1881-08-27 — Page 5

SUPPLEMENT TO THE

THE "TELEGRAPII” LIBEL CASE,

This case again came on for hearing yesterday before Mr. Justico Russell and a special jury, consisting of Messrs. H. G. James, J. A. Mosely, and S. G. Bird.

HONGKONG. TELEGRAPH.”

HONGKONG, SATURDAY, AUGUST 27TH, 1881. .

diction enses without the intervention of a solicitor, and therefore having the right to see witnesses in every case, The Judge's permission was required to call evidence to contradict, but not, he submitted, to ask the preliminary question,

The Judge allowed the question. Examination continued Did ho give you any particular reason for his asking you to send the draft agreement under a cover ?-He may have given me a reason, but I have forgotton it.

Dia you state to Mr. Robert Fraser- Smith and myself that he gave you a special reason for asking that the docu- ment ho sent in a cover?-1 think I may have done so. If you mention what you believe I said I should ro. member it.

Mr. Francis asked permission to put the question in full. Did you state so and so?

Mr. Hayllar objected. The witness was not hostile.. He was unfavourable, but not hostile.

The Judge asked whether Mr. Francis was prepared to contradict the witness if his answer proved to be against him.

Mr. Francis said he would reservo the right to ask permission, at the con- clusion of his evidence, to contradict the witness.·

Question allowed.

Examination continued :—Did yon tell Mr. Robt. Fraser-Smith and my- self that you were to take care that the letter did not go to Mr. Robt. Fraser- Smith as he was a very bad tempored man?-Mr. Wicking said not to let the agreement go to Fraser-Smith as there was no uso.

J. J. da Silva e Souza, éxamined by Mr. Francis deposed :--I carry on business in partnership with Mr. Lubeck, as Sonza & Co., as printers and publishers. 1 havo been in the business since 1876, first with my father and then with Mr. Lubeck. I had some proposals made to me in May to print a newspaper called No, They failed. I then had a proposition from Robert Fraser-Smith. Soine time between the 2nd and 7th June I first saw Mr. Wicking about this matter. I had no papers at all then, no agree. ment. Mr. Wicking first came to me in my office between 7 and 8 o'clock. Mr. Wicking had no printing or other business that brought him into the offico at all, then. He had no special business to bring him there then. Ile did not come at my request. He asked me--"Are you going to print the Telegraph I had not spoken to him at all before that. I had once or twice applied to him for advice on business matters. I have not been in the habit of applying to him. This was before the Telegraph was spoken of. When hered ine whether I was going to print the Telegraph, I said, I am not sure yet, some of my friends have advised me not to do it." Mr. Wicking said," I also advise you not to print it." He asked me first whether it would interfore with my ordinary business to print the paper. I told He advised him I was not quite sure.

Examination continued-It was the me to be careful before entering into second agreoment that I sent to any contract, so as not to lose any him. I think I got it back on the money by it. He mentioned Mr. same day. He handed it to me per. Fraser-Smith's name, but only in this sonally, in my office. I got from Mr. way" Are you to print the paper for Wicking this letter of June 7th. That Smith ?" Mr. Wicking said, I think, was the lotter I got after I wrote to that I might consult him on the matter. Fraser-Smith. When Mr. Wicking I can't swear, whether he said anything brought mo back the draft contrack he about the papers. I am not sure who told no he had shown it to Mr. Bain ther I did not first ask him whether I who said it would cost over $100. Mr. might consult him. I afterwards did Wicking then strongly advised me not consult him. Mr. Wicking came to to agree to it. I drafted the letter of 7th the office one morning on some busi- June myself, no one dictated it to ne. I ness of his own. I told him then vo. think I must have sent that on the Oth luntarily that I had got the draft agroens Mr. Wicking's letter is dato:l the 9th ment and asked him if he would be kind enough to look over it. He rʊ- plied that he was very busy then, but that if I sent him the agreement under cover he would look over it. This was on 5th or 6th June. I don't know that he gave any reason why it should be sent under cover.

Have you said already to Mr.Fraser- Smith and myself that he gave you a certain reason for sending it under cover ?-He asked me not to mention that he was advising me.

Mr. Francis-Have you said already in another place to Mr. Fraser-Smith and myself that he gave you a specific reason for asking that you should send it in an envelope?

Question repeated-Yes, I told you so.

(this letter turned out to be dated the 7th). The leter sont to Mr. Fraser- Sinith was drafted by myself and sab. mitted to Mr. Wicking who male an alteration, Mr. Wicking went away and afterwards sent for mo and asked if I hat sent it; I said I had. He then told me he was going to write a letter I could show to Me Fraser-Smith. This ho did and handel it to me. Mr. Frasor-Smith's offices are in the same house. Nothing had been gail about Mr. Bain before the agreement. The words. Mr. Wicking added ware that the cost would be quito $400 a month to produce the paper. I had made an. estimate before this, and had into

gone particulars. I had Mr. Franco's assist- Mr. Hayllar objected to the question. ance. He is my foreman printer. $200 This witness was put forward as the was estimated to be the outside cost. In witness of truth, and on his evidence that was included rent to the amount of might depend the whole case of the $25. Iafterwards reduced the estimate defendant. He objected to this wit. to $150. This I thought would cover ness being cross-examined until it had all the expenses. The statement pro- been shown that he was a hostile wit-duced is a correct one for the production of the paper in July. That did not Mr. Francis said that one of the pur- include rout. The room occupied by poses of the question and one of the Mr. Robert Fraser-Smith was form objects of its being specially allowed erly spare room occupied by com- was to enable the examining counsel positors. The occupation of this room to show that he was a hostile witness puts me to no personal inconveni- and was behaving as such. The learn.enca. I have engaged no new men. od counsel quoted from the Common The other hands help for an half an Law Procedure Act that a question hour or an hour, as a favour. This costs might be put to the witness whether nothing extra. I saw Mr. Wicking on he had not before made a different statement, and such particulars and conditions might be put forth in the -question as to enable the witness to judge of the occasion on which it was suggested that he had done so. The Docasion of which it was sought to re- mind the witness was when he was in his (Mr. Francis;) offico with Mr. Fraser-Smith, and when he (Mr. Francis) took down de Souza's ovi. dence.

ness.

Mr. Hayllar said barristers novor saw witnesses. He never heard of such a thing.

Mr. Francis said his hon. friend had seen witnesses himself. He knew cases of it.

Mr. Hayllar+No. Never onco. Ne ver to take down their evidenco. *: Mr. Francis insisted on his right as a barrister to act in Summary Juris

the morning of the 2nd August, it was about 7 or 8 o'clock in the morning. The paper was not printed at that time. Mr. Wicking sent his boy for me. I was not in the office at that time. The compradore told me, and I then went over to Mr. Wicking's office. He told me that be laul heard that an article against him was to be published that day. He gave me to understand that he was going to reply. I had not communicated to him that that article was going to be published. Mr. Wick ing said that Mr. R. Smith had told him. I believed that Mr. R. Smith told me that he had told Mr. Wicking. Mr. Wicking asked me to write a let tor to him and drafted á lotter for mo to copy, and that draft was destroyed by Mr. Wicking in my prosonice. It contained a statement that I was losing heavily by my contract, and that I

conkl not afford it, since I had a large late father's private and business pa- the printing department. I am now family depending on me, they num- pors before me. I did tell Mr. Wick on the Honghong Telegraph. I have bering about twenty orphans. Thong that my father had a very great ben about a week there. (Mr. Wick letter mentioned about the cost of the objection to printing a newspaper being's estimato put into witness's hand.) paper. I am not sure what amount cause he had lost $11,000 by the Echo | Is the first place I should say the $50 stated. By the writing of this lotter do Povo. Ho got into a libel suit and for paper is excessive. The paper Mr. Wicking told me I would derivo it cost him $10,000. You know all used in the Telegraph in regard to much benefit. I did not then do so, about that; you made $5,000 ont of it. weight and quality ought not to come I told him to love it and I would I know nothing whatever about the to $50. The gas would be not $35, think over it. I showed it to my part-law of libe; have not the least idea of but $5; coolios $24-I don't know ner, Mr. Imbeck, and did not show it it. I do not know anything of the anything about that. I don't under- Mr. Franco. I remainol in Mr. Fraser liabilities of a printor in the caso of stand the meaning of printing $150, Smith's room during the whole of that libel in a newspaper. Wo (Mr. Wick. I would understand by that turning day.

ing and I) discussed the Echo do Povo. the machine. When a man in tho said my father was very greatly pre-machine department was sick, and an- judiced, after he lost so much, against other wanted, 20 cents was paid in the undertaking the printing of any news- Daily Treas. I believe that, including paper whatever. I also said that some composition and machino work, the. of the members of my family whom I cost would be half of this estimato. had consulted, and a few people out of Cortainly I never saw an estimate put Hongkong, advised me against having together like that. I can't conceive Mr. Hayllar-Be careful.

anything to do with the printing of the upon what data it has been based. Tho Witness-I did not wish to mcot paper. Mr. Wicking and my father item paper for proofs, $25, is extra-

vagaut; $2.50 at the outside.

Mr. Hayllar objected to this kind of evidence, and Mr. Francis replied that Mr. Wicking was in a state of great excitement on this day, urging this man to sign a false and lying letter for the purpose of doing injury to Mr. Fraser-

Smith,

him.

Mr. Hayllar Shame. Mr. Francis-There is no shame on Mr. de Souza's part. We shall soon find out where the shame is..

knew each other for many years and 1 believe they were friends: they were on very friendly terms. Long before the inatter of this paper came up, Mr. Wick- ing and I had met a great many times, Examination resumed-I heard that and ho has all along taken a kindly in- Mr. Wicking sont twice for me: I saw terest in my affairs, whenever he met mo him after six. I was in Mr. Fraser-ho asked ing about my affairs. I had Smith's room. Mr. Beale was with me. When Mr. Wicking cune to me he was excited.

Mr. Francis-Dil Mr. Wicking have any talk with Mr. Reale before ho spoke to you ?

Mr. Hayllar- I nhjeef. Witness-Yos. Wicking and myself

went down below.

Mr. Francis submitted that as they alleged the truth of the article, the allegation was that there was an appea- rance at least of conspiracy to do certain acts, and any act up to the trial would go

the confederacy.

to prove The Judge allowed the question subject to the objection.

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His Lordship said it was probably the displacing of a decimal point.

Witness-A pound of ink would print tho Telegraph for a week, and good newspaper ink can bo landed in this Colony for 1s..a pound; $1.50 would do at the outside; circulars, I know nothing about. Petty charges and use of type, blank.

His Lordship They could not be loss.

It

uot made up my mind the first time he came up. When I gave him the agree. meut I did not show him the corres- poudence with Mr. Fraser-Smith, I

Witness-I would not undertake to was present at the interview on the 7th. I had written a letter to Mr. | do it for $150. If 1.were a printer I Wicking that morning, asking him to would print it at $200, at which figuro oomo and see tuo, and in it I told it would pay. This statement (do him that Mr. Sinith had been threaten-Souza & Co.'s momo. of cost) includes Mr. Hayllar objected to a questioning mo with a suit. I was a little all the cost of the Telegraph. I had a as to what happened between Mr. frightened and wanted to see Mr. Wick- conversation with Mr. Robert Smith Wicking and witness down below after ing so that I might have this advice. on the subject of joining Mr. Fraser- publication of the alleged libel. On the following day I wont to Mr. Smith. I do not remember the

Francis and he draftol me the letter date.

was at night in tho which I sent to Mr. Fraser-Smith. I Hongkong Hotel. Mr. Robert Smith copied Me. Francis' draft and signed said that certain advertisements, were it. Mr. Francis recommended that the "dummies" or "bricks." He said they for six details should ho referred to him. I were to remain "bricks" sent the letter to Mr. Fraser-Smith. I months. I told him I did not think did not say anything to Mr-Fraser- that likely, as advertisements were the Smith before the letter was sent. I back-bone of a paper. In confirma- Examination resumed-Mr. Wicking told him afterwards when he catne. Lo tion of this ho said lie had heard it stated asked me to return the draft. He did my office; he said I was bound to do! by the principal of one of the firms not again ask me to sign it. I return- the work. I referred him to Me. in the China Mail office. In conscquenco ed the letter and he destroyed it. He Francis. When I wont with Mr. of this I spoke and afterwards wrote remaine for some time. He was Fraser-Smith, we took a draft with us! to Mr Fraser-Smith, wishing to bo speaking to himself. He was in a there aro peaci! marks on it in Mr- satisfied as to this, as. I did not think somewhat excited state. He did not Francis' handwriting. Mr. Fraucis is it would be profitable to join a paper ask me to do anything else then. I drawing another agreement for us. I putting in "bricks" for six months." heard him say half aloud that he had have not had any independent legal I have satisfied myself, according to no more confidence in mo. I wrote advice. With regard to the morning the Telegraph books, that it was the paper prolace l'ut the dictation of of the 2nd, I am sure Mr. Wicking sont aboslutely false. I also mentioned tho Mr. Wicking, (The letter stating that for me. It was not on the 2nd but the statement mado to me by Mr. Robert

·Mr. Souza bid first asked Mr. Wicking 9th that Mr. Wicking was engaged Smith to the principal of the firm, Mac- to look over the agreement.) I see with a Chinese gentleman an I spoke to Ewen, Frickel & Co., and he said it was the word consequally at the end of the me on the landing, saying he enald not lotter is struck through. Me. Wicking seo mo. As regards the secon article wished me to express an opinion about which concernel Mr. Wicking, I did the articlo. This I refusel to do. This not refuse to pablish it. I have no was written on the evening of the 2ad such power. I had thought of taking August, on a secoul visit by Mr.legal advico, but ultimately did not, Wicking. I asked me if I romamber I wont to Mr. Francis office, but he el that I first askel him to look over was not in. At may request the article the agreement. I said I did. He was with Irawa. I am printing the askod mo then to write a letter stating paper now without any romanoration. this.

I have sail I saw Mr. Wicking yester. day maing. He told me I should not be afraid to come to Court, and not to fail to appear; the eas was fixol for 11 o'clock. As a matter of fact I have absolutely refused to give your side any information about the

Mr. Hayllar objectol to a question as to whether witness had myle a different statement to Mr. Fraser- Smith, as conversation between these two gentlemen was utterly inadmis. isble. There might be a conspiracy be. tween them for all he knew.

Examination resumed-I signed the letter willingly and handed it to Mr. Wicking. I was somewhat frigh. tonel, but I gave it willingly. Mr. La- beck was not present while Mr. Wicking was talking in an excitod mánger. Mr Wicking sent for mo on Sunday the 8th.

case.

Bo-oxamined by Mr. Francis-The conversation on the occasion when Mr. Wicking called on me between the 2nd and 7th did commence with the quos tions as to the Telegraph.

To the Court-When I went to Mr. Wicking on the morning of the publi I want to see him on the Monday, location of the article, ho did not blame spoke to me about another article to be mo for publishing the article; he did published. I asked him who told Lim, not ask me to stop it, nor did ho say it and he said Mr. Bain. Sines this action was libellons. Mr. Wicking has not has commenced Mr. Wicking has been advised me before, about entering into to me several times. He talked of any contract about printing. I only matters quite irrelevant to this case. consulted him about the affairs of the He did speak about the caso. He talked estate of my father. My father died in to me about the caso yesterday morn.

October last your. I did. not take an ing. When I agreed to print Noon, active part in the business, although I Mr. Wicking never came to me with was an assistant to my father since an offer of his advice. My estimate for 1876. Lubock was not a partner till Noon was $150 and $25 for rent of some time after my fathor's death, room;

but I agreed to keep their books My object is not to make any money and collect all their accounts for this out of the paper, but to give Fraser- Smith a fair start, and I wrote to him that, I want the paper not to bo taken out of my hands, whon it comes to be, a success, but that frosh arrangements aro then to be mando as to the prico.

sum.

Cross-examined by Mr Hayllar. With the exception of a few months' interruption, whon I was at Pustau's and at the Cosmopolitan Dock, I havo boon connected with the printing basi- noss since 1876. I am quite a young man; 21 years old last Juno. When Mr. Wicking came to soo me on the ovoning which has been already ro- forrod to, I had a large number of my

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The Court then rose for till. Op rosuming, James Ellacolt Beale doposed-I am 4 printer; I have served the usual 7 years, in all about 30 years. I have boen on the Daily Press for about six years, as manager of

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not true.

Cross-examined by Mr. Hayllar --- The Shanghai Mercury is larger than the Telegraph, printed on better paper, and consequently would cost more to get up.

Mr. Hayllar sud that their estimate was founded on a paper the size and form of the Shanghai Mercury, which was a much superior paper..

By Mr. Francis-It might bo tho, same size and form as the Shanghai Mercury, although it were set in larger typo.

Mr. T. Marr-I was the reporter of the Telegraph from the time of tho start up to a week ago. I liave road. the article hended "personal," in which it is stated that Mr. Robert Smith had stated something to Mr. Bealo. Mr. Robert Smith told me he was not to reply to Mr. Fraser-Smith's letters until he had slept over the matter and consulted Mr. George Murray Bain.

Mr. de Souza (recalled)-I showed no other draft to Me. Lubeck than the ono in question.

Mr. Jamos (a juror)-Could wo see a list of the subscribers to the le- graph to settle the 50 copies question?

In answer to the Judge, Mr. Fraser. Smith said he would be most happy to produce the book, and left the Court to bring it.

Mr. Francis said he would object to the other side sceing the list, but his lordship replied it could not be admitted unless it were shown to all parties. It was ultimately admitted.

Mr. Lubock (recalled)-I have only a faint recollection of the draft. There. was someting abqat orphans in it.

By Mr. Hayllar- Mr. de Souza has a number of relativos, women and children, deponding upon him.

This closed the defendants' caso, aud Mr. Hayllar opened the case for the plaintiff in a long speed, which we rogrot wo are unable to reproduco. The Court was ultimately adjourned until 10.30 this morning.