SUPREME COURT. CIVIL SITTINGS.

Nelson Evening Mail, Volume I, Issue 227, 27 November 1866, Page 2

SUPREME COURT. CIVIL SITTINGS.

[Before his Honor the Acting Chief Justice and a Special Jury.] Monday, November 2G, 1866. LIBEL CASE. Messrs. Curtis Brothers v. the Proprietors of the Nelson Colonist. [Continuation of Evidence.] To Mr.. Hart : I conversed Avith H. Curtis about the Avine transhipped to the Tasmanian Maid, but, I did not tell him from whom I got my information or slioav him Mr. Johnston's letter. I think they knew Mr. Johnston had written to me, but not from my conversation. I have no reason to know it. I have doubt if lie informed me he had heard of the letter. I do not recollect if Mr. H. Curtis had other business A-^ith me, or said he came to tell me about the affair. It Avas in the Custom House the conversation took place. He did not say what. became of it. I was informed it was illegally transhipped but there Avas no evidence to show Avhat became of it. I am not sure which spoke first about the Avine, Mr. Curtis or myself. No formal application Avas made about the duty. The transhipment was a breach of the Customs laAv. Goods cannot be so transhipped Avithout a proper authority. Messrs. Curtis in this case placed their names as importers. They do not always do so. An entry should be correct, but Avhen there is no fraudulent intention I attach no importance to the omission. I can't find the word "importers" folloAving their name in any other entry in the office. Both agents and importers are liable to the same laAv. Mr. Curtis did not, that I remember, tell me the Avine Avas on his own account. His Honor : This statement is already in Mr. Curtis's writing. Witness : This entry is on a proper Custom House form. The law requires a correct entry in every particular. The person passing it ought to state if lie is agent or importer. Mr. Conolly said Mr. Hart seemed very anxious to make out that his client had made a false entry. Witness : lAvas give to understand that Mr. Curtis was not the importer but the agent. I learnt this from conversation. 11. E. Curtis : I am one of the plaintiffs and am partner Avith O. Curtis, We are agents for steamers, insurance companies, Lloyds, and .are commission agents, principally. I was 10 years member of the Asssembly, for Motueka, up to 1 866, when there Avas a general election, my brother was a candidate the 20th February last. I had an interview with Captain Rough, in 1859, about some wine shipped' to the Tasmanian Maid, after having seen the steward. - I told Captain Rough what the steAvard had told me, about' tAvo cases of bottled wine. It Avas before he brought the matter to my notice. My object Avas to inform him tbe steAvard -had been guilty of an illicit transaction, and I did so inform aim. A conversation ensued. I proposed to pay the duty. The steward

was the providore of the steamer of which I Avas part OAvner and agent. Fie Avas a contractor with the OAvner to provide the stores, having an alloAvance from the passengers and crew. The greater part of the time he provided the Avhole of the stores. I paid the duty finally, in behalf of the steAvard of the Tasnianian Maid. I had no concern Avith the Indiana, of a business nature. To Mr.' Connolly : The Tasmanian Maid Avas the property of the Nelson Coast Steam Navigation Company. I Avas secretary and manager. It called at the port of CollingAvood Avhen Mr. Johnston Avas subcollector there. I received information that he had interfered Avith the landing of goods, iu February, 1859. The letter produced is mine, dated loth February, of that year. He ordered that the Tasmanian Maid should act under fresh arrangements. I don't recollect Avhat. I wrote the letter to Air. Johnston, complaining that he had done more than was desirable or necessary in reference to the restrictions respecting the time of landing goods. The letter Avas read ; the Avriter stating he should inform Mr. Richmond of the subject of complaint. Mr. Johnston's tAvo replies were produced, Avritten on the 16th and 17th February, 1859. The letters Avere read. Mr. Johnston expressed his readiness to consult the convenience of the public, -repudiating the charge of unnecessary strictness, and saying he . should refer the matter to the Commissioner of Customs, Avithout Avhose authority he Avould not alloAv goods to be landed at night, as such a practice Avould be injurious to 'the safety of the revenue. Witness : I received the first letter before I Avrote to the Commissioner, and the second after. This as corrected is a true copy of the letter from Mr. 11. Curtis to the Commissioner of Customs. The letter to the Commissioner Avas read. It complained of the unnecessary strictness of the Sub-col-lector at CollingAvood in refusing to land cargo at night, by whicii the interests of the Company Avould be materially affected, the Tasnianian Maid being obliged to refuse all cargo of a certain kind in consequence. Witness : Shortly after this the order made by Mr. Johnston was rescinded by the Commissioner and by the advice of Captain Rough. This Avas before the transaction in Avine, Avhich Avas not landed, but transhipped. I think it was about the lGth of March, and I learnt of it the day I Avent to Captain Rough, I think the second of May. I was unaAvare till some years after that any one in the Customs kneAV anything of it, or avus informed by Mr. Johnston. I have seen a letter, Avhich I concluded was from Mr. Johnston to Captain Rough. It Avas a year ago ; it Avas dated CollingAvood, and signed Avith three stars. There Avas another letter from Mr. Johnston, which referred to this. Captain Rough : The letter from Mr. Johnston Avas a private note to nie, which Avas not preserved. Witness : I received niy information from the providore and steAvard. At the time in question he Avas paid by the contract prices, providing the provisions himself. As managing director, I could have turned him out for misconduct; I had the authority of a master over a servant-. It Avas a contract for a month. Once or tAvice, Avhen he said he had done badly, the company gave him something to makeup. When I offered to pay duty, Captain Rough said he should decline to receive it till he had consulted the Commissioner. He said it Avas an act of smuggling; I kneAv it Avas, and Avent to tell him so. I complained of the providore, avlio excused himself by saying he ran short of Avine. I concluded he had done it innocently, paid the duty, and signed the entry as importer, I ahvays did so. It ' Avas a mere matter of form. In August, 1863, Smith and Syme Avere in my employ ; the latter Avas a clerk learning the business. He is still in my employ. Smith Avas Avarehouseman, and had been so for some years. He is still in my employ. On the 6th August, 1863, they were charged before the Resident Magistrate here Avith a breach of the Customs laAvs. Mr. Sharp here produced the information and conviction against Mungo Syme and James Smith, under the 165th section of the Customs Regulation Act, 1858, Witness; I was present a part of the time only. The offence was admitted, no evidence Avas gone into. The fine was £21 and costs in each case. They said they had no intention of defrauding the revenue. The date of conviction was August 6. . In the room adjoining the Court I saw Mr. Johnston. I don't think I told him my servants. Avere ignorant of the Cust oms laAvs. I tried to get Mr. Johnston to receive evidence as to the value of the tobacco. Mr. Poynter referred us to Mr. Johnston. Shortly after this Mr. Johnston told me he thought I Avas preparing a memorial. I said I was not, but Mr. Kingdon was. I aftenvards assisted to draw up a memorial. I did not tell Mr. Johnston he had exceeded his duty. I said something about over valuing the tobacco. He shoAved me from the Act that I was wrong. I did not tell him tho penalties would be remitted, and he would receive a reprimand. On his saying it Avas no consequence Avhether a parcel containing goods not liable to duty was landed, if an officer seized it he would sue for three times the value of the parcel, I said the Commissioner if memorialised would remit the penalty, and Mr. Johnston would get a rap over the knuckles as well. My language and manner Avere not threatening, but I was exceedingly angry at his impudent tone. I denied I was there drawing a memorial. I drew one some months afterwards. The memorials were put in and read, after being identified by the witness. They were from Mungo. Syme and James Smith. They represented that the petitioners purchased the, tobacco in ignorance that the duty was not paid, and hoped an inquiry would be made ints> the facts of the case. Witness: The memorials were written at the dictation of Smith and Syme. Ido not hold myself responsible for all they contain. They were forAvarded to the Commissioner accompanied by a letter from Mr Johnston, dated 10th October, 1863.

Mr Johnston's letter Avas read. He referred to the fact that the documents were drawn by Mr Curtis, ; of whose conduct he complained, saying the tobacco was forfeited under the clauses of the Act levying a, penalty on goods on Avhich duty was not paid. The letter contradicted several statements in the memorial and severely criticised the conduct- of the memorialists, avlio, instead of being fined £21, ought to have been fined £100. -••""-. - Witness: The bond produced refers to the conduct of my servants and clerks. I signed it. lam bound for their conduct AAdien doing my Avork. The bond Avas put in and read. Witness: I deny using insulting remarks to Mr Johnston. A copy of his letter Avas given to me in. Auckland, by the Commissioner of Customs. I had previously spoken to Mr Reader Wood about it. I told Air Johnston I should prepare memorials, but I Avas not preparing them at the time Avhen he asked me if I Avas. On the 2nd November, 1563, 1 Avrote to the Commissioner of Customs. Letter put in and read. . It referred to the conduct of Mr Johnston, complained of some of his misstatements, and assigned reasons for defending the conduct of Smith and Syme, avlio were ignorant of having broken the laAV. It stated that Mr Johnston was ordinarily an efficient servant, and that the -writer would be satisfied if an apology resulted frouf the inquiry sought for. Witness: I frequently saw Mr Reader Wood. As a member of the Assembly I .Avas on friendly terms with him, He Avas Commissioner, of Customs and a minister. I don't recollect what party I acted with. I Avas not a member of the ministry. I have seen Captain Rough's report of 15th April, 1864. The matter was referred to him. The report was put in and read. It said the mate of the Ladybird ought to have been prosecuted as well as Smith and Syme: that Mr Johnston had not acted maliciously: that Mr H. Curtis had made some irritating remarks to the collector, and that although the illegal transhipment did take place, Messrs Curtis Avere exonerated from all knowledge of the transaction. Witness : As to the charge of malicious falsehood made against me by Mr. Johnston, Captain Rough told me it Avas not necessary to go into it. I suggested it should be introduced into the memorial. Johnston Avas passionate and said it was the fashion for smugglers to prepare all their plans beforehand. The reference to falsehood are due to Smith and Syme and not to me. The pencil notes in the memorial Avere made by me in the House of Assembly, last year. Major Richmond brought the papers to me. . I made the note that a person referred to in the memorial was umvorthy of belief. The commissioner Avent out of oflice, and did not mitigate the penalty. He was in England at the time, and Mr. Gillies acted for him. I Avrote on the 11th and 20th September, 1865, to the commissioner. The letters Avere read. They Avere addressed to Majorjßichardson, Commissioner of Customs. The first referred to the case of Smith and Syme as a hard one, because they had no intention to defraud the revenue. The case Avas undefended because it Avas thought that the mate of the steamer Avho bold the tobacco, would be prosecuted. The letter commented on Mr. Johnston's charge of malicious falsehood, and denied that the Avriter Avas actuated by any bad feeling towards Mr. Johnston. It said that had Mr. Rough been generous he Avould have exculpated the writer from all blame. Witness: Mr Johnston distinctly charged me in his letter with malicious falsehood. His Honor: It did not refer to the contents of the statement, but to the manner in Avhich it was made. Witness: It is my belief that the statement of the ti^OAA'aiter Avas a pure invention in reference to the evidence that convicted Syme and Smith. Captain Rough's inquiry Avas not so full as I expected a Government inquiry to be. Ido not say he did not do his duty; he seemed to be under the impression that all he had to do Avas to inquire whether the tobacco duty was paid or not. I can point out statements in Mr Johnston's letters in which he has led the Government to suppose that for a series of years I had been conniving at frauds on the revenue. Such is the tenor of his letter. His Honor here referred the Counsel to the nature of the libel. It Avas a charge of conniving at smuggling, abetting their servants and persecuting Mr. Johnston. It did not appear that the present question bore on. the issues. Mr. Connolly said his object was to give the Avitness an opportunity of saying on Avhat he founded his cliarge against Mr. Johnston. Witness : I allude to his letter of 1863, Avhere he charges me with intimidating him, and implied in various expressions that I had been guilty of certain misconduct. The letter Avas read, and his Honor said the jury Avould judge Avhether Mr. Johnston had reasonable grounds for the charges implied in ifc. After disposing of the question of the value of the tobacco, it complained that Mr. Curtis had brought the department into contempt, and denied that he had done anything to expose himself to the annoyance that the performance of his duty had exposed him to. It was not the first time Mr. Curtis had endeavored to intimidate him in the execution of his duty, and he referred to the fact of putting a stop to the landing of goods at CollingAvood, by night, in consequence of which he incurred the displeasure of Mr. Curtis, who had never forgiven him for the part he had taken in protecting the revenue., A letter of tbe 26th September, 1865, was read, in which Mr. Curtis demanded a. remission of penalty, in consequence of having traced the tobacco that Avas the subject of the inquiry. Ifc referred to the improper action of the Customs of Nelson, with wliich Mr. Johnston Avas connected. Witness: Before this action was brought I communicated with tbe Govern ment. I saw Maj or Richardson, also Mr. Stafford who referred me to Mr.

Patterson. On the Ist March I wrote to the Acting Commissioner of Customs about this matter, Mr. Patterson being ill. Letter put in and read. The letter stated that Smith and Syme having only committed a technical breach of the Act, tliey were entitled to a remission of the penalty. Witness: I wrote again on the 22nd March, and got a reply then. Letter read. It requested a reply to' previous letters. Witness : I then received a letter stating the matter was in the hands of Captain Rough. I have not seen his second report of 20th April, 1866. Captain Rough's second report was read. It defended the action of the Custom House afc Nelson, and said the evidence gave Smith and Syme a claim on the clemency of the Government. Witness : The penalties have since been mitigated, only one Commissioner of Customs refused to do it. Mr. Reader Wood signed for an inquiry; Major Richardson referred me to the future commissioner. It Avas Mr J. C. Richmond who mitigated the penalty. I took no active part in my brother's canvas. There were three candidates. The real contest lay between ray brother and Mr Luckie. Ifc does not follow that Mr Stafford Avas so certain of getting in. Messrs Curtis and Luckie Avere neAV men. There are tAvo or three papers. The Examiner is the property of C. Elliott. It Avas then in the hands of trustees, of Avhom Mr 0. Curtis Avas one, under the bankruptcy laAv. I read the Examiner. The trustees did not manage the paper. His Honor hoped all the contents of the papers would not be imported into the discussion, yet it was competent to slioav that the Examiner was not particular in Avhat it said of Mr Luckie. Witness: I saAv no statements referring to Mr Luckie except of a very mild nature. His Honor: You think the tone of the Examiner Avas particularly mild (laughter). Mr Conolly read a letter from the Examiner, in which the editor of the Colonist was compared to a skunk, Avhich emitted an offensive odour in order to smother his opponents (great laughter). Witness : I heard my brother address the electors. The report in the Colonist of the 10th February, is a pretty accurate one. I recollect one of the handbills produced, and recollect Symes bringing one into our office. There is no printer's name on it. The hand-bills Avere not admitted as evidence. Witness to Mr. Hart : I have the letter announcing the decision of the Government in reference to the Tasmanian Maid, dated 29th March, 1559. Letter read. Witness : The vessel ran three years and a half, a year after that period. No change Avas made after the restrictions Avere taken off. I took no steps to publish the mitigation of the penalties. Mr. Fitzherbert Avas Commissioner hetAveen Mr. Wood and Major Richardson. I had some communication with him. My remarks disparaging to Mr. Johnston Avere based on Mr. Johnston's intimation that Ave seriously injured the revenue. I did not see all the documents on Avhich Captain Rough acted. I Avas not then aware that Mr. Johnston had informed him of the affair of the Tasmanian Maid. I did not knoAv it till September last year. No other Avine came to the Avarehouse, and I did not know that itcame from the Tasmanian Maid, till about six Aveeks after. Mr. O. Curtis : I am one of the plaintiffs and a merchant of Nelson. I was a candidate at the last election and Avas elected. Our house Avas not agent for the Indiana. I received no information from the Customs about the two casks of Avine. No application Avas made for duties or penalties. The Avine Avas consumed on the vessel. I have only lately learned the Customs kneAv anything of it. The duty Avas paid for the providore. I paid the money and made the entry in the book, at least the money passed through my hands. Had the duty not been paid, it would have made no direct difference to us as Ave were agents only. We Avere repaid by the providore a feAv days afterAvards, by Avhose instructions Ave paid it. I presume the cliarge of persecuting the collector is founded on our application for a remission of the penalties. I knoAv of nothing Ave have done that would affect Mr. Johnston, except what has appeared in evidence to-day. I took no part in the matter except writing a letter or tAvo. In my speech of February last, I said nothing that could affect Mr. Johnston. The Government made no application to me in reference to the promotion of Mr. Johnston, on the increase or decrease of his salary. His Honor asked Mr. H. Curtis if the Government made any such application to him. He said he took no part directly or indirectly in the matter. Mr. O. Curtis ; The report in the Colonist is a fair report of my speech. I did not scarify Mr. Luckie at all (laughter). There were articles in the papers and squibs in hand-bills. I Avrote one of the handbills produced, called a " Roland for an Oliver." I did not write the other. I know one Avas printed at the Examiner Office. I don't know if I paid for one called "Disinterested Propositions" (laughter). I took no active part against Mr. Johnston. When Captain Rough was in England, there Avas some talk of Mr. Johnston being made Collector. Ido not recollect saying to Mr. EdAvards he Avas not a fit person. I did not, that I remember, express any opinion of his fitness. Mr W. C. Hodgson: I am a land and commission agent. I knoAv the plaintiffs who are commission agents. I have read the alleged libel. I thought it referred to the plaintiffs. It Avas a matter of public conversation at the time. Alex. Sclanders: lam a merchant in Nelson. I saAv the letter referred to. I think it referred to the . plaintiffs. There Avas a good deal of talk about it, and it created a strong impression. To Mr Conolly: On the day it Avas published and aftenvards. It did not lose Mr Curtis his election. His Honor said it Avas a libel on a partnership as

merchants, and damages could not be recovered on the ground of damage to private feelings. Witness: I believe ifc is calculated to do harm to their business; but I don't suppose it has injured their business or caused it to fall off in the slightest degree. Letters were put in from the solicitors of both parties of the following dates: 26th February, 1866, 28th February, Ist March, 3rd March. This was plaintiff's case, Mr Conolly rose to address the jury for the defence. He congratulated tbe jury at having arrived at the beginning of the end. He admitted the publication of the letter, which, if a libel, Avas one that affected the plaintiffs as merchants only, and not in their private character. The letter was published, but ifc had to be proved that ifc Avas a libel and that it called for damages. He defended the letter on public grounds, and Avould slioav from tacts that it did not exceed the bounds of fair criticism. His Honor said fair comment on public men Avas accorded to the press ; yet they were not entitled to assume tbe existence of facts AAdiich Avere not true, although tliey conscientiously believed them. Mr. Conolly continued to remark on the speech of Mr. Curtis at the election,- in reference to the Customs department, and Avhich dreAv forth the letter hi question. As Messrs. Curtis had persecuted preA r ious Custom House officers, their recent affection seemed out of place. It was proved that their servants had been guilty of smuggling, and it Avould not be hard to prove that something like persecution had been slioavii toAvards Mr. Johnston. The evidence of the last named gentleman would be the most important he should call. His conduct would be explained, and the reasons of his interference fully fully justified. The reasons why he acted so promptly Avould be disclosed, and the persecuting conduct clearly established. If the neAvspaper had asserted Avhat Messrs. Curtis had admitted in the box, it might have been greatly censured; but it had not exceeded the limits of fair criticism in remarking on the persecuting spirit Avluch had been slioavu toAvards Mr. Johnston. He had simply done his duty in procuring the conviction of real smugglers, \ and had only been defeated by the reiterated efforts of the plaintiffs, who had at length succeeded in influencing a commissioner. David Johnston: I am Collector of Customs at Greymouth. In 1859 and 1859 I Avas Sub-collector at CollingAvood. It Avas a fact that the Tasmanian Maid discharged her cargo at night, and I ordered that she should land goods only from sunrise to sunset. I received a letter from Messrs Curtis, to which I Avrote tAvo ansAvers, and the order Avas conditionally rescinded. My opinion was unchanged as to the danger to the revenue. There was only one officer besides myself. They are not bound to give their services by night and day. The legal time is from 8 a.m. to 4 p.m. The head officer may extend the time. I had reason for suspecting all Avas not right. I heard of the two casks of Avine some time after this, and brought it fonvard after having discovered it was a clear case of smuggling. I had then done Avith it. In August, 1563, 1 was Acting Collector at Nelson. I prosecuted Syme and Smith, in that capacity. They Avere defended by a solicitor. There was no application to defer the case. They pleaded guilty, and Avere convicted. They never asked me to put off the case till the mate of the Ladybird could be produced. I had no wish to press the men. I took the most lenient course. There is no ground for asserting they Avere treated Avith injustice by me or the Magistrate. They did not complain of it. After the conviction, I saw Mr. 11. Curtis, when I said something about parties being banded together to smuggle, but I did not apply this to Mr. Curtis, nor did he seem offended; Ave Avere all laughing together. A few days after, Mr. Curtis came to the office, Avhen I handed him the mate's statement, saying I could not prosecute him. Then Mr. Curtis appeared very angry. He said I had exceeded my duty in valuing the tobacco so highly, and I Avould get a reprimand. Something Avas'said of a memorial. I shoAved him the clauses of the Act. I aftenvards received the memorials from Smith and Syme, and fonvarded them Avith a letter. I understood Mr. Curtis Avas draAving up the memorials for Smith and Syme. Lately, I had to apologise for using the Avords "malicious falsehood," since the action Avas brought. I never insinuated that for a series of years Messrs. Curtis have attempted frauds on the revenue. Nothing that I have Avritten Avarrants such an assumption. To Mr Hart: I sent the particulars of the Avine case to the collector as a smuggling case, to slioav him there Avas foundation for my previous action, Avhen I received the conditional order to rescind the previous one. I represented to the collector that the practice Avas not safe. After the order to rescind I kept telling the collector my opinion Avas unchanged, and that uoav I had got hold of a clear case. I took action. I could not understand the order.. I told the collector when I heard about the Tasmanian Maid. lam not certain that Messrs Curtis kneAV about this, but I had suspicions of ifc when I gave the information to Captain Rough. I knoAv nothing of the author of the alleged libel. I said nothing to Mr Luckie about it. I was not iu Nelson in February last; I Avas at Greymouth. I did not seize the Avine ; it Avas not seized. When I spoke of landing together Mr Curtis Avas not excited. The 195th clause of the Act Avas the one I pointed out to Mr Curtis. The Act gives several penalties not to be enforced unless fraud is slioavii. I think he complained that the tobacco Avas valued too high, and Mr Levien was referred to. I said as regards the penalty-it was liable under the 126th and the 127th clause. I don't remember saying I Avould proceed Avhether the articles Avere dutiable or not. The rap over the knuckles Avas in" reference to the affair of Smith and Syme. The Avords Avere that I Avould be severely reprimanded. I knoAv of notliing to prove that Messrs. Curtis have attempted to rob me of my promotion, and I autho-

rised no one to use the words of the alleged libel or that they were glad to get off with the payment of duty in reference to the Tasmanian Maid. I have been promoted, but I don't think I have been as well used as others in the service. , I continued on friendly terms Avith Mr. Curtis up to the time of Ms sending, the letter containing the expression " soraeAvhat passionately." I named a child after Mr.' Curtis. I don't often get into a passion, I named the child, after him, but I don't know whether out of compliment to him, or out of admiration for the name (laughter). I made the apology which is now produced. Letter read. It expressed regret for using any Avords distasteful to Mr. Curtis, in 1863. It was in consequence of a request from the Commissioner of Customs to do so. The tenia malicious falsehood avus only used in a privileged communication to the commissioner. To Mr. Conolly : I did all I thought was right in the execution of my duty, and I am not aware of any improper conduct deserving of censure. The conduct of all the parties in 1863 Avas pretty notorious, so as to furnish the information to the writer signed " Honesty," in the Colonist. This Avas defendant's case. His Honor suggested to Mr. Conolly, that as it Avas noAv half-past 5 o'clock, it would be wise to adjourn, and receive his address the first thing in the morning. This suggestion having been consented to, the Court Avas adjourned till 10 o'clock on Tuesday. |