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ALLEGED LIBEL., Ashburton Guardian, Volume 1, Issue 73, 13 March 1880
AL LEGED LIBEL.
(Before Mr. F. Guinness, R.M.) Yesterday after the ordinary civil business of the 11. M. Court had been disposed of, the case of alleged libel against Mr. Joseph Ivess, at the instance of Mr. E. G. Crisp, Borough Solicitor of Ashburton, was proceeded with. Joseph Ivess was charged with having published in the “ Ashburton Mail’ - ' of ‘2oth Feb. ult. an article in which Mr. E. G. Crisp, Borough Solicitor of Ashburton, was accused of having misused his official powers by charging six shillings costs for writing a letter to a rate defaulter, and with being “ particeps criminis” with the rate collector in extorting money. Mr. Branson, of Messrs. Branson and Purnell, appeared for the complainant, and the defendant conducted his own case. Mr. Branson, in opening the case, said that his firm had written to Mr. Ivess, asking him, to save expense, to admit being the publisher of the “ Ashburton Mail,” which Mr. Ivess had refused to do, and they had written to the registrar to send a certificated copy of the registration of the paper, but none had been sent. If Mr. Ivess would admit being the printer and publisher of the paper it would save time and trouble ; if not, he would have to ask for an adjournment, without costs. His Worship said of course costs would not bo allowed. Mr. H. B. Johnstone said he had been subpasned. He did not know why ; but he certainly would ask for his expenses. Mr. Ivess said he would guarantee the expenses of Mr. Johnstone, and he would waive any legal points in the case on the matter of publication, admitting being publisher, proprietor, and printer of the paper, so as to facilitate the hearing of the case. Mr. Branson then went into the case, and said a gross and unjustifiable libel bad been committed on Mr. Crisp. He read the article in question published in the “ Mail ” of February 26th. All through the article, he said, Mr. Crisp was accused of extorting money from ratepayers, and was charged with having misused his official powers. Mr. Branson called the attention of the Bench to clause 103 of the Municipal Corporations Act, by which Mr. Friedlander, being an officer of the Council, was liable for a penalty of LIOO for any breach of this clause. Mr. Friedlander was charged with a breach of this clause, and Mr. Crisp with aiding him in so doing, indeed he was pointedly charged with being “particeps crimnis.” All through the article there were the grossest libels, put in the, , most objectionable way. The pith of the article was an accusation against the rate collector of extorting money from the ratepayers, and the Borough Solicitor was held to have been guilty of aiding and abetting him in the extortions. Mr. Branson also drew attention to in article in an issue of the “ Mail” of March 4, in which the libel was contained, equally malicious in tone. Mr. Ivess admitted the publication of all papers bearing his imprint, and raised an objection to any other matter subsequent to the alleged libel being brought into the case, and quoted authorities on the subject. Mr. Branson quoted the law of libel to show that the libelous statement having been reiterated, such reiteration was taken as evidence of malice.. After argument, his Worship ruled that the subsequent issues of the paper could be put in. Mr. Branson then went on to say that no plea of justification could be put in. The offence was laid under an Imperial statute, and it was only for a jury to de-. termine whether the plea of justification could be beard and determined on. It was only competent for the Magistrate to say whether there was a prima facie case or not; and he quoted authorities showing that Magistrates had no power in the matter, and were bound to commit. ■ Mr. Ivess had a legal point to raise, but was stopped by Mr. Branson, and the defendant’s argument was not allowed to be heard at this period of the case. W. H. Zouch, sworn, said—l am a commission agent resident in Ashburton. I have read the article headed “ Six Shillings Costs” in the “Mail” of Feb. 26th,
It is a criticism on the action of Mr. Crisp and the Borough Rate Collector. I should think the article meant that the Borough Solicitor had aided anti abetted the collector in extorting money from ratepayers. I should say the public would be Tod to beliovo by the publication of that article that Mr. Crisp had acted in a criminal manner,-and I think the public, on reading the article in question would look upon Mr. Crisp’s action as an unjust one. After reading the article, had I been a stranger, I would not have employed Mr. Crisp as my legal adviser. By Mr. Ivcss—l would not have employed Mr. Crisp after having read the article in question if the article were true. I am not in a position .to say if the public have expressed approval or disapproval of the. article. I take the definition of “ extortion ” to mean the obtaining of money the extortionists are not entitled to. The translation I put on the words “ particeps crimiuis ” that they mean a participator in the crime. Ido so from the context of the paragraph, the crime being the extortion of money from ratepayers. Mi - . Branson said he would not call any further evidence, .as the article spoke for itself. Mr. Ivess then asked if he would bo allowed to review the evidence of his witnesses after the case for the defence Had closed.
The Magistrate said Judge Jolinson had laid down the rule to be that the accused could only address the Beach as to the insufficiency of evidence, and Mr. Ivess : would have to confine his statements to that point. The Bench could not hear evidence as to the truth or otherwise of the statement. Mr. Ivess said his intention was to call evidence in j testification, and to prove that no malice was intended. If evidence were not permitted he would not have an opportunity of'defendinghimself. He quoted from a recent case in which the Court of Queen’s Bench had ruled that evidence could be given before the commtting justice for defence in a libel case. If a prima facie case of publishing a libel were made out, it was then the duty of the sitting magistrate to commit the accused for trial. He wished to call witnesses to prove the article was not a libel. Mr. Ivess then asked permission to address the Bench subsequent to’hearing the evidence for the defence. The Magistrate would allow any remarks to be made before calling his witnesses, but it was not the custom to permit accused persons to comment on the evidence after it had been taken. Mr. Ivoss then addressed the Bench, and denied any malice in the article. He was prepared to prove that Mr. Crisp never had authority to make the charges lie had done to ratepayers. His action in demanding these moneys had been disapproved of by his employers, the Borough Council. The article was written in the interests of the public, and he went on to quote the opinions of Lord Campbell, which were to the effect that malice must 'be shown before an action could lie. This had not been done. in this case. The article was a fair comment on the action of a public man. A larger amount of latitude was now allowed to the press tlian was permitted fifty years ago, and if a writer can prove that his criticisms are true, he has a perfect right to use his privilege even if ho should be proved to have written his comments in error. He would prove to the Court that Mr. Crisp, holding as he did: the position of Borough Council Solicitor was open to the criticism in the article in the “Mail.” No parallel case could be cited in which a borough solicitor, drawing a stated salary, had charged for writing letters, and he would prove that the exaction of the Gs. . was an illegal action. The words “ official coercion ”in the article were justified by the fact that the Council had condemned the action of its officer in taking the money. The charge of “misusinghis power” was warranted from the fact that any ratepayer having a demand made for rates would be under the impression that the letter would be written by Mr. Crisp as Borough Solicitor, and not as a private lawyer. No doubt there had been a mistake made by the solicitor and the collector that the writing of these letters to the ratepayers was the cheapest method of collecting rates. The law was very clear on the matter. Mr. Crisp drew a salary of LIOO a year as Borough Solicitor, and had no right., to charge ratepayers for work paid for by the Council. Mr. Ivess then went on to refer to the speeches made by Councillors on the subject, but was not allowed to give the extracts as published. The definition of ‘ ‘ pavticeps criminis was ‘ ‘ participation in something improper. ” He quoted from a dictionary, which stated the n ords meant an “accomplice.” He trusted he had succeeded in putting a different appearance on the case to that laid down by the counsel for the prosecution. The information charged him with having committed a false, defamatory, and malicious libel. Malice might bo assumed, but Mr. Crisp had an opportnity of bringing a civil suit. He did not bring his charge civilly, as his intentions were to compel the Crown to undertake the costs, of the prosecution. Mr. Branson pointed out that the Crown could order the whole costs of the case to be paid by Mr. Crisp. Mr. Ivess continued —He would cite a few more brief authorities on the law of libel. He would rely entirely for his defence upon the fact that his criticism was in the interests of the public, purely and simply. He had been all along on the best terms with Mr. Crisp, and malice was the one thing furtherest from his mind. Mr. Ivess, in answer to the caution read by the Magistrate, said—l wish to stats that the article in question was written in the interests of the public good, free from either animus or prejudice, and it was framed on the action of a public man ; such comments being believed by rac to be true and justified. Edward Haughton, sworn, said—l am editor of tho “ Ashburton Mail,” and am a journalist of about 20 years’ standing. 1 have been on the “ Mail ” . about three weeks, and have literary charge of that paper. I wrote the article complained of by" Mr. Crisp. At that time I had never seen nor hoard of Mr. Crisp. By Mr. Ivess—You saw tho article before publication. You had been out of town, and on your return I showed you a proof copy of the article, and, having read it', you made an alteration. I attended a meeting of the Borough Council, and reported a discussion on Miss Callaghan’s case.
Mr. Branson objected to any evidence being given as to any proceedings of the Borough Council, as Mr. Crisp was not present at that meeting. ■ Mr. Ivoas contended his right to call evidence to show that there were good grounds for bringing forward the reports of the proceedings of the Borough Council, and quoted a number of authorities at length. His Worship decided he could not hoar irrelevant evidence. He would gladly allow any evidence favorable to Mr. Ivess to be adduced ; but he could not permit any to be given which was not permissible by law. Mr. Haughton continued —I consider the article in question would have had the effect of letting the public know the true state of the case. I should say that the word “extortion” means taking money by a process not duly authorised. I should define the phrase “ particeps criminis” by a reference to the facts in connection with which it occurred, which were that Mr. Crisp, as Borough Solicitor, had participated with the rate collector, in the same borough, in exacting from ratepayers certain costs for doing work for, which he already received a salary from the Borough Council.
His Worship quoted from Wharton's Law Lexicon the legal definition 'of tho term to be a“ participator in crime.” Mr. Branson—Would you call the obtaining money, if.due, by any other than a duly authorised fashion, an extortion. Witness—l would not call that “ extortion,” but I should call it a name more appropriate. Mr. Branson—Do you still adhere to your former definition ? Witness—l say if tho money is not duo, and is obtained by an improper process, it amounts to extortion. In this case the money was obtained by a process, in connection with the-facts of the case, which I consider was extortion. I mean that in the article extortion was the best word to; use in connection with the case. The : words in the article, “ the collector was extorting m-mey ” meant that he had been getting money from ratepayers which was not legally due by them. In reference; to the solicitor having aided and abetted the collector, I meant that the Borough Solicitor had been assisting in a wrongful action, and was in that sense a par:y to; the crime so far as it was a crime. I have; read parts of the Municipal; Corporations. Act. I have read clause 103, by which the collector was liable to bo fined £IOO for taking fees illegally. I knew at the > time the article was written that the Bate; Collector could be proceeded against for : extortion. My opinion of the solicitor, as one of the outside public, would be that he had misbehaved himself. I should .look ■ with contempt, upon a man who would charge twice for the same work.- I should look upon a solicitor who did the things he is charged with in the article with pity. ' I meant in referring to him as ah officer that he was misapplying his powers as Borough Solicitor; My impression was that he had confused his office as Borough Solicitor with his position as a private solicitor. Harry Bell Johnston, Solicitor, swprh, said—l hold property in Ashburton. I was sued by Mr. H. Freidlander for L 9 ss. for rates due for some town sections, and I sent a cheque for the amount. There was in the account a charge of 6s. for a letter written by Mr. Crisp. I thought the charge a rather extraordinary one for a rate collector to make. I did not notice the charge of Cs. at the time I paid it, otherwise I would have deducted it from the account. I have read the article in question in the “ Mail. ” I could not give an opinion as to the article. It would entirely depend upon what terms Mr. Crisp is employed to do the legal work, as to whether he is entitled to charge for sending letters. There seems to be some very strange ideas about fees amiong the solicitors in the Ashburton, and a variety of charges for writing letters. Retainers are of various kinds. I take it that Mr. Crisp is Borough Solicitor retained to defend actions brought .against the Council. The Town Clerk then read the letter to Mr. Crisp from the Borough Council appointing him Borough Solicitor. Mr. Johnston —I should call the appointment produced a general retainer. I should charge a special fee for attendance for the Council in Court.
By Mr. Branson I decline to answer questions of this nature, but if I had read ’ the article without having any previous knowledge of the persona mentioned in it I should say the Ashburton had got a nice pettifogging little lawyer. I should never trust to a newspaper article, and would not judge a man’s character by one. The words in the article would tend to hold Mr. Crisp up to public contempt, unless some further information were given. If Mr. Crisp had aided and abetted Mr. Friedlander in charging 6s. for the letter, he would have acted unprofessionally. He might have charged 13s. 4cl. if he liked ; and had he made the demand independent of Mr. Friedlander ho would have acted professionally. Mr. Johnston having finished his evidence, he demanded his costs, and was allowed L2 17s. -
Catherine Callaghan-—I am a schoolmistress, and own a section in Tancred street. I received the letter produced signed by Mr. Crisp, demanding the sum of L2 2s. for rates and costs. I f fterwards received a summons for the money. The time for paying the rates had expired before I got the letter from Mr. Crisp. I did not consider the demand a just one. I paid 'is. as Mr. Crisp’s charge in addition to the rate. By Mr. Branson —I wrote one letter to Borough Council, about the demand of 65., a fortnight after I had paid. Mr. Ivess advised me to - write the letter to the. Borough Council. I asked Mr. Ivess to assist mo in the matter. Mr. Ivess gave me suggestions as to how I should word the letter. He gave me a draft of the letter. I made some alterations in the draft. I have a portion of the draft at home. Mr. Branson—Then Mr. Ivess dictated to yon the letter yon wrote to the Council! Witness—Yes. Mx - . Branson—Then the murder is out. Mr. Ivess gets the lady to write the letter and then founds his article on his own letter; ■ Charles Braddell, Town Clerk of Ashburton, examined by Mr. Ivess, produced an extract from the minutes of the Council, confirming theappointment of Borough Solicitor upon Mr. Crisp, who tendered for the position along with Mr, Harris and Mr. Ireland. He also produced the letter sent to Mr. Crisp intimating the appointment. ■ Mr. Ivess asked Mr. Braddell what was the impression he had of the scope of this letter. Mr. Branson objected to the queston as the document explained itself. His Worship ruled the question was not admissable. The extract from the minutes was then read directing that a list of the defaulters be handed to the solicitor. Mr. Braddell —I do not know what are the duties of the Borough Solicitor, and I don’t know that ho was or was not entitled to charge 6s. for writing letters. Mr. Crisp had done professional work regarding the bye-laws, and had prosecuted for breaches of the bye-laws in the Court. Mr. Crisp had not received any payment directly for that work. Had sought Mr. Crisp’s advice in legal matters in borough affairs, when such was actually required, bat never gave the question whether ho would have to pay for it or not any thought. Had the impression that ho could go to Mr. Crisp for professional advice for the Council when such was wanted, Mr. Crisp- being the person appointed to give it. Don’t know that the LIOO paid to Mr. Crisp was only a general retaining fee. By Mr. Branson—Have read the article in the “ Mail” of the 26th, entitled “Six Shillings Costs.” The portion of the article accusing Mr, Crisp of misuse of his .office, and aiding and abetting the collector in the extortion of. money, having been road, Mr. Branson asked witness what would have been his (witness’) opinion of Mr. Crisp had he been an outside person 1 Witness—l should not Have cared to have anything to do with Mr. Crisp if I had not known the facts of the case. Mr. Branson—Do you think the article is calculated to hold Mr. Crisp up to contempt, and to injure him in his business ? Witness—l think so. Mr. Branson—Do you think the article would cause a similar impression on the minds of the public ? Witness—l cannot answer for the public. Mr. Branson—Did Mr. Ivess come to you for information regarding this case ? Witness—Ho came to me last Monday or Tuesday, and told me I would be subpoenaed. He also asked to see the minutes, rate-book, and letter-book. Mr. Branson—Did Mr. Ivess. pome to you for information before the publication of the article complained, of ? ;
Witness—Ho did not, to the best of my recollection. (Miss Callaghan’s letter to the Borough Council produced, which witness recognised.) . Mr. Branson—Do' you recollect Mr. Ivess ever coming to you to inquire as to tho terms of Mr. Crisp’s contract with the Borough ? Witness —I have no recollection. Mr. Ivess—Did the Council ever authorise the exaction of this six shillings iu question ? Witness —The Council never said anything about it till Miss Callaghan’s,letter was received. They had no knoutjpdgq of it, so far as I know. Mr. Ivess— You; stated you. hatT no recollection of my ever coming to you for information regarding Mr. Crisp’s terms.Dp you know that I was once a member of the. Council ? ' ‘ / “ -7 Witness—l know that perfectly, well. Mr. Ivess—r Are you awaro tthat it was on my motion that a solicitor was appointed.? Witness—lt appears only as a resolution in the minute book that a solicitor should bo obtained. - Mr. Ivess—During the last election ; for Mayor did hot I come to "you asking; for information regarding the expenditure of the borough) i and did not yoii l give-liie amongst other items that of LIOO as the> salary of the Borough Solicitor. Witness—You did, and I gave you that information. Thomas H; Green, sworn—l am a provision dealer in Christchurch; my wife holds a section in Ashburton; I received a letter from Mr. Crisp demanding rates and costs. That was the first demand made for rates. I made application to Mr. Braddell for information' as to the amount of the rates, and received a second letter from Mr. Crisp referring me to his previous letter, and stating that ;a summons would he issued unless settled at once. • I then sent a cheque for the■amount, £1 25.).t0 Mr. BraddeiL' -1-d.on’fc know the amount of tlie rate The rate-book was then referred to, and. the amount of the rate in question was found to be 16s. Mr. Green continued—l never received any document demanding rates. I.considered the demand illegal I consider the article in the “ Mail to be a fair criticism on the actions of the Borough: 1 Clerk and Borough Solicitor in attempting to extort six shillings from, me and giving no explanation. I blame Mr. Braddell for not answering my letter. I heard of the article for the first time in Court to day. By Mr. Branson—l consider the criticism a fair one, because he applied to; me for a debt and costs. I do not say so because lam angry at having.to pay the money) but I thought it was a wrong'act. to charge costs. Had I received - a - ’ratenotice I would have forwarded the money without any threat of summons. I wrote to the Town Clerk and received no reply. I consider the comment deserved to - bn more severe than it was. , 7, .' 1 ; - Miss Callagan’s evidence was then re-sumed—-The letter produced is the .draft of the letter written by -Mr. Ivess for me to send to the Council. I altered one or two small inaccuracies in the copy I made :ftnd sent to the Council, but the general tenor of it was the same.
By Mr. Branson—l went to ,Mr. Ivess for advice. I never received any assessment notice, I first received "the notice from Mr. Crisp, and afterwards received the summons, and I went to Mr. Ivess to obtain his advice as to how 1 could pay the money without having to appear in Court, and he offered to pay the money ; into Court for mo.- I showed him the summons ; he read the particulars*' and the letter from Mr. Crisp, and he expressed surprise at Mr. Crisp making the charge of 6s. I first knew that the charge was illegal from seeing a report -of a meeting of the Council at which Mr. a statement that the charge jPJrillegal,: and I then went for legal advice to Mivi ive'-a, who - wTote a letter for me. X belieye Mr. Ivess paid the money. into. Court for me. I asked the Council for a. refund of the money, because I/believed X had been wrongly dealt by. I was not urged by . Mr. Ivess to demand re-, payment of the money. I don’t think I had any other interviews with Mr. Ivess about the matter. ■< • vr f By Mr. think you advised me to pay the money, into Court less the 65., and appear to dispute • that amount. I said rather than appear in Court, I would pay the full amount. I asked you not to publish the case in the paper, and the matter ■ was afterwards made public with my consent. -iMr. Branson said that he;; would; askthat Mr. Ivess should state the nature of ; . the further evidence he intended calling. Mr. Ivess said he had five . more witnesses to call, one of whose evidence was similar to that already given, and then the evidence would; take a turn. ; > His Worship said that he was convinced ; he could not adjudicate on the case, as he was satisfied there was a prima facie case of libel. He would ,;not take any more evidence of a corroborative nature, as it would be superfluous* but he would adr mit evidoiice of a neWinature. ' : The Court was then adjourned till this’ day at 10 a.m. ;
ALLEGED LIBEL., Ashburton Guardian, Volume 1, Issue 73, 13 March 1880
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