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Crown or Mr Nelson.
Mr Hayllar And I have told him, my Lord, twenty times over that he is fighting Mr Nelson,
oriminal prosecution it could not have been entitled to know whether he is fighting the granted; in such a case the defendant must come into Court with perfectly clean hands,-- His Lordship said he knew all about that, adding that he believed he know as much as any man alive about criminal informations, acquired before most of those before him were born.
Court adjourned.
The Chief Justice: Where have you said that?
Mr Hayllar: As plainly as possible in our very first letter. In the letter of May 25th, Messrs Sharp, Toller and Johnson wrote: "Mr Nelson is a private prosecutor within the meaning of Section 8, of Statute 6 and 7 Vic., Cap. 96, which has been extended to this Colony by Ordinance No. 3 of 1851." The Crown Solicitor is not acting in this. We have signed all our letters "Sharp, Toller & Johnson." They are not the Crown Solicitors, and therefore it cannot be a case in which Mr Johnson is appearing as Crown Solicitor.
The Chief Justice: That might be an inference after the affair was over.
Mr Hayllar: No, my Lord. We would
The order subsequently made was as follows:-
Upon motion this day made by Mr J. J. Francis of counsel for the defendant, and upon reading the affidavits of Mr W. H. Brereton, attorney for the said defendant, filed respectively on the 19th and 28th days of May inst., it is ordered that the Hon. the Attorney General and A. B. Johnson, Acting Crown Solicitor, do shew cause on Monday next, the 31st day of May inst. at 10 o'clock in the forenoon of that day, why this Court and the defendant should not be informed whether the case is or is not a private prosecution within the meaning of Section 5 of the Statute 6 and 7 Victoria chapter 96, which has been extended to this Colony by Ordinance 3 of 1851 and within the meaning of Section 19 of Ordinance 3, of 1866 of the Legislature of Hongkong; and whether Mr Hayllar, Q.C., who appeared to conduct this case for the prosecution on the 19th day of May inst., is conducting the case on behalf of the Crown or on behalf of Mr Horace Harrington Nelson as a private prosecution within the meaning of the said Act and Ordinances; and why in default of such information all proceedings in this case should not be stayed or a nolle prosequi be entered; and it is ordered that in the meantime all proceedings herein be stayed.
FOURTH DAY.
Tuesday, June 1.
In Regina v. Pitman to-day the rule was returnable which was issued on the 28th ultimo.
The Chief Justice: The straightforward manly course is to say it is a private prosecution.
Mr Hayllar: We have said so over and over again. We said so on the 25th, in the words I have read to the Court.
Mr Francis: May I ask in what capacity Mr Hayllar is here?
Mr Hayllar: I appear for Mr Nelson, the prosecutor.
Mr Francis: The rule is not addressed to me.
The Chief Justice: Do you insist that this is a public prosecution? Mr Hayllar appears and says, "I represent Mr Nelson; Mr Nelson is the prosecutor; I have something to say to you." Will you not hear him? Mr Hayllar may represent Mr Johnson as well and therefore be quite entitled to appear under the terms of the rule.
Mr Hayllar: I also represent Mr Johnson, my Lord.
Mr Francis, who, instructed by Messrs Brereton & Wotton, appeared for the defendant, said, the rule having been granted, it now fell to the Attorney General to show cause.
The Attorney General said he was called on to say whether this was or was not a private prosecution-
The Chief Justice: Why don't you say it is and have done with it? You mean that it is.
The Attorney General: I have never said anything about it, one way or another.
The Chief Justice: But the defendant is
Mr Hayllar again read the extract from the letter and asked,--could anything be more plain or decided.
The Chief Justice: And as to costs both parties are under that Act?
Mr. Hayllar: Clearly liable to costs, my Lord,
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The Attorney General: I have been called upon to give some information which it appears to me is unnecessary.
The Chief Justice: After reading what Mr Johnson stated in the summons?
The Attorney General: I have not read the summons.
FIFTH DAY.
Wednesday, June 2.
DEFENDANT PLEADS "NOT GUILTY" ONLY.
To-day was fixed at last sitting for the arraignment of John Pitman on a charge of libel.
The Chief Justice: Then you cannot be master of the present position.
On the Court assembling Mr Pitman was called, and took his seat at the end of the table.
The Registrar (Mr F. H. Gibbons): You are indicted under the name of John Pitman, for, contriving and wickedly, maliciously and unlawfully intending to aggrieve and villify Horace Harrington Nelson and to injure him in his good name and fame and in his office or post of Manager of the Branch establishment of a certain Incorporated Banking Company carrying on business under the direction and under the control of a Board of Directors in London under the style of the Chartered Mercantile Bank of India, London, and China, and having a branch establishment or office amongst other places at Victoria, in this Colony, and to bring him into scandal, infamy and disgrace with William Jackson, Acting Chief Manager and Travelling Inspector of the said Banking Company and the said Board of Directors, and to cause him to be esteemed and taken to be, by the said William Jackson and the said Board of Directors, a false, scandalous, mischievous, impertinent, corrupt and negligent person and one not fit to be employed by the said Banking Company as such Manager as aforesaid, and to deprive him of the emoluments arising from the said office, that you did, to wit on the 29th day of March A.D. 1880, unlawfully, wickedly and maliciously write and publish and cause to be written and published in the form of a letter to the said William Jackson, a certain false, wicked and malicious defamatory libel of and concerning the said Horace Harrington Nelson and of and concerning him in his said office and of his conduct and character in relation thereto according to the tenor and effect following, that is to say :-
"8, Peddar's Hill, "Hongkong, Mar. 29, 1880.
"Assistant Chief Manager, "Secretary, &c., &c., &c.
"Chartered Mercantile Bank "of India, &c., &c.
"William Jackson, Esq.,
"SIR-I have awaited your arrival to bring to your notice, for the information of the board of Directors in London, the conduct of your manager here, Mr Nelson (meaning the said Horace Harrington Nelson) who, without any provocation or
The Chief Justice: Then you don't know the facts.
The Attorney General: That is a question of opinion. I have not concerned myself about the papers in this case, nor what has been said in Court. And as to the rule which sets forth that in case I fail to give certain information to the Court, I am to show cause why all proceedings in this Court should not be stayed or nolle prosequi be entered, I really don't know why that should have been inserted. Of course, this Court has no power to enter a nolle prosequi. With regard to the information the Court desires, I have to inform the Court that this is a private prosecution.
Mr Francis: Perhaps the Attorney General would also answer the second question set forth in the rule, Whether Mr Hayllar, Q.C., who appeared to conduct this case for the prosecution on the 19th day of May inst. is conducting the case on behalf of the Crown or on behalf of Mr Horace Harrington Nelson as a private prosecution within the meaning of the said Acts and Ordinances.”
The Chief Justice: You have answered one question; are you prepared to answer another?
The Attorney General: I am prepared to answer it to this extent. As Attorney General I do not appear in this prosecution, and I have deputed no one to appear on my behalf.
Mr Francis: I am quite satisfied with that statement.
Mr Hayllar: There never was the slightest doubt about it, my Lord.
The Chief Justice: Mr Johnson led me into a fog as thick as that at the top of the Peak.
The Chief Justice, (after some further conversation had ensued): Then to-morrow at 10 o'clock is fixed for the arraignment in this celebrated case.
Court adjourned.
(To be continued)