SUPREME COURT.

Hawke's Bay Times, Volume 13, Issue 684, 24 May 1869, Page 3

SUPREME COURT.

[Before His Honor Mr Justice Johnston.J

TUESDAY, 18th MAY. ALLEGED LIBEL. Afteti certain business had been disposed of in banco, his Honor said that there was a rule returnable that day calling upon T. B. Harding and John Begg to show cause why a criminal information should not bo laki against them for writing and publishing a malicious libel. Mr Wilson appeared on behalf of Mr Oarlyon; and John Begg, who was undefended, appeared to show cause. His Honor said it was a pity he was not defended, and asked what grounds he had for making this charge, which Mr Carlyon had 6\vorn was utterly untrue. The affidavit of that gentleman stated that he was from home at the time this horse was impounded by his overseer, and that he knew nothing of the circumstance until after the sale. John Begg, in justification, produced a copy of the Hawke's Bay Herald containing an advertisement headed '' Impounded at Gwavas, by E. A. Carlyon,' signed by Grwavas Carlyon, poundkeeper, in which was included an iron grey gelding, branded y, and explained that he had discovered this his own horse, tho brand of which, J, was totally different from the advertised one.

His Honor said that Mr Begg appeared )o have been misled in this matter. If lie persisted in the accusation in the face of Mr Curl on's oath, there would be no alternative but to make the rule absolute against himself and the publisher. If on the other hand, he admitted his error and withdrew the charge, the rule would be most probably discharged, lor he diet not ihmk Mr Wilson could press for it in that case. Eor his own part, he was very slow to use his power of granting criminal informations unless in cases where it appeared absolutely necessary. He then took Mr Begg's statement on oath.

John Begg, sworn, deposed: I am a settler, living in Napier. I admit the authorship of an advertisement in the ilavvke's Bay Times, accusing Mr E. A. Carlyon of impounding my rorse under a false brand, I produce a copy of tiie Hawke's Bay Herald, June 16, 1863, which contains an advertisement headed "Impounded at Gwavas, by E. A. Carlyon," and signed by Gwavas Carlyon, Boundkeeper. Gwavas and E. Carlyon are brothers, and I believe they are partners, the advertisement describes T " One dark iron-grey gelding, branded y near shoulder." I afterwards found * this to be my horse. My horse was afterwards seen, in the possession of Donelly, Mr Carlyon's overseer, on this side of the Ngaruroro. My horse had been lost some time, and two people who knew it well, were looking for it at the time, and I could have '4one and recovered it had I not been misled by the I produce my brand, J, as unlike & as possible. Y

Mr Wilson wanted to a?k witness a single question : Had there not been a case relative to this matter before the Resident Magistrate ? Witness: Yes.

His Honor did not see that this altered the case. The identity of the animal appeared undisputed. Mr Begg : Two persons at the sale called the attention of the poundkeeper to the tact that the brand was different from the one under which it was sold.

Mr Wilson required a complete withdrawal of the charge. The libel was of a most aggravated character —against a gentleman holding the offi.ee of Justice of the Peace and member of the Provincial Council.

His Honor: What more do you want, Mr Wilson ? The libel would not be an aggravated one could the statement be

clearly established in a Court of Justice. Prima facie the case looked very ugly, and to jump at once to the worst conclusion, as the defendant has done, was more natural than justifiable. He does not now reiterate the charge.

Mr Wilson said there must be an unqualified withdrawal.

His Honor : There is no limit to the discretion of the Court. An " unqualified withdrawal" seems to me like one of the stock phrases of a newspaper. The defendant fin Is he has made a mistake, and admits it.

Mr Wilson: I think, your Honor, that more than this is required. Look at the lapse of lime since this affiiir—nearly 12 months. This is the first time I have seen [he advertisement he produces. If tho rule is made absolute this is one of the dungs 1 have to clear up. What Begg is no evidence. His Honor said this was not a case for a criminal information. The advertisement which Mr -be<rg believed and which led him to make the incorrect statement emanated from Mr Carlyon's brother* Mr Wilson said he must press for the rule.

His Honor: TJse a little common sense, Air Wilson. If in a criminal trial before ihis court the defendant took the attitudo he does now —withdrawing the charge, and showing how he was misled —what could ihe Court do? The case would then be fully met by a mere nominal penalty. Mr- Bt'gg siicl that he thougut Mr CarIvon was responsible for the act of hia overseer in impounding the hjrse. His lionor : .Not orimiuady. Ido not say ikat lie may not be Civilly responsible still. Mr Wi son aaid that there was greae persistency in this case. The chargo had been uiado repeatedly ia the paper.

Hia Honor said there oould be no persistency until after the discovery of the error. He w>ts far from approving of the conduct of Mr Begg 3 who had asserted what he now admitted he could not establish. He bad undoubtedly been very i ash, for he might have considered that a J.P. would bo very unlikely to commit such an action as the one imputed to him ; but Mr Cariyon's object in this case could only be to vindicate his character with the public; and that end being gained, there could be no object in making the rule absolute. Mr Wilson said that if his Honor discharged the rule, he must ask that it should be without prejudice to Mr Carlyon'a right of bringing an action for damages. Hb Honor said there was no law to prevent bringing such an action after a rule being refused. Upon the whole, he thought the interests of justice were fully vindi cated, and he only regretted that the jour nal was not represented—the publisher being responsible in exactly the same measure as the writer. Mr Bepg had been honesth misled by a combination of circumstances into the belief that his horse had been impounded by the individual himself whose name appeared in the advertisement j bu' as soon as Mr (Jarlyon had stated on oarh that he knew nothing of the matter until the transaction was completed, he had with drawn the charge. Mr Carlyon's character was tiius vindicated ; it had been clearly showh that there was no actual malice or falsity in the case, and under tin. circumstances ho could not make the rule absolute. The parties would thus be leit in statu quo, with the right of taking anj other proceedings they might think fit The non-appearance of the other party did not affect the decision ; both were in the some position, and must go together. The jule was discharged.