SUPREME COURT.

Evening Star, Volume IX, Issue 2616, 6 July 1871, Page 2

SUPREME COURT.

IN BANCO. This Day. (Before Mr Justice Chapman.) His Honor took his seat on the bench at eleven o’clock. Sargood v. M’lntosh.—Was a motion for a decree. Judgment was given for the de cree, as applied for. The cases of Bathgate v. the Bank of Otago, Bright v, Campbell, Costa v. "M’Donald, and Pritchard v. Gibbs, motions for new trials, were mentioned and postponed until next sitting in banco. Stevenson v. Borne. Mr Macassey mentioned that the defendant was dissatisfied with the decision of the Registrar in re. costs ; and desired to have a rule for review. Rule granted. Barton v. Strode — Mr Maccassay said that in this case he was content to take his Honor’s refusal to grant the rule applied for in chambers. His Honor remarked that his view was that there was no ground for the application, He did not recollect any case of an action being brought for refusing to take an information. From explanation made by Counsel it appears that an action is pending in respect of Mr Stroile's refusal t.) issue an information again t Mr Lemon for an alleged breach of the Telegraph Act. After some argument, his Honor suggested that a case should be stated for the Court of Appeal, which Mr Macassey agreed to do. Exparte Miller. —Mr Macassey, in applying for a rule nisi for a writ of attachment against Mr George Miller, manager of the Bank of New South Wales, explained that Mr C. Stewart felt aggrieved at the misrepresentations by the Dally Times of his Honor’s remarks in the case of J. W. Hutchison heard in bankruptcy last week. The affidavits upon which the application were based were by Messrs Murison and Purnell, and showed that Mr Miller was E resent in court on the day in question, and card his Honor’s remarks, and suggested to Mr Murison that the report should be altered, so as to read that the judgment w as not intended to reflect on the Bank of New South Wales, but upon the “ former manager” of the bank, and that the alteration was made accordingly. An action for libel could be brought against Mr Miller, but Mr Stewart had no desire to proceed in that direction; he merely wished an expression of regret from Mr Miller that he should have involved himself in the way he had. His Honor remarked that if it had been an alteration of a written judgment, he should have been bound to have taken judicial notice of it; but he did not think himself justified in taking notice of an alteration in a newspaper report, over which the editor had control subject to his responsibilities. The alteration was no doubt an unjustifiable one, but the ouly question was whether he had any authority to deal with the matter, it not being pendente lite. Mr Macassey submitted that his Honor had the power, and cited cases in support of that view. His Honor : Do you ask for a rule against Mr Murison ? Mr Macassey was understood to reply in the negative, because Mr Murison had assisted in bringing home that the alteration of the report was brought about by Mr Millar. His Honor; Still I think Mr Murisou’s conduct was highly injudicious, to say the least of it, because he lent himself to a proceeding which was wholly unjustifiable. After some further discussion the rule was granted. M'Kellar v. Brown.— This was a case of libel and peculiar circumstances. During a temporary recess of the Provincial Council, some conversation was going on between the defendant and some other members of the Provincial Council, when the defendant made use of words which Mr Reynolds, also a member of the Council, heard as he entered the door of the Council Chamber. These words (which were not actionable without special damage became so when reduced to writing) he considered to be injurious to the character of the plaintiff, who is his relative. He said to the deferdant, “I would like to send them to M'Kellar ; just jot them down.” The defendant did “so, aud 11 cy,nolds forwarded the paper to M'Kellar, on the receipt of a reply from whom he obtained a further communication from Brown, which was to this effect, ” I said I was informed by one party that Maclelland had ■got something to sign (alluding to a certain petition) ; that I asked what 1 and he said a team of bullocks on six months’ credit, with the right to renew. According to the defendant’s evidence, Mr Reynolds asked for this statement, in order that ho might ascertain its correctness. At the trial the jury returned a verdict for the defendant. A new trial was now applied for, on the following grounds : —l. That the occasion on which the libel was published was not such as to render it privileged or excusable. 2. That the jury was improperly‘directed. 3. That the defendant’s belief in the truth of the statements contained in the written communication was not essential. 4 That the observations of defendant’s counsel as to the costs improperly influenced tlie decision of the jury, 5. That the verdict was against the weight pf evidence. His Honor in giving judgment, observed that it was very clear that if the defendant had written the meniooaudum to the plaintiff himself, no action could have been founded thereon. But there was the presence and intervening agency of a third person. There was nothing to show that Mr Reynolds bore the character of plaintiffs’ agent or that he acted at his request; the suddenness of the occasion negatived such a supposition, It seemed to him (the learned judge) that the motive or purpose explained, showed that the defendant-accepted Rey-

nolds proffered agency to communicate the imputation to the plaintiff, and he might have been the more readily induced to do this from a knowledge of the relationship existing between the plaintiff and Reynolds. There was no such relationship between the plaintiff and defendant as to generate an imperative duty on the part of the defendant to make the communication at the request of Mr Reynolds. He thought a sufficient moral duty was established to justify (the judge) in putting it to the jury as a justifiable communication, if they believod that the motive was as stated by the witnesses. But the case did not rest there. There was evidence from which the jury might have inferred special malice, and although they were invited to consider it in that aspect, their verdict showed that it did not alter their views of the circumstances, under which the written memorandum was obtained from the defendant. It could not be presumed that a witness of Mr Reynold’s unimpeachable character pursued the course he did in order to catch the defendant in a trap ; or that he adopted the expedient of converting words not actionable in themselves into writing upon which an action could be brought. His action was clearly a creditable one. It had been argued that the defendant’s belief in the truth of the imputation was a necessary ingredient; he could not agree to that proposition. The defendant’s belief or disbelief seemed to him (the Judge) to have been unimportant whichever way the verdict went. If the jury had believed the motive to be, or had given weight to the previous conversations or the defendant as proof of expressed malice, his disbelief would have been no excuse ; nor did he think it essential as affecting the motive of the communication. Little required to be said about the observations of defendant’s counsel in regard to costs ; although improper, they could not have influenced the jury. Their minds were too exclusively devoted to the circumstances of the communication and to the evidence of malice to justify the supposition that they took into consideration the incident of costs. He did not think the ground that the verdict was against the Aveight of evidence ground for a new trial. Rule discharged with costs.

Several matters Avere postponed; and on the application of Mr Kenyon, leave was granted to invest certain funds of H. Harkness, a lunatic.