CO129-192 - Governor Hennessy - 1881 [1-4] — Page 425

( 40 )

The Duke of Wellington at his Club, for instance, was not a good subject.

The Chief Justice; If he had said it was for the public good that Mr Nelson should devote bis whole time to the affairs of the Bank, and could have shown it, which is a very different thing, it would have been on- tirely different.

not only addressed his charge to his clergy, but sont copies to the local papers. It was decided, that quite apart from the question

Mr Francia: But if the Duke of Wel- whether what he alleged in his charge were lington stayed so long at his Club day by true or not, he was justified because he had day that his duties at the Horse Guard acted in self-defence, because what he had ran a great danger of being neglected, it said was in auswer to an attack first made was then a fair question for public discus- on him by Mr Laughton, that the occasion sion, not what the Duke did at the Club, and communication were privileged. Now but whether this state of things should in he came to the third and fourth paris of the the interest of the public service be allowed lotter. His learned friend had admitted that to continue. were there a word of truth in any imputa tion that may have been made, as to the propriety of certain transactions between Mr Nelson and Mr Heaton, or with regard to his traffic in shares generally, Mr Nelson would be unfit for the position of high trust he held here. His learned friend therefore admitted that it was for the benefit of the public that such a discussion or enquiry as Mr Pitman's letter auggested should take place. He should ask his Lordship to direct the jury that the Clar tered Mercantile Bank was a public institu- tion, chartered and privileged in this Colony; its Managers publish accounts not merely for the shareholders, but for the public, and they were circulated all over the world. He submitted that the proper management of the local Branch of that Bank was a matter of public interest to every person who might be a depositor, who might hold the nutes of the Bank, or who was in any way interested in the trade of this Colony; he was interested in seeing the Bank pros perous and seeing that its local Branch was properly conducted,

Mr Francis continued to urge the point of the public acts of a public man, the head of a public Institution, being a fair and Ho proper subject for public discussion put it that it would have been quite lawful and proper for auy one in the beginning of 1879, when there was almost a panic in the Colony in consequence of over-speculation in shares, when numbers of persons were ruined, when there was very great depres- sion in the Colony, when so many then and in the latter part of 1878 were wrecked on that over-speculation, it would then have been a perfectly fair question for discussion, to be initiated by any one in the public press or by the editors, whether the managers of any of the public Institutions in our raidst had taken part in that disastrous speculation which was sim- ply nothing else but gambling on a gigantic The Chief Justice remarked that what scale. The existence of very large and ex- Mr Francis said about the Laughton fair matter for public discussion. Every tensive over-speculation in shares was a very import- ant so far as the first two paragraphs member of the general public was so far interested in this question that he was en- of the alleged libel were concerned. There were now, however, the questions of titled to discuss it. The editor or proprio. these references in the letter to the affairs tor of a newspaper had no more privilege of Mr Heaton and the suggestion of Mr in such a matter than any gentleman in the Nelson having been a trafficker in shares to one that an editor might have made the box or any one cutside. That subject was the neglect of ble business.

subject of a series of articles. He would Mr Francis said he submitted that they have been quite justified in putting forward were criticisms only of Mr Nolson as the the question whether the manager of a manager of a Chartered Bank, which he Bauk should be allowed by his Directors, submitted was a public institution, the whether it was politic or otherwise from public acts of its manager being a fit sub-a public point of view, that he should ject for public discussion.

be allowed, to speculate in shares and

Sodor and Man case was

The Chief Justice said, the learned cous-other concerns on his own account. It sel must connect the acts first with the pub- might be taken to be proved that be lic capacity of the Bauk Manager. The did not gamble in shares. It might be General at the head of his army, the Admi-a most respectable and legitimate busiu cas, ral in command of his fiest, the Bishop in but it was equally a fair question for dis his diocese, or the Judge on the Bench, cussion; were his hands perfectly clean the were proper subjects for public critician, same right remained to discuss this ques- but their private acts were not so amenable tion whether the directors should allow and their discussion would not be justified. their manager to engage in traffic in shares

(41)

on his own account, And if it was a ques. Heaton there was nothing whatever in ttoa for fair discussion by the public, it them, so far as they knew, to reflect on was much more a subject for the direct him in the slightest. It was not their ors who had it in their power to put a stop intention to justify what would be the in- to it. Mr Jackson, to whom this letter was sinuation of that passage in the letter. addressed, had it in his power to report this But ho defended that portion of the letter matter to the directors, it was his duty in because Mr Pitman honestly belleved it at fast to look carefully into the matter and to the time to be true, and regarding Mr report it to the directors. What had Mr Nelson as the manager of a publle In- Pitman done? He had not as he might stitution bond Ade put it before Mr Jackson, have done rushed into print with his views and Mr Jackson only, believing it to be Mr on this subject. He had not talked all over Jackson's duty to enquire whether there was the town about the matter, but he had anything in it. He admitted that there written a letter about it to a gentleman were certain pasanges in the letter de just arrived a couple of days before, who famatory, but for these be claimed privileged had the right and power to enquire occasion. The question whetbor the oo thoroughly into this matter, and see whether casion was privileged was one for his Lord- there was anything wrong about it. With ship, and it was for the jury to say, if this regard to the charge of buying and sell was a privileged occasion, if there was that ing shares, which was simply what traffick-proof of express malice which took that ing in shares amounts to, be simply sug privilege from him. First, however, there gested to Mr Jackson, and through him to was the preliminary question whether the Directors of the Bank, whether it was there was or was not any evidence to a right and proper thing for the Bank go before the Jury as to the malice to allow their manager here to do. Mr or otherwise of the writer. There was he The Pitman bone fide believed that it was a fair contended no evidence on the matter. subject for discussion, for consideration letter was not, he submitted, one that had and for enquiry. That being so, and he been written to make mischief but a having addressed the letter only to Mr bona fide business letter suggesting certain Jackson and to the Board of Directors, enquiries in the interest of those to whom he contended that it was no libel, the he wrote. Ho suggested nothing wrong or writer being privileged in communicating irregular in Mr Nelson's conduct as Manager with those parties who were interested in of the Bank. Mr Francis then referred to the subject matter. He went to those the authority of Starkie on qualifiedly who wore best able to know their own privileged communications, p. 508, where business, and simply called their at-legal, social, or moral duty called on them; tention to the wisdom of consider that privilege covered the letter to Me ing the question; whether their agent Jackson which Mr Pitman wrote, it being should devote his whole time to the bis interest and his duty, accordlug to his interests of the Bank and not engage view to do so, with the belief he had in him as in outside transactions. The Banker's to the truth of what he wrote. Even if Mr confidential position, the trustee to some Pitman were a volunteer, even then he was axtent of the depositors, the financial in the same way protected. Ji he believed advisor of half the people of the Colony, in the truth of what he stated he was cognisant of the affairs of all the custom- entitled to a verdict of not guilty. Ho ers of the Bank, should be allowed to deal quoted from Starkie again to show that In shares and do other business outside express mualice had to be proved; it was the Bank,—that be should make such a not sufficient that the balance be even ; suggestion could not be taken in any way there must be more evidence consistent as a libel. Mr Pitman was interested in with the belief that he is guilty of malice the trade of Hongkong and Japan, he than that he is innocent before the ques- was connected as advisor with the opium tion could go before the jury. In addrees- farmer, and as a resident here he was in ing his arguments with authorities mora terested in the subject matter of the let particularly to his Lordship with whom the ter and was fully entitled to the benefit question lay, Mr Francis referred to the of privileged occasion. Mr Pitman was futter as a confidential communication. privileged in the lotter he wrote if he Elle Lordship could see nothing of that believed it was true and apart altogether nature in the letter. It was not marked from the question whether it really was private or confidential. He had written true or not. In justice to Mr Nelson it many letters which had been pablished at was only due to Mr Nelson to say that so far once. Mr Jackson showed his appreciation se Mr Pitman knew, so far as anybody knew, of its confidantial nature by handing it whatever transactions he had with Mr over to Mr Nelson,

بزرک

it

417