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Colonial Cases

Howell v. Marks, 1871


Howell v. Marks

Supreme Court of China and Japan
26 May 1871
Source: The North China Herald, 30 June 1871




Shanghai, 26th May, 1871.

Before C. W. GOODWIN, Esq.


From H.B.M.'s Court, at Kangawa.

Between W. G. HOWELL and F. W. MARKS.


   Both parties in this case having expressed their intention of employing no counsel, I have considered the arguments laid before me in the Record of appeal.

   The Judgment appealed from was given in an action for libel against the defendant, the now appellant.  The libel complained of is a newspaper comment upon the charges of lawyers at Yokohama, who happen to be an extremely limited class.  No name is mentioned, but trhe plaintiff (respondent) contended that he was individually pointed at, and trhe Court below so found and awarded damages.

   The defendant pleaded that the impugned matter contained no libel on the plaintiff, that the article was written for trhe public benefit and with no private or malicious intent, and offered to adduce evidence justifying the comments made.  This evidence the Court below, relying on the case of Johnson v. Stewart, refused to receive, on the ground that no specific case was set forth.  Although the evidence which was adduced to show the applicability of the impugned comments to the plaintiff personally is, so far as it appears on the record laid before me, extremely slender, as is also the evidence of malice, I should be indisposed to interfere with the judgment of the Court assented to by booth the assessors, on a review of the evidence.

   But I am of opinion that looking at the nature of the case, the libel complained of being a general one and not directed individually at the plaintiff, the evidence which the defendant proposed to give in justification was improperly rejected.  The case quoted - Johnson v.  Stewart - can only apply where there is no dispute as to the person aimed at, and where the defendant proposes to justify by adducing the plaintiff's own actions.  Here it does not appear that the evidence offered to be adduced had any reference to the plaintiff whatever, and it is obviously possible that this evidence might have induced the Court to come to a different conclusion as to the person pointed at.

   On this ground therefore I think that a new trial should be had, and I shall direct that it take place before the acting assistant Judge at Yokohama with a Jury.  Rules 172 ands 104.  It will be for the plaintiff to avail himself of this direction if he thinks fit.  If he do so the costs of this appeal will follow the ultimate determination of the case.  If he do not, I make no order as to the costs of this appeal

Published by Centre for Comparative Law, History and Governance at Macquarie Law School