1881-08-29 — Page 5

THE "HONGKONG TELEGRAPH."

SUPPLEMENT TO THE

THE “TELEGRAPH”. LIBEL CASE.

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

On the opening of the Court, Dr. Eitol- asked if he might leave. He said he had been subpoenaed and had been in attendance for nearly two days. Mr. Hayllar said Dr. Eitel had been informed that if he were wanted he would bo sent for; there was not the slightest necessity for his remaining,

but the case at one time took a turn which he thought might render it ne- cessary to take Dr. Eitel's evidence.

Dr. Eitel said a statement had been made which had been contradicted on oath, and he would like to have an op- portunity of contradicting it also.

His Lordship said Dr. Eitel could not volunteer evidence; if he was cal- led he would have the opportunity ho desired.

Mr. Hayllar said he did not know what Dr. Eitel had to complain of There had been no evidence given against Dr. Eitel, or the Governor, or any one else outside the case,

His Lordship said probably Dr. Eitel had seen that his name was mentioned at a certain part of the case.

Dr. Eitel said the implication was that he had done something affecting the character of a public officer and that was a serious question affecting his character, and he would like to have an opportunity of contradicting it

on cath.

His Lordship said that had nothing to do with the question, and he could not call Dr. Eitel.

HONGKONG, MONDAY, AUGUST 29TH, 1881.

and 3rd June it was common talk that Mr. de Souza was going to publish the Hongkong Telegraph, at least I heard it. I called at Mr. de Souza's office one evening about half-past six, and saw, Mr. do Souza. He was not alone; there were two or three gentlemen present. He was at his desk. I said, De Souza, I hear you are are going to print a paper; is that so ?" He said, Yes, I did intend to, but I shall not do so now, because all my friends advise me not to do so," I thought he spoke this in an unusually decisive manner. I said, "You certainly should bo very careful before going into such a thing." He replied, "Yes, my father lost $11,000 when printing the Echo do Povo; he was sued for a libel." He then took from his desk a somewhat large bundle of papers, making the alluding of course to the Echo do Povo. remark, "These are some of the papers,"

I did not road them. Ho stated that Sir John Smale had taken some of the papers home for the purpose of getting him some assistance from a society at home.

His Lordship said it was unnecessary to go

into that. Examination continued-That is every word that took place about the Telegraph. I did not seo Mr. de Souza again until tho 7th, when I called to get some visiting cards printed. As I was leaving he said: "Will you be kind enough to look ever an agreement ~hich Mr. Fraser-Smith has sent to me

to sign." I said "I am too pressed now; if you will send it to my office I will do so with pleasure when I re- turn." This was about half-past ten. Thati s all that occurred; I was too busy to stay. I deliberately say it is untrue that I said Mr. Smith had a bad temper; Mr. Hayllar saidhe did not know I suggested sending it unter cover as what statements had been made affect- an ordinary business precaution, but ing Dr. Eitel. He had not mentioned neither Mr Smith nor his temper enter- him in his address and did not intended my head. He had never shown me to do so; he had made not the slight any temper; we had always been good est reflection on him.

friends. The document produced is His Lordship said he had seen noth-the agreement that was sent to me. ing that affected Dr. Eitel's character adversely; and if that was all Dr. Eitel wanted, and if neither side wanted his evidence, he would not be required.

Mr. Francis said Dr. Eitel's name was mentioned by him for the purpose of clearing up a doubt whether he could by any possibility have had any. thing to do with the matter they were. talking about.

His Lordship said it seemed to him that matter was somewhat outside the question; and he thought it a pity to drag in Dr. Eitel's name and mix him up with a libel of this kind,

Dr. Eitel said he had received in- structions from the head of the Gov. ernment that he should give all infor- mation about everything that transpir- ed, and for that reason he reserved bimself in readiness to lay all matters before the Court.

Mr. Hayllar said it was to be assum- ed Dr. Eitel would not come there to state untruths. It was not necessary for him to defend a character that had not been assailed. His charactor had not been assailed nor was there the slightest suspicion he would not give

information if he were wanted.

His Lordship said Dr. Eitel's object in making the remarks he had was to get away, and he could go.

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I then said, "Do you remember my coming to you on the 7th about some printing, and you asked me if I would look over an agreemont and I satd I would do so if you would send it to my office." He said. I now woll re- meraber it." I then said "Under these circumstances I should like you to give me a letter to that effect." Ho ex- pressed his willingness by at once commencing to write it. He wrote a word or two and then stopped as if to think, and as he seemed not to have facility in expressing himself I dictated the letter. After he had writton it I said "Do you give me this willingly," and he said he did. Mr. Lubeck was present at the time. The letter is ab- solutely true in every respect. I asked him to give me back the memo. I had given him in the morning. I did so confidence by allowing my letters to because I thought he bad abused my fall into the hands of Mr. Frasor-Smith and then to be abused, and I did not feel disposed to trust him with any confidential advice such as I had given him before. This circumstance had. entirely.escaped my mind until I heard Mr. de Souza's evidence and had 'I been asked about the memo. I would have said it never existed, but feeling sure he would not tell a lie I thought my memory must be at fault and after thinking about it I remembered the circumstance. Mr. de Souza told me he had fourteen persons to support; his father told me he had eighteen. I had nothing to do with the article in the China Mail which has been refer- red to, nor had I anything to do with the rumour about the number of copies the Governor took. I had nothing to do with all that is stated in the article about Mr. Robert Smith and the dam- any advertisements. I did not know

about that until I saw it in the paper. I have not been engaged in carrying on a systematic persecution of Mr. Fraser-Sunith. I have only seen four copies of his paper, three of which were in reference to myself. Until that ar- ticle appeared I did not think be bore me any animosity, and on the 25th June at the hotel I spoke to him on the footing of a friend. I did not con- spire or confederate in any way with Mr. George Murray Bain to stop the publication of that paper. The thought never entered my mind of doing so. 1 have never in any degree assailəd Mr. Fraser-Smith's character. I had never had a quarrel with bim or an unkind word. I saw Mr. Souza on the tuorning the trial commenced. I mere ly called on him to remind him to be here at eleven o'clock and said "You

need not be afraid," or something of

that kind.

By Mr. Francis-I had no business with the elder de Souza except sending him expresses and printing and cor- recting the proofs, and he bought a good deal of stationery through Lane, Crawford and Co. On the evening of the 2nd June, I had no business with Mr. de Souza; I simply called in to ask if the report about the Telegraph was true. I knew the project was in contemplation to start a paper called Noon. I did not tender my advice on that question. On the 15th Mr. de Souza asked ne if I would kindly look over an agreement. Ho did not tell me anything about the details as I had not time to stay and listen. I did not tell him that Mr. Fraser-Smith had a bad temper and not to let him know that I was advi

found it on my desk when I returned. I have no knowledge whatever of printing or publishing myself. I read the agreement carefully myself and then determined to ask my friend Mr. Bain about it, and I took it immediately to his office. I said to him: "Young de Souza has sent me an agreement which Mr Fraser-Smith wants him to sign. I shall be glad if you will look over it." I also said, "You know he has some thirteen or, fourteen women and children depending upon him, aud if he can make anything out of it it will be a good thing for him." Mr Bain said "I knew old de Souza very well, and if I can do anything for his son I shall be glad to do so." He then read the agreement, and then said he could not print it for less than $350 or $400. That was for a paper the size of the Shanghai Mercury. Mr. Bain added, "I should be sorry to see him undertake it for that." He did not go into details, and that is practically all that occured. I then went back to my office and wrote the letter which has been put in. (The letter in the Telegraph). Mr. Bain is. not responsible for the exact items mentioned in the postcript. I sent for de Souza, told him the purport of what Mr. Bain had said, and I gave him the letter telling hita he could show it to Dr. Eitel then left.

Mr. Fraser-Smith, but of course I did Plaintiff was then called.-Ho said not intend it for publication. Mr de -I am a merchant and commission Souza was excited and appeared to be agent carrying on business in this under fear of a threat which Mr. Smith Colony, and have been so for about had held out to him. I recommended nineteen months. Nineteen-twentieths him to make a note in his pocket-book of my business is with places outside of the gentlemen who were present at the Colony. I was formerly employed the time. On the same day I received in Messrs. Lane, Crawford & Co.'s store, a letter asking me to go and see him, and was in that service twelve years, as Mr. Smith had threatened him with For some years I had almost daily an action. I wrote the short answer business with Mr, de Souza's father and on it which has been published. we were on very friendly terms. He About four o'clock I wont to see him. was a printer and publisher. The Mr. Smith, Mr Lubeck, and some character of his business was job print- others were present, I went into tho ing. When he died his son succeeded office. I think Mr. Smith-made the him in the business. My office is im- first remark and asked me what busi- mediately opposite Mr. do Souza's. ness I had to interfero in this matter. Since his father's death I have, as Mr. I said it was no interferonco on my de Souza says, taken a kindly interest part, that my advico had been in his affairs. I call to mind three asked, and I told him it was 'occasions on which he consulted me quite impossible for Mr. de Souza to with reference to the business of the carry out the contract for the sum estato, and also about increasing his named. On the day the article up- business. I have not boon in the habit peared, I did not see Mr. de Souza until of visiting his office often except when about six o'clock. I think I sent for I want about printing work of my own. him, but at all events I wont to see him. I have no pecuniary interest in the I found him with Mr. Beale, and China Mail, and never had. I novor said I would like to have a little pri-letter. I think I gave him to under- suid so, nor allowed it to be inferred. vate conversation with him. We then The report that I had an interest in it went down stairs. I asked him if he never roached me. Between the 1st had read the article and he said he had,

sing him. I say those things did not happen. I am speaking from positive recollection; it is not simply that I do not remember them. Ia stating they occurred Mr. de Souza did not speak the truth, I do not say intentionally. I had not his permission or Fraser Smith's to show the agreement to Mr. Bain. I think it was perfectly honourable to do so. I have been on every intimate terms with Mr. Bain. I decline-to-answer the question whether I have not been a frequent correspond. ent of the China Mail; it is purely private matter. I decline to say who- ther I have written about nearly every public matter that has come up for the last six or soven years. I had not had an interwiew with Mr. de Souza on the 7th before the interview at which I gave him back the agreement and the letter. I did not know that between those two occasions Mr. de Souza had writton to Mr. Fraser-Smith his first

stand that the figures in the postscript were what wo thought together, Ät the timo Mr Bain road the agreement

look over it. I think the first thing ho aaid to me was that I knew de Souza, father, and I said certainly I did, vory- well. He then said this was an agree ment de Souza was thinking of entering into, would I give him my opinion in a friendly way? I looked over it. I did not give it very long consideration. I don't think Mr Wicking was in tho office more than ten minutes. I asked him to leave the agreement, but bo said he could not. I arrived at the best conclusion I could on the mo-

ment. The conclusion was that the

we had not a copy of Shanghai Mercury before us, but Mr. Bain know the size. I told Mr de Souza he could show the lettor I wrote to Mr Fraser-Smith, but only for the purpose of his reading it. I do not know that I added that at the time. I think Mr Fraser-Smith told me he would publish the letter. After receiving Mr de Souza's letter on the 7th asking me to go over and before the time I went, I sent my boy for him because I did not want the trouble of going to him. That had escaped my recollection yesterday. The same even. ing I went to Mr de Souza's house and thing could not be done as a paying had a conversation with him. I don't job under $350 or $400, that was remember saying that if Mr Frasor- supposing it to be a paper like Smith took legal proceedings I would the Shanghai Mercury. Supposing I give evidence for him, but I might have wore a job printer merely I would not done so. I did not say I would see

do it for less. I bad rescently had he should not lose by it. I called Mr. occasion to make a similar estimate, de Souza's attention to the risk of libel, which made me more ready to give because it was a common sense thing the figures. That was at offer to to do. Mr. Fraser-Smith did say that print a daily paper in a foreign lan- if there was any loss he would guaranguage. The size was to be a little. teo to pay it. Mr do Souza did not larger than the Shanghai Mercury, afterwards show me a letter in which but the type was to be largo, which that guarantee was embodied. The would balance the cost. In publishing reason I did not do anything in the a newspaper I should certainly chargo matter afterwards was that he told me a proportion of rent. In making an ho had seen Mr Francis, and I said he estimate it would be an approximation could not be in better hands. Mr of what it would cost the man himself Francis had given him a letter and told if he had to start it. In a matter like him not to let Mr. Fraser-Smith know that I should have pat down $50 for be had written it. I did see that letter, rent and $50 for the privilege of having I think on the 8th,

the use of my staff and the whole of Mr. Francis-How wonderfully your the machinery in my establishment at. : memory comes back; you said you did bis command at certain hours. It is not see him after the 7th.

entirely different from other jobs, as it Cross-oxamination continued-Mr. has to be produced at a certain time Fraser-Smith did tell me I was acting every day, and that requires a very improperly in interfering with the affair large staff. In a copy of the Shangai on the 7th, but that was not the reason Mercury, for instance, there are about I did not take any further interest in four columns of a report of the same the matter. I still adhere to my state-day and to get that out you would have ment that I left Mr Fraser-Smith inside to keep a staff which in itself would and that there was no conversation cost $150. The cost of paper I would outside. I may have said I objected to put down at $60 or $70 a month the management of public companies for 250 copies daily. For delivery. by general agencies. I have never said I require myself five coolies at $6. Jardine, Mathesons were great mono- I would not put down gas at so much polists. I may have said they had the as $35. The work would interfere bulk of the business in Hongkong; it very much with job printing if it is a good thing for them they have. I had to be published at a certain would take a general agency myself if time. Mr. de Souza's father printed a I could get it. My rocollection of the paper for me fifteen years ago and he conversation is correct. I decline to say complained very much of that. That whether I have written to the news- paper would have been a success had papers about things in which Jardine, not the editor run away with treasury. Mathesous & Co. were concerned. I did I would not now undertake to print the not keep Kwok Acheong's books. They Shanghai Mercury, for loss than $350 are kept in Chinese. Mr Robert Smith or $400. For the Telegraph as it is I told me the article was going to appear. would probably say $250 or $300. I This was in the China Mail office. I was not influenced in the slightest de- don't know how he got his information.gree by a feeling of opposition to the I have only written Mr de Souza the Telegraph. Mr. Fraser-Smith had two letters published. In saying I spoken to me about it before, and we reproachad him for showing my private were on perfectly friendly terms. He letters I intended to convey that I told me he was going to try the ex-. objected to their being published; periment, and I told him I did not there was no harm in his showing think there was room for a third paper. the letter because I gave him permis-He had been au occasional contributor sion. The memoranda I gave de to me and were on friendly terms. Souza was for a letter to Fraser-Smith, By Mr. Francis-As a matter of not to me. That letter did not state fact, I may have mentioned some of that the paper was costing over $250. these figures to Mr. Wicking, but not It is imagination on Mr. de Souza's as an estimate. Some of them are part that I was excited; I was a little ridiculous. I mean they must have annoyed when I first saw the article, been put down by a man who knew no- but not excited. I do not think I may thing about it. $50 a month I should have forgotten the contents of the let put down as a fair allowance for the ter in consequence of the excitement use of the office-staff and so on. It that has been spoken of. To the best looks like profit, bat is not. The ques- of my belief I had no conversation tion was put to me what is your opin with Mr. Bain about the article before

ion of this agreement. To print the it appeared; we had after. I do not Telegraph as it is, I should roughly say remember that Mr. Bain was present $250. I could not say without going when Mr. Robert Smith told me the into it what profit there would be. article was going to appear, but he gave no detailed estimate as to mes- may have been there. I am sure we

sengers. I supply copies of the China had no conversation about it. Be Mail to the Government Offices. I tween the 7th July and 2nd August the think ten or twelve. Telegraph may have been mentioned in conversation between Mr. Bain and myself, but nothing particular trans- pired. I may have been surprised when I saw the paper first appear, as thought it had been given up. I did not feel sufficiently curious to ask him whether he had got better terms, as he told me he was in your hands and you were going to get him better terms. I had a few words with Mr. Benlo on the night of the 2nd August, in the office.

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By Mr Hayllar--I think it was on the night of the 7th June Mr de Souza told me be had placed himself in Mr Francis's hands.

timate I looked at it as a fair, common- By his Lordship-In making the es-

sense business matter, allowing for a fair profit.

This closed the evidence.

Mr. Hayllar summed up his case, and Mr. Francis replied; after which his Lordship summed up, and the fol lowing questions were put to the jury. The answers are apponded,

1-Do you find that the libel or libels complained of are true ?--No.

2. Assuming that the occasion was justified or privileged, do you find that the defondant printed and published defamatory matter bond fide for the Mr G. M. Bain said-I have been purpose of vindicating himself, or was" publisher and proprietor of the China ho actuated by malice?-Without Mail for nine years, and

malice. altogether have been connected with the paper 3. What damages, if any, do you for eighteen years. I manago the busi-award the plaintiff?...$250. ness entirely myself. On the 7th June His Lordship gavo judgment and Mr Wioking came to me with the certified for the costs of counsel and agreement produced. He asked me to special jury,,