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Decisions of the Nineteenth Century Tasmanian Superior Courts

Budds v. Goodwin [1841]

libel, whether intention to warn public - "Methodist," term of opprobrium

Supreme Court of Van Diemen's Land

Pedder C.J., 5 January 1841

Source: The Cornwall Chronicle and Commercial and Agricultural Register,

9 January 1841[1]

Before the following Special Jury: - John Raven, W. Fletcher, H. Bennet, W. Franks, James Raven, H. Dowling, W. Niley, A. Anderson, J. Cameron, M. Gaunt, and C. S. Henry, Esqrs.

This was an action of libel. The damages were laid at £1000.

            The Solicitor-General addressed the court.

            May it please your Honor and gentlemen of the Jury. - In this case - William Budds is the plaintiff and William Goodwin the defendant. This is an action for libel, and the declaration contains three counts. I am called upon to discharge my duty to the plaintiff unprepared to what I should have been, had the case come on in its order. Mr. Budds was for some years a retail dealer in this town, but has now proceeded with his family to Port Phillip; and Mr. W. L. Goodwin is the proprietor and publisher of a newspaper in this town. I appear as the representative of Mr. Budds, to recover at your hands a compensation in damages for a series of libels contained in the Cornwall Chronicle of the 2nd, 9th and 23rd May. It appears that for some years, Mr. Budds had carried on the retail business successfully until 1840, when he resolved to proceed to Port Phillip, hoping that similar success would attend him, which was attending others in that colony. The first article complained of is in the Chronicle of the 2nd May, and has reference to his departure for Port Phillip, where he had established himself in the farming line. In 1839 he purchased a flock of sheep, and sent them there upon his own account, remaining here himself to attend to his own business. Matters, however, rendered it necessary that he should proceed to Port Phillip, leaving his wife behind to manage during his temporary absence; before he left he called together his creditors, and satisfied those whose claims were immediate, as well as those which had not yet arrived at maturity. His departure was notorious, leaving his wife and property behind him to meet all claims that were or might become due. After his departure, upon his first visit to the stock he had sent down the previous year, the first article appeared in the Chronicle of the 2nd May. This article is headed, In large type "ANOTHER METHODIST SWINDLES." Methodist is a term of opprobrium used by those who appear to pay no attention to religious matters; but has no effect upon the respectable members of that respectable body. But the writer was mistaken - Mr. Budds is not a Methodist, but a member of the Church of England, who by his consistent conduct had obtained the esteem of the Rev. Vicar or Doctor of this place. I mention this circumstance, because you will find Dr. Browne mixed up with Mr. Umphelby Budds. In addressing a jury of this place, I need not allude to the story from which the name of Umphelby has been appended to that of Mr. Budds; it arises from a matter out of which no discredit can be attached to Mr. Budds, but like the present, had its origin in malice. The article continues, "William Umphelby Budds - The town has been a little excited for the past two days in consequence of it having been discovered that the Methodist villain - the Bible depository scoundrel, whose name heads this article, has bolted, having successfully, and without creating the suspicion of his creditors, swindled them to the tune of about £8000. Gentlemen, the declaration sets out the inuendoes used to explain the sentence. It then proceeds - "This wretched creature of Umphelby notoriety, was employed as agent of the Rev. Dr. Browne, and one or two respectable settlers, whom we fear as minus by his flight." The declaration there states, that the plaintiff had absconded in debt to the Rev. Dr. and others, which was totally without foundation. The article then proceeds - :We will give a full length portrait of the vagabond in our next, and do all we can to open the eyes of the people amongst whom he may next fall. We understand that the Catechist Wilkinsonassisted Budds in shipping his goods. In our next we will afford due attention to the couple." That, gentlemen, is the article in the first count, and if it stood alone I would appeal to any jury whether the plaintiff would not be entitled to damages, as the insinuations in that paragraph are grossly untrue. But admitting them to be true, and that he had bolted and swindled his creditors to the amount of £8000, yet an article like this is not fit to make the fact known; it is not fit for publication in a public newspaper; such a fact, if fact it was, should have been announced in becoming language, not in an article like this. The defendant, by the course he has adopted, admits the publication, and has pleaded the general issue, by which he merely denies publishing the articles complained of, in the sense, and with the intention alluded to in the declaration. He has put in no plea of justification. With respect to the intention, I would ask any one to read the paragraph; and if the facts were true, could not they have been stated without arriving at the conclusion of personal invective, which conveyed no intelligence to the readers; there is no better way of judging of motives than by the language of a writer. Look at the epithets, bolting, swindling, Methodist and others, in this article, which fully bear out the intention imputed in the first count. If it was necessary to state merely facts, why were they not inserted in the same harmless terms as the shipping, which is alongside this article, instead of the opprobrious term Methodist being applied, proving that the defendant was actuated by only one motive, that of bringing the plaintiff into contempt, &c.

            The second count sets out the libel of the 9th May. You will recollect, that in the first article, defendant promised his readers a full length portrait of the vagabond. In pursuance of that intention, the defendant published a half length portrait of the plaintiff, probably the piece of New Zealand pine spoken of not being sufficiently large for one at full length. This the declaration alleges was for the purpose of bringing the defendant into hatred and contempt, not only here, but amongst the other Australian colonies, and in every part of the civilised world. This is inserted, because the following is to be found under the heading of the Cornwall Chronicle, "the Cornwall Chronicle is published every Saturday night? - it contains every official notice of immediate interest in the Government Gazette of the preceding day; it is delivered to town subscribers early on Sunday morning, and in the course of the day along the main road to Perth. White Hills, Evandale, Perth, Norfolk Plains, and is forwarded per post (FREE) to every part of the colony on Monday, as also to every part of the civilised world by every possible opportunity." And no doubt this is true. Certainly any friend of Mr. Budds in the Australian colonies might say my friends' name is not William Umphelby, but William and he is not a Methodist, but belongs to the Church of England; yet the malevolence of the defendant, to put all doubt of the question, is carried so far, that he inserts a portrait of the plaintiff. How gratifying it would be to the feelings of any of you gentlemen to enter a reading-room in one of the adjacent colonies, and find upon the table a newspaper, in which yourself was caricatured and reviled because you had visited that colony on business. That is the reason why it is laid in this form in the declaration, setting forth in the heading of the Chronicle as having agents at Adelaide, &c. This poison was not conveyed to Launceston alone, but to every part of the civilised world, and there the imputation being received, would be believed. As to the caricature, portrait or likeness, gentlemen, whether it is a good likeness I do not know, but it appears he wears spectacles; that, combined with the outline, would be sufficient to indicate to any one to whom he might become known, that he was the party intended. When I first looked at this portrait, I am free to admit - serious as I feel such attacks are upon private character - that my visible muscles were considerably excited, and I am sure that his Honor will laugh when it comes under his observation. In my mind, looking on this picture, there is a degree of complacency and honesty about the face, that if I am anything of a physionomist, gives the lie to the charges; but you will the better judge, when it is placed before you. The article containing the second libel, gentlemen, is the largest type which is used [???] the heading of the paper.

"The Swindler, William Umphelby Budds

See the picture - is it like?

            I would ask, whether the intention of the writer were with a laudable and honorable design, or whether it was not the intention of the writer to wound to the utmost of his power, the feelings of the plaintiff. The article ends as follows: - "Meantime, we furnish as good a profile of the Swindler Budds as we could get from a piece of New Zealand pine. We await the arrival of box from England, to turn such work out of hand decently." And thus, Gentlemen, you may gather, that the want of box alone, prevented the portrait being at full length. In the paragraph I have read there is a great deal of intermediate matter, which will neither palliate, excuse nor justify what I have read, and of which the other side may make use, and I wish them joy of it; the very imputations it contains, although not charged, unquestionably prove the intentions and motives of the writer in penning these paragraphs. Mr. Budds had to go to Port Phillip, and after a time suspicions arose that his absence was not justifiable. When people of good feeling put different constructions upon the actions of other parties to what were intended, people begin to think that it must be true; and a great majority of readers do not think deeply upon what they read, business preventing the indulgence of such reveries. If a creditor had read these articles, would it not have caused in his breast alarm, fear, doubt, suspicion and apprehension, to find that he had bolted in debt to the amount of £8000; would it not at once have excited suspicion as to the security of his debt, and injury always does and must follow from attacks upon private character. There is an old adage, "there is seldom smoke without fire," and on particular occasion do we not see parties taking for granted whatever is said against another, without any knowledge of the character traduced. Is it not notorious, that some of the largest failures in Great Britain, have arisen from the most trifling circumstances; so the attack upon a dealer must have a disastrous result, when not satisfied with one, it is followed by a serious of attacks. The wood cut, Gentlemen, is a stepping out of the way almost unparalleled in the way of libel, and the paragraph which I shall next read, and which is juxta-position with the wood cut, demonstrates the intent beyond all doubt. "At half past 8 pm we stop the press to announce that Budds, the gentlemen of whom such honorable notice is taken in this number, has returned." This paragraph is not inserted to express regret for any unintentional error into which the writer might have fallen in the first article, but to point out the very honorable notice to which he was subject that day. And however much, Gentlemen, you may wish to serve the defendant at the expense of Budds, you cannot doubt the intent of these articles to bring the plaintiff into scandal, ridicule and contempt - and the malicious and malevolent intent of the defendant is clearly made out by this paragraph.

The third count, contains the libel of the 23rd May, you will observe that it is a fortnight after the last.

"WILLIAM UMPHELBY BUDDS!!!

            "This notorious personage, who returned to Launceston by the Enterprise on Saturday week last from Port Phillip, called together a meeting of some of his creditors on Wednesday, at his own house, which produced the following extraordinary announcement in Thursday's Advertiser:-

            "At a meeting of the creditors of Mr. William Budds, held at his house 13th May, 1840."

            The creditors being perfectly convinced of Mr. Budds' integrity, and that he is only prevented from at once paying every debt in full, by circumstances over which he has no control, unanimously agreed to accept ten shillings in the pound, to be paid in two months, guaranteed by Mr. Underwood, and the remainder by bills at nine and twelve months, without interest; the bills to be payable at the Union Bank, Launceston, and that the insolvency be superseded." Upon defendant's own showing, Mr. Budds returned on Saturday, and on the following Wednesday he calls his creditors together, and the result is satisfactory to those most interested, then with what motive or intention could the defendant have published what follows:-

            "To the whole town will such a document be a matter of surprise - to ourselves it is a matter of real and sincere regret. We view the production as an insult to the colony, - an insult inflicted upon the national character which bears no justification - it is a document which will be made use of in the Mother Country by the enemies of the colony, (and a powerful document it is) to prove that whatever our general professions of integrity may be, our practice, in the way of punishment to a swindler, is anything but of that character that it should be.

            "Of what avail is it to attempt to raise the standard of public character when such a document as the above is put forth before the world as the voluntary favourable attribution of several merchants and traders of the conduct of a fellow who for years has been despised by every good member of the community, and whose recent conduct was so undisguisedly villainous as to induce his creditors to declare him insolvent during his absence at Port Phillip? Would English Merchants have so acted? Let us picture to ourselves an instance in London of a man who was known to have been making extensive shipments to a foreign port, and following those shipments up by one with which he sailed. Then, shortly after his departure and arrival at the port he sailed for, and after accounts had been received, anything but satisfactory of his conduct - suppose a letter to be received from him, and falling into the hands of one of his creditors, in which he stated that he had lost all his property, and determined on not returning to London, had taken his passage on board a ship bound to a distant port, and in which letter he requested his wife to take her passage by some vessel bound to the port in which he was, in order to accompany him; - suppose the letter further to state that if his wife did not arrive he would proceed without her; - imagine further, that this fellow was obliged to return to London, and that he did return and appeared before his creditors, and announced his desire to satisfy their claims - would his creditors (London merchants and traders) have been satisfied on his promises of payment, and have given him a certificate of their perfect confidence "in his integrity," and a declaration that they were convinced he was only prevented from paying "every debt in full by circumstances over which he had no control?" No! such would not have been the reception that any fellow under such circumstances would have met with in London or in any place but Launceston. The creditors of Budds who have thought proper to record their opinion of his "integrity," and have bestowed upon his delinquency the cordial and flattering commiseration due only to misfortune where it overtakes a man of sterling honesty, have given a license to any vagabond who may think proper to go to Port Phillip or to any other distant place, to squander away the property of his creditors, and come back pennyless with the perfect confidence in meeting with their most soul-reading sympathy, their kin of kindred affection, for which he need only give in return for it all, the refuse of his stock-in-trade in satisfaction of his debts!

We learn from some of the parties whose names are attached to the "integrity" document, that they knew not the nature of it until they saw it in print; from one of the parties we learn that the word "integrity" should have been solvency (and no one could possibly doubt Budds' solvency), and that the humbug statement of Budds paying all his debts in full but for "circumstances over which he had no control," he would not have signed it if he had understood it; and really the expressed conviction carries inconsistency with it. What, in the name of common sense, could have been the circumstances which led to the loss of Budds' property, over which he had no control? Was it lost by shipwreck? Was it stolen from him? Was it swallowed up by an earthquake? Did his cargoes of sheep and horses, and cattle die by the small-pox on landing at Port Phillip? Did they assume the character of Christians, and die of strong drink? What has become of the cargoes of sheep, the fine horses, the cattle, the extensive shipments of merchandise? Is the property all gone, and was it all lost under circumstances over which Budds had no control? But Budds has paid his accommodating creditors, he has given them his stock-in-trade and the lease of his house to pay 10s. and his promises for the other; this is a singular way of paying debts, something like the goose and the golden egg! If the creditors are satisfied we have no right to interfere, it is our duty, however, to censure the conduct of any persons towards a fellow whose conduct merits the severest censure, and which must assuredly tend to create an unfavourable impression of our estimate of morality and honourable mercantile transactions; and, moreover, furnish a precedent for any scoundril to risk the payment of his obligations upon the mere hazard of his speculations.

"Now, a word or two to Budds on one own part, which, perhaps, we should not have thought it worth our while to offer had not the Advertiser of Thursday, in its usual canting servile fashion, have risked the following remark about Mr. Budds:-

"'His liabilities amount to about £2,700, it will be seen by an advertisement in this day's paper, that his creditors place every confidence in his integrity, and that the reports so current in town to his prejudice, are now without foundation.'

"If 'you without foundation', they (the reports) have ever been without foundation, but we deny that the foundation 'so current in town to his prejudice' (indeed so current) is in the slightest degree less solid than it ever was; the same foundation that gave rise to 'reports to his prejudice' still remain, and are immoveable, solid, and enduring, notwithstanding some few persons have thought proper to publish their convictions of the fellow's integrity; our opinion, and we know that the public opinion of Budds, as likewise several of his creditors, is the same that it has been for years, and that the certificate of integrity published has not, nor will not, raise him in public estimation one jot. We choose not to afford proofs of the character of Budds in this town, (and we have no desire to enlighten the distant reader upon the subject), it is needless on the matter of the subject before us, therefore, we shall confine ourselves.

"The Pharisee says, 'Thank God I am not as other men', we say, thank God that our name does not stand registered a lasting and never-dying memento of the integrity of such a fellow as Budds - thank God that our name is not affixed to a document giving a sanction to swindling and a premium to dishonest practices."

No doubt in the last sentence truth guided the pen, no greater pain can be felt by the traducer than to find the evils which he would inflict on others recoil on himself. What signifies the opinion of Mr. Wm. Lushington Goodwin, he not being a creditor; why did it concern him that the rest would accept the terms offered, those most interested voluntarily agreed to accept ten shillings in the pound, and the rest by bills at twelve months, without interest, to discharge his liabilities. No discomfiture is so great to the libeller, as for the party when he libels to stand forward and meet his assertions. He then, like the maddened bull, rushes forward heading and blindfold, regardless of consequences. The resolution which was passed by the highly respectable body of creditors, amongst whom I see the names of some of the first merchants in the colony, and made public by the respectable publisher of the Advertiser must be satisfactory to the weakest being outside the walls of an insane establishment, and no doubt it, was an insult to the civilised world. And these parties, who give the certificate that the plaintiff might clear himself from the slanders, are told that it will not bear investigation, that it is a mere cloak to swindling. This kind of writing exposed the wickedness of the attack against his fellow man, and it developed, if proof were wanting, that he would follow him until his ruin was complete, and his triumph overt his much oppressed and illused man was perfected. The attack upon the parties signing the certificate is the usual fate of those who endeavour to stand up and rescue from such wanton attack those in whom they take an interest. People in private life are not so fond of having their names brought forward, because they stretch forth their arm to protect an attacked friend and they dare not face ruffians of this description. How are the charges met? What is the professed object of the two first attacks, but to make parties in all parts of the civilised world acquainted with the slanders they contained. Why do they not attempt to prove what they have alleged? because they have no power to do so. The resolutions are to be cut down, not because they were untrue, but because they neutralised the venom which had been poured forth upon my client. I don't ask any favor for Budds, but justice. If there are any feelings amongst you to screen the defendant at the expense of the plaintiff, I ask you in the name of justice to discard such feeling from your breasts, and do that justice to a man of business what character and fair fame is as dear to him as your own. I have no doubt that some of you, gentlemen, may one day be standing on the floor of this court, with a far more able advocate, asking for damages for a defamed character sustained through this journal, for such are its prostituted pages, that it is open for all purposes, and in it may be found the real stamp and character of the writer. This hypocritical detestable journal has a passage from the Holy Bible paraded forth to crush the victim of his lust, evincing the absence of all good and right feeling. The damages are laid at £1000, what are £1000 gentlemen, compared with a loss of reputation, character, and standing in society; the whole amount would not compensate my client. Gentlemen of the jury, it only remains for me to ask whether or not the sense imputed to these articles is not the true one, and whether the motive is not equally distinguishable. If you can arrive at the conclusion, that the defendant published these articles with the honest intention of warning the public against a swindler, then, gentlemen, I say give a verdict for the defendant. But I feel that I am addressing men, such as the special juries are composed of, who need not to be told, nor have pointed out to them that these series of attacks are the most malicious, cruel, malevolent, and malignant, the most fiendish disposition could indulge in. Now, gentlemen, I leave the case, satisfied that my client will receive ample justice at your hands.

            Thomas Williams, Esq. - I know the plaintiff in the action, heard that he had obtained the nick-name of Umphelby; I have read the article in the Chronicle of the 2nd May; "Another Methodist Swinder, William Umphelby Budds," I understood to mean William Budds; I understand the words "methodist villain" applies to the same person.

            Cross-examined by Attorney-General - I have known Budds three or four years; he carried on the business of a retail dealer, and went to Port Phillip; I do not remember he called his creditors together before he went to Port Phillip; I am not aware that he called upon me before he went to Port Phillip; my opinion was good of him at that time; I never heard much to the contrary of his being a sombre, steady men; I remember the Regatta before last; plaintiff was there amusing himself, he was on horseback that day; after what I saw that day the character of plaintiff for steadiness was affected in my mind; prior to his going to Port Phillip, I am not aware there was a rumour in circulation that he intended to abscond; he told me he was going; two or three weeks afterwards I heard he was not coming back; that was before I saw it in the papers; this wood-cut is not a flattering likeness of Budds; two or three days after he returned I received a note from him; his debt to me was about £300, I have received 10s. in the pound, the balance is in Budds' bills; I have no other security; when due I shall present them at the Bank where they are made payable. If not paid take other steps; when I signed that document I was quite satisfied of Budds' integrity towards me; it was understood that he intended proceeding to Port Phillip immediately after the meeting; I did not sign it with a view of its being beneficial to him there; I signed it more to get my money than anything else; I do think after what had taken place there is no doubt the certificate would enable him to do a little business at Port Phillip; I gave Budds no credit prior to his departing for Port Phillip; if he had asked for it I would not have given it to him.

            Re-examined. - Budds' insolvency was superseded through the resolution; the wood-cut with the name William Umphelby Budds is sufficiently good to enable any one to recognize him; I have received 10s. in the pound, which I believe to be the only sum at present due; had I drawn up the certificate perhaps I should not have said so much; my opinion of him then was good, and I had no occasion to alter it since, I heard Budds was not coming back before I saw it in the Chronicle two or three days; the security I and the other creditors agreed to take was Budds' notes at hand; Budds has made me an offer for the whole of his creditors' bills before they arrive at maturity; it was about three or four months ago, when he was last in the Colony; it was no fault of his that the offer was not carried into effect; it was not a compromise.

            By the Court. - I think it was two or three weeks before he went to Port Phillip for the first time, that he told me it was his intention to go; the wood-cut is like the plaintiff.

            This closed the plaintiff's case.

            The Attorney General. - May it please Your Honor and Gentleman of the Jury, I appear this day on behalf of Mr. William Lushington Goodwin, who is charged with an atrocious libel upon Mr. Budds. If a libel, it appears in three newspapers of which defendant is proprietor. To prevent unnecessary trouble we have admitted everything, and that the inuendos are in form and substance correct. The words Methodist, swindler, villain, &c. which you must apply to Mr. Budds, do not, when fairly taken with the whole of the evidence, amount to much. If there is any libel, if any one has a right to complain, it is unquestionably not Budds, but the gentlemen who signed the declaration; those gentleman who sent Budds to trade upon a character they had given him, without due, I will not say adequate consideration. So facile, Gentlemen, are addressed to be obtained in this Colony, that Mr. Budds goes not away without being addressed. Mr. Williams tells you, that had the address come under his pruning hand he should not have said so much admitting as he did, that the draftsman pitched it rather too strong. Mr. Williams further tells you that he thought Budds was solvent, thought he should get paid, and therefore signed the address. I am sorry, gentlemen, possessing as I do the highest regard for the signers of the address, that it should have been got up, and in the manner and with the motives spoken of by Mr. Williams; it is likely to effect the character of the colony, when gentlemen put their names to an address, with a view of obtaining a good dividend, and sending that party with the address to trade in a distant land. Mr. Williams tells you, that Budds' character was, in his estimation, as good as ever, yet he would not have given him credit. I think Mr. Williams used a sound discretion. I will not trouble you any more, gentlemen, upon this point, only to observe, that for pointing out this improper course of proceeding, my client has been designated a ruffian. I cannot say much candour has been exhibited in not bringing the remainder of the signers of this address before you, they, it might have been supposed, could have proved something at least in favour of Budds; their absence must speak for itself. You will remember gentlemen, from the evidence of Mr. Williams, that the reports respecting Budds found their way into public before they appeared in the papers. You will call to mind the sudden, unexpected, and anything but pleasing absence of Mr. Budds, and I would ask you, whether such a circumstance becoming known to Mr. Goodwin, no matter what the motive might have been, whether it was not his duty to have made the matter known to the public? Mr. Goodwin might have been wrong in stigmatising the gentlemen who signed the address, but his sentiments upon the departure of Budds were correct. There may be amongst you gentlemen, in that box, some one who signed the address and I would ask that one, do you not believe that the statements in the Chroniclewould have a beneficial effect upon the community? It is not to be endured that gentlemen are to give a passport to such men to trade in a foreign land, and by the same means to carry on his schemes as in this colony. May be the morality of some gentlemen - but none of those who signed to the memory of the departed Budds - may square with sending him out to prowl on another colony. I certainly see much in the article to reprobate; but I am not here to advocate all Mr. Goodwin's acts, but to defend him from libel against Budds. I am sorry to see such open opprobrium cast upon the respectable body of the Wesleyans, who have done more for the regeneration of the inhabitants than any class or sect in the community. They have disclaimed, however, on the part of Mr. Budds, that he is a Wesleyan, but that he is a member of the Church of England, and I wish the parish joy of their parishioner; and in coming to a conclusion upon this case, you must remember that Budds has nothing to do with the Wesleyans. It is an error of the Solicitor General to say, that Budds called his creditors together previous to his departure.

            The Solicitor General admitted he was in error upon that point.

            The Attorney General, in continuation - If gentlemen you are satisfied that these articles were inserted through rumours which reached the defendant, and which he believed to be true, it will go materially to mitigate the damages when you come to consider that point; and under the circumstances, ought to be the lowest a jury can give. If, gentlemen, you find a verdict under forty shillings, each party will have to pay his own costs, and I think it will serve them right, although it may reduce the dividend of Budds' creditors arising from the wheat speculations - I beg pardon, no no, not him; but, gentlemen, I think that would be the better course. As to the portrait, upon which so high an eulogium has been passed by the Solicitor General, for the sterling honesty which it portrays, looking at it as I do, I conceive it to be a face not formed to make woman false, but rather of a morose cast. But the Solicitor General has represented him as perfect Sir Balsam -

            "Religion, punctual, frugal and so forth;

            His word would pass for more than he was worth.

            One solid dish his week-day meal affords,

            An added puddling solemix'd the Lord's

            His givings rare save farthings to the poor.

            The devil was piqu'd such saintship to behold,

            And long'd to tempt him like good Job of old;

            But satan now is wiser than of yore,

            And tempts by making rich not making poor."[2]

            And this character it appears Budds obtained until the regatta before last, when he began to decline in the market, as Mr. Williams tells you, and this also was noticed by defendant, who determined, if plaintiff did go to Port Phillip, that he should not play his tricks there without parties being placed upon their guard. In conclusion, gentlemen, I would only say, that if you bring in a verdict for the plaintiff, the very smallest amount that a jury can return will be amply sufficient.

            The Chief Justice then summed up. - The question for their consideration was, would the writing bear the constructions put upon them by the Solicitor-General, who, with a liberality which he had seldom seen surpassed, and which reflected honor upon him, had put the case to them upon a broad basis, if after what they had heard, they considered the writing were bona fide to guard the public against the tricks of a swindler, then to return a verdict for the defendant; on the other hand, if the animus showed the writing to be an attack with a view of doing a malicious injury, then he claimed damages at their hands. The foundation of actions of this kind was the character of the party at the time it was alledged to have been injured, for if he possessed a bad character, no injury could be sustained, consequently he could not recover damages. He, the Chief Justice, never heard that one man telling another anything effecting a third party, and which was subsequently published, was any ground for diminution of damages. He remembered a case lately in Hobart Town, which he thought would not be out of place. A report was raised that a gentleman in the mercantile world had filled in a large amount, which was traced to a party where only object in spreading the report was jealousy. The report in the present case had been in circulation, yet plaintiff had told Mr. Williams a fortnight or three weeks before his departure, that he intended proceeding to Port Phillip; therefore, the report ought not to induce them to give one farthing less damages than if such report had never existed. The rest was in their hands. The jury, after an absence of about four hours, returned a verdict for plaintiff, damages £100. The Solicitor-General and Mr. Jennings for plaintiff - the Attorney-General and Mr. Stilwell for defendant.

Our readers will have the kindness to excuse any errors that may have crept into our reports of the proceedings of the Supreme Court during the late sittings. The place set apart for the reporters of the public press being open to the public on either hand. They were frequently compelled, from the pressure without, to throw down their pens during the most interesting portion of the proceedings. We hope that upon the next sitting of the court a similar nuisance will not exist.

Pedder C.J., 5 January 1841

Source: Launceston Advertiser, 7 January 1841

            Jury, James Raven, H. Dowling, H. Bennett, John Raven, A Anderson, J. Cameron, J. Down, Merchants; C. S. Henty, W. Fletcher, Wm. Franks, M. Gaunt, W. Neilly, Esquires

            For plaintiff - the Solicitor-General. For defendant - the Attorney-General.

            The Solicitor-General in an eloquent and forcible speech of nearly two hours duration, opened the case. We have neither time, space, nor ability, to do the learned gentleman justice, for a more eloquent address we confidently assert was never delivered in that Court-house.

The declaration contained three counts, the first complained of an article in the Cornwall Chronicle, of the 2nd May, and the others of two subsequent articles which were published on the 9th and 23rd of the same month, in which the words "methodist swindler," "vagabond," "villain, &c.", were applied to the plaintiff, and charging him with defrauding his creditors. In one of these papers was a portrait of Mr. Budds, with these words written underneath "the swindler William Umphelby Budds". The damages were laid at £1000. The defendant pleaded the general issue, and admitted all the inuendoes contained in the declaration.

The Attorney-General defended the case in his usual sarcastic manner, the general substance of his speech being, that Mr. Budds was a man of very doubtful reputation, and that the reports published by the defendant were in general circulation at the time, consequently that the smallest coin of the realm would be quite sufficient damages, should the jury decide on giving any. And that although he would not attempt to justify the language of the defendant, yet the articles were put forth by him in accordance with his duty as a public journalist.

His Honor in summing up, spoke highly of the liberal manner, in which the Solicitor-General had put the case to the jury, having if he understood him right, called upon them to give a verdict for the defendant if, taking all the articles together they could come to the conclusion that in giving publicity to them, he was actuated by a desire for the public good, and not by any private feeling of malice against the plaintiff.

The Solicitor-General nodded an approval.

The jury after having retired for about an hour and a half, informed His Honor that there was no probability of their agreeing to a verdict in less than six hours, and the course was therefore adjourned for that time. Before the expiration of the time, the jury sent for His Honor, having agreed upon a verdict for the plaintiff; damages £100.

Notes

[1]              See also Hobart Town Advertiser, 12 January 1841.  For Goodwin see C. Craig, 'William Lushington Goodwin (1798?-1862), ADB, vol. 1, pp.. 457-8.

[2]          This is taken from Alexander Pope, An Essay on Man. Epistle III.  To the Right Honourable Allen, Lord Bathurst.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania