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2-010 (Raw)

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Decisions of NSW Supreme Court
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This was an action for libel. 
The plaintiff it appeared was Master of the Sydney Free Grammar School, and it was certain letters written by defendant, impeaching the plaintiff's integrity, that constituted the present grounds of action. One of these letters, the first count included, and tended evidently to harass and oppress the plaintiff as projector of the Grammar School. It appeared in the Sydney Gazette of Nov. 28, 1825, and was signed "Fidelitas."
Here the letter was read.
The second count, tending to vilify plaintiff, comprised a letter published in the Sydney Gazette of December 8, 1825, bearing the defendant's signature and was addressed to the Editor. To these defendant pleaded the general issue; and, secondly, justification on letters purporting to come from Jacob Josephson, with whom plaintiff was once on terms of intimacy and under obligations to but from a subsequent disagreement, their mutual dealings became the subject of public disquisition, and defendant considered in such case the article subscribed "Fidelitas" justifiable, and that plaintiff was not unanimously elected head master, there being 30 governors and only 14 present at his election.
Dr. Halloran, it was stated to the Court, had resided for many years in the Colony, and had been employed in the education of youth. One of the causes of the present action originated in a letter published in the Sydney Gazette of November 28, subscribed "Fidelitas," and it was contended that no person who had read that letter could avoid discovering its grossness, its tendency to vilify the plaintiff, and to sink him in the estimation of his neighbours and of the world in general. Defendant, in justification, set up a plea that plaintiff's situation laid him open to criticism; but, was it criticism to prevent an individual from gaining his livelihood? was it criticism to throw him into general disrepute? The plaintiff was elected head master by a full committee of the trustees, and it was maintained that private pique alone had actuated the defendant in penning his letters signed "Fidelitas," and E.S. Hall; and the assessors would feel themselves bound to give conscientious damages.
Mr. R. HOWE - Knows the author of "Fidelitas," and letter subscribed E.S. Hall. Has reason to think the manuscripts have been destroyed, but not since receipt of subpoena. The reason for destroying those papers was because he (witness) wished not to retain any memento of plaintiff. Thinks Mr. E.S. Hall to be the author who transmitted them for publication. The second letter was received on the 8th December, when witness communicated with Dr. Halloran. Witness in his conversations with the defendant, did not consider him to have been actuated in his letters by any particularly vindictive motives towards plaintiff - their mutual dislikes were pretty well balanced. Witness thought at first that plaintiff was the originator of the Free Grammar School, but afterward saw reason to attribute it to Mr. John MacArthur. Is a trustee, and believes that a number of young gentlemen are under the head master's care.
Examined by Mr. Wentworth - Is sorry to have known plaintiff. Thinks him quite unfit for moral instruction, and that he has libelled witness and many others for some years past. Received letters from plaintiff. One witness considered too foul for insertion. Thinks the words villain and masked assassin applied in plaintiff's correspondence to defendant, and were in witness's opinion, and in the opinion of a clerical friend, more abusive than argumentative.
Witness would feel delicate in bearing testimony to plaintiff's general conduct, as he was himself implicated wiith [sic] him in certain pending prosecutions. Considers plaintiff to be a general libeller the libel commencing with "Bob Howe, a vastly ugly babe of grace," was written by the plaintiff. Count O'Candle witness considered a horrible production. The babe of grace was made the subject of a charge of felony, in April 1822; but plaintiff was unanimously acquitted. He was subsequently destined to stand his trial for the libel; but, no prosecutor appearing, was dismissed; and, this for no other reason, according to witness's opinion, but because be (Mr. Howe) declined appearing against plaintiff. Never heard plaintiff make use of obscene language; and does not consider him unfit for head master, from a want of literary acquirements, but of m[o]rality.
Witness became a trustee, and gave his assent to Dr Halloran's election to the post of head master: because, as he said, it might assist plaintiff's family; and, indeed, plaintiff was so old and looked so unwell, that witness could not avoid thinking he might not live long. He (witness) did write a letter of condolence to Dr. Halloran. Is grateful for any sort of information, even though it be libellous. Did court plaintiff's acquaintance. The letter was in a complimentary strain; and implied, that a certain eulogy on the plaintiff, coming from a certain individual, could not meet with publicity; but concluded in those words, nearly; "but still the poor Doctor's (meaning Dr. Parmeter) attempts deserve credit, seeing that they are bestowed on one who deserves so much at the hands of the Colony;" and concludes with "grateful esteem," &c. Is of the opinion that plaintiff deserves praise for originating the plan of a free grammar school ; but witness never, for his part, entertained any personal respect for Dr. Halloran - the latter did write an article in defence of witness, against Mr. F. E. Forbes; but it was not made use of. Was much shocked on hearing plaintiff one day use the word God, not properly. Mr. Hall's son is not in the Institution. He did go to Dr. Halloran's school some time since. After "the babe of grace made its appearance," Mr. Hall removed his son from the school. Was sued by plaintiff for the full quarter's amount, which the plaintiff gained; and witness joined in the judgment against Mr. Hall.
MR. GEORGE ALLEN - Is secretary to the Committee of the Free Grammar School, of which, Dr. Halloran is head master - 14 trustees including witness were present at the election; none of the members were allowed to vote by proxy. Thinks that plaintiff is entitled to thanks for the service he did to the community in projecting the plan of a Free Grammar School. Witness was authorised to act for Mr. Howe, by proxy. In the head master's election, it was expressly concluded on, that all but twenty of his scholars were to be given up. Witness thinks that the birth and appearance to the world of the "ugly babe of grace," induced Mr. Hall to remove his son from Dr. Halloran's seminary. - Has conferred with defendant on letter signed Fidelitas which witness himself never read, but it was read to him, as a friend, and in his professional capacity. (Here witness wished to take the sense of the Court on the propriety of his answering, as to whether Fidelitas could be considered libellous, witness being one of the defendant's legal advisers. The question was waived.) Knew but little of Dr. H. and that little not discreditable, before witness became a trustee, to which office he was unknowingly appointed. Has heard reports prejudical [sic] to the plaintiff; which, if true, would unfit him for being head master, but is not in the habit of condemning on hearsay evidence, and particularly on reports circulated in the Colony, which are very frequently unfounded. Dr. H. in speaking of Count O'candle, said, but for one verse he would have no objection to be considered the author. Can't say that there would be more subscribers if there were another master. Witness is a member of the Wesleyan Society, and upon hearing that plaintiff's scholars were in the habit of swearing, he mentioned it to plaintiff, who challenged investigation of his scholastic discipline, and treated the matter otherwise, in a very becoming manner. Witness has no recollection of having read a work entitled Castigator[,] has heard plaintiff's reason for assuming the appellation of Dr. Gregory, it was in order to elude the officers of justice who were in quest of him for an alleged libel, contained in a letter against Mr. Canning. Witness was not spoken to by any person about an attack on Mr. Crawford, principal clerk in the Colonial Secretary's office. Considers that plaintiff in his school checked, rather than encouraged immorality. There was an investigation by the school Committee into the conduct of the head and under master. As no charge had been brought against the former, he was, of course, continued, and no charges could be sufficiently substantiated against the latter, upon minute enquiry. Early foibles, witness considered should not ever after, operate against any individual - even being the author of such an article as the far-famed "babe of grace," `should not unfit a man for society, after a two-years' probation. The trustees deemed it expedient to restrain the head master from interfering in any political controversy; and, not alone on account of fidelitas, but because it was understood that plaintiff intended becoming the editor of a newspaper. A special committee met to investigate certain alleged derelictions on the part of the under master; and several young gentlemen were examined, but nothing could be brought against him. The under master, a few days after, resigned, of his own accord.
Mr. SIMEON LORD- Is a merchant, and has known plaintiff ever since his arrival in 1819. His children have been educated by plaintiff, who, in witness's estimation, is better calculated for such a task than any other person in the Colony. Considers that plaintiff's greatest fault is over-irritability; and, that unless roused by injury, no one can be more harmless. Witness was of opinion, that Mr Howe did not speak correctly, when he attributed his not appearing to prosecute as the cause of plaintiff not paying a compulsory visit to Port Macquarie; as, with one exception, all the Magistrates were in favour of the plaintiff.
Mr. SAMUEL TERRY coincided in Mr. Lord's favorable opinion of the plaintiff, as an instructor of youth, and the injurious tendency of Fidelitas. Thinks if the latter was subscribed by the d-v-l, it would be a d-v-l-sh production - but still considers that the writer's motives were not personal. It was the witness and Mr. Pitman who brought about the recovery of a box which had been left in plaintiff's custody, the 19th of October, 1825, by Mr. Jacob Josephson. A letter was upon this addressed to plaintiff, apprising him of the circumstance of a box, containing some valuables, being placed in plaintiff's hands by Josephson, for the purpose of defrauding his creditors. Will not swear that the letter was not suggested by plaintiff. Josephson's goods were not at the time advertised. Witness strongly approved of plaintiff's giving up the box.
Messrs. WILSHIRE and CHISHOLM entertained a high opinion of plaintiff's abilities as a teacher of youth, and affirmed, that if any immorality practised in the school had come within their knowledge, they would have removed their sons immediately, nor would they have become trustees.
Mr. RICHARD DRIVER was a pupil of Dr. Halloran's for three years, and during that time never knew the plaintiff knowingly, to let any immoralities be practised. (Here the plaintiff's case closed.)
Mr. Wentworth spoke for the defence. Before entering into the merits of the present case, he would wish to lay down something of the law of libel; truth may be considered a libel in a criminal information, but could not be so held in the present case, where the person complaining holds a public situation of trust, and consequently subjects his conduct to the public scrutiny. The learned Gentleman proceeded in proof of his positions, to quote from several law authorities; commentators on parliamentary discussions, are protected by the law; so are critiques on books of an immoral or dangerous tendency, or on person committing breaches of trust, which latter clause was prima facie, in defendant's favor, and where parties are in the habit of libelling each other. The malus animus, in such cases, according to Lord Kenyon, alone, constituted libel, and in this, the learned Counsel was positive the present case was entirely deficient. Mr. Wentworth went on to affirm, that the individual who stepped forward to expose the immoralities of any publication or gross breach of trust, would deserve praise for purging literature of a vitiated taste, and would confer a benefit on society. A large show of ridicule had been attempted to be thrown on the length of plaintiff's pleas of justification entered on the report, they were styled pleas of surplusage, but Mr. W. was prepared to prove them all. After some comments on the plaintiff's conduct as connected with certain transactions between Josephson and his Creditors, the following witnesses were called:
Mr. Jacob Josephson was first examined. He stated himself to have been once intimate with the plaintiff. (The witness requested he might be allowed to unfold his own history as connected with the plaintiff.) - Nearly two years since, it might be recollected, the witness was robbed, or said to have been robbed, of some thousand dollars, in consequence he was forced to compound with his creditors, who all subscribed to a deed, in which they consented to receive their monies by instalments at certain periods. Witness upon this paid down a principal part of the debt, but subsequently acknowledged having got back all, or the better part of his dollars. Some of his creditors supposing that the loss of the dollars was all a fabrication, filed a bill in equity against the witness's property, while others declined cancelling their former deed of argument, still consenting to be paid the debt by instalments. In this emergency the witness went on to affirm that he consulted plaintiff, whom he had frequently assisted, and who always acknowledged it, and adopted his advice of secreting a portion of jewellery, not through felonious motives, but for the benefit of those creditors who had not joined in the bill of equity. On the 6th of October, a box, containing valuables, was deposited with the plaintiff's consent, in his bed-room; and on the 19th of the same month witness stated himself to have been surprised by the appearance of plaintiff, who came into his house trembling, and holding out a letter, which plaintiff said he had just received. It bore the signature of Messrs. Terry and Pitman, and intimated unequivocally, that a box, belonging to the witness, had been seen going into plaintiff's house, and requesting that it should be rendered up to his creditors. Plaintiff did not deny that such a box was in his house, and that it should be surrendered, as it subsequently was to the Under Sheriff, Mr. James. It was plaintiff gave information of the box having been left with him, and who edited the letter requiring it to be given up. Witness had lately received a letter from the Attorney General, requesting to know whether he (witness) felt himself guilty of any thing which might entitle the Attorney General to file a bill against him. Witness sent back an answer that he was no lawyer himself, and could not tell (a laugh.) Considered Plaintiff a very proper instructor of youth.
Mr. Macleod's examination followed next. - He knew plaintiff on his first arrival in the Colony, and at that time, and for some time after, received much kind attention from him, for which, Mr. M. still felt grateful. He had seen the production termed Count O'Candle, it is a description of a wedding, and bedding; the latter is the most objectionable part. Witness thinks plaintiff has put him down as the author of certain scurrilous letters, reflecting on plaintiff. "He calls me Cudgel," said the Witness, but he is mistaken. 
Mr. Cape, who is a schoolmaster, stated himself to be much annoyed by plaintiff's sons throwing stones at his doors, and styling him a cornuted monster, or cuckold, which Mr. Cape knew to be totally false. Plaintiff's daughter acknowledged having once flung a huge peach stone at the witness's door. Witness's son is candidate for the under master-ship, but neither the latter, nor witness himself, look to be head masters; does not know that plaintiff was at the time aware of his son's conduct. After some further disquisition, Messrs. Carter, and Cooper were examined.
Mr. Hutchinson refused to mount the witness box, as he had received no subpoena, to enforce attendance, he was then merely a visitor in the Court; but whilst the dispute was pending, Mr. H. walked out, wishing the Court good evening.
The Learned Judge, entered into an explanation of the law of libel, and concluded, by expressing his opinion, that the plaintiff was entitled to some trifling damages. 
The assessors after some deliberation, found a verdict for the plaintiff, Damages, one shilling, without costs.