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[libel – embezzlement] Curr v. Goodwin Supreme Court of Montagu J., Source: The Attorney-General and Mr. Gleadow for the plaintiff; Mr. McDowell and Mr. S. Stephen for the defendant. Damages laid at £1000. Mr. Webb, our new Attorney-General,
opened the case; he stated that this was an action for libel, brought
by his client, Mr. Charles Curr, against W. L. Goodwin, Esq., proprietor
of the Cornwall Chronicle newspaper, to which the defendant
had entered two pleas, on the general issue and justification. The
libel alluded to consisted of a certain publication which appeared
in the columns of the Cornwall Chronicle newspaper in the
month of August last - it was addressed in the form of a letter
from defendant to his client, (the learned gentleman here read the
epistle upon which this action was brought,) and would maintain
that a more scandalous or malicious production never emanated from
the public press; it charged his client (a most respectable young
gentleman) with embezzlement and felony - to wit that he (Curr)
did upon the 11th of December, 1838, and subsequently in January,
1840, feloniously embezzle and appropriate to his own use two different
sums of money, the property of defendant - to wit, the sum of £1
11s. upon one occasion, and the sum of £3 5s. on the other. As the
learned counsel would have an opportunity of addressing the jury,
he would at the present moment confine himself to a brief recapitulation
of the grounds upon which this action had been brought. His client,
a young gentleman of the highest respectability, whose father
was then carrying on business in Sydney as a merchant, and whose
uncle was also manager to the Circular Head Company, had been most
grossly libelled by the defendant; it would be shewn that Mr. Curr
had been in the service of Mr. Goodwin upwards of two years, that
upon Mr. Goodwin’s first employing him he had just arrived from
sea, - no, from school, and that for the space of at least a year
and a half, Mr. Goodwin had been afforded not the slightest grounds
for complaint, so far from it that an increase of salary from £50
to £60 a year was conceded by defendant to his client, which fact
would be trusted sufficiently satisfy the jury, that up to that
period he had conducted himself, in an upright and praiseworthy
manner; he had been employed by defendant in the capacity of collecting
clerk and book-keeper, and during the whole of the before-mentioned
time Mr. Goodwin had himself frequently made entries in the books
about to be produced; it would be shewn that where the entry was
not in the hand-writing of Mr. Curr, it was in that of Mr. Goodwin.
Up to the close of the year 1839 things continued in this state,
and then Mr. Curr contemplated a removal to the service of a rival
newspaper proprietor. Upon this it would appear that the defendant’s
suspicions first became aroused, in consequence of which he hastened
to Mr. Knight, and endeavoured by every means in his power to
injure the plaintiff in his estimation, it was then for the first
time that he imputed dishonesty to him. He would ask the jury how
either of them would feel upon a similar occasion, to learn, after
keeping books with Mr. Goodwin (himself no accountant) for the space
of two years, that this gentleman had imputed to him conduct which
if properly investigated would send him to The learned counsel was proceeding to question Mr. Henty, as to the impression which had been created in the public mind, by the publication in question, when His Honor interrupted him by observing, that he could not allow the witness to answer any such question, having as it had, a most direct tendency to bias the opinion of the jury. He might certainly state what had been the impression produced upon his own mind, and that was all. Upon this, the learned counsel declined asking this witness any more questions, and called - Mr. John Knight, who deposed - I am the proprietor of a newspaper called the Launceston Advertiser; the plaintiff is employed by me as a collector and reporter. Previous to my engaging his services, I had some conversations with defendant relative to his character. Mr. Goodwin did not call upon me, I went personally to him; he informed me that Mr. Curr had been dismissed by him for incompetency, and that I was of course at liberty to engage him if I thought proper. He said Mr. Curr was a bad collector and no accountant; that moreover he had latterly been in the habit of frequenting the gaming table; as a collector he was sure he would not suit me; Mr. Goodwin did not at that time impute any dishonesty to him. Cross-examined by Mr. McDowell. - I have before stated, that it was I who called upon Mr. Goodwin; I do not remember making any observation to the effect, that I should keep a sharp eye on the plaintiff, and that if I discovered his gaming propensities, I should certainly discharge him. He has continued with me ever since our first engagement, he does not keep my books. This was all the evidence
called for the prosecution, and Mr. McDowell thus addressed the
jury for the defence: - I do not doubt, gentlemen, that you are
extremely surprised at the great disparity between the amount of
evidence called by my learned friend in support of this prosecution,
and the expectations which his address held out; indeed, gentlemen,
I cannot avoid thinking that he has been led into a great error
by an individual not far distant, as to the real merits of this
case. With a dignity of manner so peculiarly his own, he has even
called upon them to inflict exemplary damages upon my client, who
had traduced the character of so respectable and important a young
gentleman as Mr. Curr, who had been represented to them as the son
of God knows what, and the nephew of the Lord know whom,. His father,
they were told, was an eminent merchant at Sydney, and his uncle
commander-in-chief of the forces at Circular Head. Their sympathies
had no doubt been enlisted in behalf of such a rising genius as
Mr. Curr was represented to be, but he (Mr. McDowell) would ask
of what his client had been guilty? Mr. Knight, the last witness,
although a rival editor, as stated by the Attorney-General, had
given his evidence in a most fair and impartial manner, and what
did it amount to? Simply to this - that he (Mr. Knight) had deemed
it prudent, previous to entering into an engagement with the plaintiff,
to ask Mr. Goodwin some particulars relative to his past behaviour,
and for this purpose had himself personally waited upon that gentleman.
Now here was a complete contradiction to the assertion of the learned
counsel upon the other side, viz. that Mr. Goodwin had first waited
upon Mr. Knight, for the express purpose of putting him upon his
guard against employing the plaintiff. You will bear, gentlemen,
what is Mr. Curr’s own admission relative to one of the transactions
alluded to by the defendant in the alleged libel. He will admit
that he received the money in question, of which he forgot to make
an entry. As respects the other case, it appears his memory is altogether
at fault; he recollects nothing about it. Mr. Knight’s evidence
has gone to shew, that Mr. Goodwin had not, upon the occasion alluded
to, made any remark tending to the prejudice of Mr. Curr’s moral
character, further than stating that he had lately become addicted
to the highly pernicious practice of gambling, which I think, gentlemen,
is a sufficiently dangerous one; under these circumstances, Mr.
Goodwin had only discharged an incumbent duty in cautioning Mr.
Knight, as it was extremely improbable that a salary of £50 or £60
year could maintain such expensive habits. However, Mr. Knight it
seems, thinking that he possessed the power of curbing such irregular
propensities by merely keeping a sharp eye upon the plaintiff’s
proceedings, forthwith engaged this gentleman, who had, as the Attorney-General
inform you, “just arrived from sea” - I beg pardon, from school
- it seems at all events that he was “quite at sea” amongst Mr.
Goodwin’s books; I contend, gentlemen, that the Attorney-General
has completely failed in shewing you in what manner my client could
have acted otherwise in the matter with any regard to truth; I am
sure an addiction to gaming cannot, in your estimation, be a very
desirable qualification in a gentleman confidentially entrusted
with pecuniary matters, and Mr. Goodwin therefore, in mentioning
it, merely performed an act of duty. Gentlemen, I shall add, that
if in the following evidence I fail to prove the culpability of
the plaintiff to such an extent as would convict him in a trial
for felony, then, gentlemen, I will willingly leave it at your discretion
to inflict upon my client the vindictive damages claimed by the
Attorney-General. Deeply as I may regret the imprudence which has
thus imposed upon me the necessity of changing situations with the
Attorney-General, and coming before you in the character of an accuser,
yet gentlemen, I cannot under such circumstances avoid the conviction
that the plaintiff has been the sole architect of his own disgrace.
My conscience compels me to admit that I have in my former capacity
of Attorney-General prosecuted to conviction many individuals upon
slighter evidence than that which I shall presently have the honor
of submitting to your notice; I shall shew you that so far from
my client having acted towards Mr. Curr with the vindictive spirit
ascribed to him by my learned friend, he has throughout the whole
affair conducted himself with a degree of kindness and forbearance
very unusually exhibited under such great and complicated provocation
as he has undoubtedly received. The taunting manner in which the
plaintiff addresses him in the letter lately produced in evidence,
was sufficient to awaken resentment in the mind of any man not absolutely
proof against a feeling of the kind; he says, “after having vainly
endeavoured to provoke you to an act of justice, I find myself reduced
to the necessity” of what? why, forsooth, of accepting from him
such damages as two or three umpires, impartially chosen might think
proper to award in the shape of styptics to his bleeding reputation!
A very modest proposal truly, and coming with an excellent grace
from a man who had placed himself wholly in the power of another!
I am fully aware, gentlemen, that in order to exculpate my client
from all blame in your estimation, it will be incumbent upon me
to produce such evidence as could clearly convict the plaintiff
at a criminal tribunal; but this I undertake to do, and to prove
beyond the possibility of contradiction, that instead of coming
into this court for the purpose of claiming damages at your hands,
he ought to be now standing in that dock to take his trial for felony.
You are aware, gentlemen, of what materials a great portion of our
population is composed, and you well know what would be the inevitable
consequence of admitting in cases of embezzlement the plea set forth
by the plaintiff’s counsel. A trusted individual receives money
belonging to his employer, appropriates it to his own use, after
giving a receipt duly signed to the person from whom he receives
it; of this, he makes no entry in the book, and upon being taxed
with the fact, impudently attributes the omission merely to want
of recollection! It is for you to say whether you would admit such
a method of justification, were the plaintiff now standing before
you charged with such an offence. Gentlemen, I think you would not,
or the plea would soon be brought into extensive operation; and
if you would not, of what has the defendant been guilty,
in publishing to the world the dishonesty by which he was made to
suffer - goaded and irritated thereto, by the taunts of the individual
who had cheated him. If you suffer your judgment to be led astray
by the eloquence of the Attorney-General, I shall regret to find
that you do not know him quite so well as I do. He asks a most unfortunate
question, when he says “why did not the defendant, immediately upon
discovering the dishonesty of his clerk, prosecute him at once.”
Why, gentlemen, there might exist many reasons for his not doing
so, amongst which feelings of humanity and compassion (notwithstanding
my learned friends insinuations) might probably have operated. Aware
of the unfortunate habits to which the young man had addicted himself,
and thinking perhaps that in an unguarded moment he had been tempted
to the commission of an act, perhaps sufficiently repented of, he
might have been loath to destroy so promising a youth in the
first dawnings of his genius; and nothing, it appears, short
of the provocation which he subsequently received, would have induced
him to adopt those measures finally resorted to, to put a stop to
such unwarrantable insolence. I shall presently call the evidence
of a person named Barker, who will tell you that he was sued by
Mr. Goodwin in the Court of Requests, some considerable time after
the plaintiff had left his service, and that it was not until after
a verdict had been returned in favor of Barker, in consequence
of his producing Mr. Curr’s receipt for the money, that Mr.
Goodwin became aware of the full extent to which he had been imposed
upon. You must have remarked, gentlemen, that the proprietors of
newspapers are, generally speaking, more indulgent to their debtors
than most other men of business, and thus it happened that the plaintiff’s
defalcation was not discovered until after he had left the service
of defendant. Barker’s name, however, remaining on the books, he
was at length sued in the Court of Requests, upon which he at once
brings forward Mr. Curr’s receipt for the money, and obtains a verdict
as the consequence; but this you will be told was merely a mistake
on the part of the young gentleman, who was a bad book-keeper, and
moreover troubled with an exceedingly bad memory. He does not remember
whether Mr. Goodwin received the money from him or not, but no doubt
thinks he did. It has quite escaped his recollection into
which of his pockets defendant put the money at the time; however,
there in this book stands Mr. Barker’s account (ledger handed in).
which I should imagine speaks for itself, and if Mr. Curr can point
out any other belonging to my client, in which the corresponding
cash entry is made, he shall be welcome to the opportunity of so
doing. I am sorry that my learned friend has not thought proper
to put in evidence the papers which just now hung dangling in his
hand; perhaps he had received a hint from the “ Mr. M. Kennedy, who deposed as follows:- I am Registrar of the Court of Requests in Launceston; I produce the record of a verdict in a case of Goodwin v Barker; the verdict is in favor of defendant; the sum sued for was £3 5s. for newspapers supplied him; the summons was served in August 1841, and case decided in September following. Thomas Barker examined. - In the month of August, 1841, Mr. Goodwin sued me in the Court of Requests for the sum of £3 5s.; the money had previously been paid, do not precisely remember to whom; this receipt was given by Mr. Goodwin’s clerk; I do not know his hand-writing; I settled my account at the old office; the gentleman now sitting by Mr. Gleadow (Curr referred to) is the same that I paid the money to. Cross-examined by the Attorney-General. - I cannot call to mind whether anybody else was present when the money was paid, it was at the old office, I paid it in a kind of passage which communicates immediately with the street-door; I never said in the hearing of Thomas Tucker that a third person was present during the transaction, I believe I did say that I had forgotten whether the money was paid to Mr. Curr or to Mr. Goodwin; on my oath I consider that I have satisfactorily answered your question; at the time I was forced to tell Mr. Curr something in order to get away from him, but was not then as I am now, upon my oath; upon some particular occasions I should not hesitate to tell a falsehood, but would by no means swear to one. By Mr. Stephen. - When I said that I did not exactly recollect to whom I paid the money Mr. Curr was endeavouring to make me recollect; he said “it was of great consequence to him that I should do so;” about three weeks before I got the summons I called upon Mr. Goodwin and told him about the receipt; I could not however just then lay my hands upon it; at the Court of Requests I produced the receipt which Mr. Curr had given me. By His Honor. - The plaintiff pressed me exceedingly to recollect myself; I told him I would consider of it; this conversation took place at Mr. Tucker’s gate, and I was anxious to get away at the time, having left my cart and bullocks in the street; to the best of my belief Mr. Goodwin was not by when I paid Mr. Curr the money; during our conversation Mr. Kerr kept pleading that the defendant was by at the time, and I told him that to the best of my belief he was not. William Collyer examined. - Am a brewer, and reside in Launceston; at one period was indebted to Mr. Goodwin for a small amount, which I paid to the plaintiff in this action; these are his receipts; I saw him write them and afterwards attach his signature; one of the receipts is for £1, the other for 10s; the two sums were paid on the same day, and at the same time; the occasion of there being two receipts was this - I wished to pay a quarters subscription in advance, which amounted to ten shillings, the £1 was paid on account of former arrears; they are both dated 30th January 1840; I am sure that no third person was present during this transaction. Mr. William Cozens examined. - Is a chemist, and resides in Launceston; knows the plaintiff’s handwriting; the book now shewn to witness contains several entries of his; there are also some of Mr. Goodwin’s; the signatures to these receipts are also evidently written by Mr. Curr. The Attorney General now addressed the jury in reply; the substance of his speech was to the effect that he (the learned gentleman) thought the defence a complete failure; Mr. McDowell had told the gentlemen of the jury that they could not but have remaked the extraordinary discrepancy between what he (the Attorney General) had stated, and what he had proved; it appeared, however, that the remark applied with peculiar emphasis to the defence just closed. What had his learned friend proved to justify the fiend-like attack made by defendant upon the reputation of Mr. Curr? Why, absolutely nothing. Mr. McDowell had told the jury, “that in the event of his not being able to produce such evidence as would infallibly convict the plaintiff at a criminal tribunal, he (Mr. McDowell) would contentedly listen to a verdict for almost any damages.” And what had he established? The learned counsel here commented upon the evidence of the witness Barker, and attributed to him some private and sinister reason for keeping back everything which might by possibility have the effect of injuring defendant’s cause. He had openly too avowed, that under some particular circumstances he should not hesitate to tell an untruth. Was a man of such an unscrupulous disposition to be trusted? He had been taunted by Mr. McDowell with the dignity of his manner, but he would say, that dignity of manner, in his estimation, better comported with the business now before the jury, than the rapid jokes, and affectation of wit, which generally characterized the pleading of his learned friend. Having just mentioned this circumstance, he would now ask the defendant’s counsel, why he had not produced the whole books of the establishment? Mr. McDowell:- I warned you that they were at your service, if you thought they would in any way benefit your cause. The Attorney General said it was not his intention to call for them now - it was too late; but the keeping them back had, in his opinion a somewhat suspicious appearance. He concluded by asking the jury whether they could upon such evidence as that placed before them, come to the conclusion that his client had been guilty of a deliberate act of fraud, and whether they would feel inclined upon such inadequate testimony, to turn him over to the tender mercies, which the counsel on the other side had left but little reason to doubt, were at this moment awaiting him. [We omitted to state, that a letter addressed by the plaintiff to defendant, was put in and read. It was filled with penitential expressions of regret for some misconduct alluded to, and begged of Mr. Goodwin to allow of the writer’s remaining in his service for a short time, for the purpose of rectifying the errors of which he had been guilty.] His Honor summed up, commencing upon the evidence at some length. It was, he said, a circumstance to be regretted that the defendant’s counsel had not produced all the books of the establishment, with respect to the one which been produced, there was no evidence to shew what it was, whether cash-book, day-book or ledger; the jury were well aware that almost every man in business had more or less, some particular rule by which he was guided in the management of his establishment, and it was quite evident, from what they had seen that the method pursued, both by the plaintiff and defendant in making such promiscuous entries, was irregular in the extreme. It would also have been much more satisfactory to his mind had Mr. Curr’s immediate successor in office been introduced, for the purpose of shewing what it was, and what it was not, the duty of Mr. Curr to have done upon the receipt of cash - if a merchant or trader makes it a practice to account daily with his clerk for all monies received, and the latter omits to do so for ever so short a space, the circumstance becomes at once suspicious. If, however, it was admitted that the plaintiff had all along been pursuing a surreptitious course, was it probable that he would have selected for his purpose a sum of money which there was some reason to believe had been paid to him in the presence of his employer; for as regarded the evidence of the witness Barker, His Honor considered that there was but little credit to be attached thereto - he had voluntarily stated that upon particular occasions he should not scruple having recourse to falsehood - whether he had done so in the present instance it would be for the jury to say; true it was that although there were some men who, although not over scrupulous as regarded their bare word, would nevertheless be much more punctilious in respect of an oath, of this description the witness had represented himself to be, how far he spoke the truth in that particular [???] it was not for His Honor to determine; both counsels had advanced considerably more than they could prove - so far they were much upon a level - nevertheless, under all the circumstances, it would be for the jury to say whether their minds were satisfied that the plaintiff had acted with premeditated dishonesty or not - before they could find a verdict for the defendant they must be satisfied with this, as from the wording of his second plea, and which in effect very closely resembled the verbal form of an indictment for felony - to wit, “with intent to take, steal and carry away,” it became incumbent on the part of defendant to shew that such had been the intention of the plaintiff when he received the monies charged against him in the plea; now the question was, had this been done? For even admitting that the plaintiff had not accounted for such sums, did it therefore follow as a matter of course that the omission implied a felonious intent, or had it originated in thoughtlessness, or the irregular manner in which the business of defendant was at the time conducted? The jury would consider all these points, and no doubt return such a verdict as the nature of the case required. Verdict for plaintiff - damages £50. After the return of the Jury, Mr. Gleadow by counsel moved the court for “speedy execution.” His Honor granted the application. Notes [1] For Goodwin
see C. Craig, ‘William Lushington Goodwin (1798?-1862)’, ADB vol.
1, pp. 457-8. See also Launceston
Advertiser, |
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