ROBINSON v. HOOPER. To the Editor of the Colonist.

Colonist, Issue 89, 27 August 1858, Page 3

ROBINSON v. HOOPER. To the Editor of the Colonist.

Sir, —I will now offer a few remarks upon the above case. This was an action for libel, and the plea a justification ; in other words, the plaintiff's character, in the opinion of the defendant, was such as to justify him in holding the plaintiff up to the eyes of his fellow citizens as a dishonest rogue, and consequently unworthy of the confidence of any place of trust, and more particularly that of Superintendent of this province, for which he was then a candidate. Well then, how does he bear out his promises? On the close of the plaintiff's case, his attorney, using a ivise discretion, endeavoured to find a flaw in the indictment, and so to evade the merits of the case, and moves for a nonsuit on the ground that the plaintiff, not having proved that he bad suffered any damage, and had not sued for any special damage, and that notwithstanding the alleged libel he bad gained his election, and that according to the law as laid down in the case of Harrison v. Bush, the libel was a privileged communication. His Honor the Judge in answer to the learned gentleman observed, first—that he had not proved that the defendant was an elector in order to bring his case within the rule above quoted ; and second!}', supposing that were it proved that the defendant had not exceeded the bounds of the privilege, and that consequently there was sufficient cause to go to the jury; and thereby involving, thirdly, whether the effects of the libel could not be considered as extending farther as regarded the plaintiff than to his character as candidate in the election. As I am not the advocate for either party, I shall not stop to criticise the legal acumen of the defendant's being put into the witness-box, or his late partner, for what do they prove ? The defendant says, I ground my opinion of the plaintiff's capacity and honesty upon his accounts and his manner of conducting the business generally. How he arrives at that conclusion it would be difficult to conceive, seeing in his cross-examination he says, I am no book-keeper; my partner managed that part of the business. Well then, what says his bookkeeper ? Why that there was no balance due from the plaintiff to the firm ; it was a loss in the business; I checked the plaintiff's accounts, and therefore I can speak with certainty; and I did not consider that I (we) had any claim on the plaintiff for any deficiency in that transaction, and I never considered the plaintiff wanting in honesty; on the contrary, I believed him to be perfectly honest and conscientious.

The case then went to the jury upon the following points':—First, was the publication a libel, and if so, was it a privileged communication ? and if so, had not the defendant exceeded the limits of that privilege; and if so, had the plaintiff sustained any, and what damage by that excess. Well, then, what was the verdict? Thus—first, We find that the defendant did maliciously print and publish of the plaintiff the libel set forth in the declaration. Secondly, that the statements set out in the alleged libel are untrue. And thirdly, (in consideration of so publishing a malicious libel intended to cast a stigma upon the moral character of the plaintiff) that the plaintiff is entitled to 40s. damages. In other words, that the defendant be fined 40s. and go about his business. ,

Now, Sir, in trying a person for any offence against the person or property of another, constant reference is always made to the animus by which the. offending party was actuated, or may be reasonably inferred to have been, at the time of committing the offence. Will any man say, after hearing ihe evidence, that the avowed object of tlie defendant was not, as far in him laid, to damage the plaintiff in the eyes of his fellow citizens? Will anyone say, that in refusing to meet the plaintiff and submit the case to the very tribunal before which he eoughfc to damage him, did not greatly aggravate his maliciousness? Did he not shew by such conduct that he flattered himself he should more effectually accomplish his object ? and yet this malicious libel is sufficiently compensated for, in tlie eyes of twelve jurymen of his fellow-citizens, by the penalty of 40s. I do not mean to insinuate by the above remark, that the jury set so little notice upon the plaintiff's moral character as to say that any gross attack upon it would be amply compensated by a 40s. plaster.

The vulgar error, that there can be no smoke without fire, owing to the ignorance and envious jealousy of the great mass of the people, obtains almost universal credence, and is almost always quoted when any attempt is made to refute any slanderous reports against the moral reputation of any individual; and I do not. see that the general mass of mankind have all at once become so enlightened as to have abandoned their notions upon the subject; and therefore it is, that I think no pecuniary remuneration can compensate any man for a malicious libel upon his character. Still I think the penalty of the law shouid be of such a character as to deter malicious individuals from "having their shy, though they lose their stick," when they see they can buy a new one for 40s.

In my next I will offer some observations upon your article wherein you plead iv favor of mos pro lege, and remain, yours, &c,

SENEX ALBUS