Friday, 1st March.
j NICHOLLS (administratrix) v. HETHERINGTON.
Trover-to recover two horses, a cart, and harness,
j the property of the late Worthy Worthington George Nicholls.
For the plaintiff, Mr Mann, and Mr Smith ; for the defendant Mr Milner Stephen and Mr Walker.
Mr Stephen applied for a postponement, on the ground that a material witness was absent. This was not granted, and thc learned gentleman con sented to a verdict of 'Sf, subject to reduction to one shilling on the delivery of the property.
LAZAR V. STEPHENS-Libel-Damages laid at £200. Pleas-the general issue and two of justi« fication, one of which was demurred to.
For tho plaintiff, Mr Mann ; Solicitors, Messrs Johnson and Fenn. For the defendant, Mr Han son and Mr Parker ; Solicitor, Mr Ridpath.
Mr Mann opened the proceedings. The action was brought by Mr John Lazar, manager of the New Queen's Theatre, to recover compensation from Mr John Stephens, proprietor of the South Australian Register, for the following libel, which appeared in that paper on the 16th of January last :
" We have seen Lazar. ' so overstep the modesty of nature,' as to compel even the prostitutes to blush, and send the indignant blood tingling to the ear tips of every decent man in the house. There can, to our minds, be no greater, no more danger- ous nuisance, than an indecently conducted theatre
—no greater theatrical atrocity than to announce
a 'juvenile night,' to lower the prices so as to in duce an attendance of young people, and then to present an entertainment not only indecent, but brutally and unnaturally so. We cannot praise that man's spirit who keeps open a theatre, even a a loss to himself or his supporters, who can outrage all propriety by the unwarrantable introduction o filthy obscenities in the presence of a mixed audience including a member of his own family. We are bound to warn all parents against permitting their children to attend this hot-bed of demoralization As the theatre is at present conducted, no man can sit out a performance without being disgusted ; no lady can enter the impure precincts without con
The learned counsel in a long and eloquent address urged the grossness of the libel and the right ol the plaintiff who was dependent for his bread apoi the success of the theatre, to the same protection which under similar circumstances would be ex tended to a tradesman or a professional man. He ridiculed the defendant's pretensions to the office of censor, and insisted that he had not only over- stepped the fair bounds of criticism, but employed falsehood in aid of his attempt to crush the plain tiff. He inferred malice from the fact that as lately as on the 29th of December the Register had con- tained a complimentary notice of the theatre, yet, not three weeks afterwards spoke in terms of the strongest condemnation, not only of a recent per- formance, but of the general conduct of the house for some time before. He surmised that some hid-
den enemy to tho plaintiff had induced this change of feeling, or that the defendant, vexed at the ad- vertisements of the Messrs Solomon having been withdrawn from his pape , sought to annoy and in jure them in turn through the person of Mr Lazar,
Judah Moss Solomon, proved the purchase of the paper containing the libel. Was entitled by the
terms of the lease to attend the theatre when he
thought fit. Had been in the habit of taking his family and paying for their admission previous to the publication, but had not done so since. Had known Mr Lazar in Sydney and here for thirteen or fourteen years-never knew or heard any thing against his character.
Several witnesses were called, who proved that since the appearance of the libel the receipts of tho theatre had materially fallen off". The loss alleged was about £ 12 per night-making for twenty nights
This was the plaintiff's case.
Mr Hanson addressed the jury -They had heard from the plantiffs counsel the nature of the action and the alleged special damage ; and he had dwelt upon the rules which he contended limit the press in its comments in order to persuade them that those limits had been exceeded in tho article complained of. He had said Mr Lazar might have been cen- sured for producing a dull piece or for acting tamely-but no more. But it would he strange in- deed if those who were called upon to criticise per- formances might not denounce such as were made the vehicle of immorality by the introduction of gross and flagrant indecencies. They would feel it absurd that a critic should be allowed to speak of the one and not of the other, especially when persons of both sexes and all ages were present. A man who brought his performances before the public and sought their support, was emphatically subject to criticism, if they were improperly con- ducted. it was the duty of one who wrote for the public to warn them in such a case what they were to expect it they entered the theatre, and he de served their thanks for doing so. If on hearing the evidence they found that the plaintiff had never offended against the laws of decency then un- doubtedly they were bound to give him compensa- ation. But if he showed them that the violations of decency had been habitual, and that words not even in the text of the play were introduced for that purpose, they would think the defendant justi- fied in doing that which was his duty in common with every citizen. Would not any of themselves feel bound to warn a friend who was about to take a female to the theatre if they thought she would see or hear what would offend her delicacy ? If so, was it not equally the duty of a public writer to warn his readers? They had not yet heard from the learned counsel, as he had expected, an eulo- gium on the stage as a great teacher of morality - perhaps he felt that in this instance he was tread ing on dangerous ground. He, Mr Hanson, had not met with any stage which really formed such a school, though he could imagine it might be made so-but if its power far good was great, equally so must be its power for evil-and immoralities pub- licly uttered were the more injurious from the fact of numbers being present. The learned counsel then called attention to the libel, and remarked that it was singular the plaintiff had not venturned to introduce the entire article. No doubt if his friend could confíne the evidence to one particular night, the 12th January, the defendant would be much narrowed in his defeuce, and it was for this reason be presumed that only that portion of the article which referred to that particular night had been selected as the subject of the action. But the leaving out of the general charge was a tacit ad-
mission of its truth. It was evident that the re- ,
marks in the libel were not upon one night in par- ticular, but on the performances of the plaintiff generally. He appealed to the jury whether va- rious speeches and gestures, which he mentioned, were decent or proper for a public performance. If they were not, was not the defendant justified in denouncing them as he had done? His friend had insinuated that the attack on Mr Lazar was in con-
sequence of thè advertisements of Mr Solomon, the owner of the theatre, having been withdrawn. It was a complete answer to this that in the very pa- per containing the libel there was a succession of advertisements from the very firm referred to. As regarded the evidence of tbe receipts, the three witnesses reminded him of the story of the three black crows-for each gave a larger account of the loss than the last. In the pleadings it was stated that three gentlemen had ceased to attend the thea- tre-when he saw this, he felt at once that the ruin
of Mr Lazar must follow. Indeed, if the jury had seen as he had done the state of the boxes before the publication, they might well understand how powerfully the absence of so many people must operate (a laugh). He knew nothing of Mr La- zar's private character-if his receipts had fallen off he was sorry for it, but there was nothing to con- nect that with the article in the Register, more than Tenderden Steeple with Goodwin Sands. Before that, Mr Morton King was here, and there was no other theatre. Since that , he had gone and another house was opened. What was there to show that these causes, as much as the article in the Register might not have produced the effect. It was likely that those who were in the habit of attending would have trusted their own eyes rather than the strictures of a newspaper.
After some argument his Honor decided in con- sequence of the introduction hy Mr Mann of the entire article, and also of the paper, dated 29th De- cember, to admit evidence from the defendant as to any previous peformances, for the purpose of re- butting the presumption of malice by showing rea-
sonable cause of censure.
John Lewis Jacobs, comedian, proprietor of the Dramatic Hall, Leigh-street, deposed that on the 12th January he was in the pit at the New Queen's
Theatre after he had ceased to be a member of the company. Described some indecent words and gestures used by the plaintiff on that and several
By Mr Mann-Did not mention these at the time to any one, nor leave the Theatre on the occurrence of the first. Mentioned them to the defendant after the publication of the libel, but not before.
Re-examined by Mr Parker- Interpolations in the dialogue are technically termed "gag"—plain- tiff's was very dirty gag ; but it was not unusual
John Gardener, comedian, spoke to similar im- proprieties on the 12th March, and on former occa sions. His wife could speak more particularly to
By Mr Mann-Would not swear whether she was his wife or not. Came there to speak of what Mr Lazar did, and would answer any proper ques- tions. Would not swear whether he was ever mar- ried to her. Would not say whether or not her name was Leftwich. Had known her by that name. Would not say whether he came to Van Diemen's Land as a convict-it was nothing to the purpose ; came to answer proper questions, and would do so. Did not live with the woman he was now living
with at Port Phillip. Was not hissed off the stay there in consequence.
Mr Parker submitted that the witness was not bound to answer those questions.
His Honor said he must answer them, coming as he did upon a point of morality-(addressing the witness) -Are you married to her ?
Witness (loudly)-No : I am not married to her. John Adam Elmer, another performer at the Dramatic Hall, was called, but could give a direct answer to no question, and was suffered immediately to quit the box.
Tom Cox Bray, shoemaker, Hindley-street-Was present at the performance of" Susan Hopley,'' and remembered an indecent gesture used by the plain- tiff. It did not strike him at the time, nor did his wife, who was with him, notice it ; and he had taken her to the theatre since ; but on reading the article in the Register, he ran over in his mind anything he could think of, and remembered this. Had been frequently at the theatre before and since but could recall no other instance of indecency.
Mr Mann-Do you think, Mr Bray, for I have confidence in you which I cannot feel in the other witnesses, that the gesture you have described was used accidentally, or with any indecent intention ?
Mr Bray-I am sorry you have asked me the question, Mr Mann. I must say I think it was used with an indecent intention, for the purpose of rais- ing a laugh.
Martin Stapley, Reporter to the Register - Was at the theatre on the 12th January. Described an indecent gesture used by the plaintiff on that occa- sion ; also another on a previous evening.
Captain Maitland and Mr Pusey were ex- amined, but the evidence of neither was material. The former only mentioned an objectionable song by some person, not the plaintiff, about a year ago and the latter stated that he generally disliked Mr. Lazar's performances, without mentioning his reason, or the times at which he had seen them.
Several other witnesses were called, but did not
answer to their names.
Mr Mann called
James Douglas, one of the performers at the New Queen's Theatre, who stated that he was either on the stage or at the side scene on most of the occa- sions spoken to by the defendant's witnesses, and observed none of the indecencies they had men- tioned. He produced and mounted a hobby-horse, amidst much laughter, to show the position in which the plaintiff was on one of those occasions, and which rendered it impossible he could have used the gesture described. He also swore that the words spoken to had not been used by Mr Lazar.
Harriet Lambert, wife of Henry Lambert, gave accounst of various performances, without mention- ing any improprieties ; and 0n being further ques- tioned, positively swore that they had not occurred.
By Mr Parker-Was married two years last April. Was previously married to a Mr Jones, was separated from him, aud went to England with Mr. Knowles. Did not afterwards live with a Mr Cant- lin at Melbourne, nor with any other person. Mr Cantlin rendered her very great services. Had never expressed an opinion of Mr Lazar's acting as being indecent. Did not think he would be indeli- cate to any one. He plays usually in broad farces, where it is customary to try to raise a laugh.
Henry Richards, leader of the orchestre, contra- dicted portions of the defeudant's evidence.
Samuel Cohen deposed that on the 12th Jan. Mr Jacobs was at the door, but was not in the theatre. He could not see the stage.
Thomas Dobson, money taker-was situated near the pit door. Mr Jacobs was not in the theatre on
the 12th Jan.
The court adjourned at a quarter-past eight
Saturday, March 2.
The Coa t having again assembled.
His Honor said that on reconsideration, he thought he had suffered the defendant to carry his evidence too far back. He allowed him to refer to other nights besides the 12th January, in conse quence of the introduction of the whole article, by Mr Mann, and the production of the paper dated 29th December, with a view to showing a change
in the defendant's mind arising as was alleged by the plaintiff from malice. Between those two dates, evidence was admissible to show cause for a change in the defendants opinion ; but whatever referred to any prior period must be struck out. It was hard to call upon a man without notice to an- swer for the events of his life. A case cited by Mr Hanson was not parallel. There a bookseller charged with libel was shown to have published other works of the same character. The books could be brought forward and their contentó would speak for themselves ; not so where words or ac- tions were described by witnesses ; the party ac- cused would require time to find others who were present and whose testimony might explain or con-
tradict their statements,
Mr Hanson commented briefly on the plaintiff's evidence pointing out any portions of the justifica- tion which remained uncontradicted, and claiming equal credit for the actors at a rival theatre, with that which could be given to those who were de- pendent on Mr Lazaar and the success of his esta- blshment. He could only attribute Mr Douglas' and Mrs Lambert's not having noticed any inde- cencies to the fact of their perception of indecency having become blunted by habit,
Mr Mann addressed the jury in reply. He had
no doubt that there must be a verdict for the plain- tiff the only question would be the amount of dama- ges which he wished to secure to an extent which would check the spirit of libel which was growing up among us, making society unsafe. The jury had not to examine whether criticism were allow- able, but whether its just bounds had been ex- ceeded. He was one who would support the liberty of the press ; but liberty was not licen- tiousness, and the party who had done injury by excess, whether a public journalist or not, must answer for the offence which the law made him liable for. He reminded them that the evi- dence his Honor had expunged, must not be al-
lowed to influence their minds, nor even that which was retained except what referred to the single night of the 12th January, any further than to regulate the amount of damages as shewing the animus by which the defendant was actuated. The rest had not been brought for- ward to show that the article was not a Iibel but to show that there were grounds for supposing it was not written maliciously- The best proof of animus was found in the writing itself; if on slight grounds a great superstructure were built, the excess showed malice. Again to make cri- ticism useful it must be at the time ; if old matters, passed by when they occurred, were raked up afterwards, it was done not to benefit the public, but to slander the individual. He was only sur- prised that so little could be raked up. As regarded Mr Stephens he believed he was deceived, not malicious in the ordinary sense ; but deceived by those who wished to crush the plaintiff though he must take the consequence of it. It was the arch conspirator Mr Jacobs, a rival manager, a disap- pointed actor, trying to ruin his rival, and fill his own paltry boxes. He read part of the articles Dec 29, in which the plaintiff was highly spoken of. What must they think of a man who could write white one day, and black the other; must not malice be inferred? The intention was to injure,and that injury they were met to value, and who were defendant's witness's, Gardiner a convicted felon, and Jacobs who, as they had heard, was not in side the theatre and therefore could not have seen the occurences he had come before them to depose to. Those were the men on whom the Register relied to crush the plaintiff. ln what position was a manager placed when wretches such as those who had been called before them, were to be banded to destroy his character ? Who were the parties upon whose faith this dreadful libel had been published ? not the public, but the actors at a rival theatre who were combined to ruin a man who had been he was bound to say the unremu- nerated caterer for the public amusement. He should be ashamed if such an attempt were not visited with its proper consequences ; ashamed for the sake of the colony, which a man might well quit, and seek another home, if language such as that complained of, might be used towards him with impunity - if the bread on which his family depended might be taken from him, and the law
afford him no redress.
His Honor summed up, and
The Jury retired at a quarter past two o'clock, and at precisely three returned a verdict for the plaintiff-damages one farthing.
His Honor mentioned the various pleas, saying it would be necessary to have the verdict more for-
The foreman said they had intended the verdict to satisfy the whole. They considered that the article was a libel, and that it was published by the defendant -that though the justification was not wholly proved, there had been certain irregularities shown to have occurred at the theatre, and that, therefore, they gave only a farthing damages.
The verdict was then, under his Honor's direction, thus recorded-For the plaintiff on the general issue. For the plaintiff on the first plea of justifi- cation on which issue had been joined -damages one farthing-and on ths plea which had been de murred to, damages one farthing.
Mr Mann applied to hts Honor to certify that the
libel was wilful and malicious.
His Honor in this case did not think it his duty to certify. The Jury having expressed their opinion that the justification as to the performances of the 12th January, though not entirely made out, was partly proved, he was not disposed to say that the
libel was malicious. Where he saw that the motive of a publication was to injure another he should certify malice-but where there was another, motive which might be attributed, he did not feel it his duty to assume the worst.
The Court then adjournel.
Monday, February 4.
SANDERS & ANOTHER V. NEWENHAM (Sheriff). For negligence in the non-execution of a writ of fieri facias. Damages laid at £1000.
The following special Jury was sworn: -
Messrs. Walter Watson Hughes, William Gamp Crane, Henry Simpson, Allan Mc'Farlane, Thomas Smith Kell, Francis S. Dutton & James Hamilton. - John Holmes, John Hitch, William Humphreys,
William Hill, & William Hunter - Tales.
Dr Everard, a special juror, was excused on the I ground of indisposition.
I Messrs. li. Ii. James, Thomas Waterhouse. Chas. Beck, Lachlan Macfarlane, Thomas Williams. (Kooringa) and C. Sterling, special jurors, did not attend, which lei to the very unusual necessity of five petit jurors being required as tales.
For the plaintiff, Mr Hanson-solicitor, Mr Fisher. Foa the defendant, Mr Gwynne-solicitor, Mr Klingender.
Mr Hanson stated the case to the j arv- The plaintifis, Messrs Sandersand Anslow. formerly trad ing as partners, had obtained a writ of fieri facias against John James, a tradesman at Kooringa, under which the defendant, as sheriff, seized bia goods, hut afterwards gave them np-to whom it was not for him to say. For this the plaintiffs brought their action. The defendant pleaded the general issue, and also that a fiat of insolvency having issued against the said John James, it became bis duty as sheriff to hand over his goods to the official assignee. On the legal effect of the insolvency bis Honor would direct them-the real question fbr their consideration would be, whether the sheriff' was not guilty of negligence in not proceeding to sale between the 29th Sept, when he received the writ, and the 18th Oct., when the fiat was issued. 1 he learned Counsel called -
Maxwell Matheson com nission agent-Took pos session of the goods at Mr James' store. Kooringa, under the warrant produced, bearing the sheriff's signature ; on the 5th October made an inventory, and left a man in possession. Remained there per sonally from Saturday the 6th till the following1 Thursday, the l Ith.
Alfred Capper, Sheriffs officer-The goods were eventually handed over to Air Hance, the official assiguee. Could not say what became of them
John Hance, official assignee - Received defivery through his messenger of the goods retened to; they were sold by auc ion, and the net proceeds re ceived by witness were £627 19s. 9d. ; could not name the gross proceeds.
This was the plaintiff's case.
Mr Gwynne observed that he had scarcely any« thing to go to the Jury on. He need only prove the flat the question was a legal one.
His Honor assented. It was whether or sof^ the goods having been levied, the subséquent fiat cudd overrule the seizure. The question was oa the com bined effect of the English and the Colonial Acte.
Mr Hanson thought it would be the better plan for Mr Gwynne to put in the proceedings under the insolvency, and for a verdict to be taken subject to subsequent argument.
Hts Honor would like Mr Gwynne to state bis points.
Mr Gwynne submitted that the execution was not protected by the 19th clause of the kcal Act No. 1, 6th Victoria. He thought the whole case might be disposed of under the question-does the 6th Geo. iv. c. 16, sec. 108 have force in tías pro vince. It provides that no creditor shall receive more than a rateable proportion of hts debt vader a judgment obtained by a nildicet. As we did not brin» the English Act with us, the question «rabi
be whether our local ordinance introduced it. He contended that it did - by the ICth and 35th clauses in express terms, with the single limitation-**ex cept so far as the English Statute might be incon
sistent with the local Act." Then was there any
thing in the 108th clause of the English statute in consistent with oar Act ? If it were argued that there was, it must be in something material to this action-sa that the question might be narrtwelto this -is it inconsistent with the 19th clause rf tte local Act? He held that it was not, and
case of Whitmore and others v Robertson, 1 Dow ling, and 8 Meeson and Welsby 469, which
ported in error by Skey and Garter, 7, SvàA,
Meeson and Webby 571. These caaes were*»» cient to show there was no inconsistency- «*
true they did notdirecUy establish the propoaun«*. but it followed as a corollary. The 19Ä
our Act was a verbatim copy of the 2nd «wi am Victoria, c. 29, sec. 1. The question, » w two cases cited, was whether the lat clause of tbs Acto*
Victoria repealed the 109th section of the Act ol George the fourth, and the Judges in error in the Exchequer Chamber in Skey and Carter confirmed the decision in Whitmore and Robertson showing that the one did not repeal or ia any way affect the other-or, in other words, that it was not incon sistent with it-and if not inconsistent ia one book ifc could not be in another. He, therefore, contended that as a semble from these cases the 108th clause of the Act of George the fourth was in force as a part of the law of this province, and it only remained to enqui e were the plaintiffs within its operation ? In other words, were they creditors, having security for their debt at the date and issuing forth of the fiat? He submitted that they were, at the time the fiat issued on the 19th, when the writ of fieri facias had only been acted on by seizure, and the goods were in the sheriff's possession unsold. I he plain tiffs would continue creditors of James till the sheriff hy a sale made himself their debtor. That doctrine was supported by numerous cases. He need only cite Wy mer v. Kembla 6 Barnwell and Cresswell 479. There was also Godson v. Sanc tuary 4 Barnwell and Adolphus 255. Under the 108th section of the Act of George the fourth, they being creditors having security at the date of the fiat could only take rateably with the other creditors, and the sheriff would not have been justified in selling. The warrant of attorney was never filed with the master of the Court under the 3rd Geo. iv. c 39 sec. 1 & 2. which was repealed only with respect to cognovits. The provisions of this act were extended by the 7th Geo. iv. and the 1st and 2nd Victoria ; and he submitted that as against assignees the warrant of Attorney not having been
filed was void.
iVr Hanson admitted that il the 108th section of the Act of George IV., were shewn to be in force here, the plaintiffs would not be entitled to re
His Honor would reserve the point to be argued next Thursday, intimating that his present opinion was favorable to the view taken by Ur Gwynne
Verdict for the defendaut under direction-sub ject to the plaintiff's power to move for it to be set aside anda verdict entered for £617 19s 9d.
This case closed the Civil Sittings.