Tuesday, 20 November 2012

Trove Tuesday - More on John Kelly, Dr Eccles and the Port Albert Libel Case.

In the Gippsland Times on the 26 February, 1870 there was further mention of the saga of the letter written to another Gippsland newspaper by "Humanity"

Also highlighted are mentions of the fact that John Kelly's child had died.  
I feel this would be his first born son, John Kelly born 1869 at Alberton.  
I found a birth registration # 19875 but no death registration as yet.

The digitised article is quite hard to read in places so I have copied the transcript below.


THE PORT ALBERT LIBEL CASE. (1870, February 26).Gippsland Times (Vic. : 1861 - 1954), p. 4 Edition: Morning.. Retrieved November 19, 2012, from http://nla.gov.au/nla.news-article61344967



THE PORT ALBERT LIBEL CASE  
 Eccles v. James   
(Before His Honor Judge Bindon and a 
jury) 
    We have obtained a copy of the proceedings in the above case, which was tried in the last Palmerston County Court and resulted in a verdict for plaintiff, damages £25, and costs £13 15s.
    For Plaintiff - Mr Armstrong
    For Defendant - Mr Waldock
    Mr Armstrong briefly stated the case as follows:-        
    The plaintiff Dr. Eccles is a young man, married, ? the world. The defendant James I am informed is well-to- do, being agent for the Gippsland Steam Navigation Company, also commission agent and a landed proprietor.
The cause of action arose as follows:  Some time ago the plaintiff was called upon to attend a man named Nolan for injuries received on his face. Nolan took proceedings against James in the Police     Court for assault and obtained a verdict.
James being fined £3. Nolan proceeded against James in the last County Court and again obtained a verdict; the plaintiff in this case, Dr. Eccles, gave evidence with respect to the injuries from which Nolan was suffering and for which he (James), it appears, took offence and showed his vindictive feeling at this time, and it appears calIed at Kelly's house and used words to this effect - that he (James) had called to see how things were going on, so that he might have a slant at the doctor; that he, the doctor, was a damned young rascal ; that he went into the box and perjured himself when he said he broke Paddy Nolan's jaw; that if he had the damned young scamp near him he would like to serve him in the same way; that he had only blackened Nolan's eyes, and that he should have it in for him (the doctor) as long as he lived.
These being the circumstances of the case,  he considered himself bound to bring the case before a jury of his countrymen, and vindicate his professional reputation. I will prove these statements by reputable witnesses and if such be the case you will, I am sure, agree with me in saying that the latter is one likely to injure the professional reputation of my client James Howard Eccles, sworn, deposed:
I am a surgeon, and the plaintiff in this case;   I received my qualifications from the College of Surgeons, Ireland. I am the only medical practitioner in this district, and the   person referred to in the letter signed "Humanity," which appeared in the Gippsland  Mercury, dated Port Albert, November 30th, 1869. I have resided in the district since August 1862, and have left the district twice.
Once on a previous occasion l went to Rosedale; it was for the purpose of being examined (medically) so as to effect an insurance on my life. I have never, at my own request, had any asistance rendered to me by any Government official. (Here the witness explained that Mr. Branford, collector of customs, had been present once, and he then simply held a child while it was operated on) I have complained some time ago to the Hon. Commissioner of Trades and Customs about Branford interfering with me.
I have had no personal quarrel with Mr James before the letter was written. I remember the case of Nolan v. James. I attended Nolan for certain injuries from which he was suffering (I was also a witness in the case at the last County Court). [His Honor here read his notes relative to the evidence given by witness.] I consider the letter likely to damage my profesional reputation. I am a married man. Cross-examined by Mr Waldock.- I am the writer of the letter which subsequently appeared in the Times. I know to whom the government officer referred to in the letter meant - I believe it was Mr Branford. Some time ago he took a case out of my hands; it was that of an old man at Alberton, named Nairn; I did not give up the case. I was paid six pounds, part in cash, as the person said that he could not afford to pay me any more. I have no intention of leaving the district. I should most certainly accept a good appointment if offered to me.
John Kelly, sworn, deposed: I reside near Tarraville. I remember the 30th November last. I was on the Tarra waiting Dr. Eccles' return. On my going home I found James the defendant at my house. He asked me if I had seen the Dr. I said, no, that he had not returned yet. I wished the Dr. to see the child before being buried, and to get a certificate from him. I then went to Mr Branford to report the case. James accompanied me. We had some conversation together. he said that it was a "damned shame" that the Dr. should go away and leave the district, that he had gone over to see how things were, so that he might have a slant at the Doctor, that he (the Dr.) was a "damned young scamp," that he perjured himself in the case of Paddy Nolan, that he had only given Nolan a black eye, and that he would like to serve him the same, and also that he had written a letter to the paper, so that it would be a pull down to the Dr's. practice. I have had no previous knowledge of James. I knew him, that's all. Cross-examined by Mr. Waldock : I was sober. I had plenty of tea and coffee to drink. Mr James told me that as I had not engaged the Dr. I could not blame him. I remember all that passed well. -
Belcher, sworn, deposed : I reside at Palmerston. Mrs. Belcher was unwell about the time stated (Nov. 30). I believe Dr. Eccles was sent for. He was not at home. I was down bathing. and on my return I met Mr.James. He asked me if l had read the letter signed "Humanity." I answered no. but I had heard of it. He asked me if I considered it libelous. He (James) read the letter for me, and I expressed my opinion that it was worse than I thought. He told me that he was the author. I asked if this was public, and being answered in the negative, I said that I was sorry he told me. I consider this letter tends to injure Dr. Eccles. Cross-examined by Mr Waldock: James said that he did not intend it to injure the Dr., but that he wrote it so that the circumstance might be reported to the head of Mr Branford's department, and that the report sent up by the Dr. against Branford might bear a different aspect, so that Mr Branford might still be allowed to practice.
Edward Wallis Crossley, sworn, deposed: I am an ironmonger and reside at Tarraville. I have read the letter referred to signed"'Humanity." I consider that the letter tends greatly to injure Dr. Eccles in his professional capacity.
For the defence:
William James, sworn, deposed : I am a commission agent. I am the author of the letter referred to signed " Humanity." The statement of Kelly is false; we had some conversation along the road, but I did not say that the doctor had perjured himself in Nolan's case. I did not state that I was looking for a slant to pull the doctor down in his practice. One of my children was unwell, and I was irritated at the doctor's absence from home. I did not intend this to injure the doctor, I only wrote it so that it might be brought under the notice of the Government, and that Branford might still be allowed to practice and thus counteract on the report sent by Dr. Eccles.
Cross-examined by Mr. Armstrong : The statement made by Kelly must have been in his imagination, as I did not use any such words; it is nearly all false. I did not believe the doctor's statement to be true when he said that Nolan's jaw was dislocated. I am not an irritable man. When the doctor heard that I wrote the letter he cut me. I always spoke to him until then. Mr. Branford is a neighbour of mine. He cured Nairn's leg after the doctor told him to get it off, and that he oould do nothing more for him.
A. G. Branford, sworn, deposed : I am collector of custom's at Port Albert, and formerly acting P.M. Kelly called on me, stating that his wife was unwell and that he wished me to go and see her. I declined
doing so and stated that I could not interfere on account of Dr Eccles having reported me to the Government. I have three years hospital certificates. I attended and assisted Dr. Eccles in two cases. Nobody knew that I had any knowledge of medicine until the Doctor himself spoke of it. I held a
magisterial inquiry on Kelly's child - the depositions not being produced the evidence was objected to.

Cross examined br Mr Armstrong: From ?? the letter I do think that it might injure Dr Eccles               ?? ?? I am a clerk of Petty Sessions.
I was asked by Mr Branford to accompany him and take down the deposition in the magisterial inquiry held on Kelly's child. The depositions not being produced, any further evidence was objected to. 
Mrs Willis: I attended Mrs Kelly. I was called about 3.30 on Tuesday morning and the child was born about 5 o clock; I think the child would have lived had there been proper medical assistance.           

Thomas Burrows: I know nothing about the case, I never heard the doctor say anything against James.               Mr. Waldock, for the defense, stated that he based his defence upon one of the three following statements:-      
1st - That there was no libel
2nd - That the alleged libel is true in substance.                  
3rd - Justification      
If you gentlemen consider I have upheld any of these statements, I am entitled to a verdict.
The defendant in this case, it is true, wrote the letter complained of, under the most trying circumstances. And I am sure if any of you were placed in the same position your conduct might have been very similar. The only thing I could say about the letter is that it was a very injudicious one - but one of very great public import, as Dr Eccles being the only medical man in the district was required by James to attend his child, and was absent, and consequently, James thinking that the matter being public, he was perfectly entitled to complain of Dr Eccles conduct. I have also proved that by the statements made by the different witnesses, who stated that it was written for the purpose of contradicting the effect of the report as sent to the government by Dr. Eccles; under these circumstances there is, I think, no malice intended. I would ask you to lay aside all out-door talk, and bring your decision in as simply according to the evidence, and from which I think you will agree that I am entitled to a verdict.
The Judge, in summing up, stated that he would follow the practice usually adopted by the English Judges, and leave it to the jury. The law of libel is quite different, especially with regard to a professional man;  if they considered that this letter was written even for the purpose of injuring Dr. Eccles, although it may not have done so, he is entitled to a verdict.
Damages £25; costs, £13 15s.

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