SUPREME COURT.

Evening Star, Issue 3592, 27 August 1874, Page 2

SUPREME COURT.

IN BANCO. Thursday, August 27. (Before His Honor Justice Chapman.) MACASSEY V, BELL. This was an application on the part of the plaintiff that a writ of attachment should issue against the ‘Guardian’ Printing Company for contempt of Court, for publishing an article on the 27th April, commenting upon an order issued by bis Honor the Judge for the production of certain telegrams to be used in evidence in the action then pending between the plaintiff and defendant. A rule nm had been granted, and the Court was now applied to to make it absolute. Mr B. 0. Haggitt and Mr W. D, Stewart appeared in support of the rule ; Mr James Smith and Mr .-stout for the defendants. Mr Haggitt asked that the rule bs made absolute. Mr Smith, in reply, read tha-separate and joint affidavits of Messrs Mlacassey and Ivettle, which affirmed that many of the statements in the artcle were without foundation, and that they were calculated to prejudice the minds of the jury in the action then pending. The correspondence has already been published between Mr Macassey and the Secretary of the ‘ Guardian ’ Company. A further affidavit by Mr R. J. Creighton was read, stating that the infer ma ion on which the article was based was not supplied by the defendant or his solicitor. The article was not written with a v.evv to prejudice the action then pending, nor as a comment upon it, but was written and published solely in the interest of the publics, pointing out the necessity of a change in the law to secure too inviolability of telegrams under which suoh order was'granted, and that had that order been granted in any other case, that or a similar article would have been written. The affidavit further expressed regret that the article had been misunderstood, and an imputation of contempt of his Honor’s Court cast upon the journal by Mr Macassey and his solicitor. The explanatory article published by the ‘ Guardian ’ was also read, in the course of which Mr Smith commented severely on the fact of the publication in the * Daily Times ’ of Mr Macassey’s letter to the directors of the ‘ Guardian,’ before opportunity was given to the directors to consider or reply to it. he submitted that Mr Macassey’s conduct or that of his solicitor was not only a gross violation of decency, but a voluntary choiee by Mr Macassey of the public as the tribunal for judging of the matter complained of. Mr Haggitt applied for leave to tile 'an additional affidavit in reply, with a view to refuting Mr Creighton’s affidavit,- and contradicting a continued series of articles which it was alleged had been published after the rule nisi was obtained.

His Honor decided that it was only competent to answer new matter. Mr Macassey said it was “ contempt j” Mr Creighton said it was not intended. How could that be answered ? Theie had been affidavits enough. It was wearying and contrary to common sense that such repeated applications alien'd be made. If new matter had ariaen, to that alone an affidavit should be allowed in reply ; but no new matter had arisen. If the application was allowed, another affidavit would be made on the other side, Mr Haggitt submitted that the fact to be estab islied was whether the article was or was not published iu good faith. He simply proposed to show that the articles alleged to hebonajide were not so, and to show it by evidence that would be admitted in an action for libel. His Honor said that was not new matter, nor did it apply to the application of attachment for contempt of Court. Mr Haggitt said that the affidavit of the legal manager wa-a ambiguous, ami was entitled to be answered. His Honor said that was ground for argument, but not for a now affidavit. Mr Haggitt quoted MT.eod v. Waike, an action for libel. His Honor said that was evidence to prove malice, but was not applicable to the present case. Leave to file a further affidavit was refused. Mr Smith drew the attention of the Court to the article in the ‘ Guardian’ ®f the 24th April. He pointed out that Mr Macassey and his solicitor appeared to have misunderstood the article, as in their affidavits they treated matter put hypothetically as if it were stated as a matter of fact. The article complained of commenced by remarking that the newspaper abstained from prejudging theiaseof eiaca-sey v. Bell, and then went on to describe the purport of the order granted to inspect telegrams, and the consequences which possibly might have followed. The writer assumed the learned Judge wa»

administering the law as it stood in granting lhat order, and that the persons asking it were only asking what was legal. He then pointed out how such a law, as interpreted by the learned Judf >, tended to destroy the inviolability of telegrams ; and how, in the particular ease of Macusmy v. Bell, adva itage might have accrued to the plaintiff unknown to the defendant or his solicitors The plaintiff might have possessed hims df of the private correspondence, not'only between the defendant and his solicitor, which is always considered privileged, but of any other correspondence hiving the slightest reference to the subject. .Nothing was imputed to Mr Macassey impugning liia conduct °>’ laying k : -m open to public reproi atiou ; toe remarks were merely illnsV.ratiooa of what the writer coucewed to he the indisputable tendency of the law as it stood regarding telegrams, as interpreted by the learned Judge. He contended there was nothing, therefore, which brought the case within the list of those in which the highly penal power of the Supreme Court had been exercised in England. In support of this view the learned counsel cited the leadino oases that had been decided in England, and showed that in each case there had been one or other, a direct attempt to influence the Court, the jury, or public opinion by threats or otherwise for the expresi purpose of defeating a fair trial of a case then pend,n S 5 hut that no such attempt had been made, nor even an opinion expressed in the case of Macassey v. Bell. His Honor said the question was whether the article had a tendency to prejudice the case.

Mr Smith submitted there was no such tendency, and that the writer of the article was justified in saving that the law relating to telegraphs should he altered. His Honor said the part of the article complained of was that which referred to the counsel in the case.

Mr Smith conTdered the interpretation Mr Maca-sey put on that paragraph was not justified by the words employed, which only implied that the opinion of counsel as to the order of tho Court would be indicated by the course they took. If they retained their briefs, the inference was they approved of Mr Macassey’s cou-se of proceedin'. If they had abandoned them, it would have been a virtual coudemnation of it. T e respectfully submitted the rule should have been refused in the first instance, but as every rule moved for had its own proper consequences, Mr Macassey must take those of his applicrtion, for which he (Mr Smith) contended there were not even prima fucie grounds. He was bound to remark, too, on the singular practice in the case. The application hid been granted as merely a private remedy for au alleged wrong. The Judge ; Oh, dear no ! Mr Smith : It was moved for on Monday, *?-7th Ap il, and on Friday, May 1, before the trial of Macassey v. Bell. His Mom r was asked for by his learned friend Mr Haggitt, when his Honor said the remedy might prove worse than the disease, which he took to mean there was no ground for the application.

The Judge : His opinion was there was a good deal of private irritation on the part of the solicitors to the suit, which, he thought, might be allayed by delay. vir buiir.h submitted with great confidence that the present w as not a case in which the psnal power of the Court should be moved, it was a very trivial case, but he could not help saying it was a monstrous abuse of the position of counsel on the part ef Mr Macassey that he should have used the threats contained in the published correspondence. They implied the foregone conclusion that he had only to go to that Court aud ask for the exeicise of the penal powor, with which it was armed, to obtain it.

Mr Stout was proceeding to address the Court when our reporter left. [Left sitting.]