, since he holde that both the innuendos are good. Seriously, we are puzzled to account for such a decision, and deem it the more decorous course fiat to urge tiu
inconsistency further. *
We have but one-concluding remark to make, We have been charged, in due form of law. will asserting that George Stevenson is not an honesl mau. Our answer to this chargé is now on record so that he that runs may read. How has this an swer been met i Not by denial, but by admission : not by denial of our inculpations, but by an attempt to keep them from the public, eye, even at the ex pense of a'lowing them to be taken as trae. W« were and are prepared to prove all that we pleaded and a great deal more. Will " Honest, Georg« Stevanson" pat us to the test? As the proceeding
. In the Register of the l7th Sept., 1815, wj commenced a paragraph, ace using Mr Stevensoi of literary piracy tho« ;-" Honest George Ste. venson," Sec., and in the following number w« spoke of-him as "the gentleman called, psi excellence, « Honest.*" Mr Stevenson ackoow ledged the soubriquet by reprinting the firsi paragraph ia hu own paper without a demurrer.
now stand, he has shut out our special pleas from the jury ; but fee has not thereby extracted their -Sting. An honest man would have fearlessly
trusted himself to " bis country but one whose claims to that high social quality are not only italicised in type, and underscored in caligraphy, hut orally banded about with a fiignificancy which cannot be misunderstood, must have recourse to some devious track, some by-road in law, some sophisticated procedure hy which he can hope to reach our pocket without clearing his own cha«
The learned counsel particularly emphasised the admission of the defendant that, at the time of his publishing the libel, he had really no knowledge whatever of the circumstances of the matter on which he wrote.
Mr Hanson interrupted Mr Fisher, as he was reading, by objecting to the defendant's leading articles being read to tbe Court.
Mr Fisher considered they were admissible, as shewing the animus of the writer.
His Honor did not see that the reading of them was unjust to the defendant. They shewed the meaning he himself attached to
Mr Fisher proceeded-He commented very strongly on the defendant's admission that, " with isóme trouble," he had, after the action was brought, " collected a mass of evidence against the character of the plaintiff, extending over every year of Mr Stevenson's life in the colony." Only fancy their own transactions of every separate year thus raked up and com mented upon, just because a person chose to libel them. Mr Fisher ironically said he hoped the defendant would give some evidence in support of his libel-that he would put in the award, or call Mr Lewis Gilles. [This occa sioned a sudden smile, almost accompanied by a start, through the Court] Commenting still as he read, the learned counsel thought ! the Judge could set aside an illegal verdict i not that he could not Defendant thought it most decorous to say no more. It would have ' have been so. It would have been far more I decorous to have abstained from adding his I concluding sentence. He had the boldness to i state the charges were met, not by denial, but j by admission. But how stood the fact ? The
pleas were published by defendant, after it had been decided by the Court that they could not be answered by the plaintiff. "He has shut out our special pleas." Gentlemen, it is an untruth. The plaintiff has not shut them out. The defendant himself shut them out, by not putting them in a proper form. If the. last sentence did not show a degree of malice and a degree of malignity, almost unexampled, there had never been a sentence penned which did not evince a deep and rooted desire to in jure another man. For the amount of da mages, let the Jury estimate their own charac ters, and then consider what penalty such I abuse-such wanton damage-merited. To
argue that, by the word "honest," was not meant dishonest, would be absurd-for the defendant had already admitted it and his de fence was something like that of a man who might seek to acquit himself from a charge of manslaughter by pleading that he was guilty of murder. The libel was not written in haste, but was submitted, before being printed, to Mr Milner Stephen, who wrote on it that it was a gross libel, adding, at the same time, that it was a pity Mr Stephens would make use of such strong language. Such a case as this had nothing to do with the liberty of the press. The promulgation of slander had its effects in
any place, but particularly in a small one like - this. The learned gentleman concluded by
expressing his convictiön that the Jury ^ would : jallow, iyy their verdict., ilicïl ilefccart<n.-bï<»r» of .such. J a course as had been adopted, and not only j that, but the value they set upon a fair reputa
He then called
Henry Chapman, clerk to Messrs Hardy and James, the plaintiff's solicitors, who proved the purchase of the papers containing the libels at the shop of the defendant.
The newspapers were then put in.
Mr Hanson claimed that the pleas of justifi cation should be read, that he might comment
^ His Honor thought that, the pleas being
libellous, he was not entitled to do so.
Mr Hanson insisted on his right. The plain tiff need not have put in the papers; but, having done so, any part could be commented on and it had been so ruled in England.
His Honor did not think the rule applied. If Mr Hanson was only anxious to support his client's case, he might read the pleas, but he would not suffer him to add a sting to the.
libel. He wduld not suffer that Court to be made a place for slander.
Mr Hanson, could, at 1 events, read the pleas from the record.
His Honor assented, and, as it made no real difference, suffered the Master of the Court to commence reading them from the newspapers, but almost instantly stopped him, saying that Mr Hanson could not force the plaintiff to read the pleas. He could make them part of his own case, if he pleased.
Mr Hanson said that, to him, it was a mat ter of indifference. They were on the record, therefore he could use them if be thought fit.
His Honor then directed the Master of tbe Court to read the pleas.
Mr Mann accordingly read the libel, but, as he was commencing the pleadings, Mr Fisher took a legal objection to his doing so, as the pleas were not before the Jury.
His Honor,- after some consideration and some remarks of counsel, determined that Mr Hanson might make what use he choose of the record, but not of the newspapers. He had thought it an error of judgment on Mr Fisher's part to put them in at alL
Mr- Hanson insisted on his legal right to
have the whole papers read, and declared, also, : that he considered this necessary for his clients
His Honor said that, if Mr Hanson would declare as a gentleman that he only wanted it for that purpose, he would suffer the pleas read, but not if Uley were intended for any other.
Mr Hanson would risk no such statement.
He should have a clear right to read them from tbe record as part of his own case, and would decide on doing so.
His Honor said that he could not order the
pleas read çs a part of the plaintiff's case, as that would possibly empower the defendant to give evidence upon them.
Mr Fisher then called
Matthew Smith, solicitor, who deposed that he had read the paragraph complained of, and considered it to-refer to the plaintiff.
The Judge would not suffer him to be asked what sort of conduct he considered it attributed
to the plaintiff. On that subject, the jury would form their own opinion.
James Doughty Wiltshire, examined by Mr Gwynne-The name "John Stephens," in the corner of tbe " Register" newspaper, referred to the defendant. Knew tbe parties to the ac
(Mr Hanson admitted the proprietorship and pubUcation.)
Witness was, at the date of all the papers which had been put in, reporter to^ de fendant; had frequently seen the alleged libel, tbe subject of tbe present action ; saw it first on Tuesday the 19th Jan.-Ute night before its publication-either in the shape of a proof sheet or a manuscript.. . ' ;
'Mr Hanson here, being asked"tf he produced
the proof sheet or manuscript, denied thai any
such existed, and further stated that Mir lt. Stephen had never seen the libel before ¡ts publication.
His Honor thought the plaintiff could not use Mr Milner Stephen's confidential advice to
Mr Gwynne was aware that he could not call Mr Milner Stephen, but thought that no privilege extended to Wülshire, as a third party.
Examination, continued-The proof or ma nuscript was al defendant's house m-North i Terrace, when he saw it; it was in defendants ; hand j he told witness to take it to Mr George i Milner Stephen's house, to wait till he had ' perused it, and to bring back bis answer; witness
did so; it was in an envelope; Mr Stephen opened it, and read the paper; witness asked Jf it were a libel; he replied, "Yes, a gross
Mr Hanson interrupted.-He thought a messenger incompetent - to . make such dis closures; the communication was strictly a pri vileged one.
Mr Gwynne thought die general prmchde only shut the mouth of an attorney or Ids clerk. . .. '
His Honor-The question really is, whether the opinion of Mr Stephen «ould, if obtainable, be put in.
Mr Gwynne had a case exactly in point, in which such an opinion had been received.
Mr Hanson produced two, to a very different effect, showing, that the mouth of any person was shut who had ever acted as an organ of communication (Dubarre v .Livetti, Peake 78, recognised in 4 T, R., 756- and Parkins «. Hawksban, 2 Starkie, 239).
TTis Honor, after some consideration, de cided that the evidence could not be admitted, nor did he think it of much importance.
Witness, cross-examined by Mr Stephen The situation of a reporter is generally re garded as of a highly confidential nature, but when it was considered how Mr Stephens had behaved to him, he thought he (witness) liad acted very properly.
[His Honor constantly interrupted Mr Ste phen in the course of the cross-examination, and would not suffer him to put several of*the questions he wished to do.J
Examination, continued-Knew that the letter he had taken to Mr Stephen contained the libel in question.
Because Mr Stephen read it (a laugh); it underwent certain alterations subsequently j witness's connexion with defendant had ceased, because the latter had charged him with em bezzling his money-; he had charged him with several acts of embezzlement; was now at large on bail-two sureties of £20 each--to answer the charge at the sessions; long before the present charges were brought,, he had been accused by Mr Stephens of embezzle ment, and thought he had confessed that be was guilty.
By Mr Gwynne-Some of those charges bad been publicly investigated, and he had been acquitted; Mr Hanson had defended him. .
Mr Hanson would be happy to give his tes timony, that was, if Mr Wiltshire would per mit lum to do so. (A laugh.) He then stated that the defendant was willing to waive privi lege, and suffer Mr Milner Stephen to be exa mined, if-the plaintiff desired it.
. The Judge objected to this course. It was evident the writing in question had undergone some alteration since Mr Milner Stephen saw it-therefore, his evidence could not be-re quisite. . . , ?
Hus was the plaintiff's case.
The Court aojoumea" lor"ac-snarx Time; ax&etv ~ - "~ which,
I Mr Hanson addressed the jury, for the de I fendant. He confessed that on first looking at ' the- libel, having his attention particularly
called to it, and bearing that an action was brought, and his learned friend retained, he I thought the plaintiff's object was to obtain a ¡ certificate of character nom James Hurtle
Fisher, which might, perhaps, have been useful to him in. several conceivable ways. And if anything had surprised him in the conduct of the case, it was that his learned Mend, una whom no one was more willing to give bis favourable testimony to any one whom fae re presented, had so carefully avoided doing so in the present instance, so that the character of George Stevenson rested only on the allega tions in the declaration, which the plaintiff was not called upon to prove.
His Honor-He can't do so.
Mr Hanson-No ; is not allowed. Mr Ste venson, therefore, came-before the jury as a person of whose character they knew notbimg. Mr Fisher had acted, he thought, ^discreetly in having, by the putting in of the paper, compelled him (Mr Hanson) to refer to the Sleas, which he otherwise should not have
His .Honor intimated that he should not suffer irrelevant matter to be introduced.
Mr Hanson-WelL I shaU say nothing now. I will go on. The learned counsel then teni, with comment, the declaration, by the wording
of which he said the defendant bad been led to suppose that the action was brought for a ge neral imputation on the plaintiff's character, and therefore had pleaded a series of dishonest actions, in which the plaintiff-had been con cerned, and had put those on the record as justification, These, he would not subject himself to his Honor's censure, by reading, though he felt sure he had a jrjeriectright tn do so. The plaintiff had a right tb construe the libel as he chose, and might have put fan general character on trial had he pleased.
His Honor-It is fair to say. that I thought the libel not divisible, because the plaintiff could not have founded an action on the words, " Honest George Stevenson,? if theywere cut
off from the rest. v»
Mr Hanson must, m justice to fais client, amy that tiley had admitted the correctness of the construction .put by the plaintiff on the «oed
His Honor-No. The general issue went to
the whole. ' *.
Mr Hanson-The plaintiff was not bound
to take issue on the whole.
His Honor-But he might have done so bad
he chosen. - -
Mr Hanson--Certainly. .
The learned counsel continued.-He wis ,
placed m a very painful and somewhat dm^
position by his Honor's opinion, that the woad ". Honest?' governed, so to say, the whole libel., He would have to contend to the Jury mat these words had a meaning of their own, and no necessary connection with^the other parts of the article so as to alter their general signifi cation. . " ...
His Honor said that the only Atiéstanos for the jury were, whether tim defendant «a
guilty of publishing the libel 9 whether it we» .
a libel ; and, if so, to what damages the plain- ;'.
tiff was entitled. . * »TM -
Mr Hanson continued-Defendant, aa he bad
said, supposed at the first that - plnrnfrif .fcj^^ sought to recover damages for a libe} n*Qñ¿
general character, and bad ofiercdhîman. isane -
on that jroundL But the plaintiff, W^d^rf ' * taking issue, demurred to the *pbta»; awft|k«, -
demurrer was allowed; - , v
HisJlonor-Every plea was bad. * "
acts of the defendant wero s dhmotipstf jr was* not contamed'm the pbladings, and
was not given to amend, because the libel was not held to be divisible, but to refer only to fraud and mismanagement in the case of the Glen Osmond mine, and nothing else. The consequences were twofold; first, that, if they thought the libel referred to anything else, the
Jury could give no verdict for the plaintiff, and, secondly, that they must do the same unless they considered the words of the libel
bore the exact construction put on them by the plaintiff ; the construction which he had put
upon them by evading the other issues, on which, had he chosen, the question might have
been tried. One more observation he should make, which he doubted not, however, his Honor would have saved him the trouble of
doing ; that was, that they must not refer to the other papers put in by the plaintiff, but estimate damages, should they give any, only upon the original libel, and not on those sub- sequently published, on each of which the
plaintiff had a.separate and independent right of action. They had come now to a point which enabled them to look at the libel itself. The learned counsel then read the libel, as in nuendoed by the plaintiff, cautioning the jury that they must throw aside the innuendoes altogether. He could express no surprise that no evidence had been offered to support any particular construction of the libel, as he should offer none, the Jury bejng well qualified to put their own interpretation on it. It stated, in the first place, that Mr Stevenson . was threatened with an action at law. That not only insinuated no fraud, but positively pre-
cluded such an idea. If the defendant had
meant to attribute fraud, he would of course have used some word of doubtful meaning, which might have implied either an in-
dictment or a civil action. The learned counsel
then read, with comment, the same case which had been cited by Mr Fisher, and argued that it was in favour of his client. He should not, he said, have thought it necessary to have re- ferred to the case, had it not been introduced on the other side with such a flourish of trumpets. Lord Ellenborough used the word " action " expressly in contra-distinction to " legal prooedings." They next came to the word " defalcation," of which he rather won- dered his learned friend had not given his in terpretation. It was one of those which were called " dictionary words," which had not been so soiled by the contact of the vulgar as to have acquired, by common use, a new significa-
tion. Its real derivation was from the Latn
words "de" and "falx-falcis, a sickle, and it was expressly used in contradistinction to default. It implied something cut off something which the writer threw aside and did not choose to express an opinion on; something, not to be called a fault ; something, on which, to use the words of which Jeremy Bentham was so fond, no opinion either eu- logistic or dislogistic was to be pronounced, and the very use of the word plainly showed that the defendant did not mean to express an opinion, but to leave the matter perfectiy open to the public to form on it its own notion. This was not only the construction any one would at once put upon the paragraph, but was that which would be borne out by the closest criticism. His learned friend would have them act on first impressions, but he (Mr Hanson) thought he might fairly ask them to suppose that the writer had fully considered the true meaning of a word, before he used it, and expect them, in the same way, to give it its correct interpretation. The learned counsel then denied that the libel imputed to plaintiff any fraud as connected with the Glen Osmond mine. Words would have no force, and could not be understood if it were supposed that the alleged: fibel were intended to charge fraud on the plaintiff in that matter. Besides, by in serting the word " alleged" the defendant had clearly declared that he knew nothing of his own knowledge, but only intended to refer to
what he had heard. The paragraph of the defendant was no more libellous than that was which the defendant had formerly published. Both were announcements only for public infor mation, and unobjectionable, unless from any rule such aa that alluded to by the defendant, by which if seemed the press usually referred to no such matters between its members. The learned counsel continued his remarks on the libel. The word " immaculate" was to be
taken as meaning nothing beyond its own or-
dinary, signification, as the plaintiff in his pleadings, had in no way innuendoed it. Nei- ther that, nor the word " Honest," could refer to any specific act, but only to something fore- known. It was clear that they must have been intended to allude to general character. Sup- posing he were to say " Honest Mr Fisher," or *' Honest Mr Gwynne,'* or Honest Mr Any- body-else, whose character was untainted ; "would it be understood aa conveying censure? Would they themselves suppose, if any one called them " honest," that he meant " dis honest? They could not do so. Or, could the words refer to what came after ? Certainly not ; they could refer only to what had gone before. He would not say that it was not libellous to say, " Honest George Stevenson," or honest any one else, if he could be shown that the character of the person named was such (whether justly or not) as would induce the idea that it was intended to insinuate he was dishonest. But they had offered to fight the battle on that ground, and the plaintiff, who had the choice of the arena in which they were to meet, had prevented their doing so. Then they came to reluctance to refer to arbitration. Was that libellous? No. The most honest man would be reluctant to a
secret tribunal, and would sooner go into a public court The words following, "How is he prepared to discharge the award?" the Jury had no right to innuendo as the plaintiff had not done so ; besides, if there were any insinuation at all, it might due no more than that the plaintiff was poor, not dishonest. Now, they came to the end of it:.
We have boldly incurred a civil action in de- fence of public decency and morality, and are ready to abide the issue. How has he incurred his arbitration, and is he prepared to discharge the award ? It will be well for this slippery gentleman, if he should pass through, his finan- cial ordeal with as clean hands and as clear a
conscience as we go into Court to justify a libel,
with truth alone for our shield.
The question was not, if these words were libellous, but whether they bore the construc- tion put on them by the plaintiff. The Jury had to consider whether these could give to the commencing words a meaning precisely contrary to that which they would naturally bear. He was compelled to call their attention to some other matters, as. they had been already referred to by bis learned friend. The circumstance of malice was an infe- rence of law, but it was for the plaintiff to satisfy them that this libel had the precise meaning which he put upon it and, if he could not do this, no malice could be inferred, not
even if the defendant had previously declared that he would ruin the plaintiff by his paper. No evidence, however, had been attempted to show malice, and, even had it been, they could not have regarded it. Then, one word on the painful exhibition made by his friend. A con-
fidential clerk, discarded for embezzlement,
coming forward to depose to a still farther, breach of confidence. It was certainly a painful exhibition. When they saw a cause supported by such testimony as that, they might form some notion of its merits. There, again, he
must remind them that Mr Stevenson was not
exactly situated as they were, or as he was. He had a paper of his own, and might, through its medium, have defended his character had he chosen. He (the learned counsel), really thought trumpet for trumpet was all fair, and he was not sure but that Mr Stevenson had the louder bray of the two. But he had adopted a course reluctantly adopted by most men ( that of bringing an action, and had so ma- naged it as to exclude himself from vindicating his character at all. The defence, now, was that the libel did not mean what it was said to mean. The defendant could not prove its
truth, nor the plaintiff its falsehood. If any ill-feeling were attributed to defendant, as much might be to plaintiff by the issue of a writ on the very day of publication to bring costs to the solicitors and damages to himself. No opportunity was given for retractation or explanation. He (the learned counsel), or they (the jury), might perhaps have felt, in such a case, that they bad no means of defence but by an action at law ; but the plaintiff had a paper, and, unless stories were untrue, had now and then availed himself of its columns. He would not assert that he had ever given publicity to libellous statements, but still he might imagine a case-only imagine it, of course. He could conceive it possible that a Resident Cqmrnissioner might, on some occa- sion, have taken solemnly an affidavit, and could imagine an editor insinuating that he had per- jured himself, and regretting that the pillory and cropping shears were not still in use for the express benefit of Mr Fisher.
Mr Fisher (rising with warmth).-Do you
allude to me ?
Mr Hanson-To you, or any other Resident Commissioner. Again, he could imagine a gentleman nearly ruined by the burning of his house and property, and an editor insinuating that he had himself set the whole on fire, in order to destroy the evidence of his guilt ; and he could imagine constant charges of fraud made in the same manner - therefore, the libel might not be unprecedented, as it had been called by his learned friend. The plaintiff had, at least, the power of setting himself right with the public, and he had, in common with every one else, the power of applying to the libeller to explain his words. It had been said that the defendant had not inserted an apology. The reason was, that he did not know the ground of action, till the declaration was served; and as for paying money into Court, it would have been admitting a verdict. The Jury, as unbiased persons, must believe that the defendant had in his mind, when he penned the libel, the meaning only which he himself avowed, and not that attributed to him by the plaintiff. In support of this view, the learned counsel read from the "Register" the para- graph announcing the commencement of the action, which contains an explanation of the defendants meaning, which he reminded the Jury he had always maintained, and had de- nied any intention of offering an opinion on the plaintiff's conduct in the management of the mine, and had not charged him with dis- honesty in reference to it. It was admitted that Mr Gilles claimed a balance from Mr. Stevenson, and the presumption was, that the claim was for the deficiencies in the nature of defalcation. There was no proof to the con- trary. It was alleged that Mr Stevenson had not refused, but had proposed an arbitration, and this was the only point of discrepancy with fact alleged by the plaintiff. The point, however, really was, whether fraud was im- puted. No special damage was proved, and it was not proved that the plaintiff was in a po- sition to suffer from the libeL They were to
throw aside all consideration of the irrelevant matter read to them, and consider only the libel itself; and unless they could bring in the word "Honest" in aid of the meaning the plaintiff had given it, they were bound al-
together to leave it out of their consideration in estimating the force of the libel, and fixing the amount of damages. They were not at liberty to give any damages on the ground ol a charge of general dishonesty, but only with reference to the management of the Glen Os- mond mine. If they found that the party charged had not been inventing falsehoods, but had a groundwork to go on, they were not too carefully to look at words. If the general intention was not to charge dishonesty in that particular case, the defendant was entitled to their verdict The learned counsel concluded by expressing his full confidence of that result or that the damages would be of that trifling kind which would mark their sense of the tri- fling character of the action,
His Honor charged the Jury. He. first read
the libel as it appeared in the "Register," with- out the innuendoes of the plaintiff; then the
declaration, which assigns certain meanings to particular words. He reminded the Jury, that the libel was termed by the plaintiff an ironi- cal one; but the gentleman who drew the pleadings, thought it necessary, in a formal way, to express in his pleadings what he consi- dered the meaning of the words, and thus had rather led the defendant to justify them in their
graver sense, which, had they been more lightly passed over, he would not probably have done.
It was, therefore, that he (his Honor) had suf- fered the pleas to be amended, in order that the case might come before the Jury in the way which he considered fair. He did not think that the person who wrote the hbel had in- tended to charge anything else on Mr George Stevenson than mismanagement of the Glen Osmond Mine. It had appeared to bim, there- fore, that had he allowed the various pleas en- tered by the defendant to have gone to the
Jury, he should not only have been admitting irrelevant matter, but also unjustly suffering in- jury done to Mr. George Stevenson's character The libel, in fact was not of that serious na- ture that the defendant himself wished after- wards to make it The allegation of tbe plain-
tiff was strictly confined to the management
and the accounts of the mine-to nothing else. Had he (his Honor) drawn the declaration, he
should have done it differently-not so for- mally. He would have said, " Honest Georg
Stevenson, meaning dishonest George Steven- son; however, as it was drawn so formally, it did not admit of the defendant's saying, " I did not mean that George Stevenson was dishonest only in the matter of thc mine, but in other matters also." The learned Judge informed the Jury, that the publication being admitted they must belive that the paragraph was a libel on the plaintiff, and that it was published with malice;' but they could not find, a verdict for tbe plaintiff, unless' they thought it was pub- lished by the defendant with the meaning give to it by the plaintiff in his declaration. If the thought so, they were to say what damages the plaintiff was entitled to for the attack upon him. It was said that it was not intended to charge the plaintiff with dishonesty, but that his accounts were deficient-nothing more. They would look at the libel. It was headed " Honest" and attention was called to the word by its, being in italics. That that word was not used in its ordinary meaning, was clear, when the defendant was almost inclined to complain that he was not allowed to give evidence of dishonesty. Then there was the word " ímma- culate-" They would judge, if that could bear its literal interpretation, "Certain deficiency in the nature of defalcations.'' They were the persons to judge if this meant any more than Mr. Hanson said, namely--' that a man was simply unable to make good his payments.
They would look at the whole article, and at the spirit in which it was written, not at any particular parts separately:
It will be weil for this slippery gentlemen if he should pass through bis financia' ordeal with as clean hinds, and as clear a conscience, as we go tato Court to jus:ify a libel, with truth alone tor oar
Those appeared to him words which could not be put aside, and they could not very well, ac cording to Mr Hanson's ingenious plan, look into a dictionary for them. A Jury could not so treat a IibeL They must look at the whole -they must consider whether the impression was intended to be conveyed, that Mr George Stevenson had, in his management of the Glen Osmond Mine, acted dishonestly. That was putting the question in its clearest form. He
did not think Mr, Fisher's case from Starkie
particularly applicable ; yet they would observe there that Lord Ellenborough had given far more to the words than their literal meaning might justify, though they were certainly strong. He did not, however, rely on that case, as the words were not the same. In the present libel no indictable offence was charged ; but it was rather to be gathered, that the matter in dispute could be settled by a civil action. Still, there were frauds, which could not be reached by the criminal law; and- if they thought that such were imputed, they oughf to find for the plaintiff. He believed he had now said all he need say, except to ask them whether they were of opinion that the alleged injury had been committed, and in that case what damages were due. But other matters had been introduced by the plaintiff, to which he was bound to refer. Two papers, published since the libel, had been put in, to show the animus of the defendant. Malice was implied by law, unless the defend ant, on his part, could show that it did not exist; still it was not unusual to offer addi tional proof beyond the mere legal supposition. But, in estimating damages, they would not take, this into account, but only consider what the plaintiff was entitled to for the particular libel of which he complained1. If these other papers contained libels, they might come before the , court on a future occasion ; they must now be I used only as shewing the animus of the de
fendant. The learned Judge then read the " Register's" comments on his former decision, emphasising and repeating the words " literary theft." That, he said, was the second paragraph which reiterated the first libel, and avowed that the word " Honest" was intended to convey an imputation of dishonesty. Then there was the thud, paragraph, which he must also read, as part of it seemed to him in favor of the defend ant. It appeared to bim a little mistake that he had said that but for the word " Honest" the innuendo would not have been warranted. He had pointed out all the important words in the declaration, u immaculate editor," " in the na ture of defalcation," &c. What the strict mean ing of the word defalcation was, he would not undertake to say. It certainly was, as Mr Hanson said, derived from de and falx ; but in the course of time words received conventional meanings, and it was evident here that some thing more than simple deficiency was referred 1 to, or the word defalcation would not have been added. Then he had pointed out the j words " slippery gentleman," " financial ordeal,"
and " clean hands." The sentence in which
these occurred, was by way of question, but it was also in the way of insinuation, and the sense imputed to the libel appeared to him to
be borne out. The word " defalcation" hac been a second time used by the defendant, and they would observe, not with any such explana tion as his counsel had that day attempted, but evidently as meaning default.
Mr Hanson thought the reading of the ar ticle contained in the " Register" of the 27tii March unnecessary, as not affecting the ques tion before the J ury.
His Honor thought otherwise, and continuée to read. He emphasised particularly the words " He has not thereby extracted the sting." H< remarked, that Mr Stevenson having passed ovei the soubriquet of " Honest" when it referred tc literary theft, was in favor of the construction put on it by himself. He did not bring an ac tion then, but only when he had been charged with mismanagement of the mine. He hac one more remark to make. It was not th« plaintiff who had shut out the general enquirj into his character, but it was he (his Honor) who would not suffer, when an action wa brought for one thing, a defence sustainet
which had reference to another.
Mr Hanson wished his Honor to inform th« Jury, that though he had done it, it was on th« plaintiffs application.
His Honor should, in any case, have pre vented it. He cared not what was said abou it, he acted conscientiously; and he would no' suffer the character of any man to be vilified ii that court, by travelling out of the record.
Mr Hanson rose with much warmth, and a short conversation passed, in which his Honor still insisted that an attempt to vilify the plaintiff's character had been made by the en- tering of the pleas. His Honor then left it to the Jury to say whether the paragraph in ques- tion were libellous or not, and, should they deem it so, to determine the amount of damages ti which the plaintiff was entitled.
The Jury, after a retirement of half an hour entered the Court and asked his Honor whe-
ther a verdict with 40s damages would cover
His Honor had, on former occasions, refused to answer such questions. Judges had usually laid it down as a rule to leave the amount of damages to the conscience of jurors.
The Jury, after a few minutes' further cons: deration, gave a verdict for the plaintiff - Damages-£20.
His Honor, on the application of Mr Fisher certified for the Special Jury. '