The publication being admitted, Mr. Williams opened the defendant's case. He did not deny that Fawkner's letter was libellous, and that he was bound to substantiate the pleas filed by the defendant. The latter had done only what he believed to have been his duty—not in gratification of any private or revengeful feeling, but purely for the public good. He acted only as he thought an upright man should do, and was prepared to justify his act.
Mr. John Bear, sen., of the firm of Bear and Son, cattle salesmen, deposed to having spoken to Major St. John about some cattle he had sold on a run in the Western Tier district, which he wished to have transferred to the purchaser. St. John objected that M'Cracken, owner of the sold cattle, never had a run there; the place was only held by some sawyers, and there never was a run there at all. Witness rejoined that as agent he had sold a run with cattle there, and unless the run was transferred, the sale would be void. St. John responded that he could not help it, but he would not give a transfer. Witness then said that he would, if it could be arranged, advise the party to pay any reasonable expenses, whereupon St. John brightened up and asked, "How much could they afford?" Witness answered, "That M'Cracken was a poor, industrious man, with a large family, but he yvould recommend him to pay a couple of guineas." Nothing further passed at this interview, beyond St. John saying to the witness, "Tell your son to come to me and I will define the boundaries." This occurred at the end of May or beginning of June, 1845, and though witness did not see any money paid to St. John, he believed it had been. He had acted as the agent of M'Cracken, whose cattle with right of pasturage he had sold to one Lalor, and on subsequently seeing the purchaser, he was informed that the run had been duly transferred by the Commissioner of Crown Lands, so he was satisfied.
Mr. John P. Bear gave evidence of having communicated with plaintiff in June, 1845, with reference to a run, and accompanied him to the place, when a sum of two guineas was paid to the plaintiff on account of Hugh M'Cracken. Had no recollection of paying the money on account of Lalor. This witness produced a cash book of the firm of Bear and Son, containing the following entry:— "18th June, 1845, paid Major St. John for assigning boundaries, £2 2s."
The plaintiff having testified to his holding the appointments of Commissioner of Crown Lands and Justice ofthe Peace, James Lalor swore to his getting a run in the Melbourne District in June, 1845, from the plaintiff, to whom he directed Mr. Bear to send a cow and calf, for which, however, he was subsequently paid by another cow and a cheque. On the 13th May he bought a station and some cattle from Bear, of which he got possession, and the license had been transferred to him.
Major Charles Newman deposed to being in occupation of a run at South Yarra, and towards the end of 1844, or commencement of 1845, the plaintiff called there and they went over the boundaries to settle them. Witness had a grey horse named "Ginger," which seemed to take the Major's fancy, and, accordingly, the steed was lent to him. Some months after, at St. John's request, another horse, known as "Jacky," was given to him, for which witness was to receive a filly in exchange, and a receipt was duly signed and delivered in consequence of the handsome manner in which plaintiff had acted about the run.
Mr. Lewis Clarke gave evidence to having, at the request of one Oliver, handed to Major St. John two sovereigns rolled up in a piece of paper, why or wherefore he knew not; but never gave the Major any money on his own account.
Thomas Bulman, a porter in a wine and spirit store, declared to having just before Christmas, 1847, delivered at the residence of Major St. John, in Brunswick Street, (now) Fitzroy,[1] a basket-full of champagne. He did so by direction of Mrs. Kavenagh, whose husband kept a public-house known as the Brian Boru. Mr. James Kavenagh, the landlord referred to, on the other hand, declared he had never authorised his wife to make any such champagne present, and offered to explain, but the Court rejected the proposed explanation as irrelevant. On cross-examination this witness admitted to his wife having sent a champagne Christmas-box to the wife of the Major; but witness was not at home on the day when this was done. Mr. Kavenagh's modee of giving his testimony was described as being strongly tinctured with non mi ricordo-ism.
- ↑ "Blakemount," now the residence of Dr. R. MacInerney.
