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

Maughan v. Brown [1837] NSWSupC 39

whaling, libel, duelling, gentleman, meaning of

Supreme Court of New South Wales

Dowling A.C.J., 29 June 1837

Source: Sydney Gazette, 1 July 1837[1 ]

THURSDAY, JUNE 29, 1837.

Before Judge Dowling, and the following Special Jury: -- William Jamieson, J. Holdsworth, A. Hallon, William Hirst, R. Howe, J. H. Grose, J. Lamb, J. R. Holden, J. Giles, George Kinnear, Peter Gardner, and J. P. Mackenzie, (talesman), Esquires.

Maughan v. S. J. Brown. - This was an action brought to recover a compensation in damages, for a false, scandalous, and malicious libel, of and concerning the plaintiff, to the following effect:--

N O T I C E.

Having felt myself aggrieved, and denied every satisfaction, I do hereby proclaim John Maughan, of Wellington, a liar, a slanderer, and a coward.

S. G. BROWN.

8 a.m.

25th January, 1837.

The same being printed and published by placarding in the stree[t]s of Sydney.  The damages were laid at £1000.  Plea the general issue.

Mr. Windeyer having opened the pleadings.  Mr. Foster addressed the Court.  The plaintiff in this case was a gentleman formerly a merchant in this town, now residing at Wellington.  The defendant, a gentleman, who, from successful whaling speculations, had accumulated, he understood, a large fortune.  The injury complained of was as gross and insult as could be offered from one gentleman to another, and originated in the following circumstances: -- A Mr. J. C. Brown, who sailed as Captain of the Nimrod, while upon the whaling ground fell in with the Proteus, and having previously been informed that Captain Brown had been making remarks relative to his character which were injurious, he signalised the Proteus that he wished to speak her; she hove to, and the boat coming alongside, Captain Brown of the Nimrod sent on board by her a letter to Captain B. of the Proteus, stating that he took the earliest opportunity informing him that he had received information that he had been calumniating his character; he might have been libled [sic], but that at the earliest opportunity a most satisfactory explanation would be necessary.  Upon the receipt of this letter Captain B. of the Proteus went on board the Nimrod, accompanied by his chief officer, and armed with a pair of pistols, and wished Captain B. of the Nimrod to settle the affair at once, which he declined; defendant then wished him to go on shore, the land being near; but this was also objected to, on account of the ship and cargo.  They then parted.  Upon arriving in Sydney, Mr. Maughan, as the friend of Captain B. of the Nimrod; having heard that he had said as he had got into the bosom of his family, he was more peaceably disposed towards Brown of the Nimrod, Mr. Maughan called upon defendant and asked him as to his intentions, and to apologise for the language used; in consequence of what arose out of this meeting Mr. Maughan got involved with defendant, and Mr. M. placarded defendant; both parties were subsequently bound over to keep the peace; at the expiration of the 12 months the question which had laid dormant was resumed, and gave rise to the placard upon which the action was founded.  Mr. Foster scouted any idea that his client wished to make money by the transaction, but he was sure they would make the defendant avoid such a course in future.

Mr. Wm. Jones, by Mr. Foster - I am a printer, living in Bridge street; I remember S. J. Brown coming to me on the 25th February last about 8 o'clock, and showed me the manuscript of the hand bill he wanted to be printed; I looked at the contents, and refused to print it; he attempted to persuade me, but I peremptorily refused; he came in an hour afterwards, with Mr. Craig, and I consented to print it, receiving a guarantee, he taking the responsibility upon himself; I told him the danger of it on account of its contents; it was printed in my office; he took the manuscript away with him (placard produced); he had 50 or 100 copies; they were to be posted by the bill sticker in the usual way, in the most conspicuous par[t]s of the town; I saw one on the Barrack wall, George-street; Brown came about 8 o'clock, and they were posted before 10; I don't remember saying any thing about the hour when he came the second time; it is dated 8 a. m., 25th February, 1837; the printing was about 14s.; he paid for the posting.

Cross-examined by Mr. Therry - He came between 8 and 9 o'clock; I did not hear before that Maughan went to Col. Wilson to have Brown bound to the peace; I was told that Brown took the manuscript away; my foreman told me; I can't say that Brown remained while it was printed; I had occasion to go out; I should say that the bill sticker had instructions to post them; I can't swear that placard is an exact copy of the manuscript.

Re-examined by the Attorney General - I read the manuscript before I objected to it; when I saw it stuck up I thought it was the same, word for word; the name is the same as that in the manuscript.

Mr. J. Gurner, examined by Mr. Windeyer - I am Chief Clerk of the Supreme Court; I produce the affidavit of Mr. S. J. Brown, filed in this Court by defendant on a motion for a criminal information against Edwin Park and plaintiff; and they were all ordered to enter into securities to keep the peace in £500 for twelve months; I don't remember any one enquiring in the office when the recognisance expired.  I think they expired the 22d last February.

Cross-examined by Mr. Therry - There were two affidavits filed in this case; I don't remember the other affidavits being used; I think I was casually asked by some one when the recognizances expired.

The affidavit of Mr. S. J. Brown read.

Mr. Geo. Mocatta - I am a settler residing in the interior; I took this placard from the wall, corner of Pitt and Hunter-streets, on the premises of Marsden and Flower; the paste was dry; it was about 2 o'clock in the afternoon; I saw a great number; plaintiff was living with me at Cohen's, the jeweller, at that time; I believe the placard relates to Mr. John Maughan, of Wellington, the plaintiff; I have been a friend of his for some time; if I considered the allegations true I would not associate with him; I remember a person calling at our lodgings on the 25th February, the same day I took the bill from the wall; it was about 11 o'clock; I did not know it was Mr. Macarthur at the time.

Mr. D. G. McArthur - I am Clerk in the Surveyor General's Office; I went on the afternoon of the 24th February, about half past 4, to Maughan's lodgings in George-street, at Cohen's, the watchmaker's; I was requested by defendant to go some time that day; he gave me to understand that Mr. Maughan had been speaking of him in an unbecoming manner; I was to enquire if such was the case; he particularly mentioned the word blackguard; I understood by Mr. Brown that the word had been used, he did not say when, where, or under what circumstances, I have no memorandum, I made none; I had not a written commission; I have known Mr. Brown for the last two years, since I have been in the Colony; I knew defendant could not send to him before, as he was bound to the peace towards Maughan; I received my commission in my office; Mr. Brown said he felt sore relative to something Mr. Maughan had said respecting him; he asked me to go to Mr. M and enquire of him whether what he had heard was true - that he had spoken disrespectfully of him; I asked him what I should reply if he asked for the particular words; I asked Mr. B. ``did he call you a black-guard," he said that he understood he did; I went to Mr. M. about half past 4 o'clock, and found him at home; I told him I called from my friend Mr. Brown, who had been given to understand that he (Mr. Maughan) had spoken of him in an improper manner; he said, ``Me, sir, I'm done with Mr. Brown;" I replied that I was glad of it, and, of course, he would have no objection to say so in writing; Mr. Maughan expressed surprise that Mr. Brown should send any one to him, at the time he knew he was under a bond to keep the peace; I then informed him that he was free from that the day before; he then asked me more fully to explain myself; I then asked him if he had ever made use of the word blackguard, or blackguardian, relative to Mr. Brown; he denied having done so; he then began to inform me about a former Court business, -- I interrupted him by saying that Mr. Brown requested me to say, that what had taken place previous to the former Court business was not what he now complained of, and then asked him if, subsequent to that event, he had spoken of Mr. Brown in an unbecoming manner; he replied that he had been prevented on that occasion from stating his case, that he frequently mentioned all the particulars among all the circle of his friends, he might have mentioned something, (without appearing to notice  the admission of the something); I said, ``But, sir, you never went out of your way to say anything disrespectful of Mr. Brown, he replied ``No," and repeated it; I said that I hoped the explanation would restore them to peace, or friends; he replied that, before, I was a stranger to him, whose face he never remembered to have seen - yet, from my manners and appearance, he believed me to be a gentleman, and, therefore, had given the explanation to me, and not to Mr. Brown - he made no explanation to Mr. Brown; he also said that if I had not been a gentleman he should have shown me the door; I was satisfied that Mr. M. had said a something prejudicial to Mr. B., there was as much in the manner as the matter; Mr. M. said that he had not said any thing publicly but among the circle of his friends, he might have said a something; he denied having gone out of his way.

Cross-examined by Mr. Therry - I am the son of Captain in the army; I had heard nothing of the matter previously, except from Mr. Brown - he told me he had heard the rumours from various quarters, and frequently; Mr. M. denied having used the word blackguard, but not blackguarding; he told me he was surprised I came, because he was bound over; I thought he wanted to get off in the first instance upon that plea; I thought that was the only impediment; that is what he stated to me; I told him I believed he was free from that; I know that Mr. Maughan has an extensive circle of acquaintance, both as merchant and settler; he said that he had frequently mentioned the something to his acquaintance; I have been bred in a very good school, the army, to give an opinion upon this point; after an affair of this kind is over, any party who was a gentleman would hold his tongue about it; I should not say that the whole of Mr. M.'s conduct was insulting or contemptuous towards Mr. Brown; the saying he would give no explanation to Mr. Brown might be a mark of contempt as well as of insult; I considered that he refused an apology or explanation to Mr. Brown - that he refused to apologise; I communicated to Mr. Brown almost immediately afterwards that Mr. M. had spoken of him in a very unbecoming way; at no subsequent time did Mr. B. offer to make any apology to Mr. M. through me.

Re-examined by Mr. Foster - My first question was, whether he had spoken of Mr. Brown in an unbecoming manner; he replied, ``I have done with Mr. Brown;" in the army, when there is a meeting, and shots exchanged, and they shake hands, there is no more about it; I believe Mr. B. applied to some other person, before he applied to me, to go to Mr. M.; I called again on the same evening to see Mr. Maughan, but did not see him; Mr. Brown was with me; I had a small cane in my hand; I called at Mr. Raymond's, Mr. B. was on horseback and had his whip; immediately I learned that Mr. M. was dining out I called at Mr. Raymond's, I did not meet with him, he was not there; I did not meet with Mr. M. before 9 o'clock the following morning; I wrote a letter, but I did not deliver it; Mr. B. told me he was going to the printer's, this was on the 24th; he said, when I went first, that if Mr. M. did not explain satisfactorily I was to call him out; I did not challenge Mr. M. at that time; I gave him pretty well to understand the mission I was upon; I did not get what I considered a satisfactory answer; I was in hopes of settling it, and therefore kept that as a last resource, and did not challenge; I considered I had discretion in the case, and thought it would lose nothing by a little delay; I considered that he would have served Mr. Maughan as Mr. Maughan served him.

By Mr. Therry - After the interview in the afternoon, I saw Mr. M. the next morning, two gentlemen were present; I told Mr. M. that I had informed Mr. Brown of the result of the communication, I entered the room alone, and Mr. Mocatta was in the room; I waited some time, and spoke to him upon indifferent subjects, another gentleman then entered, and then Mr. Maughan; I said I wanted to speak to him, he said what I had to say I might before these gentlemen; I said that I had communicated the substance of what had transpired between us on our previous interview to Mr. Brown, and he desired me to say he was not satisfied; Mr. M. said, ``Well, sir, I can't help it," or words to that effect; I replied there was only one thing left for him to do, and that was to name a friend; he replied, ``What, sir, to meet Mr. Brown;" I said, ``Yes, certainly!" and he said he would do no such thing, and that I could not be acquainted with all that had passed between them, I replied that I was not - I then left him; Mr. Brown was waiting in the street near Mr. M.'s lodgings; to the best of my belief there was no posting before I communicated this to Mr. Brown, I did not see the placard on the walls.

By Mr. Foster - This was about 10 o'clock; I got to my office before that time; I believe Mr. Brown was at the printer's, and got the bills in anticipation.

By the Court - I believe before I called on Mr. Brown that he had the hand-bills printed.

Mr. Mocatta, re-called - I remember being at home on 25th February last; I had breakfasted; I remember the last witness calling, it was about 11 o'clock, the band was playing at the time, he enquired if Mr. Maughan was at home, I replied ``Yes," and that he would be soon down; he waited about a quarter of an hour, or twenty minutes; Mr. Francis Macarthur, of Argyle, came before Mr. M. came down.

By the Attorney-General - I have no other means of telling the time but by the band playing; we breakfasted about 10 o'clock; Mr. M. told me the cause of Mr. Macarthur calling; I never heard Mr. Brown abuse Captain Brown; I have heard Mr. M. frequently repeat what had taken place between him and Captain Brown, it was not at all in Captain B.'s favour; from his statement no one could have a favourable opinion of Captain B., it represented him in an unfavourable light; I never heard Mr. M. say that Captain B. was a blackguard, or acted in a blackguard manner; I heard that Mr. M. posted Captain Brown in the library, it was near the Post Office; I can't say whether Captain B. was a subscriber to the library; I should think it unfair if he was not, but it was sure to be communicated to him, and therefore I cannot think that it would make any great difference; the morning I saw Mr. Macathur at Mr. M.'s he told me he had been to Colonel Wilson and made an affidavit against Mr. B.; I can't say what time he got up for that purpose, I did not see him go.

By Mr. Foster - I think what from I have heard of the matter Mr. M. was not bound to accept Mr. B.'s challenge; the only remedy in such a case would be to go to the Police Office; Mr. M. told me that Mr. B. was going to assault his person.

Mr. James Raymond - I advised Mr. Maughan the previous evening to go to Colonel Wilson; I knew Mr. Macarthur had called at my house, and I was told Mr. Brown was in the street; I was aware there had been a difference between Mr. Brown and Mr. Maughan; my impression was that they contemplated a personal assault; I heard the several parties conversing about the previous quarrel; my opinion was that Mr. Maughan should not meet Mr. Brown, and therefore I advised him to go to the Police.

By Mr. Therry - Mr. Brown lives out of town; he rides into town; I did not think they would disturb my family by committing an assault at my house; it was only a conjecture; I am aware that on a former occasion Mr. Maughan posted Mr. Brown in the reading room; I advised that it should not be done; I do not think I saw the placard before it was put up; it was taken down I think by Mr. Halloran; Mr. Sylvester Brown, after he came from sea, talked over the proceedings of Mr. John Brown with me, and it was from him I learned most of the matter; Mr. Sylvester Brown said he had given Mr. J. Brown an opportunity which he would not do again as he was returned to the bosom of his family; I advised Mr. Maughan not to take the message on account of what Mr. S. Brown had said, but Mr. J. Brown thought he should be told so through a direct friend; I said that if there was any remedy this action was the one, but it would be better left alone, as whoever gained would wear no laurels from his victory; we had no conversation about Mr. Brown from the original proceedings until the present affair took place.

Re-examined - I was in no way employed as Mr. Maughan's friend; his honor was not in my keeping.

This closed the plaintiff's case.

The Attorney General replied, commenting upon the evidence, and remarking that the only motive with which the case was brought was to abuse and vilify the defendant; but he was sure that they would show by their verdict the estimation the plaintiff held in their minds; the plaintiff in this case ought never to have complained of a public placard after the assassin like manner in which he had placarded the defendant in the Subscription Library, to which he had not admittance, he not being a subscriber.

The defendant called no witnesses, and the Jury intimated that they did not require His Honor to read over the notes of evidence.

His Honor then summed up and said, he had had thirty years experience in the courts of law both of this and the mother country, but this was the first case of the kind that he had ever heard of, which was brought to obtain damages, the usual form of bringing them being criminally.  He was not quite satisfied in the discharge of his public duty, who ther [sic] he ought to have allowed this case to have been tried at all, as it advocated principles that had a tendency to cause breaches of the peace, and break up the foundations of society.  The printer of the placard had incurred a serious responsibility, had it instigated the parties to go to the field and either had fallen he would have taken his trial for wilful murder; and if convicted, he would have suffered an ignominous death, as an accessory before the fact.  The placard complained of was unquestionably a libel, and they must find for plaintiff; but it was alleged that the act was caused by his own conduct, they would therefore say what damages he was entitled to.  He deplored that a Special Jury should have been taken from their avocations to decide upon a case like the present.  They would retire and consider of their verdict.

The Jury, after an absence of an hour and three-quarters, found a verdict for plaintiff, damages forty shillings.

His Honor consented to certify that it was a proper case for two Counsel and a Special Jury.

Messrs. Foster and Windeyer Counsel; and Messrs. Carr and Rogers Attornies for plaintiff; the Attorney General and Mr. Therry Counsel for defendant, Mr. D. Chambers Attorney.

Notes

[1 ] See also Sydney Herald, 3 July 1837; Dowling, Proceedings of the Supreme Court,  Vol. 138-2, State Records of New South Wales, 2/3323, p. 155, Vol. 139, 2/3324, p. 45.

Published by the Division of Law, Macquarie University