SUPREME COURT.

Evening Star, Issue 3574, 6 August 1874, Page 3

SUPREME COURT.

CIVIL SITTINGS.

Wednesday, August 5. (Before His Honor Mr Justice Chapman.)

ALLEGED CONTEMPT OF COURT, Before the case of Harding v. Campbell was proceeded with, Mr James Smith said he wished to make an application under the quo>*i criminal jnrisoictinn of the Court, He had been instructed to move for a rule nisi calling upon Mr James Macassey, barrister of that Court, and plaintiff in the action of Macassey v. Bell, to show cause why he should not answer matters complained of against him id the affidavits of Mr G. K. Turton, solicitor for the defendant in

Macassey v. Bell, and Mr William Garter, Mr Turton’s managing clerk ; why he should not also pay the costs of this application ; and, ia default of sufficient aud satisfactory answers to the affidavits, why attachment should not itsue against him for contempt of that Court for having published in the ‘Otaao Daily Times’ newspaper of the 27th July last a letter and telegrams strongly calculated to prejudice the action of Macassey v. Bell, still pending in that Court, which action, if the motion for a new trial was granted, would go before a second jury. Mr Barton, counsel in the case of Harding v. Campbell, objected to the Court hearing the application until the case in which be was engaged was decided. The Judge declined to hear Mr Smith, who lead the affidavits, Mr Macassey, who was in Court, consenting to the application being proceeded with.

Mr Smith read the affidavits, the substance of which was that Mr H. Carter, managing clerk lo Mr G. K. Turton, had the manage* ment of the case for the defence in Macassey v * Be;]. That prior to the trial of that action the plaintiff obtained an order to put a series of interrogatories to the defendant, the mam object whereof was to endeavor to obtain admissions on oath to the effect that the plaintiff had brought an action for libel against Charles Dudley Robert Ward, as the author, and Henry Belfleld, as publisher, of an article in the ‘Timaru Herald’ newspaper of the l?th day of May, 1872. At the- trial, Mr George Elliott Barton, the leading counsel for the plaintiff, stated that he would prove that the article in the declaration complained of was written by a gentleman known to be actuated by malice against the plaintiff, by writing and publish, Ing it ; that the said geutlemari had once e ? n on the Supreme Court bench of this City, and was now a District Court 111 this Province, During the course of the trial, the plaintiff tender* d evidence 91 ? w the said Charles Dudley Robert

ard was the real defend ant in the action, and that the defendant, George Bell, was nominally, and not as a matter of fact, defending this action. atom’s affidavit stated that he believed the gentlpman referred to m the opening address of My George Elliott Barton was Char es Dudley Robert Ward. He was advised and believed that the publicatxon in the * Otago Daily Times ’ newspaper of the 27 rh day of July last, of a letter from the plaintiff to the editor of the newspaper, dated the 24th day of July last, and in particular ihe publication of the telegram from the plaintiff to James Prendcygast, Esq , the At* torney-General for the said Colony ot New Zealand, dated the 2nd April, 1874, published at the foot of, and incidantally referred to in the letter, was calculated to, and would pre judice the public mind against the defendant in the action as having adopted, and therefore made himself responsible for, the supposed malicious injury to the plaintiff’s reputation caused by the publication of the article, as alleged, Mr Smith read Mr Macassey’s letter to the ‘ Daily Times,’ and the particular telegram which was mentioned in the affidavit as being calculated to prejudice the trial of ‘be action Macassey v. Bell, if again tried, Mr Maoasgeyls letter wag headed “ Juapeov.n Telegramq.” He might be right when he said in the last paragraph Mr kTr observations might he misinterpreted, but that wag a very shallow pretence for publishing the letter. Among other documents was a telegram *to the AttorneyGeneral J

i, _, . “Dunedin, April 2, 1874. •Ine trial of the action is fixed for the 15th instant, and as a heavy criminal calendar has first to be disposed of, it will be impossible to get the point argued in time. “The terms of the Judge’s order I know nothing of, and regret if there is anything nnusual in it. All that I wished was that the Telegraph Department would follow the same course in Macasaey v. BeT as inWenkhcim v. Arndt, Andersen v. Burke, and many other cases in which I have been pro-

fessionally engaged. My object is to show up Judge Ward’s connection with the article complained of) as well as a previous one in the * 'iimarU Herald,’ and to that end 1 desire that all telegrams between himself others (excluding past or present Ministers) relating to myself should be produced. That there are such telegrams lam well aware, as I have copies of some few of them in my pessession. If the depai tmeni will not, under the circumstances, send the telegraphist the telegrams for production under protest at the trial, I am remediless, as it is too late to move the Court or obtain Judge’s opinion. “ I have no wish to .copy or inspect the telegrams before trial, but I want, if possible, to have the telegrams ready for production at the trial, should the Judge decide that they are adans-ib e. I thank you for your courtesy in communicating with me direct.— JAMES' M ACASS KY. ”

Mr Smith urged that the tendency of the publication in this instance was to fix on the public mind the idea that Judge Ward was the author of the article; that Mr Bell knew it, and was also aware of the malice by which the writer was actuated ; therefore Mr Bell must be cast in heavy damages. The tendency of the publication was to induce the jury, supposing the case should come before a second jury, to accept the slightest evidence on the points to which he had just alluded, the miudsof the jury having been previously prepossessed with the idea that such aud such was the case. He (Mr Smith) admitted that this highly penal power of the Court should be sparingly exercised in such cases, and the Court should not entertain such an application except on the clearest ground; but this, he submitted, was so clear a ease of an attempt te pervert the course of justice, aggravated by the circumstance that what was done had been done by a barrister of the 1 ourt, that his Honor could scarcely refuse to grant a rule. His Honor : You can take a rule. Mr Macassey said that, as a person interested, he had a right to show cause in the first instance. His Honor intimated that he had made a note of the fact that M r Macassey interposed, and said he had no objection to the application being made at once. Mr Macassey said that all he wished to do was to direct the attention of the Court to the case of Meitzler v. Gounod, L.T., N.S., 264 to show that attachment would not i sue after a verdict obtained, when there was simply a rule nisi pending, and where the plaintiff had leave to move for a new trial or nonsuit. He also drew attention to the fact that there was no evidence before the Court of authorship of publication by himself. These were points be desired to throw out at that stage of the proceedings, so that, when it came to a question of costs, the other side might not have to say that they had been leaping in the dark. His Honor: Had the rule nisi been granted in that case ?

Mr Macassey : The time had not expired, llule granted.