[The North-Stewart Imbroglio, Washoe Times article, reprinted in the Sacramento Union, October 25, 1865]

 

THE NORTH-STEWART EMBROGLIO.

[From the Washoe Times, October 21st.]

            Our readers will remember, that as long ago as December, 1864, suits were commenced by J. W. North against Wm. M. Stewart, and also against the proprietors of the Enterprise newspaper, in which these defendants were charged with having falsely and maliciously given utterance to slanderous words, in the presence of good and worthy citizens, and published the same, to the great damage of the plaintiff, J. W. North, to wit: In the sum of one hundred thousand dollars. It is also patent that at a later date, to wit: In the month of September, 1865, the said suits were withdrawn from the Courts and submitted to three referees, under a stipulation signed by all the parties, by the terms of which the plaintiff withdrew all claims for damages — the sittings of the arbitrators to be private, a majority to decide all questions and render a final decision ; which said decision neither party are at liberty, at any time, to question ;nor are either party at liberty to publish any portion of the proceeding, except he publishes them entire and in pamphlet form. The findings of the arbitrators, Tod Robinson, Wm. H. Rhodes and George F. Jones, having been filed in the County Clerk's office of this county, and neither party feeling disposed to incur the expense of publication, we not being a party to the arrangement, and knowing that many of our friends and readers have a natural curiosity to see the result of the investigation, in the exercise of our undoubted right as a citizen of Washoe, have made an accurate and exact copy of the award, which we herewith publish. Not having consulted the parties to the suit or suits, it is quite possible that either or all of them may take exceptions to our action in the premises ; should they do so, we publicly announce our readiness to compromise the difficulty on the most reasonable terms :

COPY OF AWARD

            In the Case of J. W. North, plaintiff, vs. William M. Stewart, defendant — On reference to Tod Robinson, William H. Rhodes and George F. Jones — The above entitled cause was withdrawn from the District Court of the county of Washoe, State of Nevada, and by the annexed stipulation referred to the undersigned referees. The said stipulation requires that the referees should hear the testimony in the case, and from said evidence pass upon the matters in issue between the parties, said issue involving the three following propositions, to wit:

            First — Was the plaintiff corrupt in office whilst exercising the functions of Judge of the District and Supreme Courts of the Territory (now State) of Nevada?

            Second — Is the defendant guilty of the laches imputed to him in the plaintiff's complaint? And,

            Third — The opinion of the referees respecting the motives and conduct of the parties.

            In pursuance of the said stipulation, the referees find as follows :

            First — The evidence fails to show any acts or corruption the part of the plaintiff; and we therefore pronounce the character of John W. North free from each and every imputation cast upon it by the accusations of the defendant, William M. Stewart.

            Second — The pleadings and evidence are sufficient, and we therefore find the defendant, William M. Stewart, guilty of the slanderous charges averred against him in the first, second, third, sixth and seventh counts in the plaintiff's complaint. The fourth count was withdrawn from the consideration of the referees during the trial, and no specific testimony was introduced in relation to the fifth count, and of that we find the defendant not guilty.

            Third — As to the motives and conduct of the respective parties, we find as follows : First—The motives of John W. North in the administration of his office of Judge, as aforesaid, were pure, and his conduct in the trial, argument and decision of causes before him blameless. But his conduct toward the defendant, Stewart, on one occasion, and his conduct in connection with Judge Locke's position, in the Chollar and Potosi litigation, on another, meet with the reprehension of the referees.

            1. The deposition of A. E. Davis shows that the plaintiff, at Carson, on or about the month of December, 1863, spoke in disparagement of defendant. Wm. M. Stewart, he being an attorney of his Court, to a litigant before him, and recommended by implication, his supersedure in the cause. This conduct, whether the result of indignant retribution for wrongs inflicted or the casual expression of personal dislike, or the result of mere thoughtfulness, merits alike the rebuke of this reference. A Judge has no right to disbar a counselor or his Court without a hearing, or to poison the mind of his client against him,

            2. In the unparalleled struggle between the Chollar and Potosi Companies for final ascendency over the mind and opinion of Judge Locke in the litigation pending in the Supreme Court of the late Territory of Nevada, Judge North, an Associate Justice of that Court, should have taken no part. His return to Carson at the suggestion of counsel of one of the litigants, and not upon the invitation of Judge Locke, was a voluntary act of interference — not criminal or corrupt, to be sure — but unworthy the high position he held, and calculated to awaken suspicion, create animosity, impair his usefulness as a magistrate, and lower his dignity as a man. Done, as we believe, with good motives, still the same consequences ensue, and we therefore condemn it as conduct meriting our censure. The motives and conduct of defendant Stewart are presented to us in two different phases, as exhibited by the evidence:

            1st. Before the settlement of the difficulties existing between plaintiff and himself, on or before the 22d day of December, 1863, and afterward.

            2d. Before the adjustment, the motives of defendant Stewart seem to have been not unworthy, though we cannot wholly approve his conduct to Judge North. How far he was excusable in morals, for his slander upon the character, reputation and standing of Judge North, before his retraction, is a question to be settled exclusively with his own conscience. We cannot regard this cause from an ethical point of view ; our relation to it is strictly legal. But while the law does not justify nor excuse the publication and circulation of slanders not original with the publisher, it does not extenuate the guilt of the offender, and when spoken in connection with the name of the author from whom derived, it mitigates the punishment in proportion to the malice shown, or the want of it, as the case may be. Though, therefore, there is nothing in the plea of retailing slanders at second hand to justify defendant Stewart, there were many circumstances to palliate his offense.

            The position of James H. Hardy, as a leading member of the Virginia bar; the embroglio attending Judge Mott's resignation — its venality and secrecy ; the circumstances surrounding Judge North's appointment, such as the unwise policy of his friends in withholding it from the public, it may be without his knowledge or consent ; the several loans effected at different times, and from seemingly improper persons, by the new Judge; the large, and at that time, valuable supplies of rock furnished by the Gould &Curry Company, for the Minnesota mill, and the one-sided nature of the interest of Judge North's most confidential friend in the litigation pending in his Court, taken in connection with the close scrutiny incumbent upon every advocate to exercise in the prosecution or defense of suits committed to his charge ; all unite in pleading loudly in extenuation of the conduct and motives of defendant Stewart, before the mutual cards of December 22, 1863. Had, therefore, this cause come before us anterior to the adjustment, the circumstances above detailed would have mitigated in a great degree the offense of defendant, William M. Stewart.

            2d [3d]. After that settlement this cause assumes a somewhat different aspect. The same charge, accompanied by others with as little foundation in real fact, were repeated at Carson City, during a political Convention, before which Judge North was a candidate ; also, on the steamboat going from Sacramento to San Francisco, and in the streets of that city. The new charges that, in the meantime, according to the evidence, had reached the ears of the defendant Stewart, to wit; the alleged corrupt borrowing of money from Judge Ferris ; the writing of the letter to the President and Trustees of the Potosi Company, at the request of Rice and Atchison, and the true rate of interest at which the fifteen thousand loan was obtained, when properly investigated and sifted, were really as baseless as any of the others which be had previously circulated, without being previously advised of their truth. There is known one fact that pleads greatly in extenuation, though not in justification of the conduct of the defendant Stewart. After the publication of the cards, and before the discussion at Maguire's Opera House, he had been informed of the injudicious remark made by Judge North to A. E. Davis. The sting inflicted by it produced an irritation in his mind, already excited almost to the pitch of infuriation, not to be patiently and silently borne. Acting under this new stimulus, and learning from some of his friends that the friends of Judge North were denouncing him as the "persecutor " of the Judge, he re-opened the war with increased bitterness. But after a patient investigation or the evidence, we can see nothing in the new facts brought to his notice to justify in law his conduct subsequent to the exchange of explanatory letters, on the 22d of September, 1863. We must therefore pronounce the conduct and motives of defendant, William M. Stewart, after that date, as wrong and unjustifiable.

            As a corollary from the foregoing decision, it follows that defendants Wm. M. Stewart, J. T. Goodman and D. K. McCarthy, pay the costs of these proceedings, in accordance with the terms of said stipulation.

TOD ROBINSON,

WM. H. RHODES,

GEO. F. JONES.

            Virginia, September 16, 1865.

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            John W. North, plaintiff, vs. J. T. Goodman and D. K. McCarthy, defendants. — cause having been submitted at the same time and upon the same evidence as that immediately preceding, the opinion and conclusions of the referees, in the case against Wm. M. Stewart, apply in all things herein ; and so the referees do find.

TOD ROBINSON,

WM. H. RHODES,

GEO. F. JONES.

            Virginia, September 16, 1865.