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

SUPREME COURT

(Continued from 4th page.) Wednesday, 28th February.

CRIMINAL INFORMATION.

IN RE-THE WINDWORTH FAMILY.

Mr. Fisher moved for a rule calling upon Mr John Stephens, printer and publisher of the South Australian Register, to show cause why a criminal information should not be filed against him fer cer- tain misdemeanours in printing and publishing certain malicióos libels. The libels were contained in an article published in the Register of the 12th. February instant, headed " The Windworth Fa-     mily, a Tale of an Emigrant Ship*' The applica tion was grounded on a variety of affidavits, the first of which was one of Frederick Sinnett, proving   the purchase of the paper, and Betty Leworthy, setting forth the libel and its reference to her late husband, Captain Leworthy. and their daughters, and positively denying all the statements to their prejudice. He had to satisfy his Honor that by the ship Jonathan was meant the ship John-Munn and by the Windworth Family, the family of the late   Captain Leworthy. The John Munn was, as the Jonathan was described, an emigrant ship, and had a gallery round the poop ; the name Jonathan was perhaps selected as somewhat similar in sound. The ship was said to be chartered to a distant colony, not   naméd, but indicated by the publication of the articie here ; the other circumstances closely agreed-the in termediate passengers-the length of the voyage (from March to September)-the place at which the family were said to have joined - the number of children-the rank, title, and services of the head of the family - the ages of the daughters, and every other particular tending to establish identity ; there could be no donbt of the fact in the mind of any man. The next affidavit was from the eldest daughter, Charlotte Henrietta Leworthy. Hé .had not thought it necessary or delicate to ask all those libelled children to join in an affidavit, but had induced

one of them to do so. The learned Counsel read her statement expressing her belief that the article re- ferred to herself aud family, and denying the truth of the libellous portions. 'Affidavits followed from Thomas Burr, and Richard Gardiner Jay, expressing their belief of the application of the libel and its in jurious tendency. The deponents also testified to   the good conduct of the ladies in question. Another affidavit from nine fellow passengers was at present only sworn to by eight, namely-C. Bell, J. B.

Lewis, George Collett, Mary Ann Collett. George Luke Ridge, Henry Alexander, Hugh Quilter Hol- loway, and Emily Anna Young. It confirmed those of Mrs. and Miss Leworthy, as to the behaviour of the ladies on board. There was also an affidavit from the assistant steward, further tending to iden- tify the ship-the John Munn having been buüt for the American trade, as the Jonathan was said to be in the libel. If there were ever an article calculated to injure unprotected females, he might characterise this as the worst. He was at a loss to imagine what ex- cuse the publisher could make. Perhaps he might say it was intended by the author for insertion in ano- ther work printed by him, and got into the news- paper without his knowledge. But what answer was that ? If it had appeared in the Miscellany, he

would bave been equally responsible. But if the author intended it for that work, the publisher de- parted from his intention by giving it the wider circulation of the newspaper. Perhaps he might say he did not read it, though he doubted if he would allege that on oath, especially as from Mrs. Leworthy's affidavit, it might be in ferred that the contrary was the fact. But even if it had been inserted without his knowledge, he would be responsible for what was published for his pecu- niary benefit. He presumed his Honor must be sa- tisfied that the Leworthy family were referred to - if so, why was it published four months after their arrival ? It was the worse libel, because there was no attempt on the part of the publisher to draw any moral from it. The purpose was only to scandalize them after the loss of their natural protector, and when they had as far as possible settled down in quiet and comfort. It was then that all these sto- ries were concocted as an attack upon the memory of the deceased, and an attack of the most vital kind on the living ; calculated to blast their charac- ters iu the new land they had adopted for their abode. He submitted that the article clearly allu- ded to the Leworthy family, and the affidavits showed it to be a false, scandalous, and malignant libel. No one more than he valued the liberty of the press, but this was an abuse of it, tending to detract from

its value. He was satisfied his Honor would ai once grant the application.

His Honor said there was a difficulty which he had already mentioned to Mr Fisher, namely, that there was no person in whose name the information could be taken. An indictment would no doubt lie supposing the applicability of the article proved and a criminal information might be granted pro- vided the means existed of trying it. By the Su- preme Court Act the Court had the jurisdiction of the higher English Courts; and the judge had the power of making all necessary rules-but no rule had been made to regulate the proceedings by cri-

minal information, so that unless he were to make a rule specially for this case, be did not know how a criminal information could be filed, or if fited,

how it could be tried-as there must be a plea, and.

a joining of issue-unless there were some person to   join issue ou behalf of her Majesty the case could not proceed. In the Queen's Bench the master, who joined issue for the Queen, was also clerk of the Crown, which the clerk of the Supreme Court was not. Therefore he had it not in his power to authorise a proceeding by criminal information, and he doubted the propriety of making a rule for a particular case where it was not absolutely necessary for the furtherance of justice. He had some doubt about making such a rule generally, as in crimi- nal informations he must hear and partly express an opinion on a case in the first instance. In the Eng- lish. Conrts the difficulty was less, as there were more judges. He did not intend to prevent such a mode of prosecuting criminal cases, but would ra- ther leave it to the Legislature. He thought it bet ter however that it should be deferred till the ap- pointment of another judge. ln the meantime Mr

Fisher was as well aware as himself that there was

a remedy by indictment. Under the circumstances he would express no opinion on the libel, as he did not want to prejudge the case.

Mr Fisher had just been requested by Mr. Ma'Guire to mention that he had an application to make of a similar kind, against another party.

Mr Ma'Guire said he had only waited the result   of the present motion.

His Honor felt that a Judge who was called upon to grant a criminal information, and afterwards to try the case, was placed in rather a difficult po- sition. It was not only that be had to hear the particulars, for those he always knew by reading

the depositions, but he had often to decide nice   points.

Mr Fisher observed that, in the Queen's Bench, the same judge who granted the information might try the case.

His Honor-But the responsibility of granting the information is divided among the whole bench.

He was aware of the advantages of the code pro-   posed. It gave both parties an opportuner of clearing their characters, and saved the complain- ant from the suspicion of interested motives.

Mr Fisher observed that an indictment would   have to be conducted by the Advocate General

instead of by counsel selected by the parties com-   plaining; besides that, the Advocate General was very strict in requiring a previous investigation before a magistrate, which would occasion delay and expense.

His Honor did not think the Advocate General would interfere in the conduct of a private case. It was likely, also, that he would allow an indict-

ment preferred on the affidavits which had been   read. He thought Mr Fisher's most advisable course would be to apply to the Advocate General on the affidavits filed in Court, for permission to proceed in his name. At present there were no means of granting the application for a criminal information, and, therefore, it would not be con-

ceded ? * ~^

LOVELOCK V. PARKER,-Action for false im-

prisonment.      

For tfie plaintiff air Hanson ; for the defendant Mr Mann.    

Proof waa igven of the issuing of a capias in an action at Mr Parker's suit, and the arrest of Mr Lovelock by virtue thereof.

John Cave -Sold twenty hogsheads of ale to the plaintiff far Captain Hall, on a bill at four months, and the defendant afterwards claimed the benefit of the sale, Captain Hall having previously sold him the entire lot without witness's knowledge, f his was about the beginning of September, and the credit would have expired about the beginning of Januarj'. The amount was 132/ 10s.

By Mr Manu-A bill for the amount was drawn by the defendant on the plaintiff.

Henry Chandler, a person in defendant's em ploy, also deposed to the settlement by acceptance.

By Mr Mann -Heard, at Gawler Town, in No vember, that plaintiff was selling his goods very low. with the intention of leaving the colony..

This was the plaintiff's case.

Mr Mann raised a legal objection, with a view to a nonsuit, of which his Honor took a note, but suf

fered the case to proceed. '1 he learned gentleman ! then addressed tho jury. Hs H<nor summed up, and the jury after retiring for a quarter of an hour returned a verdict for the plaintiff. Damages 20/.

BARKETT v. DASHWOOD, -Action of replevin to try the validity of a distress by the defendant, on the plaintiff's property at Parkhurst, in the hundred af Kuitpo, Meadows special survey. Damages laid at 100/.

Pleas- First non ccpit ; secondly, that the levy was for rent legally due by the plaintiff as defend

ant's tenant.

For the plaintiff Mr Hanson, for the defendant

Mr Mann.

This case occupied a long time, but turned en tirely on dry points of law ; several of which are likely to be reargued.

The seizure was made by a person named Ait cheson, under the presumed authority of Lieut. Dashwood, the landlord, but this was not shown clearly. There was also a joint occupancy by a person named Thorp, who had a separate release, though the notice of distress included his name. The distress was on twenty acres of green growing wheat, of which the plaintiff had since remained in possession.

His Honor charged the Jury. The action arose out of a distress, of which the plaintiff complained. Thc defendant said first, that he did not take the

goods, and it was argued that the goods were those of Barnett's and Thorp, because the land was let to both ; this did not follow, as the crops might be Barnet's by arrangement. But even then, they would be subject to distress. Therefore, if they con sidered there was a distress on the growing corn, the verdict must be on that plea for the plaintiff. But to come to the more extensive pointy Mr Dashwood avowed the taking of the goods as under distress for rent, to which thc plaintiff pleaded that he did not hold the land of Mr Dashwood, and that no rent was due except £2 10s, which had been tendered. No tender had been proved : but to come back to the holding, the plaintiff meant that Barnett and Thorp did not hold as tenants of the defendant. It was alleged by the defendant, that thay held for a year previous to the first of March, and from thence to the time of the distress. The question was, first, whether a year's ren t was in arrear ; and secondly, whether they held at the time of the distress. Tue rent was to commence in 1848, so that in 1849 there would be a year's rent due, and up to that time at least the parties were in joint possession ; bat it was said by the plaintiff that at that time Thorp had a notice to quit, and did quit, so that there was an end to the possession. - It was said that the parties occupied different parts of the land, but this being an arrangement of their own could not affect the landlord. A landlord could not either put a tenant out of possession without a legal decision ; there fore, the notice to quit operated as no determination, especially as it appeared that Barnett was still in possession. If Thorp, by agreement with Mr Dash wood, thought fit to give up, and Mr Barnett re mained, it did not follow that Barnett, enjoying the laud, was not to pay the rent. It was his crops that were seized, and it appeared to him that they were

liable.

Mr Hanson asked if Thorp's release would not operate as a receipt for his moiety.

His Honor-That would be another question. ' Thorp had other land froaa Mr Dashwood separately, to which his receipt appears to refer. He could not find that the tenancy was determined-therefore he thought the jury might safely find that the rent was due and that the two held the land at the time of the distress. It mattered

not in point of equity, for the goods seized were those of Barnett, who actually held the land.

The jury immediately found that the distress had been levied-and on the other point for the defendant, one year's rent. £ló being due. This is in effect a ver

dict for the defendant.

Adjourned to 10 o'clock this morning.

The only remaining cases are those of " Nicholls v Hetherington," and " Lazar v Stephens." The former Í8 likely to occupy a very short time.

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