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Decisions of the Superior Courts of New South Wales, 1788-1899

Howe v Stephens and Stokes [1835] NSWSupC 49

horse racing - Cumberland Club - libel - Campbelltown - damages, libel - gentlemanly conduct - damages, contemptuous

Supreme Court of New South Wales

Burton J., 18 June 1835

Source: Sydney Herald, 29 June 1835[ 1]

RACING IN NEW SOUTH WALES.

(the cumberland club.)

Thursday, June 18, 1835. - Before His Honor Mr. Justice Burton and a special jury, consisting of the following gentlemen:-

Robert How, Esq., Foreman.

F. A Hely, Esq., J. P.John Nicholson, Esq.,

Captain P. P. King,R.N., J.P.

R.N., J.P.W. H. Howie, Esq.

R. C. Lethbridge, Esq.,J. F. Church, Esq.     

J.P.John Campbell, Esq.,

Edmund Lockyer, Esq.,J.P.

P.P. De Mestre, Esq.

G. T. Palmer, Esq.,Hamilton Hume, Esq.J.P.

Howe v. Stephens and Stokes. - This was an action brought by the plaintiff, a Magistrate of the Colony, residing at Glenlee, against the defendants, Editors and publishers of the Sydney Herald newspaper, to recover a compensation in damages for injuries done to his character, by the publication of a libellous letter which appeared in that journal of the 23rd October last, imputating [sic] to the plaintiff a charge of conspiracy and fraud, for the purpose of defrauding the Campbell Town Racing Association - Damages laid at £2,000.  Defendants put a plea of justification on the records of the Court, thereby undertaking to prove the truth of the matters so published, as alleged in the declaration to be libellous.  Mr. Foster, counsel for the plaintiff, opened the case in an address to the Jury to the following effect.-

Gentlemen of the Jury.  This is an action brought to recover a compensation in damages for a false and malicious libel, which is specially set forth in the declaration; the plaintiff is one of the oldest Magistrate in the Colony, and resides on his estate at Glenlee; the defendants are the proprietors, printers, and publishers of the Sydney Herald newspaper, a journal which boasts of a wide circulation and extensive influence in the Colony.  The plaintiff is a member and Vice President of a Club at Campbell Town formed for the purpose of encouraging an improved breed of horses, and who purchased a horse which being in good repute as a racer, was entered for the first Campbell Town Races got up under the direction of the Club; one of the rules of the Club was that all horses entered for the race must be bona fide the property of the members unless approved of by the Committee of management, to whom specical [sic] applications were to be made; a race took place in October last, and in the December following, a libellous communication appeared in the Sydney Herald, imputing the most infamous conduct to the plaintiff, as having conspired with a low horse Jockey, in swindling the club; to shew you Gentlemen that a regular plan was concocted for introducing this libel in that Journal, I have only to draw your attention to an article inserted by the defendants in a precedeing [sic] publication, as a pretext for laying the malicious slander before the public.  His Honor will tell you Gentlemen, that you are bound to put the same construction upon that publication, as you would do were you to read it in your own parlours; there can be but one conclusion arrived at, as to the character of that letter; you find this imputation clearly and distinctly expressed; it imputes to the plaintiff that notwithstanding his high character and respectability as a Magistrate of the Colony; he did knowingly and for the sake of gain, conspire with a horse Jockey to practice a fraud on the Club, by collusively introducing a certain horse, contrary to the established rules of the Club, which horse ran at the races and won the prize; the writer goes on to state that after the races, the horse which had been so collusively introduced to the Club as the property of Mr. Howe was returned to its real owner; this, gentleman, is the charge imputed to the plaintiff, it is impossible for any man to put any other construction upon it; to shew you that it is so I will now read it to you, (letter read.)  Now Gentlemen, after setting forth that the owner, suggested to Captain Coghill a proposition which he was too honorable to listen to, but kicked the applicant out of the yard, when not to be foiled he went to Glenlee, where he was more fortunate; can you imagine that the writer could have spoken out more intelligibly, could it be more clearly expressed, that Mr. Howe had done that, which Captain Coghill, as a gentleman and a Magistrate was too honorable to do?  that he had connected himself with a low horse Jockey, a fellow who prided himself on being clever in his line; - and all this gentlemen for the sake of twenty-five guineas; if he could be capable of conduct such as this, ought he not to be ashamed ever to shew his face in society again; would any of you Gentlemen, give countenance to or associate with, a man who could do what is here imputed to Mr. Howe?  I put it to you gentlemen, would you breath the same air with such a man?  If there be, gentlemen, on publication more villainous than another, it is this which is now before you; it is a publication which, for the gratification of a malicious feeling of the most diabolical character, seeks to involve in unmerited infamy, the honourable and spotless character of the highly and respectable plaintiff; it may happen that in the journals of the day a statement of an offensive nature may be put forth inadvertently, which being atoned for as far as practicable, may satisfy the parties offended; but such was not the conduct of these defendants; their act was one of deliberation, as shewn by the article from their own pens, for the purpose of ushering before the public the more venomous attack on the plaintiff; but, gentlemen, it is not only these publications of which he has to complain, but of the conduct of the defendants afterwards.  On having his attention called to the slander at his own house, the journal containing which being put into his hand, he immediately dispatched a person to Sydney in order to ascertain by application, to the defendants, who the author of the libel was, being alone anxious to get at the slanderer himself; to shew their conduct on that occasion I will put a witness into the box who will inform you of the manner in which plaintiff's application was treated.  He informed the defendants that he had come from Mr. Howe, and wished for information as to the publication in question; this was a reasonable demand, yet how was it received - the defendants told him they did not know anything about it.  Well might that gentleman inform them that it was too bad to publish such anonymous statements, reflecting as they did on the character of so respectable an individual as the plaintiff, without making some enquiry into the circumstances, or making themselves acquainted with the author.  This is the way, gentlemen, in which a journal, boasting of superior accuracy, and pretending to confine itself to matters of fact, is conducted; but, gentlemen, I will not presume to say that the defendants as Editors of that journal were such ideots [sic] as to put forth such a statement as that without knowing the author; if they were capable of doing so, I do not hesitate to say, that they are no more fit to be entrusted with the management of the press, than a madman is with a loaded gun.  No, gentlemen, they have consented to become the tools of parties who have cherished the most malignant feelings against my client; but the day of reckoning has at length arrived, yet they have presumed to follow up to the last moment this line of conduct they have even carried it into this Court.  Not satisfied, gentlemen, with having assailed the character of the plaintiff in their paper, they have placed on the record of the Court a plea of justification; an intimation that they are prepared to prove the truth of all they have asserted.  I need hardly ask you, gentlemen, what man could consent to live had he acted in the manner ascribed to the plaintiff; would not life be insupportable under such a load of infamy.  Gentlemen, by bringing such a plea before you, they have only put the plaintiff on his right of demanding the heaviest damages in your power to award, should they fail in proving to your satisfaction, to the strict letter of the law the truth of that plea; the books furnish abundant proofs that in all cases of this nature where a pleas of justification has been put in, yet failed to be proved, it has been laid down as an infallible ground for increased damages.  What man I would ask, gentlemen, can be safe from contumely, if such conduct can be pursued with impunity to the last moment.  I entreat you to put yourselves in the situation of the plaintiff, and then say what measure of damages could afford a compensation for the obliquy that had been cast upon you; public justice and public feeling demand heavy damages, in order that the plaintiff's character may be purged of the stain which has been stamped upon it by this libel;- that the public may judge of your deep sense of the injuries which have been inflicted on his character.

Mr. Newcombe, of the Office of the Colonial Secretary, proved that the Sydney Herald, containing the alleged libel, was printed and published by the defendants.

Mr. Foster suggested to the Court the propriety of ordering all witnesses to withdraw until called on.

Mr. Wentworth observed, that as his learned friend seemed to be so particular in that respect, it was something singular that the property of it did not suggest itself, before he made his very eloquent address to the Jury.

Mr. Justice Burton - I am one of those who think that it is expedient that witnesses should hear the evidence of each other in all cases; and I would wish the gentlemen of the bar to bear in mind, that it is my intention to take an early opportunity to move the Court on the propriety of doing away with the practice.  Let us suppose that a witness comes into Court for the purpose of telling that which is not true, the succeeding witnesses having heard his testimony, are enabled to expose the falsehood fully to the Jury; an interested witness is deterred from stating untruths to the Court, from a consciousness of the presence of other persons who would readily detect any departure from the truth; a Jury would very readily discover whether witnesses framed their testimony from that of each other, because they would doubtless come to the point at once; from these and other considerations, I am confirmed in my opinion, that allowing witnesses to be present in Court during the whole of a case, is beneficial to the cause of justice rather than the contrary.  However as the practice has hitherto been to exclude witnesses from the Court upon such a motion as the present - Let proclamation be made for all witnesses to withdraw.

A number of the Sydney Herald containing an article under the head of ``Sporting Intelligence" was read to the Court, in which the defendants intimated that they had heard stranger rumours as to the conduct of certain parties at the Campbell Town Races, and inviting communications on the subject; another number of the same journal of a subsequent date, containing the letter alleged to be libellous, under the signature of R. F., was also put in and read; after which, the following witnesses was called for the plaintiff.

William Kerr. - I am tutor in Mr. Howe's family at Glenlee; he is a Magistrate; I was at the Campbell Town Races which took place on the 21st or 22nd of October last; he entered a horse for the race, called Forrester, which he had purchased from a man named Thomas Campbell; I was not present at the purchase, but I was present when the purchase money was paid; the name of the horse was Mantrap before Mr. Howe purchased him, but afterwards it was changed to Forrester; the horse has been in Mr. Howe's possession ever since; (theSydney Herald containing the libellous letter put into witnesses hand;) I have read that letter before; I understood it to refer to the Campbell Town Races; the second paragraph alludes to the horse which Mr. Howe ran in the name of Forrester at those races; the passage which alludes to a persons having failed in his object with Captain Coghill, who afterwards found his way to Glenlee, where he succeeded to his wishes, I understood to mean Mr. Howe; in the last sentence which states ``this gentleman has obtained his end," I understood to mean that Mr. Howe had made a sham bargain for the horse with the man Campbell, and had thereby cheated the Club; Mr. Howe won two prizes at that races, one by the horse Theorem, and the other by Forrester; I understood the letter to allude to the prize won by Forrester; (another number of the Sydney Herald of Nov. 3rd, handed to the witness;) I see in this publication an advertisement which relates to the horse Forrester; it is a notification that the animal was standing for the season at Glenlee; I wrote the advertisement; the horse was in the stables at the time; it is the animal mentioned in the letter now read; I was present when a communication was made to Mr. Howe that the letter appeared in the Sydney Herald; he was indisposed at the time, and wished me to go to Sydney, and find out by application to the Editors of the Sydney Herald who was the author of that letter; on arriving in Sydney, I called at the Herald Office, and saw one of the two Editors, I believe Mr. Stephens, the gentleman who is now present; I directed his attention to the letter in question signed R. F., and informed him that I was sent by Mr. Howe to ascertain who was the author of it; he said he did not know who the author was; he told me it was an anonymous letter, I then asked him if he did not think it necessary to make some enquiry before he published so flagrant a libel on the character of a gentleman, occupying the high station in life held by Mr. Howe; he said he did not; I then told him that I thought he would be made to suffer for his extreme indiscretion in so readily making his paper the vehicle of so scandalous a libel; he said he was prepared for the consequences.

Cross examined - I did not take any letter from Mr. Howe to the defendants; they knew me very well, as I had frequently transacted business with them, when in Sydney; I was present at the payment of the purchase money for the horse in question; it was I believe the third day after the races; the payment was made partly in money and partly by cheques and orders, but I cannot state the particulars of the payment; I call a cheque an order on the Bank, I think the cash was composed of Bank Notes; I was at some distance from the parties at the time, but I could see it was a cheque by its appearance; Mr. Howe keeps a cheque Book on the Bank of Australia; the orders I know were on Mr. Stewart, but I cannot swear it; I do not know how many orders there were, but I understood that the purchase money amounted to £90 or £100; my knowledge arises from my having seen it paid; I heard the amount stated by the parties when the negociation [sic] was going forward; I was in the room merely by chance, and was attending to other business at the time; I was not taken there in order that I might be made a witness to the transaction; my knowledge of the matter is not entirely dependent on what I collected there; I am enabled to speak to the amount from other circumstances; it was not a week after the races that this transaction took place; it was about three days; I speak positively to that; I have already informed you, that I was not called in to witness the payment of the purchase money; there had been no talk among the Club as to the circumstance of Mr. Howe having run the horse at the races; I did not hear any allusions made to it; I was informed previously to the races, that Mr. Howe had bought the horse, and was to give for him £50, the whole of the first stake that he might win, and the half of the second; I know that Mr. Howe was one of the Club, he was one of the Committee, who sat to receive application  for the entry of horses for the races, he was one of those who objected to the entry of the horse by its then owner Thomas Campbell; I think it was more than a week before Mr. Howe became the purchaser of it; it was rejected twice; I know that the reason of the objection was, not because the horse was considered as more than a match for any horse in the district, but on account of the owner; I was not present when the horse was rejected; I do not belong to the Club, but I am acquainted with their rules; there was no objection against men who were not respectable; I can say that the character of the owner was the sole ground of objection; I heard that Mr. Howe changed the name of the horse from Mantrap, to Forrester at the request of a lady; the mere change of name was well known to all the members of the club; I was not present at the arrangement of the bargain; which was made at Campbell Town; I know no more than Mr. Howe told me; Mr. Howe keeps a cash account at the Bank of Australia; the cheques were on that establishment; the horse was rode by Campbell at the race's after it became the property of Mr. Howe; Campbell is not liked in the neighbourhood; the objections were made while the horse was the property of Campbell; Mr. Howe made no secret of having bought the horse, nor of the amount paid for it; Campbell rode for Dr. Kenny and for Mr. Stewart during the races.

Juror. - You are aware witness that it is usual, in purchasing horses, for the buyer to require from the seller a written memorandum descriptive of the animal generally, and stating the circumstances of the sale; are you aware whether any such document or other receipt was passed between Mr. Howe and the owner of the horse?

Witness. - I do not know of my own knowledge, but I have no doubt that the necessary receipts, &c. were interchanged on the occasion; I was attending to other business, in a different part of the room and cannot say; the purchase money in the vent of not winning would have been but fifty or sixty pounds; I am aware that Mr. Hawdon was in treaty for the horse on the same terms.

This was the case for the Prosecution.  Mr. Wentworth then rose and addressed the Jury to the following effect. - Gentlemen, no doubt you would expect that a gentleman of Mr. Howe's character would have pursued a very different course from that which has been exhibited before you.  Why has not the plaintiff's case been fully laid open to you?  Why has it been suffered to depend on the testimony of a tutor in the plaintiff's own family, when Campbell himself, who is within the precincts of the Court, could have been produced to prove the true nature of the transaction; if the sale of the horse Mantrap, had been a bona fide transaction, would the plaintiff have hesitated to put Campbell in the box; would he have shrunk from the text of a cross-examination of that important witness?  Why so anxious to vindicate his character from the imputation of having acted unworthily, yet reject the testimony of the only individual who was capable of proving his innocence?  What is the nature of the vindication offered, as proved by the witness for the plaintiff, what does it amount to? that after the horse had been twice rejected by the Club as inconsistent with their rules, the plaintiff makes a bargain, taking care that a witness shall be present at a part of the transaction in order that he may come before you, and give you his own account of his own conduct; his own version of his having made a covert bargain with a man who had been trained to the tricks and jugglery of the Turf by having attended all the races in the Colony for a series of years past; who had in fact got his living by it.  You have been told Gentlemen that Campbell was to receive the whole of the first prize as a part payment for the horse; can you Gentlemen conscientiously call that a bona fide purchase?  Did not Mr. Howe thereby violate the rule of the Club under which, the Committee, with him at their head as vice president, had deemed it necessary to reject Campbell's application for the entry of the horse for the prize?  You have heard that Mr. Howe had paid for the horse; you have heard how that payment was made, not in money, but dependant on the winning of the prize, the plaintiff knowing there was no horse on the course that could compete with him; a suspicious bargain was entered into, and although the horse had been twice rejected as the property of Campbell, yet he was introduced to the course; as the property of Mr. Howe a few days subsequent to such rejection.  Allow me to ask you, Gentlemen, how could the horse be considered as the bona fide property of Mr. Howe, when Campbell had such an interest in it as to be entitled to his winnings?  Was there not an evidence partnership thereby established between these parties?  Extend this principle farther; apply it to the possession of a flock of sheep between two parties, one of whom has an interest in the wool, and the other in the carcase; how can it be denied that a specific partnership exists, yet such a case would be precisely analogous to the transaction existing between Mr. Howe and this jockey.  What gentleman, so tenacious of his character as Mr. Howe affect to be, would be have introduced a horse to the course as bona fide his own property under such circumstances?  What is the sting of the matter held to be libellous?  It imputes to the plaintiff that he juggled the Club of which he was the Vice President; by introducing as his own property, that in which a rejected party had a share; let us look into the transaction; the Club had been founded with the object of encouraging the breed of horses of a superior kind, and had created a fund for carrying that object into effect, that was no doubt the object of every association of a like nature; there was another object which had given an impulse to the formation of the Club, perhaps not less important in its character than the former; it was the introduction of a good feeling among the Gentlemen of the sporting circles of Campbell Town, that they would enjoy a state of security against black-legs and low gamblers of the turf; such a feeling was not likely to exist, if it were to be tolerated that members could introduced the fleetest and best horses that could be found, under such bargains, and sweep away the funds of the Club by this kind of jockey practice; there could be nothing like competion [sic] under such a state of things, it might serve the views of jockeys, black-legs, and swindlers, but no Gentleman of character would give it his countenanance [sic].  The result of such practices would doubtless be the termination of all sports of the turf; the objects of the original proposers of the institution would inevitably be defeated; if horses were so unequally matched, as that one could easily distance or half distance another there could be no sport, the interest being dependant on the close manner in which the merits of contending horses approached each other.  The plaintiff as Vice President of the Club must have been aware, that such practices as that to which he had lent his agency, would do away entirely with the interest of the races; to shew you, Gentlemen, the true character of the transaction, I need only refer you to the statement of Captain Coghill; the horse Mantrap was well known to have swept away several prizes, and the Committee therefore knowing his superior merit, very judiciously rejected him; the owner, an experienced jockey was not to be put off with a simple rejection; it suggested itself to him, that if he could prevail on any of the members of the Club, to make a temporary purchase of the animal, and enter him for the race in the name of a fictitious purchaser, the prize could be secured; full of this happy project he went to Captain Coghill's residence, and seeing that Gentleman, communicated the speculation; but Captain Coghill with becoming indignation scouted him and his speculation from his premises; not to be foiled as set forth in the publication complained of, he went to Glenlee.  Gentlemen let me ask you, who is the more honourable, the man who kicks such a fellow from his yard, or he who lends himself to such a transaction?  I will put it to your common reason, is it possible that any man of delicate mind would have subjected himself to the influence which such a transaction was calculated to produce on the minds of his neighbours, and fellow members of the Club; could any of you have looked upon such conduct as a member of such an Association but with silent contempt?  could he have been so ignorant of the gross impropriety of such conduct, occupying as he does the high situation of a Magistrate of the Territory, as not to foresee the feeling that would be entertained respecting it, must he not in fact have made up his mind to brave the sarcasms of his neighbours for the sake of paltry gain?  he thought no doubt that all he would have to endure was the taunts of a few individuals at Campbell Town, he could not have been aware of the wide circulation which such a transaction would naturally acquire through the press.

Gentlemen, I will take leave to tell you, that the Press under such circumstances, exercises the most salutary influence on a community; nothing tends in a greater degree to check improprieties, affecting the interests of society, and it therefore becomes a duty to protect the Press from attempts like the present, to abridge it of this reasonable exercise of its power.  With what grace does the plaintiff appear before you to claim damages at your hands; you are gravely told that it is not damages, but an anxiety to vindicate his character that induces him to appeal to you, yet you are told that justice will be withheld unless you award aggravated damages; if he is fortunate, he will no doubt solace himself with the idea that, although his character has suffered, yet it has happened very well for him, as it has lined his pockets with money; he can then say with the individual spoken of by one of the ancient poets, who had amassed vast wealth by unworthy means, - ``What care I for the taunts and scoffs of the vulgar multitude, I have my bags to look at."  My learned friend on the other side will tell you, that it may be all very true, but, at all events, the horse did not go back again to his master, and on this ground he will address a point of law to you; he will detail to you the plea of justification which the defendants have put in; he will tell you that that plea must be strictly proved; by such argument he flatters himself that he will at all events escape costs, which is in effect the same as going from Court with a pocket full of money.  On that part of the case, I do not think it necessary to pursue any line of argument; I am not aware that the defendants are tied down to the proof of every immaterial allegation which may be found in the plea of justification; if the main facts are established, that is all that is necessary to support the plea.  We may presume the horse did not go back; what does that circumstance amount t? if it had gone back, gentlemen, to Campbell's stable, did not the plaintiff possess wisdom enough to know that it would have furnished a strong fact against him.  I contend that it matters little whether this circumstance be proved or not; of one of the facts be proved the defendants' justification is made out.  His Honor will tell you, gentlemen, that unless you are satisfied, that the allegations which reflect imputations on the plaintiff be proved fully, he is not entitled to recover; without admitting that the matter charged as libellous conveys the meaning which my learned friend imputes to it, I do admit that it imputes to this gentleman conduct highly derogatory.  I do most sincerely regret that such an imputation falls on a gentleman who proves to be a Magistrate of the Colony, but if that gentleman had come to me for the purpose of obtaining my opinion, as a friend, on the merits of this case, and had detailed the circumstances, which unfortunately for his reputation he has brought before the Court, I would have said ``Sir, you have grossly violated one of the rules of the Club, and the best course you can pursue, will be to let it slumber into oblivion."  I would have pointed out to him the propriety of coming into Court in a becoming state, with his character and motives free from the faintest shadow of imputation, both in spirit and in the letter, and not only from imputation, but the most remote approximation to imputation.  Inestimable as character may be, when a man comes forward to offer vindication and demands compensation for injuries inflicted on that character, you will teach such a man this useful lesson, -- that he must come worthily; that it is indispensible [sic] that he bring his character spotless before you.  You must have observed the manner in which the witness Kerr has given his evidence; you have had no such proof in his testimony, of the payment of the produce money of the horse Mantrap, which you can consider sufficient to raise on your mind an impression that the same was a bona fide transaction; does it not carry with it an air of improbability which cannot be mistaken? as it at all likely that a gentleman in the situation of the plaintiff, should find it necessary to pay in that manner? is it not likely that he would have paid at once the amount in cash?  does not the course adopted, with regard to this payment, strike you as assuming a suspicious character? to shew you how far the testimony of that witness may be relied on with regard to the payment, I am instructed that at the period spoken of, the plaintiff had no funds in the bank, and that the payment was actually made by a bill at three months for £60.  There is a witness who has given a very different account of the transaction; he was about to leave the Colony, and his evidence was therefore taken de bene esse; he did not expect to be present at the trial and has communicated the particulars without reserve, yet he states the payment to have been made by a single cheque; but I will put in the box the officer of the bank who will satisfy you that it was a bill at three months; I will shew you, gentlemen, that the evidence of the witness Kerr is perfectly untrue, I will shew you that which will fill your breasts with additional indignation, - that a gentleman has come before you to vindicate his character by means of falsehood.  This has been properly designated by my learned friend, a fearful issue; if any effect has been produced in bringing such an issue before you, it is that of casting additional obloquy on the plaintiff.

Robert Stewart, Esq. - I was Police Magistrate at Campbell Town, during the last Races.  I was Member and Honorary Secretary to the Club formed in that district; I have the rules of the Club in my possession, one of which provides, ``that no horse shall be entered to run for any prize which is not the bona fide property of a Member;" (rule read).  It comes within my knowledge, that an application was made by Campbell, to be permitted to enter his horse to run for a prize, which was refused; Mr. Howe was present; he made no objection to the horse but to the owner; all applications were submitted to Committee of Management; it was well known in the district that the horse was a noted racer, but there was no objection expressed on that account; the objections were to the owner, to the best of my opinion, that was the ground of objection; there was a second day on which we sat to receive applications; it was about a week before the races; the horse was finally entered by Mr. Howe under the rule above quoted; I was present when it was entered; the night before the races, Mr. Edward Riley, as agent for Mr. Howe, told me he had been instructed to enter the horse; all the horses that run for that stake had been previously entered; the hour fixed for the race was eight o'clock; the horse was entered two or three minutes before the race; the entry was delayed until the last moment; I do not know the object; I cannot give any reasons for the acts of another; I drew an inference from it in my own mind; I saw some watches in the hands of persons present; Mr. Howe's son was there; I cannot say whether he held the watch in his hand or not; the arrival of the horse was delayed until the last practicable moment; he was entered also for the following day; he run for the Ladies Purse of 25 guineas, one of the principal prizes of the races; Campbell rode him on that occasion; Mr. Howe received the prize on the following Saturday, the 27th October; the races commenced on the preceding Tuesday; when it was known that Mr. Howe got the horse; it was generally considered that he had spoiled the race, as it was looked upon by every body as the winning horse; I though so; but I believe that one of the owners of the other horses did not think so; I do not know what Mr. Howe's expectations were; I should suppose the usual one.

Cross-examined. - Campbell's application was rejected; if he had been a man approved, it would not have been objected to; I should not have objected to it as one of the Committee.  Mr. Howe told me before the races of his intention to purchase the horse, and asked my opinion whether he might do so with propriety; he said Campbell had been applying to him to make a purchase of the animal, and seemed anxious to get rid of it; I said I could see no objection to his purchasing the horse; Mr. Riley was one of the Stewards of the Races, and Mr. Howe communicated with him about entering the horse; I know Mr. Howe had sent a letter that day, and Mr. Riley, as agent, had entered him; I understood that Mr. Hawdon had been in treaty for the horse, at least that Mr. Hawdon had said that Campbell had offered him the horse for sale; it was not easy matter to procure a jockey on that occasion; Campbell rode for Dr. Kenny as well as for Mr. Howe; I do not think Campbell was a jockey by profession; the prizes offered on the occasion were raised by subscription; the minimum was three guineas; the largest subscription was ten guineas, which was given by Mr. Howe; I dont think there was another subscription of ten guineas; Mr. Howe contributed in a variety of ways to the  promotion of the Races, and was at considerable expence [sic]; the Club is still in existence, and Mr. Howe will according to the rules be president next year.  In March last a party of the members dined together to the number of fourteen, at the Pulteney Hotel; Mr. Howe was one of the party; his health was drunk on that occasion as Vice-President.

Mr. Wentworth objected to this kind of evidence as being irregular.

Cross-examination continued. - Mr. Howe entered another horse, named Theorem, for the Hack Race; he was at first objected to, as it was not considered that he came under the denomination of a hack, but it was finally decided that he had a right to run; I considered that Theorem would be a match for the winning horse.

By a Juror. - Mantrap run under the name of Forrester; I cannot speak as to the reason for changing his name; there was no doubt whatever that it was Mantrap; we all knew the dependency of this proceeding on our meeting at the Pulteney; I do not think that at the time of the races, the means by which Mr. Howe had possessed himself of the horse was the subject of animadversion; perhaps it would be the better way to state what did take place at the Pulteney.

Mr. Justice Burton - The Court cannot hear you; it is quite irrevelent [sic] to the present issue.

By Mr. Wentworth - Mr. Howe was going to enter the horse for the second race, which was a sweepstake of £29, but, at the solicitation of one of the Member of the Club, he withdrew him.  Dr. Kenny, Mr. Wills, and Mr. Riley were present when the horse was entered for the race the first day; I heard no objection made, if there had been any I should have heard it - there was no formal objection; I wish to give precise answers to the questions put to me; I certainly did understand at the time that it was considered that the entry of the animal was not in strict accordance with the rules of the Club; there was a slight expression of feeling to that effect.

Mr. Justice Burton - What was the reason the entry was delayed so late; was it in order that if a better horse should have been entered before him, he would not be entered at all?

Witness. - It is certain that if he had been entered first, he would have been allowed to walk over the course.

Mr. Justice Burton - In which case he would still be entitled to the prize - would he not?

Witness - No, your Honor, there must be three horses entered, or no race.

By a Juror. - Three horses run that race, Clarence, Firelock, and Forrester; I have reason to believe Clarence would have been entered, even if the entry of Forrester had preceded him.

Captain Coghill - I am a Magistrate of the Colony, and reside at Kirkham, about eight miles from Campbelltown; I was at Campbelltown during the races; I know the horse Mantrap, he ran at the races; under the name of Forrester; I was applied to by Campbell, on the Saturday before the races, who requested me to assist him in getting his horse entered; I told him, if other persons agreed I had no objection he went a little way and returned, saying that the horse might be entered very well if I could give my assent; he said, what he was about to propose was quite a usual thing in racing, and there was no difficulty in it; I said, Campbell go away Sir, I will have nothing to do with your horse under any such circumstances; I said, it might be usual at races, but it was no proper; he did not exactly say what he wished me to do, but gave me to understand that it was customary to enter horses under various circumstances, as temporary sale &c.; he mentioned Mr. Howe and Mr. Hawdon as persons who would do it form him if I did not wish to assist him so far; I said I was sure neither Mr. Howe nor Mr. Hawdon would have anything to do with his horse, and would hear no more from him on the subject, and he then went away; on the Monday following I was on the Committee for receiving applications for the entry of horses; Campbell sent in a slip of paper, requesting to be allowed to enter his horse; I acquainted the Committee that he had been with me endeavouring to obtain my assistance in getting his horse entered;- Mr. Howe said, it cannot be done, as it would spoil the races; and stating, that as there had been so short a time to get the races up, there was no horse to compete with him - if such a horse was entered there would be an end to the sport; the races took place after the club had been formed about two months; there existed in the club a decided objection to the horse, as he had run before and was a winning horse; I said, if that was the case he certainly could not be entered; there were several persons in the room at the time; I think Mr. Riley was out of the room at that time - it was about two o'clock in the day; Mr. Howe made very decided objections, and I was afterwards greatly surprised that Mr. Howe came to get possession of the horse for the races; I was not there the first day of the races - I went on the second day; I saw the horse was entered for one of the races; I had no conversation with Mr. Howe nor with the stewards on arriving at the course; there were three or four gentlemen together, among whom this horse was the subject of conversation; I made a remonstrance with Mr. Howe, and said there was a great deal of dissatisfaction excited about the entry of that horse; I am not quite sure whether it was no suggested by some of the members, that it were better to give Mr. Howe a cheque for the amount of the stake, and let him take the horse away, as it was considered it would otherwise spoil the sport of the day; I communicated to Mr. Howe the suggestions that had been made, which led to the withdrawal of the horse; there was a variety of observations made about it, and it had created a general dissatisfaction in the club, and with all parties at all interested in the races; the club was not intended to extend its influence to the encouragement of gamblers and black legs, but while it afforded a gentlemanly amusement, would tend to the improvement of stock; I had no horse entered, and should not have gone to the course but that the children wished to see the races; I am on friendly terms latterly with Mr. Howe - we had no occasion to be unfriendly in consequence of this transaction; I think I have visited the plaintiff since the races; I was not at the dinner at the Pulteney Hotel.

Cross-examined - Campbell's horse won the first prize; there was an opinion expressed on the occasion, that the means by which that horse had been entered, was quite contrary to the rules of racing; I said I thought it was improper; all the others remarked, that it was by such means that all the races in the Colony had hitherto broken down; the Campbelltown Club was instituted on the principle of resisting all attempts of that kind.

Mr. Peter Gardner, teller of the Bank of Australia, proved that he received a bill after the 22d October, drawn by Mr. Howe, at three months for £60, that bill was presented by one Campbell as a cheque, but understanding it was a bill he left it in deponent's hands until due, when he called and received payment; no other cheque or bill had been drawn on the Bank in favour of Campbell.

Thomas Wills, Esq. - I am a Magistrate, and live in the neighbourhood of Campbelltown; I am a member of the Campbelltown Racing Club, and one of the originators of the races; we had a meeting of the Committee on the Thursday preceding the races; I was present; I know the horse Mantrap, it was the property of a man named Campbell; I remember Mr. Howe, introducing to the Committee the subject of Campbell's application to have his horse entered for the race, there was a division of opinion as to his eligibility to run his horse; the final resolution was that he was ineligible; Mr. Howe said if we allowed Campbell to run his horse, we could not exclude any man in the Country; that observation was made in reference to character; he did not oppose the horse; I am not aware that there was more than one meeting at which the merits of applicants were discussed; I recollect Mr. Howe said on introducing Campbell's application, that he, Campbell, was anxious to enter his horse as he knew him to be a good animal, but it could not be complied with; I don't think there was any other reason; the objection was solely against the owner and not against the horse; I joked and told Mr. Howe, that he was afraid of the horse more than the owner; I was an advocate for him to run; my opinion did not prevail, he was rejected; I was not aware that evening before the races that Mr. Howe was about to enter his horse; I learned it on the Course; Mr. Howe's entry of the animal was a subject of conversation, there was a general murmur, that the horse was not the bona fide property of Mr. Howe; I went in consequence of these reports to Mr. Howe; I told him that twenty or thirty Gentlemen would withdraw from the Club, if he allowed that horse to run, and I would do so as well as the rest, the Club would then be broken up, I will say that there was no observations made, which on mature consideration could justify me in making such observations to Mr. Howe; they were made in a moment of excitement, and I afterward regretted that I had made them; the observations that Mr. Howe made in reference thereto, convinced me that I was wrong; he said without at all endeavouring to conceal the matter in my presence, ``tell the man the horse is not to run, and I will pay the entrance money myself," I did not mention to him the rumour as to the horse not being his property; looking at the regulations of the Club, I am of opinion that horse could not run; I am of opinion that Campbell ought not to have had an interest in any race on these terms.

Cross-examined - I considered the horse his property.

By a Juror - My impression that the horse was not the bona fide property of Mr. Howe, arose from the rumours in circulation in reference to the matter; my impression now is, that Mr. Howe did not wish to cajole or deceive the club; I am of opinion, that he certainly violated the rules of the club, but that he did so innocently.

This closed the evidence on the part of the defence.

Mr. Foster again rose to address the Jury, as follows:-  Gentlemen, had any such case been made out against my client as was threatened in the commencement of the address of my learned friend, I might have felt myself called upon to address some argument to you thereupon; but I need not point out to you, how far the case has failed, and I shall not therefore weary you with unnecessary and uncalled-for observations.  My learned friend, aware of the unfavourable position in which his defence appears before you, and in the anticipation of the rule of law and of reason which naturally applies itself to the course he has adopted, has chalked out for my guidance a course which I do not feel it necessary to adopt; I will rest my case on the understanding of gentlemen.  The defendants have put in a plea of justification to one of the most infamous libels that ever polluted a public journal, thereby adding insult to injury, and branding my client with an imputation, which nothing less than a verdict of extreme damages will be sufficient [to remove from the] public mind.  Admitting that some irregularity had occurred on the part of the my client, let us look at the measures which, by all, but men actuated by malignant feelings, would have been adopted; would not the candid and upright member of the society have said, ``Gentlemen, I have noticed some irregularity in the conduct of a member of this club, a flagrant departure from the rules of the society, and it is therefore proper that a meeting of the members be convened to enquire into the circumstance;" this would have been the conduct of a conscientious man, which would have afforded the plaintiff an opportunity of submitting such an explanation as would have been satisfactory.  Was not, Gentlemen, I repeat it, that the proper way in which so grave an imputation against the honor of a respectable member of society ought to have been treated?  Should not the shadow of such an imputation, have been approached with the most profound caution?  Was it for the Editors of a Newspaper to condemn the conduct of such an individual unheard, to hold his character up to public obloquy on the representations of an anonymous slanderer, with whom they profess not to have been acquainted?  Gentlemen, the very manner in which the defendants treated the person whom the plaintiff sent to them, in order to inform himself as to the author of this diabolical attack, sufficiently shows to you the nature of the feelings by which the defendants were actuated.  Gentlemen, I will call your attention to the particulars of this case, as to the justification; a party who will libel, and then come forward to justify his conduct under such circumstances as these, only proves himself the greater libeller; I will not hesitate to say, that my client has violated the spirit of the regulations of the club, his friends will tell him so, he may admit it; but the libel stops not here, it imputes to him the greatest corruption and fraud that a man can be guilty of.  Captain Coghill is the only witness who shews any impression as to the impropriety of Mr. Howe's conduct; who arrives at the conclusion, that he did conspire with a horse-jockey, a man of the lowest grade in society, to pocket the money of the club.  Gentlemen, I will say, that if my client could have so acted, as is here imputed to him, he would not only sit down under an imputation of the deepest dishonor, but he would have rendered himself liable to a criminal prosecution at the bar of this Court for the offence.  Gentlemen, can any definite bounds be assigned to the nature and effect of such a slander as this, acting on the character of a gentleman of the first rank in the Colony; a Magistrate, whose age and spotless reputation entitle him to respect.  It appears the plaintiff was a member, and vice-president of the club, and of course took a leading part in the discussion of the merits of applicants; he is stated to have rejected the horse, which he afterwards introduced, and won the first prize; all the witnesses, with the exception of Captain Coghill, says, the known superiority of the horse formed no part of the groundwork of the objection; the owner was a man who had trained the horse with a view of gaining money by him, and against the admission of such a character, the rules and regulations of the club had been formed.  Was any thing more natural therefore, than that he should endeavour to dispose of his horse, finding that he was precluded from the benefits arising from him as a racer.  Captain Coghill maintains, that the horse was alone objected to, and details some conversation said to have passed in the hearing of certain of the members.  Mr. Wills, who was present, denies that such conversation did take place, or he must have heard it; so far does Captain Coghill's testimony stand unsupported.  Gentlemen, can any thing be more absurd than the construction put on the visit of Campbell to the residence of Captain Coghill, in reference to the horse; and which certainly is not flattering to so respectable a gentleman as that witness.  What does it amount to?  Why Gentlemen, it is assumed, that Campbell broadly insinuated this- ``I think Captain Coghill, you are just the kind of man who is likely to lend yourself to any kind of Jockeying trickery."  Can any thing, Gentlemen, be more absurd; yet I know not, under what other impression, a low character like Campbell could dare to present himself on such an occasion; but this witness being a gentleman of honor, Campbell went to Glenlee, where my client resides, and was successful.  Considerable stress has been laid on the circumstance of the animal's name having been changed from Mantrap to Forrester; you have heard, Gentlemen, that such a change could not have been devised as a means of concealment; the animal was well known on the course and through the district, and was rode on the occasion by the former owner; so much for that circumstance.  Mr. Wills, Gentlemen, has told us, that on hearing the murmurs on the course, he went to Mr. Howe, and in a moment of irritation told him, that if he ran the horse, the other members of the club would retire, as he would also; look at the plaintiff's conduct on that occasion, there was nothing like concealment, he told his servant in the presence of Mr. Wills, to let the man take the horse away, as he could not run, and he would pay the entrance money himself; did that look like the conduct of a man who had committed himself, by uniting with a person, for such a purpose too, that solely of putting money into that man's pocket.  What is the nature of justification put in?  Although it does not make for the defendants, it forms an additional and important feature in the question which you are now called on the consider with regard to damages; the defendants have been the tools of malignant parties, who have no doubt sacrificed pecuniary consideration to their malicious design, and have thoroughly indemnified the defendants against the insult; in disposing of the question of damages, look Gentlemen, at the manner in which my client has been assailed, weighed down under a load of infamy.  What would have been the result if he had not come to Court and presented himself before you to demand redress? would not his forbearance have been construed as a consciousness of guilt?  With regard to the justification itself, you are not to take opinions, you are to take acts; opinions vary according to the several views and feelings of parties concerned.  Gentlemen, the plaintiff is still a member of the club, and on terms of the closest intimacy and friendship with those very parties who are said to have been witnesses of his disgrace; I will put it to you as gentlemen, as men of the world, is it usual among gentlemen of honor to associate with, and shake hands with a man, whom they know to be a villain?  If my client, in the exalted place in which he moves, had acted the dishonorable part ascribed to him by these defendants, would he, unless the most consummate hypocrisy ever known were used, be treated with the usual kindness and respect of his associates and his friends.  Mr. Wills, a gentleman of honor, admits that the plaintiff certainly violated one of the regulations, but his impression is, that he did it innocently; you are told, Gentlemen, that before my client purchased the horse, he asked the opinion of another member as to whether he could make a purchase of the animal consistently with the rules of the club; the opinion of that gentleman was, that he might do so; with such a fact as this presented to your consideration, can it for one moment be entertained that my client did act collusively and conspire to deceive the club, Gentlemen, you will as sincerely regret as I do, the language in which my learned friend, Mr. Wentworth, has spoken of my client, but malignant as it is in purpose, it cannot but be harmless in effect; it may remind you of an anecdote current in the legal circles of London, as to matters of this nature, between a counsel and a client.  A barrister of eminence received a note from a client, such as the following - ``Sir, I have no defence to make to the action in which I have engaged you, but you will please to be kind enough to abuse the plaintiff as much as you can."  Gentlemen, I need not trespass further on your time, you have had the case fully laid before you; you have witnessed the malignity of feeling with which my client has been assailed; you have seen the plea of justification which the defendants had the temerity to put on the records, utterly fail, and while you feel yourselves called upon to give the heaviest damages, as the only means of purging the plaintiff's character from the infamy which has been heaped upon it, you will think with me, that no measure of damages can be commensurate with the peril in which the character of my client has been attempted to be involved.

Mr. Foster having concluded,

His Honor Mr. Justice Burton proceeded to lay the case before the Jury; he expressed his extreme satisfaction in seeing so highly respectable, and intelligent a body of men brought together to try the present case, vitally important as it was represented to be.  He congratulated himself that the law imposed upon them the burthen of deciding an issue which the Counsel on both sides termed a `fearful issue,' and did not leave that question with the Judge as regarded the character of the plaintiff.  No men, he felt assured, were more capable of appreciating the value of the plaintiff's character, than a Jury composed for the most part of his brother Magistrates; on none could the defendants repose their defence with greater security as to impartial justice.  The issue, which they were now called upon to try, was an action to recover compensation in damages, for a false and scandalous libel published by the defendants, as Editors, Proprietors, and Printers of a Newspaper, called the ``Sydney Herald," as set forth in the declaration, reflecting on the character of the plaintiff, and holding him up to public view as a person, if the statement referred to be true, unworthy of the station he held in society.  The defendants had placed on the records of the Court a plea of justification - that is, they had put themselves forward to prove, that the imputations which they had cast upon the plaintiff's character were true. - Such was the situation in which the plaintiff had appeared before them.

The defendants, as Editors of a Public Journal, were held by law strictly liable for every article which appeared therein, and it was therefore incumbent in them, previously to publishing a statement reflecting on the character of the plaintiff, to have ascertained the grounds on which such charges were made, in order to avoid the risk of publishing a statement for which there was no foundation.  It appeared in evidence that neither of the defendants was member of the club; they must therefore have received information from another, and could it be imagined that they had risked the publication of such a statement without having any personal knowledge of the writer; they had seen, that previously to the publication of the letter, an article, by way of feeler, was inserted, a circumstance which went to connect the defendants with the letter in question.  If Editors of Papers though proper to put forth such statements, and throw down their property as a stake against the character of a respectable members of society, it became a question what amount of damages would relieve a plaintiff from the obloquy in which his character had been involved, if that issue should be found against them.  With respect to the construction of a libel, it was to be construed according to the ordinary sense of mankind, because it must be presumed to have been so intended - but here the defendants had given their own construction of the article in question, for they had stated upon the record that it is true; a libel was to be construed in the ordinary sense in which it might at first sight be taken by a disinterested party.  The defendants had undertaken to prove that the statements were true; - had they done so?  His Honor then went minutely through the evidence, pointing out how far the justification of the defendants had failed to proof, and applied himself with some force to the question of damages, which a sense of the public injury done to plaintiff's character suggested the necessity of being ample if they were of opinion that the article imputed what had been alleged in the declaration, and which the defendants had undertaken to prove.  On the other hand he stated, that in estimating those damages, the Jury were bound on the part of the defendants to take the whole circumstances of the case into their consideration, and if they found the justification to fail in any immaterial point, they would not give the plaintiff the same damages as if it had wholly failed; if the plaintiff had been guilty of discreditable conduct, that would reduce his right to damages; and His Honor stated, that with a view to this part of the case, he thought it would be most material for the Jury to determine whether the objection taken by the Committee had been to the former owner of the horse, or to the horse himself, for the plaintiff's conduct would appear to be more discreditable in the latter case than in the former, and he pointed their attention to the evidence of Captain Coghill and Mr. Wills on this point.  In conclusion, the plaintiff had been driven into Court to relieve his character from the imputation which had been cast upon it; from the situation of many of them as Magistrates, which the plaintiff had himself filled for many years, they could best form an opinion whether he was a person likely to be guilty of the discreditable conduct imputed to him, and in the case what measure of redress should be awarded.  The Jury returned a verdict for the plaintiff - damages, one farthing.[2 ]

 

Notes

[1 ] See also Australian, 23 June 1835.

On preliminary litigation, see Sydney Herald, 4 June 1835; Sydney Gazette, 5 June 1835.  For an editorial on this case, see Sydney Herald, 29 June 1835.

[ 2] Mr Foster subsequently moved for a new trial, on the ground of insufficiency of damages, but withdrew the motion: Sydney Herald, 29 June 1835.

Published by the Division of Law, Macquarie University