Before H. S. Chapman, Judge.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 1, 12 October 1844, Page 1 (Supplement)

Before H. S. Chapman, Judge.

GUYTON V. HICKSON. This was an action by Mr. Guyton, a merchant residing at Wellington, and managing partner there of the late firm of Riclgways, Guyton, and Earp, against William Hickson, of Wellington, a merchant, and partner in the new firm of Ridgways, Hickson, & Co., for publishing a hbel upon the plaintiff in the New Zealand Gazette and Wellington Spectator, of the 31st of July, 1844. The damages were laid at £1000. Before the Jury were sworn, Mr. Hanson who, with Mr. D. Wakefield, appeared for Mr. Guyton, begged permission to make a proposal again and for the last time, which mjo-ht obviate the necessity of a trial, he was authorized to say that if the defendant would agree to take a verdict for the plaintiff for 405., aud insert an advertisement to the effect that the advertisement of which the libel consisted was not intended to reflect on the credit or character of the plaintiff, the plaintiff would be satisfied. This proposal was made to show that the action had not been brought from any vindictive feeling. Mr. Ross, for the defendant, said that his client was not actuated by ill feelings, and had published the advertisement only as a caution, and could not withdraw anything. The cause therefore proceeded. Mr.. Ross briefly stated the nature and extent of the evjdence-which he should „pto- . dact t& suppT£Tt L the plea of" jusxrncation, and ] {put in several documents, and then culled Mr. Morgan Evans, a clerk in the firm, who was examined aud cross-examined at great length. We most omit his evidence, as well as that of all the other wituesses, from want of space. The whole of it was called with a view to shew inaccuracy in the accounts. Mr. Hanson addressed the Jury — The time is now arrived for laying before you the character of the libel, for the publication of which this action is brought, the nature of the justification attempted ; and when I shall have gone through the whole case, 1 am satisfied that you will think that such an iujurious libel was never defended on such frivolous grounds. The defence bore after thought and invention on the face of it. The ad*ertismeut cautioning people not to trust Mr. iGuyton had not been inserted from the motives stated. Its insertion was a gratuitous act of folly and malignity. By libelling Mr. Guyton, the defendant had put his own character in issue, and any thing more invidious could not be conceived. Mr. Guyton had been, during the whole of his long residence here, kuown for his high sense of honor, and his strict probity ; and the defendant, who is only just arrived in the colony to supercede Mr. Guyton, and to profit by his losses, hojds him up to the world as both poverty stricken and fraudulent, — sp^ poor that he has no means or credit of any kind of his own, aud so fraudulent that he is willing to obtain credit in the name of firm, — what is the justification pleaded for' such conduct? That the accounts of the firm shew a loss ! The Jury, however, must bear in mind tint their accounts do not profess tp be accurate. They do not include freight, insurance and other charges, that large consignments had been shipped from England without any .advice, that freight had in many instances exceeded the cost of the goods, and that the stock on hand had been calculated at the invoice prices. Admitting, however, that there jg^oad been a loss a great portion of it caused by transactions over which Mr. Guyton had no control, it must not be forgotten that in the beginning of a new colony there were risks against which no prudence could guard, expenses which no economy could prevent, and misfortunes which no man however gifted with foresight could avoid. In such a state of things no bkme could attach to Mr. Guyton, on the contrary he was entitled to the highest praise.for the zeal, energy, activity, devotion to business, which he had displayed during a period of four years from the very commencement of the colony, during the

period of its greatest difficulties, and by such conduct having, as it were, ascertained tne ground on which he stood, and had a right to look for some remuneration from the concern, he is now entitled to commiseration ; when a Mr. Hickson takes his place in order to reap the advantage of his experience. This consideration alone ought to have staid the defendant's hand when he penned the libel, but no such thought appears to have crossed his* mind. Well knowing Mr. Guyton's high position in this community, he inserted this advertisement, not to injure him here for that was out of his power, but in order to injure him elsewhere, wherever the Gazette is read. The Jury would see that the tendency of the advertisement was to injure by defaming Mr. Guyton wherever newspapers are read and merchants congregate. Contrast this conduct with the conduct of Mr. Guyton when the defendant arrivedr Mr, Guyton was in possession of all the property of the firm. He could have closed the doors on every part of the premises against the defendant, and nothing but an expensive and tedious chancery suit could have obtained any information as to the accounts or the possession of a particle of property. Instead of driving the defendant to this course, Mr. Guyton admits him into his house, accomodates his wife and a large family with his furniture, shews him the books of the firm, examines them with him, and places stores, goods, and every particle of property in the hands of Mr. Hickson. At the same time he would not overate Mr. Guyton's conduct on this occasion ; his motive for so acting was plain enough, namely, to afford the house here every facility to carry on the business in order that he might return to England, plead j his own cause with his late partners, and obtain from, them what the defendant, had. .fivJ Inclination to give, an acknowledgment of his services, and a remuneration for his risks and losses. Now, how did the defendant avail himself of Mr. Guyton's admission to the books of the firm ? He picks out a few accounts where it seemed that Mr. Guyton had been in the habit of crediting persons who had dealings with the firm with the amount of his private debts ; it was for the Jury to say wh&ther such a practise was not common here ; the circumstances of the place required it, if no other reason for it could be found. Besides, the defendant knew that this had been done long before he inserted the Übel, and yet he would have you believe hat the discovery of this practise induced him to publish it. Such a defence wa* futile as well as ludicrous. As to the charge of Mr. Guyton's having caused a sura of £500 to be carried to his debit impropetly, there was nothing in it ; it was done in the usual course of business*. Mr. Guyton's accounts were divisible into two parts, oue of £1392, shewing that he spent about £300 per annum ; the other £1020, the house expences in Ingestrie Street, where not only Mr. Guyton lived, but Mr. Isaac Ridgway lived there, Mr. Evans took his meals, and Mr. Hickson and a good sized family had lived/ since their arrival here. Could any body imagine that plaintiff would be charged with the expences of Mr. Hjckson, the representative of "four partners — in reality four persons rolled into one — was the plaintiff to pay the butcher's bill for a man who eats for four ? He had already said" what he now repeated, that to publish an advertisement intimating that the plaintiff was poor and fraudulent was bad enough, but the miserable justification, was worse than the libel. After all Mr. Evans' examination, not an error had been discoreVed in the books. All that had come out was that the concern had not been profitable. Was the plaintiff responsible for that. Was he responsible for sending out goods that sold for less than the freight ? This however is the justification for advertising Mr. Guyton, wherever the New Zealand Gazetteis read, as so poor, since he is no Jonger a partner in the house of Ridgway, -and so fraudulent, that unless a notice be inserted in the paper, he would obtain credit in the name of the firm. Mr. Guyton is no such person, and his conduct towards Mr. Hickson proves it. He delivered over property to him worth many thousands, without a moment's delay, out of which be might have kept him by means of a Chancery suit for almost any length of time, and out of which if he were the man Mr. Hickson ; advertises him to be, he might have made ja,

purse long and long ago. Mr. Guyton is too well known here to be injured by any thing that Mr. Hickson could say or do ; bui; it might be different in other places, and he therefore called upon the Jury to give such, damages as would mark their sense of the character of the libel. They would remember that Mr. Guyton had offered to withdraw the action if the defendant would withdraw the advertisement ; that the defendant instead of accepting this offer, had attempted to justify himself by aggravating the original blunder in the shape of ridiculous charges of errors in the books, and for this double slander therefore, he called on the Jury for a verdict, in order to shew that they the Jury believed Mr. Guyton to be what he had eter been, a high minded person, always esteemed for possessing the nicest feelings of probity and honor. Mr. Ross. — Mr. Hanson had given the case the appearance of being what no one ever could have imagined, and none but himself could have done. The Jury must look at the two parties, — the one, Mr. Guyton, whose name was familiar to them ; the other Mr. Hickson, who came here with full power from the lale partners of Mr. Guyton to -enquire, how it was that the affairs which had been 'entrusted to him had turned out so badly, and to wind up the concern. Plaintiff's partners had advanced largely, — there had been large balance sheets sent home, but always with the same tale. They were desir- , ous that the accounts should be looked into, and the affair settled. Had Mr. Hickson acted harshly ? He had awaited the end of the partnership. Twas no great concession ' to be allowed to look into the books — when he was the representative of four partners. Mr. Guyton had been mauaging partner ; his returns had been no profit ; but loss, — loss, — loss. Attempts have been mads to show how the loss arose — that there was a fall in the market — a deduction made of 10 per cent, and 50 per cent. ; but he did not shew that an addition of 100 per cent, had been made. Mr. Hickson came here to do his duty, strictly and justly. It was not his own interests he was looking after. The plaintiff's late partners cou'd not delegate their angry feelings. Defendant was a mere agent. The party who is deprived of the means of carrying on his basiness generally entertains angry feelings. He had done what he could to prevent litigation, to shew that plaintiff was indebted to the firm ; he had put in the books, which always showed a loss. He could not shew all, because some entries had been made by Mr. Hickson. Mr. Guyton began very carefully ; when Mr. Earp left there came £300 for house expenses, Mr. Guyton had no family, his accounts increased, andUt amounted at last to upwar Is of £1000. Where was £5,000 per annum to come from if each partner had taken d£ 1,000? The accounts grew larger and larger ; in the month of July the partnership was to close. Mr. Guyton in that month took £500 from the chest. There were also various sums put to his account. The Jury had been told that it was the practice, and that the house expenses have been charged to Mr. Guyton. Plaintiff had attempted to make the Jury believe, that Mr. Hickson and family had lived with and fed upon Mr. Guyton. But to whom was the bill charged, he being agent of Ridgways? It was charged to Ridgways, Hickson, and Co. Other things had been stated, but which were not facts. It was true that certain persons lived at the House in Ingestrie-street, but it was not shown how expenses were charged. They were told that the balance of the account might be one way, and might be the other ; but that it did not fo'low that there might not be a profit, the deduction might be made, that the accounts may be in such a. state that there can be no deduction. Mr. Guyton could have explained any difficulties ; and, if he could have shewn a profit there would have been an end of the allegation that he was indebted. He (Mr. Ross) had heard nothing of a profit, but that a loss was to have been expected from the state of the cclony. Much had been said about Mr. Guyton's skill ana devotion. His prudence would depend upon the result of the concern. Mr. Guyton takes credit for not putting his partners to a law suit. It would appear that he regretted not doing so, and that he had rendered the accounts. He (Mr. Ross) .thought -tha{ credit should not have

been taken for an act of common honesty ; he had a right to believe himself in advance, did the jury think it reasonable or a fair thing to take £500 from the chest, when a gentleman was here to represent his partners in England. - It was a suspicious circumstance and one that an agent was bonnd to look upon with jealousy ; they were told that he (plaintiff) had the legal right of taking what he pleased, he (Mr. Ross) would say legal power rather ; -he had no right to take more than he was entitled to. Another reason stated was the large liabilities of the concern ; all the partners were- liable, plaintiff was only liable to one fifth ; evidence had been given of two actions having been brought ; none could be brought to show how they had been settled ; if the jury inferred any liability existed in respect of these actions, they might infer what was not right. Ho had shewn the state of the accounts and the right Mr. Hickson had to believe a large sum due to his principals. The £500 might have been taken to pay plaintiff's private debts ; h<? should not take money for that purpose and set them off in the firms books too. A house had been purchased on Wellington Terrace, Mr. Guyton was in possession ; the house was mentioned in the land account, but no entry of any tenant ; the plaintiff was advised tjhat he should not occupy a second house of the firms and not pay rent ; he debited himself with £54 for two years rent ; a rent up to the Ist December next, when he would be halfway to England ; having one house it was strange he should debit himself for rent of a house occupied by a party, who stated fairly enought that she had paid no rent. As to Mr. Earl's account if it were not convenient for him to settle here he would have ample means to do so when he arrived in England. He puts the partnership in such a position that they- could not look to Mr. Earl. The Jury would consider if the house was advantageously let, and the capital prudently employed. The purchase money was £270, and the rent £27. Supposing the partnership dissolved in July, had Mr. Guyton any right to anticipate cent which would never come into his hands. The execution of the lease so long after time looked like some preparation for the 27th July* 1844. The Jury would recollect that he, Mr. Ross, had been able to raise an inference that Mr. Guyton had brought nothing into the firm. There was no item to the credit of Mr. Guyton. Disputes as to the accounts are referred to in Mr. Hanson's letter ; it was hoped they would have been brought to an amicable arrangement. Mr. Hanson had incurred the anger of his client tn writing as he did, but the plaintiff had not desired him to dissent to the proposals. He was disarmed by that conduct in the proceedings taken that day, and did not, trusting to the adjustment, get such a justification as he might have obtained. He had delayed, hoping a settlement ; no withdrawal is mentioned in the document containing the terms ; the disputes were separate. In trie second document without date the withdrawal is first alluded to. The matters in difference between the parties were one thing, the injury sustained another. Altho' the fact of Mr. Guyton's initials being to the erasure, cannot go in bar to the action, it may go in reduction of damages ; a quarter for which sufficient. Mr. Guyton never intended to go to this extent, but having got an arrangement as to the accounts, he would now go on with the libel. He had not been able to prove the partnership deed, had he done so, things might have been different. With respect to the libel, what malipe can there be in it. ■ There are two modes of shewing malice, one capable of proof, the other presumptive. Had malice been proved ? Mr. Hickson had "not any! The advertisement was the only means by which Mr. Hickson could protect his principals, and an intimation how he intended to cto business for the future. It was usual in libel cases for parties to put into language their feelings on the subject, and then the Jury would know what they were. Mr. Hanson would influence you with his view, a view which no one else, he, Mr. Ross, believed would take. In general, th& intent of a libel could not be mistaken. As to the inuendo, he had not produced evidence of a construction he would persua-Je you to give the worst. Mr. Hanson has asked fpT_ damages without proving that the world have the same feelings. The qnly intent of the

advertisement was to prevent intricacies, and to intimate that the business would not be carried on in the same way. It was to warn people that Mr. Guy ton was going to leave the concern, and to send in their accounts. Mr. Guyton does not allege that Tie has suffered injury, but that the effect of the libel will be injurious at home. The Gazette has a limited circulation ; he did not believe a single paper went out of the colony. In conclusion, the Jury had to try to-day whether the advertisement had been inserted as a caution and notice, or whether it was to injure the plaintiff. If no such intent, they would not find against him, for no damage had been proved ; if theyconsidered that it had been published with intent to protect Ridgway's and Co., and that he as an Agent had just grounds for alarm, they would find a verdict for Mr. Hickson. Nothing- had been shewn to impute malice ; the matter had been put forth in good faith, if not in good taste. Defendant should not be punished, seeing that he had published the libel not as a principal but as an Agent. He had no ill will against plaintiff, or he would have taken another course ; at any rate you will not punish him for error. The Judge then recapitulated the evidence at great length. Ths Jury after a few minutes deliberation found a verdict for the plaintiff. Damages, 100 guineas.