SUPREME COURT.

Evening Star, Issue 3537, 24 June 1874, Page 2

SUPREME COURT.

IN BANCO. Wednesday, Tune 24. (Before Mr Justice Chapman.) Macassey v. Bell.— Mr Haggitt moved for a rule nisi to enter up judgment for the plaintiff non ob stante veredicto on the second and third pleas, andforanew trial on the first plea, and, in. the alternative, for a new trial on the second and third pleas also. The first plea was that of general denial The second plea was one of justification, which, he submitted, was bad, and no answer to the action. It. was pleaded .as a plea to the whole declaration, whilst it did not cover all the libellous imputations contained in the article. His Honor : Why did you not move before now? It could have been done by special demurrer ip Chambers, Mr Haggitt: I know that. His Honor: But there is the risk that any faults are cured by the verdict. Mr Haggitt: But these are not faults; at all events, the faults are not such as could be cured. The plea was confessedly pleaded to the whole declaration, and did not answer the whole of the libellous matter, but only a few innocent charges. In Bullen v. Leake His Honor: There is no doubt about the rule. A plea that purports to he pleaded to the general declaration must answer the whole, Mr Haggitt was going to point out if a plea did not pick out portions of a declaration it purported to answer, and was attempted to be pleaded as an answer to the whole, it was bad. (Bullen v. Leake, p. 446, and Beaney v. Fitzgerald, 2, Wyatt & Webb, 184.) Other cases showed if an article contained separate libels, and some of them might be picked out and justified, provided proper words were used in limiting the plea of justification only to those which were intended to be justified. (Clark v. Taylor, Bingham, 654; Clarkson v. Lawson, 6. Bingham, 587.) There were other cases in which justification was pleaded expressly to the part intended to be justified. His Honor : If the declaration contains three separate counts, or three libellous averments, a defendant may pick out one or two and justify those, leaving the other to the general issue. If it has no other effect, it may reduce damages very considerably. Mr Hagitt said that was why he cited Clarkson v. Lawson. On the other hand, there were cases in which a plea pleaded in answer to a part of a declaration, being pleaded to the whole, was held to be bad. (Todd v. Heaphorn 2, B and C, 477 ; Ash v. Crookfield, 3. L.P., Q. 8., 686 ; Edsall v. Russell, 4, Manning arid Grainger, 1090; and Mountney v. Whatney, 2, B and A, 673.) The plea in Macassey v. Bell did nbt Cover a great number of points, which contained the whole sting of the article. It did not cover the charge that the petition was the result of the plaintiff’s labors. Ihere was not one word in the plea of justification which touched that; and the allegation that the pretended petition waa concocted was in no way touched. His Honor: The principal alleged averment, which is distinctly left out is, “the no cure no pay.” “ ’

Mr Haggitt was going to refer to the bargam about the L2OO. Probably the most stinging of the many libels contained in the article was entirely unanswered by the pleas. That was the ground upon which he contended that the second plea was bad, and that the plaintiff was entitled to have judgment entered up for him, notwithstanding the verdict. The third plea of fair comment was bad, because, being pleaded to the whole declaration, it did not in any way meet the allegations of pretended fact contained in the article, but merely met matters of opinion and comment. In a word, it merely justified the comment, and not the facts alleged in the article. (Eyes v. Henderson, 2, Branson’s N. Z. Jurist, p. 34), The plea did not justify the facts which the writer had invented, but merely his comments. His Honor; I have always endeavored to gqsTd jqries from confounding matters of comment with matters of fact under pqlor of criticism—to guard them against the assumption that under color of criticism any man is justifled m misstating fact. 1 Mr Haggitt was putting his objection not as a matter of misdirection, which he would deal with afterwards. Walker v.- Brogden, 19, C. 8., N.S m p, 65, was an action brought by a clergyman, in respect of two letters published in a newspaper, and the justification was that the second letter was only a fair comment upon the fim, the second letter containing the libellous statements. C. J. Earle said, “It oannot be bona fide comment to allege facts that are libellous.” •vr 8 S ono F : if he assumed facts. Mr Haggitt: That is exactly what the writer of this article has dene : he has assumed facts. As to fair and bona fide comments he (the learned counsel) cited the N. Z. Banking Corporation v. Cutten, Appeal Court oases, Macassey’s Reports, 231; and Campbell v. Spottiswoode, 32, L.J., Q. 8., 135. The grounds upon which he moved for a new trial "ere-first. that Ihe verdict was against the weight of evidence ; • second, that the learned Judge, who presided erroneously excluded evidence offered by the plaintiff to connect Mr C. D. R. Ward with the writer of the article, thereby preventing the plaintiff from showing that the writing of the article wa ? malicious to the defendant’s knowledge!; and third, that the learned Judge |misdireoted the jury. On the first point there could be no doubt but that a new trial could be granted in cases of libel where the verdict was against the weight of evidence. His Honor: You are now applying this both to the general issue and to this. Mr Haggitt: Yes. The expression that libel or no libel was a question for the jury was only in contradistinction to the former rule that what was libel and what not was a quesCor the Court. It meant no more than that the evidence as to whether a plaintiff had mjen libelled or not was for the jury; but if a jury agajnst the evidence, a new trial might be granted in pel bases,-as in any others. A case in point was the' Victoria one df btephen v. Miohie. * ■ . • His Honor : I doubt very much whether that case ever came to trial. I was in it at one stage, but there was a change of Govemment. I became Attorney-General, and could not attend to it afterwards. I am under the nnpression that it never went to trial. Mr Haggitt: It must have gone to trial, because there was a motion for 'a new trial. There w just the decision of the Court for the purpose 1 want it, that if the Court sees there is libel, and the jury find no libel, the Court will set Mide the verdict of the jury. (Henwood v. Harrison, L.R. 7, 0. P. 628).| His Honor: If they find for the plaintiff on a matter which is not libel There is no doubt the question of libel or not—defamatory words or no defamatory

words-ds submitted to the jury, and they t-be defendant* the point is whether the Court will interfere; blr Haggitt had cited a case to show that the Court would interfere (Hart v. Gumfach, L. J.P.O. cases v. 242), distinctly laid down the rule that a new trial might bo granted where the verdict was against the weight of evidence. The same rule extended to criminal oases (Re* gina v. Newman). His Honor had not heard of a new trial having been granted where the verdict was for the defendant. The question was very much discussed in G. M. Stephen v. the ‘Argus,’ which was a criminal information for libel, the defendants getting the verdict. There was a motion for a new trial, which was argued very fully indeed. Mr Bailey, grandson of Sir Sir John Bailey, the Judge, argued it, and cited every case that could be possibly raked up. The Court refused a new trial. The rule in civil cases might be different, but he did not know of a single case in which a Crown case had been set aside, where the verdict-was for the defendant. Mr Haggitt cited, as cases for libel in which trials had been granted because the verdict was against the weight of evidence, Walker v. Gfeorge, Aust. Jurist, ▼. 5, p. 29, and Cox v. 4 L.R., 4 Ex. 284. Therecould be,mo doubt that the verdict was against the weight of evidence. The evidence was all one way: that the article was very damaging to Mr Macassey, and that evidence went tithe jury unanswered. ].u tne fftce of that evidence, and that on a great number of points the article was a gross libel—although there was not a title of evidence in support of the interpretation sought to be put upon the article by the witnesses for the de* fence, or any explanation of it given—the jury chose to find that there was no libel—so that upon the first genera) grpund the verdipt was wrong. But on particular pleas, it was more manifest the verdipt was against tbe weight of evidence. Thp issue under the second plea was netware the qt&tements of facts contained in the pie* true ip substance, but are the statements contained in the article true ? and the jury in the face of the admissions of defendant’s counsel that sorpe of the allegations were not true so far as Mr Macassey was concerned, found that the article was absolutely true in substance, ■ In order to decide that the article was fair comment, the jury must have known what was in the mind of the writer at the - time he wrote, but neither the writer nor the defendant was called to speak to the bonafides of the comments, or that he believed in their truth# The second ground affected both the first and third pleas, as showing malice, and affecting the question of damages. If it could have been shown to the jury that the defendant bad been mode & tool of in tbe bands of some third person, who was'seeking tq wqrk bis malice upon the plaintiff, but who was shielded by the defendant from being himself responsible, such evidence would no doubt have had considerable effect on the question of damages. For instance, if it could have been shown that ftlrWard waited upon the defendant with the libellous article in his hand, ,had admitted to him in the course of conversation betweentthem that ho had a grudge against the plaintiff, that he bad written an article which he wished inserted (stating that the grounds «n which the articie was based were substantially correct), in a way in which the effect of the article would be to considerably damage, if hot ruin plaintiff, who had gone to England with the intention of being admitted to tbe Home bar: and tbat in addition it had been proved upon defendant objecting to insert the article, he had been bribed to do so by a payment of LSQ, LIQQ,' or Lsoo—such evidence might haVe materially affected the result of the trial. Such evidence was entirely admissable; therefore the questions sought to be put to Mr Turton should have been allowed. The statements of defendant’s counsel about costs were calculated to unfairly prejudice the trial, and should not have been made. His Honor: I have always abstained myself from telling what amount covers costs, and that, I see, has lately been approved by two Judges on consultation. If the Court refuses to give the information, counsel ought not to do so. Rule nisi granted. Maoassev v. ‘The Guabdian.’—Mr-Haggitt