The Nelson Evening Mail. WEDNESDAY, NOVEMBER 28, 1866. SUPREME COURT. CIVIL SITTINGS.

Nelson Evening Mail, Volume I, Issue 228, 28 November 1866, Page 2

The Nelson Evening Mail. WEDNESDAY, NOVEMBER 28, 1866. SUPREME COURT. CIVIL SITTINGS.

[Before his Honor the Acting Chief Justice and a Special Jury.] Tuesday, November 27, 1866. LIBEL CASE. Messrs. Curtis Brothers v. the Proprietors of the Nelson Colonist. [Continuation of Evidence.] His Honor took his seat at 10 o'clock. Mr. Hart recalled Captain Rough to ask him a question, whether the order to rescind the regulations of the port of Collingwood was made by his recommendation. He said : I was consulted by Mr. H. Curtis in 1859, respecting the regulations of the port, and the restrictions put upon the Tasmanian Maid. I declined to exercise any authority over Mr. Johnston, who was legally- right. I advised Mr. Curtis to apply to the Commissioner. To Mr. Conolly : I saw the letter of Mr. Curtis to the Commissioner. I forwarded it with some remarks of my own. Mr. Johnston having wished to explain a statement he had made in giving information respecting the subject of the letter, was recalled and said, he meant to say. lie had spoken of the subject generally, hut not to Mr. Luckie on the subject of the alleged libel. He had never kept the transaction a secret, but had spoken frequently about it. Mr. Conolly addressed the jury on the facts of the case. There were practically only two issues, was the letter libellous and was it true. He contended that all the material allegations in the libel were substantially and strictly true. The charge of persecuting and of exercising illegal influence, and of being glad to get off with the payment of duty, could not bo denied. The affair of the Tasmanian Maid in ISSS, was first adverted to. Then Mr. Johnston felt bound from a sense of duty to check the smuggling he suspected, no doubt without the knowledge of Messrs. Curtis. There were smugglers however, according to Mr. Johnston, lie thought fit to impose an order which displeased Mr. Curtis as manager of the company, who spoke to Mr. Rough about it, and asked him to rescind the order which he refused. He also wrote a letter to Mr. Johnston in which he complained that he had done more than v.-as necessary, and suggested that he was influenced by the Collingwood storekeepers. He intimated he should make the best of his case to the Commissioner, which he must do unless the order were relaxed or rescinded. If this was not persecution and bringing pressure to bear on the Colonial Government, there was no meaning in words. To this letter Mr. Johnston sent two replies — the first defending the storekeepers, and referring Mr. Curtis to the Chief of the Customs; and the second defending himself at length from the charge of unnecessary strictness. He alluded to a threat *'• a former letter of Mr. Curtis, and expressed his dett-mination, whilst affording convenience to the |r ip<^ aers > t0 P rot ect the revenue. The letter of Mr. Lurt,, to Commissioner was commented on, in consequenc.. of wWch the order was pract i ca i] y re _ sanded throng his in fi uence . TIIO suspicionsof Mr .Johnston were & ou j xiat ifi e d, in the matter of the wine transhipped h: m the i ndiana t0 the Tasmanian mv rl " B . was ?■ '-tally illegal transaction, and could hardly have been ione imlocent]y . Probably. J-e Messrs Curtis sent to W ain Rough the moment wtreir C;ir - kn<nvle Ho, first, because they vessel wa S ' 0 i t S T lClOn; / nd s^ dl y- be^«se the .V£fl£ diJrfflTwi'JSSSs- / hey ? ropos f d «iftprw-ir,}« 'f ].;= • \" c'e 'i lllow ed \o do so six weeks Mr. Conol£; If ismy impression, ana if lam Fro;ig, your Hodor mil set me • right. Mr. Curtis

was legally, if not morally, answerable for the conduct of the vessel, and was liable to suspicion. They were therefore, no doubt, glad to pay the duty, which was all the writer of the letter averred. There were literal inaccuracies in the letter, but the justification was substantially true. It Avas a fair comment on the facts and no distortion of the principle. It was clear that the first intimation of this transaction came from Mr. Johnston, and Messrs. Curtis must have known of it and been displeased with it. Four years and a half alter this transaction, in August, 1863 two servants of the plaintiffs were convicted of illegally landing tobacco from the steamer Ladybird. It became the duty of Mr. Johnston to prosecute them ; the oflcnce was admitted, and they were fined for three times the value of the tobacco. It was a pity the Messrs. Curtis did not k't the matter alone; but they ceased not to agitate for the remission of the penalty, alleging, amongst other reasons, that an adjournment was asked for, which had been distinctly disproved in evidence. It was not true, as stated in the declaration, that the Messrs. Curtis had been charged with conniving at fraud. Neither Mr. Johnston nor the defendants had done anything of the kind, although Messrs. Curtis and thc-ir solicitor had thought fit to say so. The charge was imaginary, existing only in their own letters and the declaration. Messrs. Curtis acted with great warmth in behalf of their servants, which led Mr. Johnston to make some remarks, which lie said did not displease Mr. Curlis at the time, though he complained of them as insolent in tone ancf improper in conduct. The memorials were those of Messrs. Smith and Syme, it was not clear how far they were compiled by Mr. Curtis. Mr. Johnston in forwarding the memorial, referring to the bond of Messrs. Curtis, said Mr. Curtis had accused him of exceeding his duty and tried to lesson his confidence in one of the officers. He vindicated his con',J«et in procuring the conviction and said it was a malicious falsehood that he had made a passionate reply. The positive assertion of Mr. Johnston in this letter that Mr. Curtis threatened him with a reprimand, was an important point,, and justified the words of the alleged libel, that a dead set had been made against Mr. Johnston. The tone of the following letters of Mr. Curtis, in which he complained cf all who differed from him, showed the probability of the truthfulness of Mr Johnston's assertion that- lie had used threats towards him. Mr. Curtis in his letter to the commissioner in 1563, charges Mr. Johnston with three or four deliberate falsehoods, and further proves that a dead set was made against him, calculated to damage him and rob him of his promotion, had the commissioner believed the statements of his influential correspondent. His Honor said the question of persecution turned on the discretion of the Collector. If lie had acted indiscreetly it accounted for the pertinacity shown by Mr. Curtis in demanding an' investigation. Mr. Conolly? commented at great length on the correspondence, laying stress on the anxiety of Mr. Curtis to exact a suitable apology from Mr. Johnston, and demanding that oiriinary justice be done to Smith and Syme. The injustice was not pointed out, and a grave charge was implied against Mr. Johnston, which, if true, rendered him unworthy of promotion, and liable to the gravest censure. In rekn-ncc to the second report of Captain Hough, Mr. Curtis had made pencil maiks on it, and freely commented on the conduct of those who were not of his way of thinking, contradicting the statements of some referred in it, and grossly libelling Nelson gentlemen who had said things that did nut suit his purpose. The further attempt to procure a remission of the penalties; and their successful result in 1865, was now referred to. In his letter to the Commissioner Mr. 11. Curtis demanded a retraction, by Mr. Johnston, of the charge of malicious falsehood, charged Captain Rough with not having made a proper inquiry, and labored under the delusion of supposing that Mr. Johnston had for a series of years charged him with conniving at frauds on the revenue. It was denied that an expression in Mr. Johnston's letter of December, 1563, charged Mr. Curtis with conniving at smuggling. Ifc simply said he had informed Captain Kough of a clear case of smuggling, thiit it had been admitted, that the plea was ignorance and that such ignorance led to a loss of revenue, all which statements were strictly true. In his letter of 20th September, 1565, Mr Curtis adduced the evidence of a person who had been convicted of smuggling in vindication of Smith and Syme, and complained of improper action on the part of the customhouse officers of Nelson. The subsequent letters to five or six commissioners showed the attempt to put Mr Johnston wrong and Smith and Syme in the right; and after two years and a half of increasing perseverance the penalties had been remitted by a commissioner who lent a favorable ear to the communications. Was not then the conduct shoAved in reference to Mr Johnston's persecution as the letter stated? Had not the plaintiffs brought pressure to bear upon the Government to gain their object, and had they not used their great influence to weary out the Government? There was nothing in the language of [the alleged libel that was not warranted by the conduct of the plaintiffs in their persistent persecution of the .officer of customs. Considering it was election time when hard words were bandiedabout, and tt reservoir of mud was at the disposal of two rival candidates. In the Examiner the editor of the Colonist was called a skunk, and Mr 0. Curtis admitted having written a squib damaging to the character of an editor, by telling him he knew not that two and two were four. * These hard words were not so bad as blows and rotten eggs, and ought not, at election time, to be attached so much importance to. It was a pity the matter was taken up so hotly, and, bsfore the election. fever -had subsided the services of a solicitor were invoked. The counsel said the way in which the action was brought was open to objection. On the 26th February the plaintiffs demanded an apology to be inserted in the Colonist,

Examiner, one leading newspaper in each province, at Hokitika, and the Grey, and the payment of £10 towards an institution to be named by them. On the 28th the defendants expressed regret that any injurious statements should be published, requested the plaintiffs to point out any particulars that were untrue, and they would make any retractation or apology that might be shown to be consistent with truth and fairness. Other letters followed, in which the defendants replied in a similar spirit, refusing to make an unconditional apology, but offering to do so if any particular parts of the letter alleged to be untrue were pointed out to them, at the same time stating that the object of the letter was not to charge the Messrs Curtis with conniving at smuggling transactions. As to the damage to the plaintiffs' character, ihe supposition was absurd, as was admitted by ' the plain tills' own witnesses, and proved by the result of the election. .. No charge had been made but that • of persecuting conduct. Tins had been substantiated. Their acts had been freely criticised in the public interests, anil the jury would not fail to vindicate the cause of the freedom of the press, as well as protect the interests of commercial men. Mr. Hart replied on the whole ca?e. He referred to the able address of the counsel for the defence, and combatted the arguments that had been used against his clients in acting hastily and refusing to accept a fair apology. It was not usual to place the vindication of character in the hands of those who had maligned it, hence the plaintiffs had preferred to bring the case before a jury. The Customs Act gave large powers to their officers, which was necessary, as they were able to seize articles that were not dutiable if removed "without permission. The finding of the tobacco in the hands of Smith and Syme was sufficient to insure the enforcement of the penalty. On the mere seizure of goods by the officers, the owners were liable to penalty, and the goods to forfeiture, if the owners had not entered them. The strictness of the law and the largeness of the powers of the collectors, threw the onus on the owners, proving that the goods were not liable to forfeiture. Under these circumstances, it was obvious that when a collector was complained of, it meant, not that he had not strictly complied with law, but that he had not acted a wise discretion. This was the spirit in which the complaint of Mr. Curtis was made, and so Mr. Johnston would have understood it had he not been influenced by prejudice of some kind. If Messrs. Curtis thought the tobacco seized was duty paid, they were not to blame for their attempts to obtain a remission of the penalties. The various letters addressed to the Commissioners of Customs by Mr. Curtis must be construed in reference to Ills knowledge of the law and the transaction. He was justified in demanding an inquiry, and although the language was sometimes earnest, there was no charge urged against Mr. Johnston except in his injudicious use of his discretionary power. Mr. Curtis had undoubted reason to complain of the language used by Mr. Johnston in his letters, how modified soever the view taken of it, had a right to demand an inquiry and apologj', and could not be charged with persecution in endeavoring to obtain results that bore no evidence of a vindictive character. When the apology was made, it proved that the person who demanded it had reasonable grounds for exacting it, and chat he was not actuated by persecuting or vindictive motives in the course of the transaction. His Honor said as the apology was given after the action was brought, it could not well be accepted as evidence of the leniency of the plaintiffs towards Mr. Johnston, during the time they sought for an inquiry. Mr. Hurt : The whole correspondence by which the plaintiffs are willing to be judged, points to the conclusion, that no attempt was made to damage Mr. Johnston, beyond demanding an inquiry, and expressing willingness to leave every thing to the result of it. The commissioners were asked to accept nothing on the testimony of the plaintiffs, but to do justice to all parties concerned. Mr. Curtis's explanation of his reference to a reprimand exonerated him from all malicious interference, and it must be admitted thut the officer had used words which provoked a sharp reply, although he would not admit that he had none so, or had forgotten what he said. There was r.o in tcrrorem influence" exercised over Mr. Johnston, who had .misunderstood Mr. Curtis and, was not persecuted by him as was stated in the libel. The persistence in the demand for an inquiry was no proof cf persecution, but only showed the earnestness of the applicant, and the strength of his convictions in the justness of his cause. Whilst asking that justice should be clone to Smith and Syme, the writer was guarded in his remarks concerning Mr. Johnston, some of which were highly complimentary, and whilst complaining of the decision in the tobacco case, did not reflect on any of the parties who conducted the prosecution. The fact that the Messrs. Curtis kept the men in their employment proved their conviction of their innocence, and believing, them innocent, they could not consistently refrain from endeavoring to obtain a mitigation of the penalties. In commenting on Captain Rough's inquiry, Mr. Curtis simply hinted at one of a more thorough nature, and, as if to prevent any harm happening to Mr. Johnston, took care to convey a high testimonial to his general character, which was conclusive that he had no wisli to rob him of his promotion. The fact that Mr. Johnston Had not attained the promotion he conceived he was entitled to, did not at all justify .the libel in the charge of persecution which it made upon the plaintiffs. Messrs. Curtis had no idea that Johnston was an informer, but laid the information to -the Customs themselves, and this increased the force of the argument that the plaintiffs entertained' no bad feeling against the collector. In commenting on the libel, the counsel remarked that it was to be judged of by. the impression it tended to make upon the public mind,- If Mr. Rough in conversation had admitted something slightly unfavorable to Messrs. Curtis, .he

distinctly stated his conviction that they were not guilty of the offence attributed to them. This increased the offensiveness of the libel, which not only imputed connivance in smuggling, but such dishonorable conduct on the part of the collector as tended to destroy confidence in mercantile men; As to the assertion that no damage had been clone, it was impossible to calculate the amount of damage done by a newspaper at a distance if not at home. If the libel had a tendency to do damage, it was that which the jury had to determine. Whatever the result of the action, it was satisfactory to Messrs. Curtis that by the publication of the correspondence they were vindicated from the charge of the vile and cowardly conduct that had been imputed to them. His Honor, in addressing the jury remarked, that although it was not desirable to encourage libel actions, there were cases in which they were advantageous to all parties, as they removed imputations which reflected on character. Also it was possible the jury might think that the conduct of the publishers of the libel Avas not without its extenuating circumstances. He also congratulated the jury and the Court on the able ami temperate manner in which the case had been conducted. A libel ay.is a publication, without lawful excuse of some matter calculated to do injury to character. This was a libel against men in their mercantile capacity, and not against them as private individuals. Malice was presumed, unless some justification or excuse was made out. In this case the matter must be true, and a fair comment on undisputed matters of fact, or on what a public man had done in his business. This was a privileged publication and disproved its existence of malice, a necessary ingredient in all libels. The law was illustrated in a recent summing up of the Lord Chief Justice of England, who said that fair and honest criticism on public men Avas to be allowed, even should some defamatory matter be found. In the case of Campbell and SpottesAvood and the Saturday Review, the same authority decided that the absence of fair comment, rendered parties liable. A jury must not be satisfied, unless the facts are established on which the comments are made, und unless the facts of persecution were made out in this case, the writer could not lay claim to the credit of fair comment. The libel was based on a speech at an election, although the comment was based on matter distant from the' statements of the speech. Had the libel "been confined to the matter of the election the action might have been misconceived, but the comment referred to the united action of a mercantile firm, which, it was alleged, tended to injure them. The items of defamation were a charge of persecution, because their servants had been put to punishment. It was also suggested they had unlawfully brought pressure on the Government, and used their influence against the law. Several other items were shown and fully commented on. It was affirmed that Messrs. Curtis had buen charged viih conniving at the fraud of their servants, although the publishers of the libel had expressed a willingness to remove all that was considered objectionable. It was necessary that the charge of persecution should be well established, or the publishers were no doubt guilty of libel. With regard to the charge of pressure on the Government, it Avas a repetition in another form of the allegation of persecution, and if made out, was calculated to bring the parties into disrepute. In a young society the employment of such language must be detrimental, amLconsequently libellous.° It had to be proved that such pressure ■was brought to bear. If these charges were justified by the facts, the next, of exorcising unlawful influence, naturally grew out of it. It was libellous to eav they had attempted to bring disgrace on Mr Johnston on account of his unjust proceedings, and had made a compromise by paying duty in a smuggling transaction. In reference to the dead set against Mr Johnston, it only repeated, in another form, the whole charge of persecution. If these charges were libellous, the next question was. were they truo^and Avas the language a fair comment on the transactions. The charge of persecution Avas a comment on fact, rather than an assertion of fact. The libel Avas to be taken by itself to sec if it Avas in fact true; and if the comments were fair, the libel would be harmless. The fact of persecution must be established from the correspondence and the facts adduced in evidence. If the attempt was to procure- a relaxation of an existing law, it could not be fairly commented on as persecution; and it mn;t be slioavh that the plaintiffs sought to damnify Mr. Join: ton, before they could he censured in the terms of the libel. Admitting that too great fastidiousness must not be observed, fair comment Avas demanded of the press Avhose liberty was that of the people ; words used in a paper during an election ought not to be used in their strongest sense against the writer. The point to be determined was had the limits of fair comment been exceeded so as to bring the plaintiffs into contempt, if so £he jury would pronounce the language libellous. Persecution Avas the main feature of the case, although other minor charges grew out of it. The conduct of Mr." Johnston at Collingwood, was analysed in reference to the order, and the action he took in reference to the Tasmanian Maid. Though Captain Bough had heard of this, Mr. Curtis was the person to communicate the facts, and asked to be allowed to pay the duty as importer. This in one sense gave some color to the imputation that they connived at smugglings, hut when the facts Avere known it Avas not a fair comment so to charge them. The seizure was said to afford a motive for the persecution, but there was no foundation in fact for the statement. In commenting on the Custom House hvws, the discretion allowed the collector was adverted to. No doubt the servants of Messrs Curtis were guilty of a breach of the law, but thinking the application of the laAv harsh, they were not wrong in taking proper steps to get a remission of the fine. The question was, did they use this as a pretence for injuring Mr. Johnston. In their application to numerous commissioners to obtain a r&-

mission of the sentence, had they persecuted Mr. Johnston. Some, warm feeling was exhibited l>yall parties, and the tone of Messrs. Curtis was to be examined as well as Mr. Johnston. Had they been so imperious and dictatorial as to justify the charge of persecntion brought against them. It was something like a threat to intimate to the collector that if he did not comply with their wishes they would do something against him, at the same time it was clear that Mr. Johnston had used lagunge not particularly soothing. In evidence of persecution it was important to notice the part Messrs Curtis took in the memorials of Syme and Smith. They acted as the advisers of the memorialists in a legitimate way, but did their conduct evince any connivance with smuggling, or a tendency to persecution? It was highly important that persons holding high positions politically should not use their influence to screen prisoners from justice, but it did not appear to be the case here, nor was it the main question, which was one of persecution. Did the Messrs Curtis act contrary to the law in seeking to screen their servants and obtain a remission of the fine, and putting Mr Johnston in the wrong, and was it a fair comment on their actions so to charge them? If the statements in the correspondence amounted, in the minds of the jury, to evidence of persecution, they were not to he too nice in saying so; if, on the contrary, they were only seeking to gain a lawful object in a lawful way, they should receive the benefit of that view of the case. His Honor analised the report which disclosed the antagonism that existed between Mr. Curtis and Mr. Johnston, contrasted the statements ot both parties as given in evidence, and asked the jury to judge from the words used, whether the imputation of persecution was justified as applied to Mr. Curtis. The latter though undoubtedly sore from remarks used to him by Mr. Johnston, concluded his report by speaking in high terms of him, which would hardly bear the construction of persecuting conduct. Yet, if the jury thought thsre Avus a determination on the part of Messrs. Curtis to put Mr. Johnston down, they would conclude that the comments in the libel were just and fair. In regard to the pencil marks made by Mr. Curtis on the report of Mr. Eough, as the report had not been to damage Mr. Johnston's character, the pencil marks were not very material. If the object of plaintiffs was to carry out a particular object, and not damage Mr. Johnston, the conduct could not be characterised as persecution, the supposition of which was removed by the subsequent friendly conduct of the parties. As to the question of damages, assuming the jury to be of opinion that the libel was proved, it must be proportioned.to the case, the character of the plaintiffs and the publication. It did not follow that, because actual damage had been not done to plaintiffs, they were not entitled to substantial damages ; yet this was not a case that appeared to call for heavy damages. The defendants had offered to take some steps ignore all intention of charging! the plaintiffs with smuggling.and make an apology if/any particular part were objected to. A negotiation took place, which was unsuccessful; and it was probable a little less haste in demanding a peremptorylapology would have insured a more favorable rcsultv This was a reason why substantial damages should not be urged ; yet it was rather disingenuous to make use of the words of Captain Eough in the way they were used. It was important to observe that the defendants were not allowed any locus penitentiae by the peremptory conduct of the*plain tiffs; yet it Avas to be remembered that the persistent maaner in which the libel was justified was, if the libel was true, an aggravation of their conduct and a reason for increased damages. This was not'a case, however, that, if proved, called for heavy damages, and the jury would award them in proportion to the demerits if they concluded that Die defendants had exceeded the limits of fair comment. At 10 o'clock there being no signs of the jury agreeing in their verdict, tho. counsel on both sides consented they should be discharged, on each party paying his own costs. The Judge arrived about 11 o'clock, and was informed the jury were not likely to agree, and that the counsel had consented to the above arrangement. His Honor then discharged the jury, on the understanding that plaintiffs and defendants should pay their own costs, and that the case should not come on for trial again.