SUPREME COURT. CIVIL SITTINGS.

Nelson Evening Mail, Volume I, Issue 226, 26 November 1866, Page 2

SUPREME COURT. CIVIL SITTINGS.

[Before his Honor the Acting Chief Justice anda Special Jury.] Saturday, November 24, 1866. HOG& V, FIELD. Mr. Hart, in stating the case for the defence, said it would rest in tiie contradiction that would be given to the evidence tendered fbr the plaintiff, and in the fact that the plaintiff hacl failed to account for a certain quantity of barley entrusted to him. He called Thomas Field, who said: lam a brewer, residing in Nelson. In March last I proposed Hogg should make malt for me. A written agreement was drawn up, that now produced. It was said that the malting should take place at Mr. Hooper's malthouse, if I could guarantee a stated quantity. I was to pay 2s. per bushel. Mr. James Hooper asked me if I would give Hogg any stated quantity, so as to make it answer his purpose to put the malthouse in repair. I said I would give him from 1500 to 2000 bushels, but I did not like to make any particular agreement. He said it would cost him £20 to repair the malthouse, and if I could not give him a stated amount, he could not put it in repair. I then said I would give him from 15i>0 to 2ouO bushels. This conversation was on my premises. I saw him in the street after, when he said if Hogg commenced selling mait, he would be sure to let me know, as he had no money and must come to him for it. This arose from my hesitating to bind myself, as it would be trusting too much to his honesty. I told Mr. Hooper and Mr Hogg, before we commenced, that I would not like to have my barley mixed up with that of other people. Hogg was not to make malt for any one else so long as I kept him employed. I removed fhe words "more or less" from the agreement at his request, and when the agreement was signed the piece of paper produced was pinned to the" agreement and read over before he signed it. After the agreement was signed, I sent barley according to the dates of the book produced. I and my daughter made the entries. I and my men delivered all the barley. The entries were made after delivery. The book represents tbe quantity, the information being derived from personal observation and Hogg's account. On the 10th April there is an entry of 75.^ bushels in the handwriting of mj- daughter, from my information. I helped to deliver it, and saAv it all delivered. It came from Mr. Ingles, at Riwaka. I saw it weighed and checked at Mr. Levick's wharf. It was at. the rate of 52lbs. to the bushel. I drove one cart and my man Canning drove the other. Hogg took the barley through the window, as I and my man lifted bags in. We had a difference about the first quantity delivered. There were 15 bags of which I made an entry and then 37 bags. Every bag was to represent three measured bushels. He mixed the dust and I requested it sliould be screened in the usual way. When I measured both lots I found them short"; they were only measure with the dust in it. When he screened 37 bags he was 14 bushels short according to his own measurement. I made entries in the book of short measure. He sent the malt in after the 37 and 15 bags unscreened were complained of. I got at the quantity by measuring one or more bags in each load and informed Mr. Hogg of the result every

Saturday, when he came for his money. My solicitor made the last payment. The quantity of barley delivered according to my account, was 1,522 bushels, and the quantity of malt delivered 1.555 bushels, making an increase of 33 bushels. Hogg never gave me a statement of malt delivered. I paid him all he charged for, but I told him I diil not owe him the sum he charged for dust and all. I paid him for 1555 bushels, under protest. I recollect going to the malthouse, but not to see what malt was there, on the 7th August. My man, John Staples, told nie Hogg was selling malt. I went and a«ked hiin if he had bouuht any, in presence of Walter Field. I know M'Kenzie. I did not sec him that day, at the malthouse, but I have seen him there. I was not, before this, shown any malt that was not my own. On this occasion Hogg told me he had an interest in some malt which Mr. Saunders gave him to sell, lle said it eame from Chant, of Mutueka, and he gave Ss. per bushel for it, I said I would have given more for it. I tasted what he showed me, and said it was old malt; I tasted my own, and said it was new malt. He showed me a round heap of old malt, and two of mine. Tbis was in the middle of the day. I told him had I known he had malt for sale I should not have delivered the last lot of barley. I told him, at first, I would not have my barley mixed with tliat of otber people's I did not see any mixed on this occasion. Having heard that I logs was scllhuj malt to Crooke, I told Bradcock so, told him to go and inquire, and be very particular how he went to work. I did not say if ho is selling any it must be mine. I said if he had not bouuht any, it must be mine. I saw Mr. Hooper shortly after, and said Hogg is selling malt, lie said that is no odds to you, it's not your malt; he has got some from Saunders to sell. I replied, I consider it takes a slice off' his character, because he was breakin j the contract. I said I should have given him s'">o bushels more but for this. When f paid him tbe £18, he referred to what Hooper said about, the sno bushels, and said it I would give them to hiin he wonld remove all the malt away. I said I would see; I had not bought any more. To Mr Pitt : All the dates of the receipts of malt arc entered in the book. I don't remember his being without barley of mine He must always have had some I never complained of the number of bushels returned being short. I never discovered the loss of 75 bushels till I received a lawyer's letter. It was not on this account that I accused him of selling my malt. The small piece of paper was not signed, because I did not think it important. He showed me some barley of Mr. Saunders which he had to make into malt, several weeks before this, but he told me nothing of malt till the 7th August. He wa-* to return the malt in the dust, if he allowed me sufficient measure. Dust Avill make a difference of three quarts to a gallon per bushel. He admitted he had sold malt to Crook e I never said to Mr. Hooper, do you know he is selling my malt. I said do you know he is selling malt which he told me he got from Saunders to sell. To Mr 1 1 art : We generally reckon on an increase oflO per eent on the barley and have proved it by experiment. I mean an increase in measurement, anl thc malt would be quite as good for brewing. His Honor said for the purpose of justification, Ur; inquiry into the shortness of the delivery was irielevant. It was Hip selling of malt that led the defendant to utter the alleged slander. It was a c mflict of evidence whether the words were used. The quantity of barley delivered was immaterial to the issue. Martha Held : I am daughter ofthe last witness. I witnessed the signature ofthe agreement produced, and saw the piece of paper attached to it. I saw 11-ig-j" sign it, but. I did not see my father sign it. I saw the words " more or less " struck out, at Hogg's request. llis Honor said the agreement was admitted, and tlie terms did not justify anything. James Canning: lam carter to Mr. Field. I accompanied him to the malthouse several times. I remember Hogg asking Fie'd to bring up a bag of potatoes, which were not brought up because we had heavy loads. Hogg said he would put more than the vijiue ofthe potatoes out of Mr. Field's pocket. Walter Fields : lam carter to defendant. On the the 7th August I went with him to Hogg's malthouse. Mr Field asked him if he had been buying mult; he said he and Saunders had. He then asked him if he had been selling malt; he said he had. Mr. Field then took up a handful, saying, this is old malt, and said Hogg had broken his agreement in selling malt, and he should take his barley away. I saw Hogs; some time after that, and asked him if there was anvthing unpleasant between us. He admitted if Mr. Field were malting f'or him and acting as he did, he should be suspicious also. Hogg told me the increase of barley was from S to 10 per cent. He made no distinction between malt made for selling and that made for the purpose of brewing. To Mr. Pitt : I went to the malthouse several times. On one occasion Mr. Field was with me. I cannot say what barley was there other than Mr. Field's. John Staples : lama farmer at "Motueka. On the 6th August last, I was wiih Mr. Jones, the saddler. In consequence of a conversation, I told my son what I had heard. The next day I told Mr. Field what lir. Jones had told me. It was that he was getting his malt from the person who had Mark Blyth's old house. John Staples, jun. : lam a brewer in Mr. Field's employment. On the 7th August last I told him my father had told me two new brewers hnd started in town, who got th ir malt from a man who was malting in Mark B Ivt h's old place. This was defendant's case. Mr. Hart contended that the defendant was not responsible for the consequences that flowed from his instructions to the policeman who was supposed to be discreet in the manner in which he would set

' "" "'" ■ '" ' J' about making an inquiry. He simply communicated suspicions which naturally arose, and had no motive to slander tbe plaintiff. On learning that the plaintiff was selling malt in contravention of the agreement, what was more natural than to express his suspicions, to complain of the plaintiff's conduct, and to make statements f'or tbe utterance of which he appeared to have a reasonable cause. No damage had resulted to the plaintiff, and no blame could be attached to the defendant. Mr. Pitt said the only question the jury had to decide was, whether the defendant made the communication in a candid and bona fiee manner. He contended that the contrary was the case. He had abundant evidence that the piaint'ff was not acting in a felonious manner, and had acted most recklessly throughout the whole affair. He knew that other malt besides his own was there, and had no right to damage the plaintiff in the estimation ofthe public. His Honor, in addressing the jury, said, although it was to be deplored that some disagreements that • led to actions of this kind could not be settled out of Court, yet there were cases in which, for the vindication of character, parties were justified in seeking the protection of a court of law. Without determining whether this case could have been arranged out of Court, it was sufficient to know that it had been brought here, and the jury would have to decide upon its merits. Having explained the nature of the pleadings, and stated that the count for special damages had been abandoned, his Honor told the jury to examine whether the words were uttered by defendant so as to convey tbe meaning alleged in the declaration, and which were held to he the ground of actionable slander. Did he publi-Ji the blander in the sense in which it was affirmed by plaintiff that he did? They would first determine whether the words in the declaration were uttered at all, of which fact the conflicting nature of the evidence might possibl}- raise a douht in their minds, the testimony on one side going to show that the defendant accused the plaintiff of selling liis malt, whilst that on the other proved that he confined his assertion to the selling of malt. If the defendant had used the words in the former sense, he had no doubt used slanderous words, and in the sense imputed to him in the declaration. Again the jury would determine wl ether the words used on one or both occasions were used bona fide, without malice, and in the honest belief in the existence of the faet to whicli they referred. If he had used the words in this spirit they would be considered a privileged communication, and it was tha province of the judge to explain what this was, ancl the limits within which such privileged communications were by law confined. There were cases such as that of a master giving a character to a servant late'y in his employ, in which the former was privileged to make a great latitude of statement, but not beyond a bona fide and honest expression of opinion, avoiding all excessive statements. It was fjr the court to determine the nature of a privileged communication, and the jury to judge of the facts of the case. His Honor cited eminent le»al authorities in illustration of the nature of privileged communications, and showing that persons in the discharge of public or private duties were warranted, if they kept within the bounds of reasonable language, in giving expresssion to opinion respecting the character and conduct of others, provided the exigences, of the case warranted it, and they were influenced by honest and unselfish motives. It would be for the jury to determine from the evidence adduced whether the privilege in this case had not been abused, and whether the statement was made with the bona fides prc.-cribed by law. With regard to the communication to the constable, the bona fides and honesty of intention of tbe defendant must be determined by ihe state of his knowlege and intormation at the time. If his own storywas true he possessed no information of the fact that tbe plaintiff had any malt besides his own before the 7th August, and was anxious to a.-certain whether the plaintiff was disposing of his goods or not. If his statement was true he was doubtless engaged in the legitimate and bona fide exercise of his right and privilege, and was simply discharging a duty in endeavouring to invoke the assistance of the constable to assist him in finding out the real facts ofthe case. But it was given in evidence that before the 7th August ths defendant was informed by the plaintiff himself tbat he was in possession of malt confided to him by other persons for the purposes of store and sale, and if he really possessed this information at the time lie made tbe communication complained of he could not be acquitted of a great amount of carelessness fbr winch he was responsible. If he forgot tlie information that was previously convoyed to him that the plaintiff held corn from several sources and made the representation to the constable in a reasonable and bona fide manner, it altered the case materially, and was greatly in his favor. Unless there were reasonable grounds fbr defendant's statements to lhe policeman, the act was slander, though on a different footing. Tbe bona fides ofthe defendant in reference to the communication he made to Hooper, must also be inferred from his state of mind at the time, although the alleged slander in this case was on a different footing from the former. If the defendant, which he denies, after having been informed by plaintiff tliat the malt sold was from other sources, and after having tasted it and satisfied himself that there was malt not his own, the jury would be warranted in concluding that there was no good foundation fbr his statement to Hooper, and there was no reasonable or probable cause why he should have made a communication conveying the impression that the plaintiff was engaged in transactions of a felonious and fraudulent nature. His Honor explained the difference that existed between the two transactions, the first being a privileged statement to the constable for a lawful purpose, with reasonable cause of action and a bona fide intention, and the second statement calculated to damage the

plaintiff, made without such qualifying circumstances. The question of the quantity of malt which had been seriously mooted, but it did not affect that of «lander, which depended on the state of mind of plaintiff at tlie time and must be judged by its malice. His Honor read the evidence and commented on it in passing. If they believed the constable the words alleged in tbe declaration, were substantially proved. But the defendant gave a different version, saying he told the constable to be particular how he went to work, and said, if he has not bought any malt, it is mine. The jury would consider whether the discrepancies were of a material kind, and whether the statements of defendant, in reference to the instructions he gave the constable and his denial of the charge that he said plaintiff was selling his malt, entitled him to favorable consideration. In commenting further on the evidence, his Honor observed that the quasi scientific evidence as to the malt was nothing to the purpose ; that the agreement was a complete one, and contained no stipulation to prevent the plaintiff from buying, selling, or storing malt or barley. Stress was also iaid on the evidence of plaintiff, who swore that on the 7th August, in calling the attention of defendant to the malt on his premises, he said, "You know this is Saunders's malt." If this was not true, it was perjury. Either the defendant was mistaken, or the plaintiff was more than mistaken. The great discrepancies in the evidence illustrated a common fact, that witnesses in cases of this kind did not recollect what told against themselves, whilst they retained a vivid remembrance of what was damaging to their opponents. In reference to the letter sent to defendant demanding an apology, the affair would probably have been settled had it not been accompanied with a request for compensation. As showing the importance plaintiff once attached to the transaction, it was singular that after two slanders had been uttered he said he was willing to remove the objectionable malt, in order to insure defendant's custom. This did not show r that he was very angry at the time, or that he regarded the words as a necessary ground of action ; yet he might bave been anxious to avert suspicion by retaining his old customer. The affair of the potatoes only showed that a threat had been uttered, but not that any felony or fraud was seriously intended. Plaintiff has contradicted the statement attributed to him by Fields, that were he in defendant's place he would be equally suspicious. In reference to the constable's evidence, if the statement of the plaintiff was not true that the defendant knew of his having malt besides his own, there was justification for his suspicions; and if true, he adopted an irregular mode in communicating them to the constable. Nevertheless, if he honestly believed the fact, it was a privileged communication, because made for a bona fide honest use, assuming that he did not possess the information it was shown he received on the 7th August. The communication made by defendant to Hooper could not have done much harm, as he repudiated it at once; still defendant had no right to make it. As. however, it was repudiated, it was a reason for nominal damages. The jury would eee what importance to attach to difference between the words selling malt, and selling my malt, and would probably conclude that by taking a slice from his character, meant it was calculated to injure a young man just commencing business. The great question for the jury to decide was, did the defendant, after receiving the information it was alleged he received on and before the 7th August, as to the ownership of the corn in plaintiff's premises, impute fraud to tbe plaintiff. If the jury thought so they would find accordingly. As to the amount of damages, they would probably think that nominal damages would be sufficient. His Honor would not rule in the case, but imagined the jurywould so conclude, unless they saw reasons for the contrary whicli he could not see. If they thought the statement to the constable was made mala fide, and that to Hooper tended to create mischief, they were at liberty so to find, but the communication to tbe constable led to no furtlier inquiry, and tbat to Hooper having been repudiated could do no harm. The jury would act fairly, ancl not trifle with the case, as though it was not an important one. The plaintiff was entitled to a verdict if the justification had not been made out. The jury retired at 7 o'clock to consider their verdict, having been informed that two issues had been admitted, and two, including one for special damages, had beeu withdrawn. They found a verdict for plaintiff, damages ls.

This Day. His Honor the Acting Chief Justice took his seat at 10 o'clock. LIBEL CASE. Messrs. Curtis Brothers v. the Proprietors of the Nelson Colonist. Mr. Hart and Mr. Sinclair for plaintiffs; Messrs. Conolly and Kingdon for defendants. The following special jurv were sworn: — Messrs. R. 51. Paton, C. Muntz, S. H. Pike, E. Davidson, A. G. Jenkins, A. Richmond. H. E. Thompson, 11. H. Stafford, P. M'Tavish, G. W. Schroder, I. F. A. Kclling, C. B. Withers, foreman. The declaration stated— l. That the plaintiffs at the time of the publication of the libel comp'ained of were and had been for some years past, merchants residing in Nelson, trading under the firm of Curtis Brothers, and in that character transacting all kinds of mercantile agency, including the agency of steam vessels and other vessels. 2. During the last two parliaments of New Zealand the plaintiff H. E. Curtis was a member of the House of Representatives for Ihe district of Motueka. 3. At the time of the publication ofthe said libel the plaintiff Oswald Curtis was a candidate for election as a member of the House of Representatives for tbe City of Nelson. 4. One David Johnston - was, between the month of January, iu the y™m_m®mm_}^Mm.Z>® .

ber. 1862, Sub-Collector in her Majesty's Customs at Collingwood, and between the month of November, 1862, and the month of March, 1864, Acting Collector of her Majesty's Customs at Nelson. 5. The defendants falsely and maliciously intending to impute to ancl cause it to be believed of the plaintiffs, that they had connived at and encouraged smuggling by their servants and others, and tbat they had persecuted and endeavored unjustly to deprive of his promotion the said David Johnston, for having as sub-collector and acting collector, performed his duty in reference to such smuggling by the servants of the plaintiffs and others ; and that the plaintiff, O. Curti--, had corruptly abused the influence, -arising trom his position, as member of the House of Representatives, to injure the said David Johnston for the performance of liis duty, printed and published in a certain newspaper issued twice a week at Nelson, called the Colonist, on the 20th February, 1566, in a letter purporting to be addressed to the Editor of the said newspaper, the false and .defamatory libel following, that is to say : " But about the sympathy for the collector of Nelson, how is tbis borne out by past facts ? Does Mr. Curtis recollect how the firm of Curtis Brothers persecuted the late acting collector at Nelson, Mr. Johnston, when that official, alive to his responsibilities, only did his duty in bringing before the Court and to punishment some of Messrs Curtis's ' servants who had been guilty of smuggling from on board one ofthe steamers of which Messrs Curtis are the agents. Does he remember tbe pressure they brought to bear on the Colonial Government to put Mr Johnston in the wrong ami the legally convicted persons in the right, one of the firm (meaning Mr il. E. Curtis) being then a member ofthe Assembly, as the other (meaning Mr (). Curtis) now wishes "to be. and exercising his influence against those laws which as a law maker he was bound to see executed. Does he remember bow it was tried to bring disgrace and punishment on Mr Johnston, because of his just proceedings in this transaction, and because he had some years previously seized a cask of wine which was smuggled from another vessel for which Messrs Curtis Brothers were agents nnd for which they were glad to get off by payment of the duty. Does he forget tbe dead set made in the correspondence I have alluded to against Mr Johnston, to damage whom and to rob him of his promotion, every effort was straini d. but fortunately in vain." Wherefore the plaintiffs claim for damage from the defendants the sum of £2000. The pleas of defendants are as follows : — l. That that they are not guilty. 2. That the words written and published of the plaintiffs by the defendants, as in the declaration alleged, were and are true. 3. That the words beginning " Does Mr. Curtis recollect," and ending with " but fortunately in vain," wer*; and are true. 4. That in the month of August, 1863, Mungo Syme and James Smith were convicted, in the Resident Magistrate's Court of Nelson, of illegally landing from the Ladybird at Nelson, on the 2nd of said month of August, 201bs. of manufactured tobacco, and having admitted the offence, were severally adjudged to pay the penalty of £21 each. 5. That the said Mungo Syme and James Smith were, at the time of their committing the said offence, and still are, in the employment of the plaintiffs. 6. That the plaintiffs were the agents for the N Z.S. Company, to whicli company the said steamer belonged. 7. That the said Mungo Syme, at the time of his committing the said offence, had been for seven months employed in entering ancl clearing the steamers of the said company, in his capacity of clerk to the plaintiffs. 8. That the said James Smith, at the time of his committing the said offence, had been for several years warehouseman to the plaintiffs. 9'. Tbat the said David Johnston, in his capacity of Acting Collector of Customs, at Nelson, prosecuted the said Mungo Syme ancl James Smith. 10. That tl. E. Curtis, one ofthe plaintiffs, stated to the said David Johnston, on or about the 6th August, 1863, that he, the said 11. E. Curtis, was about to prepare memorials to the Hon. Commissioner of Custom; in favor of a remission of the penalty imposed upon the said Mungo tyyme and James Smith. 11. That such memorials were delivered to the said David Johnston on the 6th October, 18*53, and by him forwarded to the Commissioner of Customs at Auckland on 10th October, 1563. 12. That afew days after the said Mungo Syme and James Smith had been adjudged to pay the herein betore mentioned penalty, the said 11. E. Curtis further said to the said David Johnston, that he had exceeded his duty in valuing the said tobacco seized for more than its worth, and in adding the import duty to it, and that the penalties would be remitted, and that the said David Johnston would receive a reprimand. 13. That the language used by the said 11. E. Curtis to the said David Johnston was such as to induce the said David Johnston to understand that the said li. E. Curtis would use his influence to obtain a remission ofthe penalties imposed upon the said Mungo Syme and James Smith, and to cause the said David Johnston to be reprimanded for having exceeded bis duty. 14. That on the 2nd November, 1P63, the said 11. E. Curtis addressed a letter to tlie lion, the Commissioner of Customs at Auckland, in which were the following words : " Whatever may be the result of an inquiry, I shall be sorry for you to exact more from bim than a written apology to myself, and that ordinary justice be done to Smith and- Syme. 15. That the sail letter was intended to convey to the said Commissioner of Customs as a fact that the said David Johnston hud been guilty of conduct towards the said li. E. Curtis demanding an apology and that ordinary justice had not been done to the said Mungo Syme and James Smith. 10. That the said 11. K. Curtis did thereby persecute the said Oavid Johnston when he only did his duty in hringiug before the Court and to punishment some of Messrs Curtis's servants who had been guilty of smuggling from on bo;ird one ot' tbe .steamers of which Messrs Curtis were the agents.

17. That the said 11. E. Curtis did bring pressure to bear upon the Colonial Government to put the said David Johnston in the wrong and the legally convicted persons in the right. 18. That the said H.EL Curtis was at tbe time of bis so doing a member of the House of Representatives in the General Assembly of New Zealand. 19. That the said 11. E. Curtis did thereby exercise his influence against those laws which as a lawmaker be was bound to see executed. 20. That the said H E. Curtis did thereby try to bring disgrace and pun shnient on the said David Johnston because of bis just proceedings in thp said transaction. 21. That tbe said II E Curtis did in his letter to the Commissioner of Customs make a dead set against the said David Johnston to damage him and to rob him of his promotion. 22. That the plaintiff O. Curtis was at the time ofthe sad transaction a partner in business with the said H. E. Curtis. 23. That in the year 1859 the said David Johnston was sub-collector of Customs at tbe Port of Collingwood. 24. That in or about tbe said year an association. w:>s formed in Nelson called the Nelson CoastSteam Association of which association the said H. E Curtis was secretary and manager. 25. That the Tasmanian Maid, a steamer belonging to the said • association was allowed a sailing license permitting the said steamer to go to and from Nelson to Collingwood and otber places, without an entry inwards or outwards. 26. That the said steamer constantly entered the said port of Collingwood at night, and ' without any previous intimation of ber arrival being given, and again proceeded to sea without the knowledge of the officers of tbe Customs of the said port. 27. That the said David Johnston in the execution of his duty as such Collector of Customs at the said port cautioned the master of the said steamer that he should not land goods after dark. 28. That the plaintiff H. E. Curtis thereupon addressed a leter to the said David Johnston, <ated 15th February. 1859, containing among others the following expressions: — " I am advised to write to the Commissioner of Customs, Mr. Richmond, and ask him to forward instruction upon the subject. Now I don't want to do this if it can be avoided, as I should, of course, have to make the best of my case ; and I know it - would rather do you harm than good, but by the next mail steamer to Auckland I must do it, unless you relax, or rather, rescind your order. 29. That the said David Johnston did therefore relax the said order by perniitting goods to be landed from daylight until 10 o'clock at night, but did not entirely rescind the same. 30 Tliat the order of the said David Johnston was subsequently entirely rescindedby an order from his superiors in the department of H.M. Customs. 31. That on or about the 16th March, 1559. the said steamer Tasmanian Maid, whilst at Port Underwood, took on board two casks of sherry wine from the sbip Indiana, ancl landed the same at the Wairau, without the sanction of an oflicer of Customs, and without any duty being paid upon i the same. 32. That the said David Johnston reported the above circumstance to his superior ofiicer at Nelson the Bth May, 1859. 33. That the plaintiffs the agents for the steamer, admitted the facts of the said two casks of wine, and tendered the duty for the same, alleging that the said removal and landing of the said wine had taken place' in ignorance that such removal and landing were illegal. 34. That the Collector of Customs in Nelson refused to accept such duty until the case should be referred to the Commissioner of Customs. 35. That ultimately the plaintiffs were allowed to pay the said duty, and signed the entry, in which they declare that they are the importers of the said wine. 38. That it istrue the said wine was smuggled from a vessel for which Messrs. Curtis Brothers were agents, and that they were or might he glad to gcr off by payment of the duty. 37. That the said H. E Curtis did, by his proceeding hereinbefore mentioned in the 10, 11, 13, 14, and 15th pleas, try to bring disgrace and punishment on the said David Johnston, because he had some years previously seized a ea >k of wine which was smuggled from a vessel for which Messrs Curtis Brothers were agents, and for which they were glqd to get off by payment of the duty. In the replication tbe plaintiffs take and join issueupon the defendant's first and second plea ; and for a second replication to the third plea deny the material parts of the third plea extending from paragraphs 3 to 37 inclusive. Mr. Hart stated the facts of the case. At the last general election Messrs. O. Ourtis and Luckie were candidates for the representatives of the city. The former made some remarks on the Customs officers, and the latter published in the Colonist, on the day of the election, a letter the substance of which is given in the declaration. In this letter a libel was committed, for which the plaintiffs now seek to recover damages. It imputed to them offences of which they were not guilty, charged them with exercising their influence as members of the legislature in protecting persons in a course of injustice, an:l suggesting that the plaintiffs had connived at smuggling transactions, as well as punishing ap.ublic officer from vindictive motives. It was also complained that the name of Captian Rough was introduced into the affair, and made an authority for the statements in the letter. He should call evidence to prove that the statements in the libel had no production in fact. The libel and its publication was admitted. Captain Rough : I have held the appointment of Collector of Customs since 1856, but Avas absent from the colony for sometime in 1863. I have seen a letter signed " Honesty," in the Nelson Colonist. I saw my name in it. and thought it referred to Messrs Curtis. I took no steps in consequence, but I spoke to Messrs. Luckie and Curtis in the street about it. Before the letter appeare I, I saw Mr. Luckie in the screet. Tbe letter is dated February 16 and the piper the 20th, but I don't remember when I spoke to Mr. Luckie, it was after Mr. Curtis made his speech. I don't think Mr. Luckie mentioned the

JelteV. haste, and do not remember all that paSs'ed'-atfJ cannot" vouch for it. We spoke of Mr. Gnrtis^s speech, and I. either said or admitted I was rather'Surpirised Mr. Curtis spoke so favorably of the Collector of 'Customs. In reply to some questions fr6"ffl -* : Mr.'i*uckie ; as to some smuggling transactions regarding some wine referred to in the letter, I said in'substance, I did not consider Messrs. Curtis Brothers at all guilty in the matter. lam not certain I said irhpilieated. ..'Nothing was said ofthe seizure, lam sure I gave.'Mr. Luckie to understand what I previously Said. I, liave known Messrs. Curtis since my appointment. In regard to everything connected -*ith the revenue' arid the payment of duty they have .behaved fairly. ,Mr: Conolly : The affair ofthe wine took place in 1854, : I received information of it from Mr. Johnston;'l did not show his letter to Mr. Curtis, thatl retoember. Mr. Johnston fairly informed me a smuggling transaction had taken place. I did not see either bf the Messrs. Curtis respecting it, but I saw Mr. H. Curtis before the du'y was paid. On receiving the information I intended to proceed against the parties,' 1 but' they were not specified, the vessels wCre. I 'do not remember which first spoke ofthe vessel," Tor Mr. Curtis. The names of the vessels were mentioned. One was the Tasmanian Miid; running on the coast and to Wellington. Messrs: Curtis were the agents. I had instructions th'kf'tWQ cksks of wine were removed from the Indiana, illegally', to the Tasmanian Maid. I can't reiftemb'er' what 'Mr. Curtis said ; they admitted they had' heard : of it, and offered to pay the duty. I did not'takeit at first, till I had submitted the ca«e to the' c6m mission. They were permitted to pay the duty," and the 1 entry now produced was signed by Curtis Brothers; as importers of tho goods. They paid £2 18s." 6d. It was understood they were agents for- 'the'^steamer. I refused the duty because I thought a smuggling transaction had been committed," and '• I ' was unwilling to prejudice the case, "till I had "ascertained who the parties were. The" "Commissioner was at Auckland and some time passed before I received permission to receive the" 'money. In August, 1863, I was in England. The wine was seizedand carried away. Mr Johnston •wai. "acting collector during my absence, and it was his duty to prosecute in any smuggling case. I was absent tfhen Smith aiid*Syme were prosecuted. On my" returh the whole matter was submitted to me to repbrt pn. - The Government had not decided on the petition from the parties' convicted of smuggling. Captain Rough : This is my report, which I liave notread'sihee it'lefc my hands. After this I received a letter ;and other documents from Mr. 11. Curtis. It w-fs a copj-" of a letter to the Commissioner, relating *'to 'Syme and Smith. On these I made a ueCo'nd report" in April of this year, after the commeficerrient'of tke action, which was on the 26th March. * The "papers were returned to hie, and I heard that comments were made on them by plaintiffi^'but T did 1 "hot read tbem. I endeavored to make my*' reports'' fair, and' if any cne said tliey were unfair; it would be grossly untrue and injurious to me7* I produce the bond in force on May 15, 1854. It was cancelled when a new bond was execuled in December, 1865.' Messrs. Curtis are Custom House agents'— fTo'be continued in to-morrow's issue ]