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SUPREM COURT. Tuesday, April 29., Nelson Examiner and New Zealand Chronicle, Volume XXXII, Issue 37, 7 May 1873
SUPREM COURT. Tuesday, April 29.
[Before his Honour Mr. Justice Richmond.] IN BANCO. 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. G. Henderson, of the same place. The following is a brief outline of the pleadings : — The plaintiff's declaration states in the first count, that the plaintiff held the offices of Commissioner of Crown Lands for the Province of Marlborough, Sheriff in the same province, and Justice of the Peace for the colony, and thut 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, aud 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 aud flagrant immorality, thus bringing a Bcandal on the district, we are therefore of opinion that a petition should be prepared for signature and presentation to his Excellency the Governor, asking inquiries 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 countjof the declaration states, that whilst the plaintiff was holding the office abovomentioned, the defendant published a libel concerning the plaintiff, consisting of a petition to his Excellency the Governor from tho inhabitants of Blenheim, parts of which Btate as follows :—: — " That a great scandal exists in this district, having reference to William Henry Eyes, Esquire, one of her Majesty's Justices of tho Peace, Sheriff of the province, and who holds other high Government appointments. " Thut 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 lifo which is ulleged of the said William Henry Eyes." The petition concludes with a request . for ininquiry, 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 theso 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 hi 3 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 travelliug expenses, under each couut — in ull, £2,000. The defendant's plea is divided into paragraphs embodying the following matters of defence :—l.: — 1. Not guilty. 2. That defendant was Mayor of Blenheim, and that the alleged libel complained of in tho 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 iv it, and on the plaintiff's coYiduct 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 bad 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. Fuir 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 6aid scandal. 12. That the words set out iv the third paragraph of the petition are true. The plaintiff treated the separate paragraphs as distinct pleas, and joined issue upon the lest, 4th, and 7th, which are therefore not affected by the demurrer, and demurred to the remainder, tho defendant joining demurrer upon them, but contending that the whole ought to bo taken as one plea. This last point was overruled upon the argument. The demurrer was elaborately argued at Nelson, on Tuesday, April 29th. Mr. Tkaveks, of Wellington, appeared for plaintiff in support of tho demurrer, and in the course of his argument cited Davidson v. Duncan, 7 B. and 81. 229 ; Hearne v. Stowell, referred to in Starkie on Libel, 3rd cd., 243 ; Wason »'. Walter, L. Hep., 4Q. B. 73 ; Jones v. Black, L. Sep., 5 C. P. 32. Mr. Pitt, of Nelson, instructed by Mr. Conollt, of Picton, appeared for defendant in support of the pleas. He cited Lewis v. Lory, 27 L. J., Q. B. 232 j Beatson v. Skene, 29 L. J., Ex., 430 ; Harrison v. Bush, 24 L. J., Q. B. 367 ; M'Kellar v. Brown, Macassey 905 ; George v. Goddard, 2 F. and F. 623 5 Lucan v. Smith, 26 L. J., Ex. 94; M'Dougall v. Claridge. 1 Campbell 266 ; Fairuian v. Ives, B. and Aid., 642 ; Carr v. Duckett, 29 L. J.., Ex., 463. On Monday, May sth, his Honour 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 publio and private capacity. It appears that tho defendant presided as chairman at a publio 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 aiserts, thut there was good reason to believe that the plaintiff was " leading & 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, prayiDg inquiry to be made into the the truth of the allegations against the plaintiff, and, "if found correct, that this unworthy person be removed from the office he novr holds." A second count charges the defendant with libelling the plaintiff by tho 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 ti> the plaintiff ;" \ and, after allegations importing that the plaintiff's alleged mode of life was exciting publio indignation, praying inquiry, with a view to taking stepß " 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, aud a number of other pleas. All the special pleas are demurred to, except the third plea to the first count, whica 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 Mayor of 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 tho 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 buccsbfully contended, that the putting of a resolution to a publio meeting, by the chairman, is not in law a publication by him of the matter of tho 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 was not bo privileged in either capacity. It is very usual for the Mayor of a Borough to preside at voluntary assemblages of thn inhabitants, held for the discussion of matters of local interest. But on such occasions the Mayor does not attend in his official capacity,
and is, in the eye of the law, n$ much a mere volunteer as any other person present. Had the defendant been ofliciully bound lo put ihe resolution the caae would have been quite ditfjrent. No doubt the meeting was engaged in discussing a subject of great , publio 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 qucsiiou. But persons, of whatever station, who at ouch meetings takopart in tho publication of criminatory statements, are subject to be called upon to answer in damages to the party aggrieved thereby, if thoee statements turn out to bo false. The public purpose of the meeting carries with it no privilpgo exempting the persons assembled, or any of thtun, from tho ordinury 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 resolutionis " a fair comment" upon the matters therein referred to, and upon the conduct of the plaintiff as a public officer. This pea is demurred to on the ground that the resolution, on the face of it, goes boy ond comment, and contains substantive defumatory averments. What the resolution asserts is this, that there exists good reason to Loliovo that the plaintiff is leading a life of open and flagrant immorality. Now the plaintiff may be leiding, either euch a life as is described, or a decent and roputablo lifo. In the latter cuse tho resolution cannot be a fair comment upon fact?. In the former case, tho 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 1 matter of opinion. The plea, therefore, can only apply to a aupppsod intermediate and equivocal state of things ; such a slate of things, (if such there could be) as to leave room for a difference of opimou respecting the moral character and outward decorum of tho plaintiff's life. Were the plea allowed, the defendant, after breaking down in the attempt to prove the charge against Air. Eyes, and thus to justify the resolution, might claim the right to excuse it, by showing the existence of what I havo called an equivocal state of thing!>. To enable him to do this is the only possible purpose of the plea now iv question. In Buppor*i of tbe'.defendant's right so to plead, it is argued, that the publio conduct of a puhiio oiliccr is always opon to public criticism, and that people may speak out what they think on that class of subjects, provided only they do so in good faith, ai d without mulice. To this reasoning there are two valid objections. In the first place, tho defendant's proposition a 9 stated, is not here applicable ; for what i 3in question is not the publio conduct of a publio officer, in the proper eenso of tho term, but his private conduct; his conduct, that is, as a private citizen in the ordinary relations of life, not his coi.duct in the dischargo of his official duty. In the second place, the proposition itself is too widely stated, for the supposed license of comment and criticism does not extend without reserve even to the official conduct of pu'jl c men The right of free comment upon the actions of publio 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 euch actions as direitly concern the public, but also to such subjects as are allowed to bo mutters of opinion as distinguished from asccrbuinable m.itterj of fact. Thus it mny be allowable to question, in a gener 1 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 eo'irso bo libellous ; or the military capacity and conduct of a general o'l cer mny be severely criticised j but it would not bo permitted to write of him falsely, that he ran away from tho enemy on a particular occasion. Iv Turnbu'l v. Bird, 2 Foster, and Fin., 523, it was considered that tho defendant would be entitled to express the illiberal opinion, if in good faith ho h Id it, that tho plaintiff, as a. Roman Catholic, mint necessarily hold principles which would permit him to falsify a document for the good of his church, and was therefore unfit for employment iv tho Public Recoid Office. In all these cases the allowable comment is on something which ia matter of opinion; something tho truth or falsehood of which is not capable of being brought to the test of the senses ; or involving principles lespoeting which civilised society is not, agreed. But in regard to statements respecting definite aacertaiuable matters of facly-in-vdlving no rnsettlod principles, and the truth or- falso hood of which may bo predicted with certainty, the like license does not exi^t. I thinkthatitcannotbedoubtful to which of thetwo above-mentioned classes this statement of ihe resolution respecting the plaintiff belong?. Cleaily it must bo regarded as a statement respecting an ascertainable matter of fact. What is a life of open and flugrant immorality cannot, iv an English Court of law, be treated as an unsettled social question. Whether or not a particular person is loa.ling such a life anut also bo perfectly ascertainublo. Either tho plaintiff has been leading the life imputed to him, or he has not. A jury must decide between these two alternatives ; and ihe p issibility of un equivocal state of things, in -which tho present plea might be applicable, is not to be almittod. In reference lo the particular terms of the alleged libel, I observe, indeed, that the resolution does not positively affirm tho plaintiff's loose conduct as a fact, but rather affects to treat tho matter as an open question j although the expression, " this unworthy person," seems to indicate a foregone conclusion. I do not think that any puty to tho resolution could be allowed to take advantage of this ambiguity. The defendant can only justify himstlf by proof of the actual fact. If tho plaintiff wore not, in truth, leading a lifo 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 iv publicly asserting that good reason existed for so believing, if, in point of fact, the plaintiff were leading ai outwardly decent life ; though it might be ground for mitigation of damages. For these reasons I am of opinion thut the plea of fair comment is inapplicable, and that the demurrer thereto must be allowed. The noxt plea demurred to is the fifth to the first count. This merely repeats tho statements of the resolution iv the same wolds. The material allegation of the resolution being quite general, the plea should have stated tho particular facts relied upon as a justification of that statement; and for want of this particularity the plea is bad. Eeg. Gen., 88; J'Anson v. Sfcuart, 1 T.R., 743. The sixth aDd last plea to Mia 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 theso reports lo be false, as iv determining on the validity of this plea I must do, the disseminators, in any Bhape, of the defamatory statements referred to are 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. Ainslie, 10 Exchequer Rep., 63. The first plea to the second count is the general issue. Tho second plea eels up the same defence as that made by thethird 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 thoee which I have given in decidiug against the validity of the third plea to the iirst count. On a fair construction of the language of the petition, it seems to import that the couduct of Mr. Eyes was actually such as to cause scandal, and to be felt as a reproach to the district. Of coursa it will ultimately be for a jury to my whether tho words bear this or any oilier defamatory sense. But, in any possible view of tho meaning, it seems to me clear that the statements of tiio 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 Law Journal, 2, Q,B. 25 j S.C. 5 E. Sf B. 844 j was cited to show that the petition was a privileged communication,
being a complaint respecting a public officer of tho Colony addressed to the proper authority. As a communication to his Excellency the Governor I see no reason at present to doubt that the petition wouhl be privileged ; and if there has been no pub ication 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 av:iUbie under the general issue. But it is one thing quietly to make a bona fide charge to tho official superior of the supposed offender, aud another to discuss his conduct at a public meeting. In the formor caso 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 roferred to by them, or to compensate the injured person for the damage and annoyance which their acts must have occasioned him. Lastly, I have to deal with the third pica to tho second count ; for I take paragraphs 10, 11, and 12 as forming part of the third plea, justifying tho alleged libel as true in fact. This teems to be most favorable to tho de'eudant, and my opiuion being adverse to him, I wish to put his pleading in tha best light. If paragraphs 9, 10, 11, and 12, taken all together do not constitute a valid pica, certainly they will not be good taken separately, oi in any of the combination. Assuming then, that all four paragraphs form a single plea justifying on the ground of tho truth of the matter alleged, it is obnoxious to the Bim.e 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 tho allegations of the petition. Tho reference by tho lOlh paragraph to the current reports set forth iv. 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 any statement by him on the subjpcb of the reports. If it bo said that the defendant by the petition in substance avers nothing except that a charge had been made again3t Mr. Eyes, that, as I have already held, is libellous, unless the charge was true ; and this pica, echoing the language of the petition, that is, merely repeating the averment that a charge had been nvide, without averring the truth of tho charge, is no answer to the declaration. Defendant to have, leave to apply within 14 days to amend the pleas demurred to ou terms of paying tbe costs of the demurrers, otherwise judgment for tho plaintiff. Eyes v. Dodson. j The pleadings in this case are similar to those on tho second count of the declaration in Eyes v. Henderson, the remarks upon which thereforo apply.
SUPREM COURT. Tuesday, April 29., Nelson Examiner and New Zealand Chronicle, Volume XXXII, Issue 37, 7 May 1873
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