Stephens and another v. Stephen and another. - For libel, damages laid at £500.

Mr. Nichols challenged the array, on the grounds that the Jury was illegally summoned.  In this case he did not strike the Jury; he and his coadjutor, as defendants had pleaded the general issue severally, and each therefore was entitled to strike a Jury; the 26th clause of the Jury Act mentions, that after the Jury has been struck, the Sheriff must supply the plaintiff and defendant with a copy; the list must contain 48 names, to be reduced by the parties to 18; he had never received any order to reduce the said list, and never signed it; he therefore challenged the Jury.

Dr. Wardle [sic] contended that this could only be done by affidavit.

Mr. Nichols then submitted that the list should be produced and read in court, and stated that it might be a packed Jury, struck by the plaintiffs to answer their own purposes.

His Honor the Chief Justice said he should minute the objection.

Dr. Wardle [sic] contended that the matter was not brought forward in a correct manner, therefore the Court could not take action of it.

On Mr. Lethbridge being put into the box as talesman, Mr. Wentworth challenged him, on the grounds that he was too much mixed up with the matter.  Mr. Lethbridge withdrew.

Dr. Wardle [sic] observed, that though he did not approve of the mode of challenging, yet as it had been adopted, he should follow the example, and challenge the person now introduced in the room of Mr. Lethbridge.

His Honor the Chief Justice observed, that he could not have the business of the Court delayed; if a person be appointed by the Sheriff, and any objection be made, he must be examined before the Court, to prove his eligibility.  Mr. John Nicholson was then sworn in.

Dr. Wardell then proceeded to open the case:-  May it please your Honor and Gentlemen of the Jury, this is an action instituted for a libellous publication; the plaintiffs are Editors and Proprietors of the Sydney Herald, the defendants are Editors and Proprietors of the Australian.  Before I go farther, that circumstance may afford you a reason why the defendants published a libel of the nature, which would be described: you will, you must be of opinion, on reading the libel, that the strongest advocate for the liberty of the press, could not sanction it; if we stand in need of the liberty of the press, the more imperative it is on our part to guard and protect those liberties.  I am willing to admit, that the greatest latitude is allowed, as long as parties confine themselves to fair and candid criticisms; it is with some degree of pleasure I shall bring the fact before you, Gentlemen, that some length of time has elapsed, since an action of the same nature has been brought before the court; this showed how far Editors may go with impunity.  Lord Ellenborough has expressly stated on this subject, ``that if the publication only ridiculed the author, as a publsher [sic], the action for libel could not be maintained, but at the same time the criticism must be fair and candid."  The learned gentleman then explained at full, and proceeded:  Gentlemen, although the publisher of a paper has a right to hold up to ridicule the works of another, he has no right to wound the feelings of the party ridiculed, by allegations which could not be proved; ridicule is the strongest weapon that can be used in exposing the follies of parties, but it must be used with discretion; the liberty of the press must not be violated, by making an unjustifiable attack on the moral character of parties, such an attack would call for an explanation, and the author would be liable to an action; when criticisms are maliciously made, with an intention to injure the character of certain parties, they are libellous; I shall therefore, Gentlemen, rest my claim on that decision, and after you have heard the libel, I will ask you candidly, if it is not one of the most malicious nature, and penned with the worst intention?

``Could you suggest to your friends of the Sydney Herald, the changing the title of their Journal to that of the ``Alarmist," or the ``Agitator," as being the most consonant with the principles they now appear to act upon (or have received orders to act upon?  If the parentage of that journal, and the character, as well of its nominal as its actual conductors were not pretty well known, I would take some trouble to expose the wickedness and incalculable danger of publishing such diabolical fabrications as, that ``Rockite Notices had been posted in the district of Argyle, threatening to destroy public and private property.'  Thus putting as it were, a fire-brand into the hands of the ignorant or unthinking, to have the pleasure of seeing them executed for using it, and to support the malicious declarations of a set of factious malcontents; I should be ashamed of having any controversy with men, who, basely taking advantage of the means they possess, publish that which they know to be false, for the advancement of personal interest, and the participation of party combination.  But I cannot forbear drawing their attention to the old saying, ``fools often make rods for their own backs" - Correspondent.  Australian, September 27st, 1833."

``We have taken considerable pains to ascertain, upon what foundation the report circulated by the Herald, of insubordination existing in Argyle, rests, and we are enabled from authentic sources to state, it is totally false, - and the placarding has never been heard of, excepting by the readers of our veracious Contemporary.  We are enabled to state further, that three gentlemen of respectability, employers of numerous assigned servants, and residents in the County of Argyle, have waited upon the Editors of the Herald, to ascertain the sources whence their information was derived, at the same time informing them, that to their certain knowledge, no insubordination existed in their respective neighbourhoods.  The cautious Editors refused to name their informant! - Does this look like belief in the report they have published? or does it not savour strongly of a conviction, that they have wilfully propagated a gross and injurious mis-statement;  We say nothing of the motive which induced it - that at least cannot be misunderstood.  -  Australian, September 27, 1833."

Gentleman, the first three lines prove the strength of the whole libel, what must be the nature of such a publication, was it to pass unnoticed? no; such monstrous apathy would soon become annihilated, it could not exist for a month.  The writer of the libellous article not satisfied with fair and candid criticism, carries the reader into the private apartment of the Editors.  He then alluded to the observations made on the Rockite notices, and said, it is a violent and virulent attack on the Editors of the Herald, and proceeds so far as to say, that such is the notoriously bad character of the Editors, that they are merely the nominal publishers; is there any thing like argument in this?  A candid writer, on stating that assertions made by the Herald were not true, would have given his reasons why they were not so, but in this case nothing of the kind had been done, the writer positively affirming, that the diabolical fabrications contained in the Herald are untrue, giving an assertion without any proof.  It is not the business of the plaintiffs to enquire whether it was true or false; the correspondent in question, not satisfied with stating the publication itself and making his comments on it, but he goes into motives, motives which he considered the Editors of the Herald must have been actuated by, in giving such a publication to the world, and at that moment he passed the Rubicon, or fair line of criticism.  The learned gentlemen then said is there a crime in the whole catalogue of offences, equal to that with which the Editors of the Herald are charged?  It is that of publishing their paper, for the purpose of inciting certain classes to the commission of crime, in order to glut their eyes with the sufferings of the unfortunate wretches who had become victims to the offended laws of their country.  Gentlemen, I can do no more, than refer you to the publication itself, and I defy the most biassed [sic] mind to deduce any such motive for it, as has been deduced by the libeller; no other conclusion can be drawn, than that the writer of the libellous paragraph in question, published them with an intention of destroying the fair fame of the Editor of the Herald and injuring in the opinion of the public.  The learned gentlemen then read the second libellous paragraph, and said, Gentlemen, I had considered the first part libellous enough, but in proceeding to the second part, I cannot find terms sufficiently strong enough to express my abhorrence of the language displayed.

``The Herald seems quite uneasy, lest it should be thought to have said, that the punishment of prisoners of the crown at Hyde Park Barracks was too severe.  The Editors may dismiss their alarm.  No one suspects them of any such thing.  It would be more consonant with their professed principles, and more probable, that they would make a cheap contract for the blood of those unfortunate beings, to serve them as printing ink. - From a Correspondent.  Australian, September 27th, 1833."

The parties are accused of entering into a contract for the blood of their fellow-creatures, to use as printing ink; can any thing more monstrous be imagined, than this before unheard of accusation?  Gentlemen, in reference to the third libellous paragraph, you will see, that the writer not satisfied with quoting the publication from the Herald, proceeds to explain the motives by direct insinuation, which induced the Editors to give it to the public.

``Extract of a Letter from the Australian, dated September 21, 1833. - ``I am a plain man, and care nothing about politics; but I cannot help thinking, that this declaration of the Herald has its origin in pary spirit and malice.  Either they have been wilfully misinformed, or they have made a wilful misrepresentation!  If so, bad indeed must that case be, which requires falsehood and fabrication to support it."

Such, Gentlemen, is the grossness of the libel, the Editors could not pass it over, had they done so, what would have been the general opinion on the subject?  That their paper was worthless, and a dimunition [sic] of the sale of it would consequently take place, or perhaps a total extinction altogether.  Gentlemen, I have only to prove that such malicious paragraphs were published by the defendants, to be entitled to your verdict.  Damages have been laid at £500, but what damages can compensate for the injury inflicted on the plaintiffs, for holding them up to public view, as the instigators to murder, as the promoters of insubordination.  Gentlemen, I leave the case in your hands, confidently assured, that, on the hearing the witnesses which I shall proceed to call, that you will give a verdict in favor of the plaintiffs.

W. Newcomb sworn, deposed, that he was clerk in the colonial Secretary's Office; he produced the Australian Newspaper of the 27th of September last; the editors are Francis Stephen and G. R. Nicol, and w. J. Rowe, the publisher; the paper produced bore the signatures of the defendants; he knew the hand-writing of Mr. Nichol.  He produced an affidavit signed by the defendants, as editors of the paper; it was not signed in his presence; could swear to Mr. Nicol's hand-writing, but not to Mr. Stephen's; the oath was taken before Mr. McLeay, the Colonial Secretary, who now hold the office; the affidavit was regularly filed.  (It was read to the Court.)

Mr. Rogers read the Libel in question, and witness stated that it was the same paper as recorded in the office; knew the plaintiffs, the proprietors and publishers of the Sydney Herald; they were so in September, and continued to be so still, an affidavit having been filed to that effect in the office.  (To a question by Mr. Wentworth.)  He only knew they were proprietors, from the affidavit; he did not know it from his own personal knowledge; knew the defendants in the action, and it is their affidavit which is filed in the Office of the Colonial Secretary.

Mr. Norton proved the hand-writing of Mr. Francis Stephen to the affidavit; knew the defendants, from common report, to be the editors of the Australian; knew that the plaintiffs were the editors and publishers of the Sydney Herald, and were so in September last.

To a question from Mr. F. Stephen, he stated that he knew they were editors for the paper, because they wrote for it; they iarranged [sic] the matter, and composed matter for it, and he had seen original matter in their hand-writing; he could not deny but the manuscript might have been the copy of another manuscript.  Sir Walter Scott compiled from old legends and traditionary narratives, but still he was the Editor of his works.

Mr. J. F. Barrett was called; but an objection was made to his evidence, on the grounds of his having been in the Court during the proceedings in the case, contrary to the proclamation.

Mr. Wentworth observed, that the object of the proclamation was to prevent witnesses from hearing arguments made during the proceedings of the trial.  If the witness came merely to prove the partnership existing between the parties, it would be a different thing; but he came to give his opinion respecting certain passages.

Dr. Wardell said that it would require the eyes of Argus to see every one in the Court.  The witness was absent when the proclamation was made, and he had not been observed by Counsel for the Plaintiffs, or he would have been desired to leave the Court.

The Chief Justice stated that though the witness had been in Court during the proceedings, contrary to the proclamation, yet he could not deprive the Plaintiffs of the advantage of his evidence.

Mr. Barrett, was then examined, and proceeded to say, that he had seen the paragraphs in question, and read them at the time of their publication, on the 27th September last, and the reflections contained in them, unquestionably applied to the Editors of the Sydney Herald, and he considered they were calculated to injure them as Publishers or Editors of a periodical, and, if believed, would no doubt, injure the circulation of the paper; considered that the Editors characters would suffer; would be very sorry to have the same said of him.

Mr. Wentworth objected to the last question put by Mr. Norton, and the Chief Justice said that it could not be legally put, as the action was not brought to prove the tendency contained in witnesses answer.

Dr. Wardell contended that the question was not put to increase the damages, but to show the effect produced by such a charge.  The object was to arrive at the effect, by proving the progressive steps of influence, and he considered that the question was proper.

Mr. Wentworth contended that the evidence did not bear on the case in question.  Damages must be a direct consequence of the publication, and not from any observations on the parties concerned.

Dr. Wardell stated that the object of the evidence was to shew the direct effect, and for consequential damages; the injury was too obvious, and special damages were not required in the case.

The Chief Justice said, that whatever evidence was adduced to shew the effect produced by a charge of the description before the Court, was admissible, but no evidence could be received touching the moral character of the parties, and therefore negatived the right of question.

Mr. Barrett then proceeded to say that the paragraphs made an immediate impression on his mind; he was struck at once on reading them, and thought they were highly injurious to the Editors of the Herald, and that the circulation of the Paper would be injured.

Cross-examined by Mr. Wentworth. - Did not communicate his opinion to the Editors - is not particularly friendly with them; a conversation once took place in the street, en passant, on the subject; a slip of the libels had been sent with his subpoena; his opinion respecting it had never been asked; is not the Editor of a Paper himself - is by trade an upholsterer, knows the parties at issue, one of the defendants once had apartments in his house, but did not remain long; considered that the publication referred to the Editors of the Sydney Herald in their public capacity only; considered it as the mere attack of one Editor on another; had read the Herald, and remembered there was a controversy about that time respecting the insubordination of the prisoner population; the Herald asserted and the Australian denied.

Re-examined by Dr. Wardell. - He considered the paragraphs in question applied to both parties, that is, to both the Editors of the Herald; to their private, as well as their public characters.

Mr. Thomas Barker deposed that he had read the paragraphs in question, and considered that they applied to the Editors of the Sydney Herald, and if he had believed the assertions he should certainly have discontinued the Paper; he formed the same opinion when he read the paragraphs; he considered that the whole of the paragraphs applied to the Editors, and would bring them into contempt, and every well-meaning person would no doubt decline to take the Paper.

Cross-examined by Mr. Wentworth. - He saw the paragraphs in the Australian; there is a distinction between the ``nominal" and the ``actual" conductors; did not know to whom the word ``nominal" applied; he knew the ``actual" conductors of the Herald, and no more; had seen their leading article in manuscript several times, and was perfectly satisfied that Stephens and Stokes were the ``actual" conductors; could not throw any light on whom the writer of the paragraphs meant by ``nominal" conductors - he should think they meant the same persons as the ``actual" conductors; had some conversation with the Editors of the Herald when the paragraphs came out, and said he thought it was proper they should justify their moral and public characters in the eyes of the community; is intimate with the plaintiffs, and knew there had existed some controversy between the Editors of the Australian and the Herald, respecting insubordination; recollected nothing about the end of the Rockite notices.

Mr. John Lamb - Examined the article under the head of ``Miscellaneous News," and said he had seen it before; it clearly referred to the Editors of the Sydney Herald, and its tendency was to combat their principles, and to do away with any impression their writings may have produced; should consider that the paragraph respecting the ``fire-brand" did not place them in a very amiable light, and if he believed it should consider that the Editors were very unworthy members of society, and deserved to be punished; such paragraphs, if believed, would have a tendency to decrease the sale of the plaintiffs' Paper, and considered that the respectable part of the community would not take it in; that part respecting appropriating the blood for printing ink, whether true or not, is calculated to throw a stigma on the Editors referred to.

Cross-examined by Mr. Wentworth. -  Did not believe such a contract could be made; did not take it literally, but fiiguratively [sic]; that part respecting the fire-brand is also of that description; received a slip of the libellous matter with his subpoena, and considered its tendency was to reflect on the Editors of the Herald, as public characters but could some portion of it be proved, it would have an effect also on their private characters; considered that, if believed, a diminution in the sale of their Paper would take place; if a serious injury has accrued, it would be possible to prove it by the clerk in the plaintiffs' office; did not know what was meant by ``nominal" conductors, but should suppose it intimated that there were others connected with the Paper besides the ostensible Editors; the paragraphs undoubtedly refer to the ``nominal" Editors.

Re-examined by Dr. Wardell. - The institution of this action might convince the Public that there was no truth in the charges made, and consequently a diminution in the sale of the Paper would not take place; had not the Editors of the Herald taken notice of them, they would have had a very prejudicial effect; he considered that the meaning of ``fire-brand" was figurative - not a lighted torch, but - imputing improper motives to the Editors.

Mr. Ambrose Foss, examined by Mr. Norton. - Read the paragraphs in question on the morning of publication, and considered their tendency, as affecting the Sydney Herald, was very injurious if true; had he been a stranger, and not acquainted with the principles of the Editors, he should not have formed a very good opinion of them; the paragraphs are calculated to create a very ill opinion of them as Editors; knowing the individuals, they did not make any such impression his mind, but he considered them calculated to produce a bad feeling towards the plaintiffs in the community at large; by ``Rockite Notices," understood a kind of notice to excite certain individuals to commit crime, and to lead certain classes to acts of violence; he understood by these paragraphs that some notices had been published in the Herald which were not true, but were calculated to incite certain parties to commit crime; he also understood by them that the Editors of the Herald were to have the pleasure of seeing the unfortunate wretches executed; considered that the tendency of these allegations, if true, would be to excite great prejudice against the individuals who conducted the Herald.

Cross-examined by Mr. Wentworth.  Considered they would be calculated to lessen the sale of the Paper; did not believe the imputations when published; did not know that the Rockite notices, and the clamour on the occasion, had increased the circulation of the Paper; could not say whether the mode adopted by the Editors of the Herald would increase the sale of their Paper; considered that the paragraphs in question contained several stings, the worst of which was that respecting the contract for blood, to be used for printing ink; understood the passage in its literal sense, and it was calculated to do the Editors a serious injury; considered that the writer of the paragraphs meant to insinuate that the Editors of the Herald were capable of making such a contract; considered that the stings of all the paragraphs are very sharp; in reference to the passage, ``placing a fire-brand in the hands of the unthinking," he considered that the Editors of the Australian insinuate that the Editors of the Herald published the fabrication for the purpose of exciting to acts of violence; considered the subject respecting the printing ink was of too serious a nature to be mentioned without some grounds; he believed the Editors of the Australian meant the words in their literal sense.

James McArthur, Esq., examined by Mr. Foster - stated that he had read the paragraphs in question, and considered them to apply to the Editors of the Sydney Herald; considered the statements if true, would have an injurious effect on the circulation of the Paper; in reference to that part respecting the ``Fire-brands," had he believed it to be true, he should have discontinued the Paper, and no doubt many others would have done the same.

Cross-examined by Mr. Wentworth. - The paragraph had no effect upon him at the time; considered they applied to the Editors of the Herald as public characters, and private men; it was a decided attack on their moral characters; the passage respecting nominal and actual conductors, seemed to speak of some parties behind the scenes; the epithet nominal, evidently applies to that; there was no doubt but that the paragraphs referred to two classes of persons, and considered that the whole of the paragraphs applied to both the nominal and actual conductors; the imputation rested alike, on both the nominal and actual conductors; the actual conductors are the Editors.  With respect to the paragraph respecting the ``Printing Ink" he considered, that there was no figure of speech in it; considered that no contract of that sort could be entered into; could not say whether the writer of that paragraph was in jest or in earnest, he should hope not in earnest; considered there were decidedly two distinct Editors meant; reports had been calculated that witness was one, but he always denied it; had heard of the term ``Macquarie-street Reporter."

Cross-examined by Mr. Foster. --- Understood by the name correspondent, that it was some information received from some correspondent; understood that the words we beginning, ``We have taken considerable pains," meant the Editors.

Mr. Rogers then read the libels in question.

Mr. Wentworth for the defence, then addressed the Court.  May it please your Honor.  Before I go into the merits of the case, I move that the plaintiffs be nonsuited on the grounds of a variance existing between the declaration and the libel proved.  The declaration contains but one count, and if that count be defective they have no remedy.  A variance, even of a word, if it alter the sense of the publication, must be fatal.  This variance is an omission of a whole paragraph commencing ``Could you, or have you received orders, &c."  This paragraph is no doubt material.  Mr. Wentworth here quoted 5 Barnwell and Alderson, p. 615. c. the 15th of East 414, to prove what he had adduced; and contended, that the omitted portion altered the meaning of the publication materially, the plaintiffs must therefore be nonsuited.

Dr. Wardell.  The omitted part does not in the least degree alter the sense of the publication.  How does it alter the sense?  here the Doctor read the whole paragraph, and contended it was not material, nor was it a portion of the libellous paragraph.  He quoted 9th Geo. IV. c. 15, in which it is stated, that in case of any omission, as this is represented to be, it is left to the discretion of the Judge to admit it, or not.  The objection however was not valid, as the omission was not material.

Mr. Wentworth stated, that the act only contemplated an amendment before trial.

The Chief Justice considered, that the words were not material, one way or the other, therefore he was not justified in stopping the case.  He read an Act which empowered the Judge in similar cases to make an amendment, and desired Mr. Rogers to do so accordingly.

Mr. Wentworth  -  May it please your Honor, and Gentlemen of the Jury. - My learned friend has introduced this case as the most enormous of all enormous libels.  The usual way of commenting on the libel has also been resorted to, putting a finger on the passages which one of the witnesses called the stings, and showing how far they had gone to reach the moral perception of my learned friend's clients.  I do not cavil at that, every body ought to know that an address to a Jury does not convey the advocates own private feelings, and from the laugh at the other side, I see they make use of that observation as a two edged weapon; certainly my speech is open to the same interpretation.  The learned Doctor has picked out what he considers the most rancorous paragraphs, but his most enlightened witness is of a contrary opinion.  He considered that the language, respecting the contract for blood, was too strong for him to make any comment on it.  Neither my learned friend or the pleader could make an inuendo [sic] upon it.  One could not write, the other could not speak upon it.  Then the apothecary, from whom not one drop of essential oil could be extracted, evidently considered it was a joke, squib, or rocket - he could not say which.  The other paragraph which my learned friend fastens upon, he say is well enough, barring the last line, and on that no evidence has been adduced; it may impute the highest or lowest motives, or no motives at all, I shall therefore take the whole paragraph to be a fair and legitimate commentary made by one writer on the writings of another.  Therefore, the only passage in which there is considered to be a sting, is that relative to the fire-brand.  My learned friend has told you that plaintiffs and defendants are the Editors of public journals, and that would account for the libel; but it was a strange account for appearing in a Court of Justice, why did they not write one another down in the usual way.  I do not deny their right of appealing to a Court of Justice, but they should be delicate in exercising it, except it was a case of strong aggravation, and an attack on their moral character had been made.  If they could not right themselves with argument, they could not be ever righted in a Court of Justice.  The liberty exercised by the Press in England, is in comparison with the liberty exercised here, a double distilled venom.  The writers on libel have sat down quietly in their closets and written many definitions of libel, amongst which is one, that whoever publishes that, which is calculated to injure the public and moral character of another, is liable to an action for slander; but these abstract notions of libel are treated as nothing, what was a libel yesterday is justifiable to day; it is a matter of history that Editors who have passed through the ordeals of trials in one age with impunity, have in prior times been subjected to the most severe punishments.  The defendants merely stated that the Herald had been stating that Rockite notices were posted up throughout Argyle, with the addition that three gentlemen had waited upon the Editors of the Herald, and informed them that it was without foundation, no such notices or insubordination prevailing.  This, the correspondent described and proceeded to make his comments.  If that is the read state of the facts, I would ask if it be not a fair and legitimate commentary?  If there were no Rockite notices, no insubordination, and persons had called upon them to deny that such things existed; and if they persist in repeating the calumny, can any thing be more fair then to put the public on their guard against a publication which they knew to be false; and they have the audacity to come into the Court this day, and say we published what was false, but you shall not tell us of our misdeeds.  Gentlemen, we have had the old cry from the other side, ``give us the liberty of the press, but prevent its licentiousness."  If, gentlemen, a paltry, pitiful notice had been stuck on a barn in one of the Ridings in Yorkshire, and an Editor had thought fit to publish that Rockite notices and insubordination existed throughout the county, and some gentleman had called and contradicted it, had he persisted in it, not one, but ten thousands whips and scourges would have arisen from ten thousand Presses, to have chastised the falsehood.  Gentlemen, I hold in my hand a letter introduced into the columns of the Sydney Herald, being the opinion of an eminent Barrister at home, upon the Law of Libel, and this has undoubtedly met their approbation, not that I care a fig for that.  (Here the learned gentleman read a long extract from the Herald.)  These are the principles upon which cases of this kind are to be tried.  These are the practical principles of the liberty of the press.  I care not for you theoretical notions.  Is this a violation of the liberty of the Press, without proper grounds, or beyond the extent of fair criticism!  There is nothing in the publication but what appeared in every paper in England two or three years ago, during the time of the reform question, but in a far more condensed and venomous form.  Gentlemen, I will now bring to your consideration the merits of the case.  The plaintiffs said to be joint traders, and to have suffered damage in their joint trade; if they do not prove this, they are this day mistaken; assuming it to be a libel, and the grossest that was ever written, it would be impossible in a case such as this is for you to find a verdict; it is a rule of law that if several parties are charged with having committed a murder they must bring separate actions, as they had no joint interest to be effected by the slander; this publication only charges them with falsehood and slander, and they should have gone into Court separately, and the Jury would have taken into consideration their moral susceptibility, and what they would have lost in society by this publication.  Here they come before the Court as joint Editors and traders, but what joint Editors may be, I do not know; I have heard of one painting the trees, and another the cows, in a picture, there are plenty of instances of that tin the Flemish School; I suppose they mean that one of the Editors dresses up the jokes in the Police Reports, while the other is writing the solemn nothings, which constantly appear there, but what a joint Editor is, I know not.  As joint traders, if they have been damnified, they are entitled to something I admit; but where is the proof that the publication has reference to them as traders; the whole illustrations of my learned friend go to show that it is an attack upon their characters as Editors and as moral men.  Some of the witnesses said they believed the publication would have a tendency to lower the circulation of the Herald through want of moral character; if that belief had gained ground, and people had believed all that was said as to the rockite notices, &c. no doubt the ultimate consequence would be that those not closely allied with the faction would be disgusted.  I would ask and request of you to take this case in hand, and separate it from the ridiculous inuendos, and say if it reflects upon them as to the joint trade? if not, they have mistaken their remedy.  Gentlemen, I am convinced, how much soever you look at the alleged imputation, you will be convinced that it touches not their moral character.  If it affects their joint trade, what damnification can they have sustained by this publication?  Words said of a tradesman that he was a bankrupt, or that he was going to run away, were actionable of course, because they have a direct reflection on his trade, but what analogy is there between this case and those to which I have called your attention?  how can you say, as conscientious men, that any allusion is made to them as proprietors of a newspaper:  If it had said they were at a low ebb, or daily diminishing, or that it was a bad paper to advertise in, that would have been tangible, as it strikes at the root of trade - but no allusion as proprietors being made here, how can you supply that?  Then the evidence - the first witness was a cabinet-maker, who canvassed the matter en passant, and up to the last, a highly respectable witness who could not distinguish between nominal and responsible Editors.  The question of libel or no libel only arises in this case, I have quoted from the opinion of eminent counsel, the boundaries defined as to the extent of the liberties of the Press, and Mr. Cobbett, one of the best reasoners of the present day, says, that he who uses the Press ought to defend himself by the liberty of the Press; this, gentlemen, is the opinion of the father of the Press, and whatever his political faults may be, is one of the ablest writers of the present day.  Gentlemen, let these parties come before you another day in a more tangible shape than the present - let them come unshackled, not blended with their printing presses and types.  Their mode of proceeding has this day completely stultified their case - let them come as men and seek reparation for their wounded feelings.  His Honor will tell you that to-day, they have mistaken their mode of obtaining reparation for supposed injury received.  Gentlemen, in conclusion, I would observe that it will be put to you by His Honor, if they have not been damnified as joint traders, they are out of Court.

Forbes C.J., Dowling and Burton JJ, 5 April 1834

Stephens and another, v. Stephen and another. - Mr. Wentworth moved in this case, that the learned Judge, who presided at the trial, do certify under the statute of Elizabeth, against awarding costs.  The frivolous nature of the action might be collected frem [sic] the verdict of one farthing damages.

Mr. Foster, though it was not his intention to say anything upon the merits of the present motion, would nevertheless allude to the additional expense already incurred.  One of the defendants had, since the trial moved for an arrest of judgment, and the other for a new trial, and additional expenses had on that account been incurred.

Mr. Wentworth observed that the certificate moved for, was wide of those costs.

The Chief Justice said, that this was not exactly a case in which he could certify, and he must therefore refuse to comply with the motion.

In banco, 12 April 1834

Stephen and another v. Stephens and another. - Mr. Keith moved that the verdict obtained by the plaintiffs in this case be set aside, on the ground that the subject matter of the action was not a libel, but a fair criticism from one journal to another.  Mr. Keith cited the case of Hall v. Mansfield as one in point, where the alleged libellous matter being much stronger than in the present instance; the Court granted a new trial on the grounds he now pressed for the consideration.

Judgment postponed.

Dowling and Burton JJ, 19 April 1834

For the Australian's response to this judgment, see its issue of 21April.The Australian, 31 March 1834, also commented on the costs in this case.

For comments on this decision, see Australian,  6 May 1834: it attempted to argue that the court had acted inconsistently with the previous decision, in which Hall sued Mansfield.