SUPREME COURT.

Evening Star, Issue 3501, 13 May 1874, Page 2

SUPREME COURT.

CIVIL SITTINGS. Saturday, Mat 9. (Before Mr Chapman and a Special Jury.) MACASSBV V. BELL. [We give the conclusion of his Honor’s address to the jury :—■] It seems not to he denied, because no evidence was tendered for the defence to show the contrary, that Mr Massey had nothing more to do with the petition than being the mere presenter, because of course a man who presents a petition is not answerable for its contents. All that he does is to see that it complies with the rules of the House, in that it is couched in proper and respectful language, and conforms with another rule that has not been mentioned, but must not be overlooked, by signing his name upon it as part guarantee that this is the case, and because his name is entered upon the journals. Now there has been a great deal ©f evidence in regard to the petition. What are the history and of the getting upofthis petition? What is the evidence to induce you to believe that Macassey had any hand in it? His own statement is that he never heard of the petition—and he swears distinctly that he had nothing to do with it—until Mr G. B. Barton told him there was such a petition getting up. This was at Queenstown ; that he remained there some considerable time ; that after that it was got up, and he was asked to present it, and he said he would. Mr Macassey also says he was in no wav connected with the getters-np of the petition, and the only Chinaman with whom he spoke was John Alloo, whom he met when walking with Air Barton, and that a conversation took place between John Alloo, Mr Barton, and himself, in which the getting up of the petition was alluded to. Then he met another Chinaman—Quau Hay—on another occasion. Quan Hay, who was riding to Arrowtown on horseback, spoke to Mr Macassey, and a few words passed between them about the petition. If that be true, it seems to be implied that the petition was going on before these people, talked about it. These Mr M acassey swears to be the only occasions on which the petition was mentioned either to him or by h'm, or by any person in his presence, except, by the way, on the second occasion of walking with Mr Barton, when he met Mr H. Barton, and the subject was slightly alluded te, and there was an end of the matter. Now, against this it is contended that Mr Macassey ought, in fairness to Mr Baetham, to have made some inquiry before presenting S’ petition against a worthy public officer. There |a no doubt a subsequent inquiry has entirely exonerated Mr Beetham from the imputations oast upon him by the Chinese, but it does not follow that those imputations were malicious on their part. They are a very weakminded, ignorant people as compared with the class by which they are surrounded, and though they have a sort of civilization of their own, necessarily feel weak when they ccme into contact with what they call “the foi eigner. ” VVhether their complaints were justified or nob is another matter—in all probability they were genuine—-and these complaints they embody in a petition, which is presented by Mr Macassey. When inquiry comes to be made of the supposed partiality of Mr Beetham in dealing with the Chinese the Commissioners seem to have adopted the proper course of examining all the cases brought before him since 1870, and say— We find that there were heard in the Warden s Court fifteen cases between Chinese and Europeans, in eight of which judgment went against the Chinese. In the Resident Magistrate s Court during the same period there were forty-three cases between Europeans and Chinese (this number includes all cases brought by the police against the Chinese); of them twenty-four were decided against the Gninese, showing as a result that the decisions for and against them have been almost equally divided, and in those cases adverse to the Chinese there does not appear any prima facie evidence of any injustice having been done. The cases in the Resident Magistrate’s Court included police complaints against the Chi nese. The commissioners find that Mr Beetham as often gave judgment one way as the other, and came to the conclusion that he ought to be exonerated from all blame. 1 have no doubt you will come to the same conclusion and be convinced that it was a perfectly just one. But after all it is beside the question, The whole report is set out and admitted by Mr Mapassey, and several parts of the second pleas ape admitted. The only parts of the pleas that are denied are contained in the fourth and fifth paragraphs containing imputations against Mr Macassey. The first paragraph is admitted ; the second and third admitted partially, mhmodo : that is, Mr Macassey admits writing the letters, but not that they were all of the purport

alleged; the sixth, seventh, eighth, and ninth paragraphs are all admitted. But all these admissions of the report as set out it. the pleas, and of what took place before the Minmissioaers, have very little to do with he question whether these imputations are borne out or not. Mr bmith seems to he strongly impressed with the notion that 1 cught to have admitted all that evidence taken— not on oa h—before the commie* sio tiers, and have it read to you as evidence in this cave ; and I am equally under a strong impression it ought not. The witnesses should have been called here. It must be obvious, and it is the rule of law, that if a witness gives evidence in another case, and that person is capable of being called, what he stated on the former occasion is not to be received, even if taken in a solemn, judicial proceeding. But here it was not taken on oath, but in an inquisitorial proceeding—an inquest,as it isproperly called. Of course evidence of that sort is not all admissible, and it would be very nujust if it were. What is relied upon is this. That first of all Mr M acaasey had at the time a certain feeling of animosity against Mr Beetham, which, was co-existent in point of time with the getting up of the Chinese petition. It is said in the plea that he incited the Chinese to get it up by agreeing to present it. Are you of 'opinion that merely agreeing to present the petition, which any member may do, is incitement to get it up? If Mr Macaasey had not consented to present it, probably half a dozen other members would have been found ready and willing to do so. I don’t know that everybody agrees with the opinion of Lord Campbell, as laid down in his “ Lives of the t haneellors,” read to you by Mr Barton, that it is the duty of every member of the Legislature to present a petition when asKed to do so. I know that view is taken by a great many members of Parliament, but pome howeveV think, as Lord bildou thought, they have the fair and reasonable privilege of inquiring somewhat into their fairness before they present petitions. Mr Macassey may be of one opinion or the other : he may think it to be bis duty as member of Parliament, when asked to present a petition, to do so. If that be the case it can hardly be said, or admits the possibility of being said that his merely having done so was encouraging the Chinese to do it. ... You will examine the whole of the evidence, and say hrst of all whether there is the imputation which the plaintiff thinks there is in what is said about the petition ; and secondly, whether that imputation is true, If you think there is an imputation, and that it is not true, then there is the other element for you to consider : is it a matter of accusation as distinct from mere matter of comment or criticism ? The other statement which is complained of is as to what has been been called the “ no cure no pay” bargain. There is set out in the translation copied from the Arrow paper the story about the clever lawyer from Dunedin who was to have L2OO if he succeeded in ousting Mr Beetham, and who was to get nothing if he did not succeed. Well, that is not attempted to be justified at all, and Mr Smith has carefully screened both himself and Mr Bell from supposing for one moment that there could be any truth in the statement. In all probability this was merely an expedient, for we have in English the exact words the Chinese use. “We, many, deliberated and resolved to send collecting books amongst men from every district (in China) and fixed the smaller amount of subscription receivable at 3s 6d,”to pay the expenses of promoting the petition against Mr Beetham. I dare say it succeeded very well for that purpose. Supposing there was no article whatever, and that the Evening Star simply printed that statement, that in itself would be evidence to go to the jury of libel. There would be evidence on the face of it, taking all the circumstances of the election, of Mr Macassey being the lawyer from uunedin, sufficient to justify the jury, if they phase, in coming to the conclusion that Mr Macassey and no other person was meant. It need not necessarily name a person. ■ • • • If instead of the plaintiff’s proper name the words “a clever lawyer from Dunedin” had been used in the article throughout, it would still be open to the jury to inquire whether or not the plaintiff was meant, upon the evidence that he was the only lawyer from Dunedin up there at the time; and that he has such a reputation as to be clearly designated a clever lawyer, it would be quite competent to connect a libel of that sort with the plaintiff although the plaintiff was never named at all. The jury have in this case, on an examination of the entire article, to say whether it is really intended to point to the plaintiff as being implicated in that transaction of “no cure no pay.” This is the imputation, and, without any doubt, it is one upon which the jury may determine that the matter is in itself libellous j second, that it is calculated to injure ; third, that the article shows it was intended to apply to Mr Macassey ; fourth, that it exceeds the bounds of fair comment and enters upon the province of misstatement of fact. All that you must conclude from the tone of the article itself. As to the application of all these things to the plaintiff the article itself furnishes the means of judging. For instance, “ We have dealt somewhat tenderly with Mr Macassey in this ease.” Having dealt tenderly with him is pregnant with the admission that they have dealt with him in some way. Again, there is the little story told about the American pinning the stamp to his letter. And the article goes on to say, “ iNow we have affixed our stamp to Mr Macassey’s shoulders, as lightly as the case admitted.” They fix their stamp on Mr Macassey’s shoulders; and it seems almost impossible to come to any other conclusion than that Mr Macassey was intended. I say this because I understood Mr is tout in his opening to say that it was not intended to apply to Mr Macassey, but that it was applied to the concooters of the petition. If so, why mention Mr Macassejr’s name ? As to interpretation you have got several witnesses—yon have Mr Murison, Dr Stuart, Mr Donald Keid, Mr an d Mr Strode; and though they differ somewhat, all seem to agree in the view that these remarks are intended to apply to Mr Macassey and are really calculated to damage jiimi. Some express themselves more strongly than others. One says he would not entrust his business to his hands, and another that he would regard him as a person to be avoided. The only distinction is drawn by Mr Cargill, who seems to have thought that the imputation of the concocting of the petition was intended to apply to the Orientals. It is for you to say, first of all, whether there is the imputation that the plaintiff had a hand in getting up the petition* secondly, whether that imputation is true or false. Then, again, as to the other imputation, which is equally injurious to any man and inore especially to a professional man! is it intended in that writing to impute to Mr Macassey that he had been a party to a very improper bargam ? But if you came to the conclusion that these imputations were well founded, then no words—certainly none of the words used ip the article: the critical words can be deemed too ytrong It would be a most discreditable ransaction, and I think hardly any words in the English language could be too strong i^°° araC^er^8e c 9 nduct that description. I hen as to the circumstances under which, in some sense, Mr Bell discovered, upon the communication made to him by Mr Barton, that this story about the bargain was not a fact, not in the petition, and that Mr Macassey could have had no connection with it, as ho did pot know it, The article of

January 14 is now set up in mitigation of damage*. Now if that article had been written immediately after the libel appeared -a few days afterwards-so as to have counteracted the effect of the libel, there is no doubt whatever almost any jury would ha,ve taken it as certainly the highest sort of mitigation that was possible under the circumstances—perhaps even to the exif I lDg !, a Verdict for the defendaut. But all matter of this sort pleaded in mitigation necessarily becomes weak by lapse 8 { time. The article was printed m the middle of 1873, and the Star is circulated very extensively, to the extent, I think one of the witnesses said, of over 3,000 copies nightly, and is perused with considerable avidity in the evening by almost everybody, as being likely to contain the latest intelligence, particularly the telegraphic news. It is sure to be seen, more or loss, by a number of subseribers, and by a good many besides. Now, it has been calculated—-[ don’t know whether the calculation at-plies to this country as well—that the readers of a pa> er of this description must be taken as five to one of the subscribers. At all events, it must be obvious to you that the readers are more numerous than the subscribers, and that if there are 3,000 subscribers, the paper is read by a great many more than 3,000 persons. The evil therer re, which an article of this sort is calculated to do, if the apology, retractation or whatever it may be called, were delayed seven or eight months, would be permitted to have worked, would he very considerable before the remedy came. I merely mention this to show that time and delay is an important element in giving weight to the writing which is in evidence as in mitigation of damages. Still it is no doubt mitigation, and the jury will have to consider that, if they come to the question of damage. Another circumstance, no doubt, to be considered is this : where the jury can collect from the history of the whole transaction, and believe that the plaintiff’s con? duct has not been quite proper in many of the circumstances—that though they think him not chargeable with the particular wrong which the libel charges him with, yet that he is fairly chargeable with other minor acts that also may be taken into consideration as in mitigation of damages. Damages are in fact entirely a question for the jury ; their range is very large—from one farthing to LI,OOO. It is entirely within their discretion as to what damages they shall award. You may take into consideration the general conduct of the plaintiff, and if you thmk his conduct has not been quite judicious in the transaction, that his temper has got the better of him, that he has rashly attacked a Warden, and so forth, and that part of his conduct is fairly commented upon —all this you may take into consideration when you come to award damages, although it be perfectly true, as stated by Mr Barton, that the question here is not a question directly between Mr fcfaoassey and Mr Barton, but simply between Mr Macassey and Mr Bell; and that it is no justification because Mr Macassey has attacked Mr Barton that therefore Mr Bell should attack Mr Macassey. That is perfectly true, 1 repeat ; but notwithstanding that, I say it is competent for the jury to take the whole •acts. into consideration when they come to award damages Ido not think the case calls for further assistance from mo. Yon will consider your verdict, and I have no doubt yon will give a conscientious one. The verdict, as our readers are aware, was for the defendant, on all the issues.