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Supreme Court, Nelson.

TUESDAY, APRIL 29. [Before his Honor Mr Justice Richmond.] J~ THE EYES LIBEL CASES. Eyes v. Henderson. In this action, which is brought to recover damages for an alleged libel, the plaintiff is Mr W. H. Eyes, of Blenheim, and the defendant Mr George Henderson, of the same place. The following is a brief outline of the pleadings :— The plaintiffs declaration states, in the first count, that the plaintiff held the offices of Commissioner of Crown Lands for the Province of Maryborough, Sheriff in the same province, and Justice of the Peace for the colony ; and that, -whilst he held these offices, the defendant, at a public meeting held at Blenheim on the 28th October last, published "a certain false, scandalous, malicious, and defamatory libel" concerning the plaintiff, embodied in the following resolution : — " This meeting being deeply impressed with the conviction that any person holding the office of Sheriff, and other high colonial and provincial appointments, should be of good moral character, and having good reason to believe that the person holding these offices in this province is leading a life of open and flagrant immorality, thus bringing a scandal on thedistrict, we are therefore of opinion that a petition shonld be prepared for signature and presentation to his Excellency the Governor, asking enquiries to be made into the truth of these allegations, and, if found correct, that this unworthy person be removed from the 'office he now holds." The second count of the declaration states, that whilst the plaintiff was holding the office above-mentioned, the defendant published a libel concerning the plaintiff, consisting of a petition to his Excellency the Governor from the in- > habitants of Blenheim, parts of which state as follows : — " That a great scandal exists in this district, having reference to William Henry Eyes, Esquire, one of her Majesty's Justices of the Peace, Sheriff of the province, and who holds other high Government appointments.

"That the public mind here is much excited about this scandal, and a public meeting has been held showing unanimous indignation against the said William Henry Eyes. " That your petitioners are of opinion, that it is neither for the peace nor well-being of the district that any person should hold these high offices who is leading the life which is alleged of the said William Henry Eyes. The petition concludes with a request for inquiry, and that such steps might be taken to remove " this reproach " from the petitioners as might seem best. The plaintiff alleges that in consequence of these grievances complained of in the first and second counts, he has been "greatly injured in his reputation, and has suffered great pain of body and mind and loss in his employment," and has been put to great expense in going to and from Wellington to clear himself from the charges brought against him ; and claims £800 for damages, and £200 for travelling expences, under each count — in all £2,000. The defendant's plea is divided into paragraphs embodying the following matters of defence : — l. Not guilty. 2. That defendant was Mayor of Blenheim, and that the alleged libel complained of in the first count of the declaration, was a resolution properly put by him to the meeting, as chairman of such meeting. 3. That the alleged libel was a fair comment on the matters referred to in it, [andj on the plaintiffs conduct as a public officer. 4. That the statements made in the alleged libel were and are true. 5. That the persons present at the said meeting had good reason to believe that the plaintiff was leading a life of "flagrant immorality." 6. Sets out the particular facts of the scandal about the plaintiff. As to the second count : — 7. Not guilty. 8. Fair comment. 9. That the statements about the plaintiff are true. 10. Repeats the allegations contained in paragraph 6. 11. That great excitement and indignation existed in reference to the said scandal. 12. That the words set out in the third paragraph of the petition are true. The plaintiff treated the separate paragraphs as distinct pleas, and joined issue upon the Ist, 4th, and 7th, which are therefore not affected by the demurrer, and demurred to the remainder, the defendant joining demurrer upon them, but contending that the whole ought to be taken as one plea. This last point was overruled upon the argument. The demurrer was elaborately argued at Nelson, on Tuesday, April 29bh. Mr Travers, of Wellington, appeared for plaintiff in support of the demurrer, and in the course of his argument cited Davidson v. Duncan, 7 R and 81. 229 ; Hearne v. Stowell, referred to in StarMe on Libel, 3rd ed., 243 ; Wason v. Walter, L. Rep., 4. Q. B. 73 ; Jones v. Black, L. Rep., 5. G. P. 32. Mr Pitt, of Nelson, instructed by Mr Conolly, of Picton, appeared for defendant in support of the pleas. He cited Lewis v. Levy, 27 L.J., Q. B. 232; Beatson v. Skene, 29 L.J., Ex., 430 ; Harrison v. Bush, 24 L. J. % Q. B. 367 ; M'Kellarv. Brown, Jdacassey 905 ; George v. Goddard, 2 F: and F. 623 ; Lucan v. Smith, 26 L. J,, Re. 94.; M'Dougall v. Claridge, 1 Campbell 266; Fairman v. Ives, B. and Aid., 642 ; Carr v. Duckett, 29 L, J.. Ex., 468. On Monday, May sth, his Honor delivered the following elaborate judgment : — In this action the plaintiff, who is a Justice of the Peace, holding the offices of Sheriff and Commissioner of Crown Lands in and for the Province of Marlborough, complains of alleged libel reflecting upon him both in his public and private capacity. It appears that the defendant presided as chairman at a public meeting of the inhabitants of Blenheim, and that, as chairman, he put to the meeting the resolution which constitutes the libel complained of in the first count of the declaration. The resolution asserts that there was good reason to believe that the plaintiff was " leading a life of open and flagrant immorality, thus bringing a scandal on the district," and purports to express the opinion of the meeting, that a petition should be presented to the Governor, praying inquiry to be made into the truth of the allegations against the plaintiff, and, "if found correct, that this unworthy person be removed from the office he now holds." A second count charges the defendant with libelling the plaintiff -by the publication of a petition to the Governor, purporting to proceed from inhabitants of the Province of Marlborough, stating " that a great scandal exists in this district, having reference to the plaintiff ;" and, after allegations importing that the plaintiffs alleged mode of life was exciting public indignation, praying inquiry, with a view to taking steps "to remove this reproach " from the petitioners. The defendant has pleaded not guilty to each count, together with justifications of the alleged libels as true, and a number of other pleas. All the special pleas are demurred to, except the third plea to the first count, which alleges, in general terms, the truth of the statements contained in the resolutions. Beginning with the pleas to the first count ; the second of these alleges, in substance, that at the time of the alleged grievance the defendant was Mayorof Blenheim, and as such was requested to preside and did preside at the public meeting at which the resolution complained of was proposed ; and that the defendant published the alleged libel no otherwise than by submitting the resolution to the meeting as chairman, and without any malicious intent. It was not argued, nor do I think it could have been successfully contended, that the putting of a resolution to a public meeting by the chairman is not in law a publication by him of the matter of the resolution. The other point raised by the plea is the existence of some privilege, by virtue of which the defendant, either as Mayor of the Borough or as chairman of a public meeting, is exempted from the ordinary responsibility of one who concurs in the publication of defamatory matter. But plainly, too plainly, indeed, for argument, the defendant waß not so privileged in either capacity. It is very usual for the Mayor of a Borough to preside at voluntary assemblages of the inhabitants, held for the discussion of matters of local iuterest. But on such occasions the Mayor does not attend in his official capacity, and is, in the eye of the law, as much a mere volunteer as any other person present. Had the defendant been officially bound to put the resolution, the case would have been quite different. No doubt the meeting was engaged in discussing a subject of great public importance, The right of her Majesty's subjects to

censure, in voluntary public meeting, the openly lewd life of a person holding such offices as the plaintiff holds is not at all in question. But persons, of whatever station, who at such meetings take part in the publication of criminatory statements, are subject to be called upon to answer in damages to the party aggrieved thereby, if those statements turn out to be false. The public purpose of the meeting carries with it no privilege exempting the persons assbmbled, |or any of them, from the ordinary duty of abstaining from defamation. I have no doubt at all that the plea is bad. The third plea to the first count alleges, that the resolution is " a fair comment " upon the matters therein referred to, and upon the conduct of the plaintiff as a public officer. This plea is demurred to on the ground that the resolution on the face of it, goes beyond comment, and contains substantive defamatory averments. What the resolution asserts is this, that there exists good reason to believe that the plaintiff is leading a life of open and flagrant immorality. Now the plaintiff may be leading, either such a life as is described, or a decent and reputable life. In the latter case the resolution cannot be a fair comment upon facts. In the former case the resolution is justified, not as fair comment, but as the absolute truth. In neither case is there really any room for what is termed " comment ;" which means, in this connection, the expression of opinion concerning that which is in its nature doubtful, and a matter of opinion. The plea, therefore, can only apply to a supposed intermediate and equivocal state of things ; such a state of things, (if such there could be) as to leave room for a difference of opinion respecting the moral character and outward decorum of the plaintiff's life. Were the plea allowed, the defendant, after breaking down in the attempt to prove the charge against Mr Eyes, and thus to justify the resolution, might claim the right to excuse it, by showing the existence of what I have called an equivocal state of things. To enable him to do this is the only possible purpose of the plea now in question. In support of the defendant's right so to plead, it is argued, that the public conduct of a public officer is always open to public criticism, and that people may speak ont what they think on that class of subjects, provided only they do so in good faith, and without malice. To this reasoning there are two valid objections. In the first place, the defendant's proposition as stated, is not here applicable ; for what is in question is not the public conduct of a ijublic officer, in the proper sense of the term, but his private conduct ; his conduct, that is, as a private citizen in the ordinary relations of life, not his conduct in the dischai'ge of his official duty. In the second place, the proposition itself is too Avidely stated, for the supposed license of comment and criticism does not extend without reserve even to the official conduct of public men. The right of free comment upon the actions of public men — understanding thereby the right of saying what people honestly think on the subject, however unjust, unwise, or improbable their thoughts may be — is confined, as I understand the matter, not merely to such actions as directly concern the public, but also to such subjects as are allowed to be matters of opinion as distinguished from ascer.tainable matters of fact. Thus it may be allowable to question, in a general way, the patriotism or political purity of a Member of Parliament ; but falsely to publish of him that he had taken a bribe for his vote, would of course be libellous ; or the military capacity and conduct of a general officer may be severely criticised ; but it would not be permitted to write of him falsely, that he ran away from the enemy on a particular occasion. In Turnbull v. Bird, 2 Foster and Fin., 523, it was considered that the defendant wonld be entitled to express the illiberal opinion, if in good faith he held it, that the plaintiff, as a Roman Catholic, must necessarily hold principles which would permit him to falsify a document for the good, of his church, and was therefore unfit for employment in the Public Record Office. In all these cases the allowable comment is on something which is a matter of opinion ; something the truth or falsehood of which is not capable of being brought to the test of the senses ; or involving principles respecting which civilised society is not agreed. But in regard to statements respecting definite ascertainable matters of fact, involving no unsettled principles, and the truth or falsehood of which may be predicted with certainty, the like license does not exist. I think that it cannot be doubtful to which of the two above-mentioned classes the statement of the resolution respecting the plaintiff belongs. Clearly it must be regarded as a statement respecting an ascertainable matter of fact. What is a life of open and flagrant immorality cannotin an English Court of law, be treated as an nnsettled social question. Whether or not a particular person is leading such a life must also be perfectly ascertainable. Either the plaintiff has been leading the life imputed to him, or he has not. A jury must decide between these two alternatives; and the possibility of an equivocal state of things, in which the pi'esent plea might be applicable, is not to be admitted. In reference to the particular terms of the alleged libel, I observe, indeed, that the resolution does not positively affirm the plaintiff's loose conduct as a fact, but rather affects to treat the matter as an open question ; although the expression " this unworthy person," seems to indicate a foregone conclusion. Ido not think that any party to the resolution could be allowed to take advantage of this ambiguity. The defendant can only justify himself by proof of the actual fact, If the plaintiff were not, in truth, leading a life of open immorality, it is difficult to imagine there could have been good reason to believe that he was so doing. But even supposing that there were some strong apparent reason, it would not, in my opinion, justify anyone in publicly avowing that he did so believe, or in publicly asserting that good reason existed for so believing, if, in point of fact, the plaintiff were leading an outwardly decent life ; th6ugh it might be ground for mitigation of damages, For these reasons I am of opinion that the plea of fair comment is inapplicable, and that the demurrer thereto must be allowed. The next plea demurred to is the fifth to the first count. This merely repeats the statements of the resolution in the same words. The material allegation of the resolution being quite general, the plea should have stated the particular facts relied upon as a justification of that statement j and for want; of this particularity the

plea is bad. Reg. Gen., 88 : J'Anson v. Stuart, 1 T.R., 748. The sixth and last plea to the first count sets up as a justification the currency and general belief in Blenheim, at the time of the meeting, of certain reports, which are specified, concerning the plaintiff's [conduct. Supposing the reports to be false, as in determining on the validity of this plea I must do, the disseraiuators, in any shape, of the defamatory statements referred to arc equally liable with the originators ; and this is no good plea in bar, though the same matter may be ground for mitigation of damages. Tidman v. Aiuslie, 10 Exchequer Rep. 63. The first plea to the second count is the general issue. The second plea sets up the same defence as that made by the third plea to the first count, viz., that the alleged libel is a fair comment on the matters therein contained, and upon the conduct of the plaintiff as a public officer ; and it is demurred to on the same ground. My reasons for holding the plea a bad one, as I do, are also similar to those which I have given in deciding against the validity of the third plea to the first count. On a fair construction of the language of the petition;,- VC~ seems to import that the conduct of Mr Eyes was actually, such as to cause scandal, and to be felt as a reproach to the district. Of course it will ultimately be for a jury to say whether the words bear this or any other defamatory sense. But, in any possible view of the meaning, it seems to me clear that the statements of the petition are not comment in the sense in which that word is used in reference to" the law of libel. They are assertions which can be definitely shown to be either true or false. The case of Harrison v. Bush, 25 Laxo Journal, 2, Q.B. 25 ; S.G. SK& £.844; was cited to show that the petition was a privileged communication, beinga complaint respecting a public officer of the Colony addressed to the proper authority. As a communication to his Excellency the Governor .l see no reason at present to doubt that the petition would be privileged ; and if there has been no publication of the matter of the petition beyond what was inevitable in transmitting 'such a document, and no actual malice, I assume the defence will be available under the general issue. But it is one thing quietly to make a bona fide, charge to the official superior of the supposed offender, and another to discuss his conduct at a public meetiug. In the former case mistakes as to facts, honestly made, are deemed venial by the law ; in the latter case, the parties are held bound either to prove the charges publicly made or referred to by them, or compensate the injured person for ' the damage and annoyance which their acts must have occasioned him. Lastly, I have to deal with tbe third plea to the second count ; for I take paragraphs 10, 11, and 12 as forming part of the third^plea, justifying the alleged libel as true m fact." This seems to be most favorable to the defendant, and my opinion being adverse to him, I wish to put his pleading in the best light. If paragraphs 9, 10, 11, and 12, taken sll together do not constitute a valid plea, certainly they will not be good taken separately, or iu any of the combination. Assuming then, that all four paragraphs form a single plea justifying on the ground of the truth of the matter alleged, it is obnoxious to the same objection as that which is fatal to the fifth plea to the first count, viz., that it fails to state any particular facts relied upon as justifying the allegations of the petition. The reference by the 10th paragraph to the current reports set forth in the 6th paragraph clearly cannot save the plea, Current reports, not averred to be true, or even to have been credited by the defendant, cannot . possibly have warranted auy statement by him on the subject of the reports. If it be said that the defendant by the petition iu substance avers nothing except thai; a charge had been made against-Mr Eyes, that, as I have already held, is libellous, unless the charge was true ; and this plea, echoing the language of the petition, that is, merely repeating the averment that a charge Tiad been made, without averring the truth of the charge, is no answer to the declaration. Defendant to have leave to apply within 14 days to amend the pleas demurred to on terms of paying the costs of, the demurrers, otherwise judgment for the plaintiff.

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Supreme Court, Nelson., Marlborough Express, Volume VIII, Issue 498, 10 May 1873

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Supreme Court, Nelson. Marlborough Express, Volume VIII, Issue 498, 10 May 1873