THE HASTINGS LIBEL CASE.

Dominion, Volume 5, Issue 1498, 22 July 1912, Page 8

THE HASTINGS LIBEL CASE.

NO NEW TRIAL. rOKKMAX OF JURY'S ACTIOS. At the Supreme Co.urt on Saturday Ills Honour tho Chief Justice (Sir Bobert Stout.) delivered judgment in the motion for a new trial of the action Sinistra v. "The Hawko's Bay Tribune," Limited. The action was one for alleged libel. 'Die plaintiff, li. I. Simson, who was a candidate for the Hawko's Bay constituency at the last general election, alleged that "The Tribune" had published the following paragraph concerning him:— "A flash from a candidate's speech when relerring to another candidate: "i'liis person comes among you clothed witli the Government brand. If lie had his deserts he should have received it before now.'" Tho plaintiff alleged the meaning of this was that ho had been guilty of a criminal offence for which he was liable, on conviction, to bo sentenced to a term of imprisonment, and that he was unlit to represent the electors of Hawke's Bay in Parliament. The defendant denied the meaning alleged by the plaintiff, and said that the words were, in fact, tho ordinary chaff and jocularity of an election, and that 6uch words would not be understood as making an.v charge against the plaintiff, and that, consequently, the words were not defamatory. Defendant also pleaded justification in case the words were held to bo defamatory. Why A New Trial Was Asked. At the h-ial the jury returned a verdict, of one farthing damages for plaintiff, and the plaintiff then moved for a new trial on the followiug grounds: 1. That tho damages were too small. 2. That the verdict was not unanimous. This ground was aot pressed. 3. That it was special verdict, and was not put in writing and signed by the foreman of the jury. •I. That tho findings were defective. 5. That the foreman of the jury was not authorised to deliver tho findings and answers which he did deliver. 6. That the verdict was against the weight of evidence.

His Honour's Decisions on tho Points I Raised. "Taking these grounds in order," said his Honour, "it is true that (hero is no inexorable rule that a jury's finding of damages can never be disturbed. It' it appeared that the verdict was a compromise, or that the jury had not done tliciidnty, a new trial might be ordered. . . . In tliis case, however, I am of opinion that the question does not arise, as tlio jury have found that the alleged libel in the meaning alleged is true. It is only whe-a n jury finds the tort charged proved that ihe 'inadequacy of damages can coin,o up for consideration.. (8) In my opinion it was not a. special verdict, and not given by the jury as such. (4} The only difficulty in tho finding of the issues arisss from the fact that the jury have fuund that it was a libel, though they have also found that the words wero true in tho meaning alleged by the plaintiff. It is not suggested that it would be a libel in any other sense. I am ef opinion, looting at the defence rnised (namely, that the words might bo consid--cred as not defamatory, but as jocular), that the jury meant (by finding tho answer to issue N0..l in the affirmative) that tho words wore defamatory. Seeing- that they have found that tho words wero true, it is clear that they did not'mean to find that tho plaintiff was entitled to succeed. Tho finding of damages cannot be invoked. ... I am, therefore, of opinion that tho issues are not defective, and that what tho jury meant 'is understandable. Nor do I consider, in view of the defence, that tho findings can be held to bB inconsistent, though the jury do not seem to have appreciated my direction that, if they found the words true, they need not have found tho words defamatory."

. The Case of the Foreman, ■ Dealing with the action of the foreman of the jury, his Honour said-.—"Four affidavits made by four jurors have been filed. So far as the statements in their affidavits relate' to what took place in the jury room they are inadmissible. . . Jurymen may made affidavits as to what took place in Court, liko other, persons present in Court. What took place in Court is really not in dispute. The foreman of the jury came into Court to ask a question. The Deputy-Registrar ■ was instructed that all the jurymen must bo present land they were brought into Court, and took their rets. Tho foreman then informed _ the Court that tho jury did not require to ask any question, and that they wero agreed on their verdict. The issues were read out by the Deputy-R-egistrar, and answered as ftated. /There was no objection made by any of the jurors, and in my opinion, it is too late (after the jury have been discharged) for any juryman to say that tho verdict given had not been agreed to by them." Regarding. the sixth ground, his Honour said that he believed that it was not competent in this Court to say that the verdict was against the weight of evidence. The motion for a new trial was,' therefore, dismissed.

OBLIGATION TO INDEMNIFY. WHERE "CONSCIENCE" ENTERS. Mr. Justice Cooper delivered judgment in the case of Mrs. Bolstad v. j. P, Falconer (defendant) and V. R. Siggs (third party). In tho first instance the plaintiff sued Falconer for ,£los' 10s., balance claimed by her from Falconer upon a mortgage by Falconer to .her. of a. leasehold interest, of which he was assignee, and a collateral mortgage of stock. She exercised the power .of sale over the stock, and, tho lease having expired on May 25, 1912, the security ;over the leaso" became valueless. After crediting the amount realised upon the sale of tho stock, his Honour gave judgment at tho hearing for the plaintiff for the .amount claimed and costs on the lower scale. Tho further hearing of the action then resolved itself into a claim by the defendant against Siggs, the third party, Siggs, and the defendant having entered into .an agreement whereby Siggs.agreed to purchase the leasehold from Falconer. Falconer now claimed to recover from Siggs the amount which he was liable to pay to the plaintiff. It had been agreed that the Court should determine the liability of Siggs as if he was defendant in an action brought against him by Falconer.

The History. The history of the transactions in reference to the leasehold, was that the lease was originally granted to Mrs. Bolstad, and was sold and assigned by her to Falconer on May 25, 1910, and, by a mortgage of that date, mortgaged " by Falconer to Mrs. Bolstad to secure JE2(IS 10s., a part of the purchase money. Tho agreement between Falconer and Siggs was dated November 11, 1910, and was by way of exchange, Siggs agreeing to buy from Falconer, inter alia, tho equity of "redemption in the leasehold interest, and Falconer' agreeing to buy from Siggs certain, equities of redemption. Tho nominal purclwse money in each caso was tho same amount, and no money, therefore, passed.. The agreement contained the following clause: "It is agreed between the purchaser and tho vendor that should either party sell the properties mentioned in this agreement: before this sale is completed he should transfer direct, to his nominee." The leasehold sold to Siggs was land under the Land Transfer Act. The Judoment. His Honour •said: "Siggs sold the lease to a Mrs. Bell, in pursuance of the clause quoted and Falconer, at the direction of &igip. transferred tho Ira.-eta Mrs. Bell, Sk'gs also executing (he lian.-fer. Tho'lease contained n purchasing clans?, but Mrs. Hell did not exercise il. and allowed the term to lapse. The IriiM'-fiT to Mrs. Hell has been rrgisterrd, but sb? is stated to be without Laur means, and tho coti&ant of indemnity

implied against her bv virtue of Section 8(1 of the Land Transfer Act, 1008, is practically of no value. The provisions of Section 8!) cannot, in my opinion, apply as against Siggs in favour of Falconer. The covenant is only .implied on the part of a transferee, and Siggs was not Hie transferee. Had the transaction been carried out. in the ordinary course, Siggs would have been the transferee from Falconer, anil would have then been liable to him under the Act. His liability to Falconer, if it exists, must, therefore, depend upon the agreement. "Liability Rests on Conscience Rather Than on Contract." "The liability of a purchaser of an equity of redemption to indemnify the vendor from liability under the mortgage is an equitable doctrine, .and rests upon conscience rather than upon contract. In the present c.ise it would be most inequitable if Siggs, who lias resold tho property to a person of straw, is to escape his liability in respect to the mortgage upon the property, while Falconer is to remain liable for Siggs's mortgage on the property which Falconer has taken in exchange. The relationship created between tho parties, in my opinion, raised in equity a mutual obligation on each party to indemnify the one the other against liability on the respective mortgages existing on each exchanged property. The fact that, under the, clause I have referred to in the agreement, Falconer, at Siggs's request, transferred the property to Mrs. Bell, -docs not, in my opinion, affect the matter. The obligation on Siggs's part to indemnify Falcrnar agai-ist liability, on the mortgage to Mrs. Rolstad arises in conscience rather fha\i in coatract, although you must look to the contract of purchase to ascertain whether, in tho circumstances of the case, it was the intention of the parties that this conscientious obligation exists.

"As the rules of Equity are now the rules of law, Siggs, being liable in equity to indemnify Falconer against liability on the mortgage, is liable in law to pay to him the money which in this action I have held that Falconer is liable to pay to the mortgagee. And as the parties have consented to treat the claim made by Falconer against Siggs' as if it was one made in an action brought by Falconer against Siggs, I give judgment against Siggs for that amount, with costs on tho lower scale." ' MILK AGITATOR, AND THE PATENT EIGHTS OF IT The Chief Justice (Sir Robert Stout) delivered judgment in the ease of J. 13. MacEwan and Co., Ltd., v. Joseph Hopkirk, of Hawera, an action which concerned the patent rights to a well-known dairy factory device—the milk-agitator. The plaintiffs wero patentees holding letters of patent for improvements in agitating apparatus for milk. . The patent has been in force since July. 8, 1907, and | is used considerably in dairy factories. The plaintiffs claimed that the defendant had infringed tho patent by another patent which defendant had taken out— a machine very much like plaintiffs'. ■ Tho defendant shied that tho plaintiffs' patent was invalid, and that the defendant had not infringed plaintiffs' patent. His Honour held that MacEwan's patent was not invalid. As to the allegation of infringement, his Honour said: "The defendant relied much on the fact that his machine allowed the curds and whey to go through more freely.. This is true.. This going through more freely is of no advantage if- the milk is normal. The mere fact that it is a slight, improvement cannot be held to excuse the infringement of the plaintiffs' patent. It. is only, in fact, making the holes in tho beaters a little larger. I think this is not sufficient to establish for the defendant's machine a right to utilise- all the other parts of the plaintiffs' machine, which is practically the machine itself The defondant, he added, had subsequently taken the plaintiffs' patent. Tho plaintiffs, therefore, were entitled to an injunction to restrain the.defendant from msmufac-. hiring the machine. Ho would order an inquiry as to the damages, if the parties could not agree on an amount

WANGANUI CASE. Mr. Justice Cooper delivered judgment in the "Wangflnui av, H..H. Thompson v. E. Blythe. Tho action concerned an insurance policy on the liffl' of Horace Blythe, now deceased. Judgment was given for the defendant, •with costs on' the lower scale.