CRIMINAL SITTINGS.

Otago Witness, Volume 15, Issue 1562, 15 October 1881, Page 21

CRIMINAL SITTINGS.

Thursday, 6tii October. (Before his Honor Mr Justice Johnston and a Common

ALLEGED LIBEL.

Thomas Allan was charged with having written and published a false, scandalous, malicious, and defamamatory libel concerning J. M. Massey, the Town Clerk.

The following gentlemen were empanelled as a jury :— Messrs A. Walker (foreman), J. Harrod, John Cairns, John Clegg, James Hardy, Wm. Brach, James Jackson, sen., Henry Richmond, James Black, A. M'Kay, Wm. Mitchell, and A. Frew. There were no challenges on either side.

Mr B. O. Haggitt (the Crown prosecutor) and Mr J. E. Denniston appeared for the prosecution, and Messrs Stout and Macdonald for the defence.

The indictment set forth that before and at the time of the committing of the offence hereinafter mentioned, Joseph Morgan Massey was and still is Town Clerk of Dunedin, and that Thomas Allan, contriving and unlawfully, wickedly, and maliciously intending to injure, vilify, and prejudice the said Joseph Morgan Massey, and to deprive him of his good name, fame, credit, and reputation, and to bring him into public contempt, scandal, infamy, and disgrace, on the 27th June, 1881, unlawfully, wickedly, and maliciously did write and publish, and cause and procure to be written and published, a false, scandalous, malicious, and defamatory libel in the form of a letter directed to "His Worship the Mayor and the City Council," containing divers false, scandalous, malicious, and defamatory matters and things of and concerning the said Joseph Massey, and of and concerning a certain coach factory situate in High street, Dunedjn, in the Provincial District of Otago, and the stock-in-trade, plant, machinery, goods, chattels, and effects of the business of a coachbuilder in the said coach factory then being, which, on December 21st, 1877, were sold by Massey and Allan to one John Groves and one Alfred Groves, then carrying on business together under the style of Groves Bros , and of and concerning certain insurances against loss by fire over the said coach factory, stock-in-trade, plant, &c, effected by Massey and Allan, and of and concerning the Standard Fire and Marine Insurance Company of New Zealand, according to the tenor and effect following :—

"April 4th, 1881. " To his Worship the Mayor and City Council, " Dunedin.

" Gentlemen,— l have the honour to forward herewith a charge against the Town Clerk (meaning the said Joseph Morgan Masse; )> and trust that you will at ' once appoint a commission to inquire into it. Owing to business difficulties, and also difficulties through Mr Massey having tampered with and bribed a witness in the case, I have been obliged to delay preferring it to the present time ; but I have always considered it a matter that you and the ratepayers should be made aware of. I also annex copy of the letters sent to Mr Massey and copy of witness' statement to myself. -And am, gentlemen, your obedient servant.

" Thomas Allan.

" The following are the particulars of charge as re* ferred to in my letter :— About two years ago Mr Massey, being jointly connected hi a coach-work, effected a sale of same to the Messrs Groves Bros , the purchase-money being secured by bills. The works were at this time insured in the. Standard Insurance Company of New Zealand for the sum of £900, which was estimated as their full value. Shortly after the sale Mr Massey without my knowledge or consent cancelled the policy of insurance and effected insurances to the amount of £1600 on the works, £400 of the amount being in the Standard, and the balance in three other offlcqg. .The premiums on the policies were paid by Mr Massey, although hitherto all insurance payments in connection with this business were made either by cheque on our joint account with* the Bank of New Zealand, or, when the account would not stand farther drawing against, we each gave our cheque for one-half the amount required. After completing this matter of insurance, Mr Massey called at. my shop, produced the policies and receipts, and said' 'All right now ; if we can only get up an honest fire we will get our money out of the insurance companies.' On asking Dim to explain why he had cancelled the policy in the Standard Office, he said, 'My poor wife has £900 in shares in that Company, an that if a fire occurred with the whole, amount insured in the Standard, a loss might consequently fall upon her ; and further, by dividing the amount among several offices, giving the Standard a portion, they would be sure to pay without demur or investigation.' At the same time he offered me £20 if I could get anyone to burn the place d.own, and urged that it must be done while the Groves Bros, had possession, so tbat blame or suspicion, if any should arise, would be put on their shoulders. In order to get rid of him (Massey) I promised to think over the matter. Seeing that I took no further notice of it, he called again, and proposed that we should go ourselves and burn the place down, and offered me £50 to accompany him, and said he should have some kerosene conveyed to the works. This I refused to do, and after several attempts to either do the deed myself or assist him in doing it, the matter dropped. A gardener named Alfred Simmons was in the office adjoining the shop, and overheard Mr Massey on one occasion offering me money to assist him in burning the place, and a copy of statement made by him I herewith annex. — I am, gentlemen, yours respectfully, Thomas Allan." He (Thomas Allan) then well knowing the said defamatory libel to be false, to the great damage, scandal, and disgrace of the said Joseph Morgan Massey, to the evil example of all others in the like case offending against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

The defendant pleaded by his counsel, Eobert Stout that having read the indictment he was not guilty ; and he further said that as to the writing and publishing of the alleged defamatory matter and libel, that tho same was true, in that the said Massey and Allan were in or about the month of January, 1879, and for some timp prior to that date, the owners of certain leasehold! and situate in High street, in the city of Dunedin, a portion of which was occupied by John Mail Groves and Alfred Groves as a coach factory, and of certain machinery and stock in the buildings thereon ; and that the said machinery and stock were then insured by Massey and Allan in several insurance offices in Dunedin in a large sum of money ; and that sometime prior to the said month of January Massey called at Allan's shop in Princes street and produced the policies and receipts for such insurances of the said machinery and stock-in-trade, and said to the said Thomas Allan : "All right now ; if we can only get up an honest fire we will get our money out of the insurance companies," or words to that effect. At the same time Ma9sey offered to Allan* the sum of £20 if he (Allan) could get any person to burn down the said buildings, machinery, and stock-in trade, and said that Buch burning down should be done then, as the Groveß were in possession, and that the blame or suspicion of the burning would be put on them, should any arise ; and that thereupon he (Allan) told Massey he would think over the matter. The plea went on to Bay that some time after this conversation Massey again called at Allan's shop and proposed that they should go themselves and burn down the said buildings, &c, at the same time offering Allan £50 to accompany him : that Massey said he Would have some kerosene oil conveyed to the said buildings, and that Allan thereupon refused to do what was wanted. The defendant further pleaded that Massey called on him on several occasions thereafter and requested him to assist him (Massey) in burning down the place, and that a gardener named Alfred Simmons was on one of these occasions in an office adjoining Allan's shop and overheard Massey offering him money to assist him. In conclusion, the defendant said that it was for the public benefit tho said alleged defamatory matter and libel had been written and published, because he himself was a ratepayer of the city of Dunedin, and tho said Massey was Town Clerk, and had duties to perform for the public of the said city of an important and trustworthy character, by reason whereof it was, and is, for the public benefit that the said alleged dofamatory matter and libel should be published. The replication stated that by reason of anything in the second plea alleged the Crown ought not to be precluded from further prosecuting the said indictment against tho satfd Thomas Allan because hesaith that he denies the said several matters in the second plea alleged, and saith that the same are not, nor is any or either of them true. Mr J. E. Denniston opened the case for the prosecution, and having stated the facts set out in the indictment, said it would be tho duty of the defence to establish the truth of the libel affirmatively. If the prosecution proved the publication, tho onus of proving the truth of it lay upon the defendant, and if ho failed in that, the only alternative was to find him guilty, while if he proved its truth they must acquit him.

Joseph Morgan Massey deposed : For 14 or 15 years 1 have been Town Clerk of Dunedin. I have knowp

tho defendant for four or five years'. 1 got Involved with him by becoming co-aurety to the Bonk of NewZealand for money advanced to his cousins— Groves Bros. In connection with that matter I took Msuritle* from him, and hod to forclose on the mortgage given,' by Allan. At the time Allan was very friendly, andl put me in possession. Ultimately, after he went through the Bankruptcy Ceurt, he hod not a good word to say of me, and showed himself to be unfriendly. He went through the Court in March. 1880. In March, 1881, Mr Allan spoke to me twice in the street, ana asked me if I was going to give him a piece of land at Allandale. That was the land on which I had takenta mortgage. I said I should not ; it had cost me a good deal. He said it would be better for me if I did gtye it to him. I saw him again on the 4th of April. A letter on that addressed to myself, came to my house in Mr Allan's handwriting. This is the letter:- .

" Duuedin, 4th April, 1881. J

" Mr J.M. Massey.— Sir,— That you may,not accuse me of taking any advantage of you, I herewith send copy of letter charging an offence which I will prefer against you at a meeting af the Council, and am prepared to go oa with so soon as a committee is ready to take it up.— l am, &c, T. Allan." There was an unsigned copy enclosed of what'wda sent to the Mayor. On June 27th I received ffie envelope produced, addressed to the Mayor ana Councillors, from the defendant. It contained the documents produced (the documents containing the alleged libel). It is my duty to open letters addressed to the Mayor and Councillors. I read the contents, and on the first opportunity handed it to the Mayor. Allan handed me the document. I took it, said " Thank you," and he went away. The documents referred to are all in Allan's handwriting. I have read the documents -the allegations contained in them they are utterly false. Alfred and John Groves carried on business as coachbuilders in High street under the style of Groves Bros. In the month of December, 1877, Allan and I resold the business to Grove Bros, on terms. There were insurances over the stock-in-trade in our joint names. The Standard Insurance Company was one of the offices in which we were insured.

Cross-examined : Both Groves and Allan have told me they were cousins— not first cousins. I never knew Mr Allan until I became involved with them fa the Groves affair. Our first joint transaction was our becoming security. Prior to that I had signed bills for £300. My bills were not cancelled when we gave security to the Bank ; they were paid when they -fell due. I did not know that the bills would not be met if the accommodation were given. I got £60 for commission, and so did Allan. I never asked Allan to become co-security— he asked me. I swear that both bills and security were mentioned before the security was signed. I did not suggest to Groves to get Allan as co-security. I swear I told Allan that 1 1 had backed two bills, and was to get £60 commission. Groves had. the money in their business. The commission waa for the risk on the £700. Allan never asked me for half of my £50 commission. I have no recollection of Groves telling him I had £50 commission. We took possession when Groves failed. The highest tender for the stock was £600. At the the time we got this tender for the stock it 'was insured for £1400. The tender did not at all represent the actual value. Between May, 1877, and end of December, 1877, the insutf. ance waa only raised to £1500. - The insurance at the beginning of 1877 was in Groves' name, and was, >I believe, £1400. I applied in August, 1877, for inaur« ances in theStandard.National jand Union of £500 each. Between the tune I trot Mr Spedding's tender and August, 1877, the stock had been materially added to. Groves' insurance. had lapsed when I applied fortho £1500 insurance, which was the total insurance. Groves had an insurance for £1400. We took the business, and in August raised it to £1600. Of the stock added there waa one parcel of indented good*i worth, I think, £800. These goods may have cost £260 - There would be an increase between May and August. I believe all those goods were in by August. There were also some things from Mr Moore. There would be sales between May and December. I have no books to show the increase in value. Each risk was token by the companies after due inspection. I and Allan were responsible for £1100, and took the business as security. I believe something was obtained from Guthrie and Larnauu's ' ompany. In December, 1877, I increased the insurance to £1800. It was then .we re-sold to Groves for £1800, and were covered by insurance. From June 1877, to June, 1878, the insurance remained at £iBOO. In the meantime, about £400 was paid off by Groves Bros. After June, 1878, I reduced the insurance to £1000; the stock was also reduced, but would be more than half as much as when the Groves went in. The engine and ma' chinery were sold about November, 1879. In January of that year I should think the value was £700 or £800. The insurance was then £1000, having been taken out for a year. When we 'sold the stock in December, 1879, we got, I should say, £500. Allan told me a good deal had been taken out by the Groves. For the stock seized in March, 1879, we got, according to this book, £300 ; but Mr Allan received certain money to pay it away in wages. The insurance to June was £1000, and from June to December, 1879, it was £600. For the first two yews the premiums were paid by cheques signed by Mr Allan and myself ; after that I paid the premiums on the £500 insurance myself. I hod frequent occasion to call at Mr Allan's shop. For the last 12 months we had this thing in hand I looked upon it as a loss. I have shares in the Standard Company, and have alluded to them as my wife's, because they were bought with her money. The references to the insurances and the conversations are utterly false. I brought the case against Allan to vindicate my char* acter, and for that sole purpose. Ido not know that this connection with Groves has ruined Allan. I know his estate was insolvent to the extent of £800, Irrespective of these transactions. I got a letter from Mr Allan on the 4th of April. The letter produced is myletter:—

"April 6th. 1881. v " I bare received a letter in your handwriting, bat without your signature. If you see your way to attach your signature to it, I can proceed, and shall be in a position to sheet home to the proper quarter a foul conspiracy and barefaced attempt to extort money, and will not hesitate instructing my solicitor. Two years is rather long.

11 J. M. Massot." I say if that had been signed I would have proceeded. In pursuance of my note he called to sign it. I produced it, and he then declined to sign it. I know Alfred Simmons. He came to my house in the month of May— at 9 a.m. on the 2nd of May. He wrote me a letter, which ia in Court. I swear I did not request him to call. I said I would be glad to see him when he came to town. The letter I wrote to him was to this effect :— " I duly received your letter dated , and do not know to what you refer. If you will drop me a line stating what you refer to, or failing that, if you care to see me when in town, I shall be glad to see you personally." There was added :— "The person you refer to in Bunedin will need to be careful or he will be in trouble. I can tell you what he did say concerninghimßelfandyou—something that surprises me." Simmons came to me at 9 a.m. on the 2nd of May, bringing with him a long document in Mr Allan's handwriting, which he said Mr Allan had forwarded to him at Kaitangata, and asked him to sign it. He said it was a tissue of falsehoods, and he then wrote in my house what is on the fly-leaf. He dictated it himself, and asked me to spell him some of the words. The memorandum is as follows :— '

"Dunedin, May 2nd, 1881.

" Mr Massey.

"Sir,— l blankly deny ever having said to Thomas Allan a single word to the effect that I over heard you say anything about burning High street coachworks: I never heard you say a word of the sort. Thomas Allan, when by himself, several times asked me to set fire to it.

"AriPRKD Simmons. " Witness to signature : Mary Sole." I think one of the words I spelt was " anything." Mr Stout : How much money did you give Simmons that morning ? Witness : I gavo him £5 when he waa going away. The £5 was not lying on the table ; there was no mention of money. When on the verandah he said he had lost a few days' work coming to town ; that he was working at Mr Kutherford's at Kaitangata ; that he wanted to go back and was short of cash. I said, " Well, Simmons, you have not asked me for sixpence or I should not have given it you. I cannot afford this better than you do," and gave him a five-pound note, and was glad to give it. Mr Stout : Was he sober ? Witness : As sober as a (laughter).

His Honor : I suppose sobriety is a proverb. Witnees : Simmons said that once Allan had asked him to set fire to the place. I suggested that he should commit to writing what he had stated to me. There was then no mention of £5. I sent the document produced to Mr Allan after Simmons called upon me. The letter was as follows : —

"Alfred Simmons has called upon me as to a paper which you offered him something if he would sign. He says he refused to sign falsehoods. He has given me a written declaration that, so far as you refer to him, your paper was an utter falsehood. For that matter I might show you what he has written. Not wishing to ace you in trouble, I warn you for your, family's sake. He also says something etie jn hfa written paper."

Simmons dent me another letter, and after that I saw him again. He dame tp my house at 7 o'clock at night, when it was dark. He was then fairly sober, 1 but not as sober as he was on the first occasion. He wanted £5 or £6, and I gave him 6a. , He came again a few days after, and wanted some pounds. I did not gve it him, but gave him 8s to get quit of him. I kve spoken to' Allan about the insurances, but never • after the policies were taken out. I may have produced the policies or receipts for premiums, and have shown them to him. We frequently spoke about 'the risk of fire, and a risky place it was- I» Wflß a •'■wooden building-a sort of shed. I never said any- ; thing about what tne result would bo if a fire hap- ' pened. There is not a word of truth in the statements* ' which reflect upon me-they are utter fabrications.!, ' I never offered him any money to set fire to the place. There is not a syllable of truth in that statement. I never'itoia 'Simmons I had had any conversations . with Allan. I' never said that what was stated was true except the reference to setting fire to the place. Re-examined by Mr Haggitt: Thia is the letter I ■ received from Simmons :-" J. M. Massey, Esq. Dear. <Bir,— l received a letter from Allan on Friday, Bthj April reminding me of what was said once in his* ,ehop»n-a Saturday in Muroh, 1879,-ire^arding coachworks. He bas, sent me soruo papers to sign. ,1 should rlike to get a, line, from you before signing them, as I should be sorry to do you any harm.— (Signed) Alfred Simmons." I was glad to give Simmons the £6, be- , cause I suspected a conspiracy, and was glad to have evidence that would expose it. Thia is the letter I, ' received on May 10t>h, signed Alfred Simmons:— V Dunedin, May 9th. Mr Massey. Sir,— Having left 1 Kait&ngata,! am staying at Dunedin at present. I, <tbink iß,best to let you know, in case you want to see, jine.t As there is nothing doing here, I shall have to go, away, for I ( have the, family dorm here. I have not Been that; party, although he has been trying to find me. -, H'he troubles you further, I have something to. , tell you ,l forgot hitherto.-A. Simmons," I never on, ■,any occasion saw Simmons in Allan's shop, and I only, 1 caw him once at Allandale. I never did anything in .'respect of insuring , the building without consulting* Allan, and for the first two years cheques werej • Issued iou, the premiums signed by Allan and myself.; ..From (December, 1877, to June, 1878, an insurance, exißtedJtor £1800, in three policies of £600 each, after] .we had sold to Groves' Bros, for that amount. The* t deed produced is the agreement for the re-sale to •Groves Bros. This insurance continued till June, '1878, when it was reduced to £1000. We then dropped 'the insurance on the National and put two-thirds of -the, thousand in ,the Standard, in which I was interested, and the third in the Union. The companies ■ were satisfied wfth the risk. After the £1000 was' 'wduced to £500,1 it was divided besween the Stan-. jdurd and the Unijon., I came out of the transaction a > very lgr'ea.t.loßßr.l gr'ea.t.loßBr. My. loss was so much that I am , raid,tOß^teit. , 'His Honor : You are afraid you will not be con--B|dered a very prudent map 1 ' lArpbibald Hilson Robs (Mayor of Dunedin) deposed : Mr Masseyis.Town Clerk, and waa so on the 27th June • bwi * Mr Massey opens letters addressed to the Mayor, ,«id Council ; if they are addressed to the Mayor only. , jje handßithem to me unopened. On the 28th of June last Mr Maasey handed me the letter produced. I read it myself, consulted the City Solicitor, and called a iapecial meeting oil the Council to consider it with pther imattera. i The letter was laid before the. „ Mr Stout : thaveno questions. h ', Mr Haggitt ; That closes the plaintiff's case. - iMr.iß.tout : Do you call Simmons 1 • , ,', iMr pemmtw : No.. :Youhave<a tight to ask us if we cap 'ftfwitnesß. !,■: / . ' ' „, ,', < jfr ,Sf;out,: Please, your Honor, aa this man Sim- ( mons,haß 'made one statement to Allan, and signed it, beforeia J.P., and another to Massey, I shall call him 'fid put him in the box,' and ask.your Honor, if hecesfuyi/to allow,me,the right of cross-examining him. f ,', H(BHonpr,:/Oertaiply. ,/ , • . ■ ' ,i: Alfred Simmons deposed: I amagardener,and reside; , in Dunedin. i i From March to June last Iwaa living an /Kiitangata. . I was 1 working for Mr ' Allan, and have! (been working for him lately. I know Mr Massey. I] ihave seen* Mr'Masßey4n Mr Allan's shop several times. ; ilr. overheard o them speaking about something in! .January,' lß79.l 'It was on a Saturday. I was in the, office at the back'of the shop, and they were sitting in; -theifehop eloso to 1 the office. There was a match) -linibgl between i us. > I, heard Mr Massoysay to Mr) tAllan,^' Here we are floundering with this millstone' ,routod. our. necks, You! are doing! nothing, to get rid! (Of it" ' Allan replied, " I have done all I can. Whatj tinore would you have me' do?" ■ Massey said, "The -bank) ■ is o> troubling me, Jand you' will lose •your, . Couldn't w©' f geb'<- up -an honest ,flre?'n Allan .fflaid that -would' d». '. f 'l fancy see,ii>gyou do seven yeoraf with a pick arid shovel." Mr] ''Allan laughed. Mr Massoy said, " I would give you] if you help me to do it." That is all 'I can remem-j ,-ber.i 1 sent the letter of 11th of April to Mr Massey, ' ,andlßaw him' on the 2nd of May at his house. I was •not/Bober. I can remember most of what took place. •Maseeyasked me, in, and I told him who Iwaa. He ■did not ask: me who I was ; he knew me. ' I took the' .paper out of < ray pocket and' handed it to him. Mr; ■Maasey: read it, and asked me if it was all true. I, itold him i . know it was, with the exception of one! .iblng. <l aaid,li never 1 called him a d scoundrel.; He asked me if I would write that part of the state- 1 ment was not true, and if I would he would give me » ■£&,' as I did not ask him for anything. He> eaid had I asked him he - would not have, given me anything. I' told him if he wrote it I; would sign it. He said he would rather I wrote it, : and I said if be would Bpell it I would write it. He> Asked me into the next room, and took out a £5 note ; -and laid it on the table. He then started spelling the words," and he Bpelled it as I wrote it. He spelled every ■wordrwifch the exception of my name, and I wrote it. 1 -A womaDjjwas called in. when I had signed it. Mr Massey covered over what I had written, and; asked the woman to sign her name, which she did. Mr > Massey said' he admitted most of the statement was true, but he would not admit the fire.

• "Cross-examined by Mr Haggitt : I wrote the memo-, ■randum'on the letter. I was not sober at the time. It would be between 9 and 10 in the morning. I can spell m-e me and h-i-m him. I cannot spell " when," or " never," or "say," or " deny," or "ever." I can> spkll t-o-^to," but'not " the," or " you," or " say." I never had any education in my life. . His Honor : Can you read? Witnees : No, I cannot. Mr Haggitt : How did you come to write so well ? Witneß» : My wife spells for me. , His Honor : It is divided— she spells and you write. Do you .mean to toll us you write and cannot read your own writing, and expect us to believe it 1 Witness ■: lean read it to myself. j, Theiwitness waa allowed time, and then read his letter., ( , To Mr Haggitt: I can Bpell "you" now you have Shown me the letter. . I was at Kaitangata from March to June, 1880.' , My, wife spelled the letter beginning "Having left Kaitangata."', We were then living •where we are now. , It was written in my own house. I swear I did not write it in the Star and Garter Hotel. I don't think I was sober when I wrote the letter of the 9th June, but I was sober when I wrote the letter of 11th of April. I was between not sober and drunk iwhen I went to Mr Massey's. I knew I went ♦here, and knew what I was doing, and something of what I was saying. I wrote to Mr Massey first because I did not wish him to get into any bother, because I would have to be mi ■cd up in it. I wrote to tell him what I had got. I did not come into town on purpose ,tp see him. Ido not know where Allan wrpjfljthe paper. I received it at Kaitangata. I had seen Jjjm several times. I first gave notice to .Allan -pf w.hat I overheard on tho Monday following the Saturday on which the conversation took placo —In January, 1879. That's right ; Igo by the time I left Mr Allan. In the statement it is a mistake to say the conversation' took (place in March ; it was in January. I had to pass before Allan to get to the office. I knew Mr Massey well by sight and voice. I had never spoken to him, but 'had heard him talk to Mr Allan many times. Mr Massey spoke in a pretty loud tone of voice, louder than usual. He was in a temper, I think. [The differences between the statement made by the witness in the box and his statement signed by him before the J.P. wore pointed out ■by Mr Haggitt, and admitted by the witness.] I told , Mr Allan what I heard in January, and he said ho took it down then.

Mr Haggitt:' And it was because he took it down at the time that you remember it. Witness : When it was read over I knew it. The last time I heard it read waa in April. I know Mr Macdonald, and was at his office on Saturday. I was not shown any document, but was asked what evidence I could give. Ido not know whether my statement was taken down. I signed my name to a document before Mr M'Bride, a J.P. That was about a month after. Mr Maßßoynever refused to give me taoney. I told Mr Allan oh Monday, at the Forbury,

what I bad overheard. I was- working for him, and living in Cumberland street. That was the first time I had {riven him a hint of what I had heard.

' Mr Haggitt then called the witness' attention to tho fact that he had given a different account in his statement; and His Honor remarked that it should be left for the Jury. ' Witness continued : A fire took placo in one of Mr Allan'e houses, which I occupied, aud which was in-

gured. A fire also took place in the house at the Allandale property, but I did not occupy it, and did not know it waa insured. I have been working, off and on, since May tor Mr Allan. His Honor : When you intimated that you knew what had taken place on the Saturday night, did Allan say anything to you about keeping it quiet or being used againtt anybody, or did he leave it as you have said ? Witness: After I told him he expressed surprise that I had told him. His Honor : He gave you no advice or instruction about it? Witness : No ; none at all.

Hiß Honor : Nothing at all ? ' Witness : He said he was surprised that I had heard it.' Mr Haggitt : nis Honor asks you if Allan asked you to keep it quiet. Witness : No. Mr Haggitt : You call yourself an honest man ?

Witness : I believe so. Mr Haggitt :< Did you think Mr Masßey meant this?

Witness: I did. ' His Honor : Did it strike you, as an honest man, that you' should put the insurance companies on their guard? Witness : They were friends then. MrHaggitt: Who? 1 Witness : Massey and Eeid. Mr Haggitt : Did not you think it necessary to put the insurance companies On their guard?

Witness: No. Hia Honor : Did you seriously bolieve, when this was_ talked about, that they were in earnest, or only, joking ? Witness : 1 did not believe they would ever do it. His Honor : All you heard was consistent with them merely having a jocular talk to the effect that it( would be a very ' good thing to have the place burned down? Witness : I think they never would do it. Mr Haggitt : But Mr Massey denies that it ever took' place. Cross-examination continued : Mr Massey's daughter asked me who I was, and Mr Massey i asked me in.^ Mr Massey asked me to write to the effect that part of the statement was not true. He offered me £5 to write that that part of the statement about my speaking of him as a" d d scoundrel " was not true. I was going to write to the effect that part of the, statement was not true. Mr Haggitt read the memorandum the witness had' written, and, in reply to a question, ' Witness said : Allan soveral times asked me if I was game to set fire to the coachworks for him. Mr Haggitt : Would you write a.lie for £5 ? Witness (scratching hia head) : Quick - earned money. Mr Haggitt : And how much, sir, would you take to swear the same lie ? Witness : I would not take anything. Mr Haggitt : Probably do it for the love of the thing. James Kichardson, clerk in the Standard Insurance office : There was a note left for me about insurances' on Groves Bros.' This waa about May or June last. I took Mr Massey the memo., and asked him if he had any objection to Allan getting the information. He, replied to the effect that he would rather the information wag not given. To Mr Haggitt : Mr Massey probably said " I don't see what he has got to do with it." ■ This closed the case for the defence. His Honor (to Mr Stout) : You have no more witnesses, have you ? Mr Stout: Not unless the defendant can be examined. * His.Honor : He cannot be examined.'

Mr Stout : Ido not think he can. His Honor drew the attention of Mr Stout to the, (act that he had not substantiated the plea that Allan acted for the benefit of the public. ' ' J Mr Stout: I know that. I do not know whether Mr lHaggitt'will admit that Mr Allan is a ' ratepayer, I do not know whether that fact must be proved. « iMr Haggitt stated his willingness to -admit the

fact. ' • ■ ' Mr Stout then proceeded to address the' jury. He said that' before he dealt with the facts of the case he. wished to say a word or two upon the law. In wind-i ing up his opening speech to them Mr Denniston bkd] put it, that if they did not believe the defendant hadproved' the truth of 1 his 1 charge they were bound? to bring/ in a verdict ' of guilty. That was not the! whole ot their duty. The case was a criminal one— l not. an ordinary one. of one man accusing ' another ofi defamation of' character and suing him for compen-! sation ; and in every case of criminal Hbe 1 there was, an oxtra element for consideration. As Lord Coleridge: had ruled in the newspaper libel case of The Daily Telegraph v. Truth, reported in the London Times of 1 , the 29th of March of the present year, a libel in a> criminal' case- must be of a nature " intended or cal- { culated'to incite a breach of the peace." The' Chief Justice had also remarked during the courseof the case : "It certainly would have been more con-, Bonant with justice that [both complainant and de-) fendant] should have been called to give their accounti of the matter ; but that was prevented by the re- ! course to a criminal prosecution for libel." Ho sub- < mitted that they had first to be satisfied that the! statement of Allan was an untrue one, and afterwards| whether it tended to|create a breach of the peace. To show that this last element was necessary, he had only to refer (to the words in the indictment, "against the peace of our Lady the Queen, her^ crown and dignity." If these words were omitted the indictment would be bad. His Honor : No. The statute distinctly says the erasure of those words would not make it bad. Mr Stout: As Coleridge points out, the Jury mußt believe that the statement of the defendant tended to create a breach of the peace. His Honor : What authority was quoted by Lord Coleridge? Mr Stout : He was summing up, and no judge quotes his authorities while summing up. His Honor ; I do not think the summing up of his Lordship binds me in the slightest degree. Mr Stout again quoted the words of Lord Coleridge, that "a libel in a criminal prosecution must be a statement intended or calculated to incite a breach of the peace." His Honor : I agree with that, but I hear for the first time it suggested that nothing is a criminal libel except when in each particular case the statement made tends to a breach of the peace. I intend to rule that it is unnecessary that the judge should find that the words actually did under the circumstances tend to a breach of the peace. The whole point is this: that the tendency of libels to create breaches of the peace is the justification for making them criminal instead of civil. It is not necessary to prove that in the particular case there was a tendency to incite a breach of the peace. Mr Stout : The Jury must find that the words complained of tended to a breach of the peace. His Honor: That the words complained of were such as the general law of the land contemplates— namely, that they were words of the class which tend to create a breach of the peace.

Mr Stout, continuing his address to tho Jury, said that the most eminent judges drew a distinction between criminal libel and a civil action for damages. He asked them to do the same. They must take into consideration the grossly unfair position in which the defendant was placed. If Massey only wanted to vindicate his character, why did he not suo for damages? All that was necessary was the verdict of a jury in a civil action. In a ca=e where the defendant could rely on a witness for tho truth of the statement complained, it was a totally different matter. Where a conversation had taken placo between two parties, was it fair for one to close the other's mouth ? To quote the words of the Lord Chief Justice of England, would ir, not have been " more consonant with justice that both should have been called to give their account of the matter," rather than that one should have had his mouth closed ? They must remember that they were prevented from having Mr Allan in the box, and what right had thoy to assume that Mr Allan's statement on oath was not to be as much believed aa Mr Massey's 1 Mr Allan sent this charge to the City Council, and asked for an inquiry ; and in order that there should be no inquiry, he was brought up on a criminal charge. It was a perfect farce to say this was an inquiry. Mr Stout then dealt more particularly with the evidence given, and said it would be the Jury'B duty, first of all, to say whether the words mentioned in the indictment tended to incite a breach of the peace or not. His Honor : No.

Mr Stout : I submit so. His Honor : I shall rule it is not necessary to show in this particular caso that there was a probability of a breach of the peace occurring. Mr Stout said that the Jury would have to consider two main questions-(l) Is the defendant guilty or not guilty of the libel? (2) Is tho plea of justification proved or not? They could if they liked confine their verdict to one of not guilty, and negative the justification. The best way to deal with the case was to relegate it to another tribunal, so that Mr Allan's tongue would not be tied. They could bring in a verdict of not guilty of libel, and no justification proved. His Honor : In order to givo a verdict of not guilty they must say upon their oaths, after hearing the ' evidence, that they do not consider the thing a Übel.

Mr Stout pointed out that the law in cases of libel empowered the jury to give a verdict according to their opinion, not according to tho evidence. His Honor : They give their verdict according to the evidence. On tho evidence they give their opinion as to whether the thing is a libel or not. Mr Stout, again addressing the Jury, said that if they considered Allan had been unfairly handicapped by not being allowed to give his version of the affair, it was their duty to send Massey to another tribunal, and find Allan not guilty of libel.

Mr Haggitt having replied, His Honor summed up as follows : Gentlemen of the Jury, the defendant ia charged in this case with libel. The case is a peculiar one, and by no means easy, and I may say I do not envy you the duty you have to perform. There have been a great many 1 general remarks made, some of which I can aerree I with, and some I cannot agree with at all. With regard to the general rules of law, I think there has been some misconception, which if is not necessary to go into. But there is one general matter to which allusion has been made, and I think it is almost one's duty to vindicate the law of the land, if it were necessary, for it has been to some extent impugned and talked of as antiquated, and otherwise looked upon as if it ought not to be the law. Now I can only say this, that from my long experience in this Colony I think it would be an exceedingly bad thing for the community generally, for the Press itself, and for everybody conducting business here if there were no criminal punish-, ment for libel. The simple result of it would be to' lead men to take the law into their own hands, and to do deeds of a kind which we so commonly hear of in other parts of the world. I feel quite confident that no suggested attack upon the law of England in respect of its allowing a libel to be as a rule a punishable offence will convince you that the law is founded upon insufficient grounds. With the historical reasons for introducing it into the criminal law we have really now nothing to do ; but they happen to have been the most sensible, and, like most of the old common law, display the greatest common sense. What is there that would incite a man more to use violence without the law justifying him than his character and honesty and good fame being traduced? However, I do not want to apologise for the law, but as it has been to some extent attacked, I point out the common-sense foundation of the law on the subject. Now with regard to the next subject, that of the choice which lay with the prosecutor, Mr Massey, to employ either the civil law or the common law for the vindication of his character, I must, say that I agree to a very great extent with what has been stated to you by defendant's counsel. There is no doubt also that what 1 the prosecution's counsel suggested is true, that civil actions in these matters are very unsatisfactory if the parties defended are not people in solvent circumstances. That is the question from a pecuniary point of view, and if a man is satisfied of that, there are circumstances in which he will be very well justified in preferring on that ground a criminal proceeding to a civil one. But in the case of vindication of the character of a public officer, and where it must be known by him that the only evidence which can be given with regard to the truth of the matter insisted upon as libellous is evidence that could be given by the defendant himself, I must agree with what Lord Coleridge said in the case cited before you, and I should Bay as a general rule that in such a case Jt would have been much safer, if the prosecutor had no doubt about his case, to have adopted those proceedings, which would have enabled Mr Allan to give his evidence on oath before the Jury. I must say it. Ido not say it applies to all cases, but this is a peculiar case, in which the establishment of the truth of the libel must depend upon the evidence of two persons. According to the story set up, there could have been but two witnessesthe man Simmons and Mr Allan himself. This, I think, is a reason why a very prudent man, who wished merely to vindicate his character, would have said, " Well, I will bring a civil action, and let a jury decide between me and Mr Allan," I think that is a very fair comment in a case like this ; but the result of that, lam afraid, is only to embarrass you in the performance of your duties; still it ought to be said, fer the case, stands in a very peculiar position. I had better begin by telling you that there is no dispute nowadays about what the duties of judges and juries are, and' anything that would arouse a conflict between judges and juries must be a great mistake. The trial by jury ' is one of tho boasts of England, and so may it long be, in England and her Colonies ; but it is trial by jury presided over by a judge, and trial by jury only would, I believe, be one of the worst things that' could be brought about, and I have always done my best to prevent as much as possible its being trial by judge. The duty of a judge and jury in cases like this is well known, and ought to be very well known. The Bimple fact is this— it is entirely for you to say whether or not a particular matter given in evidence is a libel or not ; out I have to tell you what libel is. I have not to tell you unless I like— which I do not choose to do, and never do by any chance— whether I consider this is libel or not. But I tell you any writing, or printing, or representation by painting, photograph, or other means which tends to bring one of her Majesty's subjects into ridicule, contempt, discredit, or public odium— that is a libel. You have to say when you hear the letter read whether it is a libel substantially to say of a man occupying the position of Town Clerk that he made offers to another man for the purpose of inducing him to commit a felony— the felony of arson— in order to defraud certain insurance companies, and to put the money in their pockets, and that he offered money to a man to induce him to take part in that crime. It is for you to say whether a statement like that tends or does not tend to bring the person spoken of into discredit. That is the question— of libel or no libel. Now I dare say you have all heard that maxim " The greater the truth the greater the libel." That maxim was ridden to death, and modern legislation aud common sense introduced this rule— that if libellous matter is published, or what otherwise would be punishable libel, or libel for which an action could be Drought— and especially the last Act of Victoria referring to criminal cases —it is competent for the defendant to do that which he could not have done before the statute— viz., the facts which appear libellous are true, the facts actually occurred. But in order to prevent the spread of calumny and scandal and libel— ouo of the worst of social evils that society can be exposed to -this proviso was added :— "That the publication must be for the public benefit"; if it is merely a private libel -not for the public benefit at all,— you cannot justify it on the ground that it ia true. Now I think we may get rid at >once of the question of public benefit, for although the particular mode in which it is alleged in the plea to tend to the public benefit is perhaps hardly correct, because it limits the matter to the ratepayers of the town and so forth, I tell you, as a matter of fact and of law, you may fairly take it, and I am sure Mr Haggitt would not contradict it, that if it were true that the person who occupied the position of Town Clerk for many years here had really been guilty of this atrocious attempt at conspiracy to commit a felony, it is for the public benefit it should be known. That cannot bo confuted, and therefore the real issue is, supposing you are satisfied it is a libel, the truth of the allegations substantially established. Now here I may say that the defendant labours under this disadvantage : that if an action had been brought against himself, he could have given full explanation on oath of what took place. I think it is right to say parenthetically that, according to the doctrine recently illustrated, that it is a mistake to say in bo many words that the defendant's mouth is shut. He may no doubt be allowed to make a statement himself, but as that statement could not have been on oath, it is the duty of the judge to tell you that, unless you thought the statement entirely consistent with the evidenco given, you ought not to act upon it as against the oath of another party. Gentlemen, the result is, -unfortunately, that we have only one substantial witness in the case with regard to the libel. Now can you rely upon him ? Does the account he givea of the transaction tend to discredit it or otherwlso ? There are several aspects from which it may bo looked at. One is that he is a man dependent, as it were, to a groat extent upon Allan, and has got hold of a secret, and knows that this secret he can make use of to hia own advantage. Another aspect of the matter may be that ho was a man who was ready to undertake anything that might turn out to be necessary. And really I foel bound to put it to you that a man who acknowledges that he did by dictation —I caro not whether he did it by dictation or of his own intention— writes in that c rious way a statement which is entirely at variance with the whole of his evidence— l say can you possibly rely on that man to establish any of the facts of the truth pleaded ? If it were necessary to rely on that man's evidence to convict another man in any ordinary criminal case, none of you would for a niomonl think of doing so on the uncorroborated evidenco of such a man as that man is proved to be ; because certainly it miist bo taken, under any circumstances, that he did accept money, and as he represents it now he accepted money for formally and solemnly writing down that which he knew to be absolutely false. The aspect of the case, therefore, is one of a very peculiar character. Supposing you have no difficulty about thia being a libel - supposing you have no difficulty that if it was I true it was proper, very proper that tho truth I should be told, and that it was for tho public bonofit

it should be told, you are in this position. Can you say that that affirmative plea of truth haß been established upon evidence upon which it would be at all safe to rely ? There I see the great difficulty in your task, which is by no means an easy one. As I said before, if you had the evidence in a civil case, subject to cross-examination, of both parties who were the parties to the transaction, overheard or supposed to have been overheard by the witness Simmons, yon would have been better abla (though at all times it must be a most trying thing for a jury to do) to say whoso evidence you believed. No doubt it is a great misfortune that the only person who could have given evidence besides himself to support the truth of his assertion is such a person as Simmons unquestionably i 3. It is not merely, you see, gentlemen, the case of a man who drinks occasionally, but of a man who is not afraid, when asked if he would take £5 for a lie, to say, scratching his head, "easily-earned money. Of course when counsel said, "Would you take £5 to swear the same lie before a jury t ?" he said " No," that is natural enough. There is this matter lying at the bottom of it with Mr Allan : are you satisfied that there was any good ground on Mr Allan's showing for not bringing the charge forthwith ? Does not the whole case seem to suggest that if there is any truth in it, Allan was quite content to let this atrocious criminal— for it is not short of that -go unpunished and retain a public office, and that he rested by till he saw how things would eventuate with regard to their speculation? That no doubt tends to discredit tho defend ant, and I must so put it to you, and the peculiar relations between Simmons and Allan is certainly a matter of fair remark. Without going into very minute details regarding Simmons' story, I think the facts already alluded to are sufficient to discredit him ; yet there is a great deal besides to discredit him, because there are gross contradictions as to some material points— substantial and startling contradictions as to time, placo, and circumstances, and as to the language used, when ho gave information, or says he gave information, to Mr Allan about his having overheard the conversation. In his written statement he says ho saw Mr Allan in the street in Dunedin, with somebody else, and aaked him if he would shake hands with such a scoundrel, and then told him about what he had overheard ; while in his evidence he told you of his imparting the secret to the astonishment of Mr Allan at Forbury at 11 or 12 o'clock in the day. That is another reason for your looking at the evidence of Simmons with suspicion. How, then, you are to decide upon the matter is entirely for you in your own consciences to determine. I do not think that any amount of reading of evidence would make the slightest difference in the conclusion you come to. If you are satisfied of this— first, that it is a libel, the next question is, Are the facts substantially true ? They areproved by nobody but Simmons ; can you act upon hia testimony ? It may, as I pointed out before, be really a substantial grievance to Allan that there is no other witness, and that he has not an opportunity of being put in tho witness-box; but you have your duty to do : you are sworn to give your verdict according to the evidence, and therefore what I have to say to you upon the first plea is : There being no doubt of a sufficient publication of the libel (if you are satisfied there waa a libel) it will turn in the end on whether you are satisfied that the truth of the facts has been established to your satisfaction. I cannot help you more. I will read any part of the evidence you like ; but it seems to me it all depends on this : if you believe Simmons implicitly, the truth has been established '■ if you discredit him altogether, tho truth has not been established. There is but one other suggestion I would make, and that is that Simmons' testimony may be founded on a misconception as to the intention of the language he overheard. There is no doubt that about one part of it they were talking, and talking loudly,, in a public shop, with people close at hand, and that in one part of the conversation they treated the suggestion Of fire-raising jocularly, that there was, laughter, and one said to the other, " I'd like to see, how you weuld look with a pick and shovel in your hands." It is not impossible that something like this occurred, which was never looked upon between the parties as at all serious, and that this eavesdropper, Simmons— this man with very loose morals, who accepts money to write down that which he knows to, be false— that this eavesdropper might have miecon- • ceived what he heard and have used it afterwards tomake a charge, and so have a certain amount of power over Allan and Massey. Gentlemen, the question is really— libel or no libel— canyou rely upon Simmons as; proving that which, if his evidence is true, would es-i tablish the truth of the libel 1 The Jury retired at 6 o'clock, and in about an hour] returned to ask a question. The Foreman (to his Honor) : Tho Jury aek if they can give such a verdict that the case can be brought on again in a civil court. His Honor : I do not know what you mean. You have nothing to do with a civil court. Tho question you have to determine is, is it a libel, or is it true ? This has nothing to do with a civil case. For all I know, a civil action may be brought, whatever may be the result of this— that can have nothing to do with this. As a question of law, your verdict has nothing whatever to do with the civil rights of the parties. What you are bound to say on your oaths, is to say libel or no libel, and aa to the justification, is it true? Mr Stout: I submit your Honor can inform the Jury His Honor : They ask if they can give a verdict so and so. I say their verdict can in no way affect a civil action— it cannot possibly, one way or the other. But let me warn you, you must not find contrary to the evidence and your own convictions because you think a civil action can be brought. That would be trifling with your oaths. I sympathise with you, but 1 cannot put it any other way to you. First, determine is this a libel, and if you think it is, are you satisfied the truth of it has been proved ? The Jury retired for a few moments, and on returning 1 , The Kegistrar asked if they had agreed upon their verdict

The Foreman : Yes. " Not guilty." The Registrar : As to justification 1 The Foreman : Justification not proved. His Honor : Then you say it ia not a libel ? The Foreman : No ; not a libel. The jurors were then dismissed for the night. His Honor remarked that according to the finding both parties were entitled to costs— the prosecutor being entitled to costs through the defendant's plea not being established, and the defendant to costs on tho verdict of not guilty. Counsel, his Honor thought, had better arrange that matter. The Court rose at 7 p.m.