SUPREME COURT.

Evening Star, Volume IX, Issue 3616, 24 September 1874, Page 2

SUPREME COURT.

IN BANCO. Wednesday, Sertrmrer 23,

(Before His Honor Mr Justice Chapman.)

MACASSEY V, BELL Motion for a new trial. Mr Ha»gitt, with him Mr W. D. Stewart, for the plamtiff; Mr James Smith, with him Mr Stout, for the defendant. This was an application to make absolute a rule nisi to set aside the verdict of a jury in an action for libel; and to grant a n«w trial on various grounds. Mr) Smith, referring to the first ground that the second plea vras bad in law, and afforded no answer tp the libel, (submitted the drift of the second plea was ngisapprehended. It .commenced by saying, “ For a further plea in this behalf, the defendant saith.” By these words the defendant had limited the plea to specific matters answered by it. The P^ ea of Not Guilty in the record answered all the other allegations in the declaration which this plea did not cover. Therefore, between the two, the whole declaration was answered. The second ground on which judgment, non obstante, was cited, was the third plea is only an answer so far as regards the comments on such pretended facts. He submitted that the doctrine “aided by verdict” came in ts aid defendant in the construction , the Court should now bo asked to put on it. It was not to be held only as a plea of fair comment, but as entirely if not expressly justifying all the allegations of fact contained in the article. Although, no doubt, the language was vague, and might have afforded ground for an application in Chambers, calling upon thedetendaut to render the pleamore specjfic i yet, a® tfie plaintiff dfd not think proper to take that course, but went to trial upon the and, Jf now, by any fair in-

tirpretation it could |be held to mean more than just ficatiou of the newspaper articles as fair comment, he submitted the doctrine “aided by verdict,” enabled the defendant to ask the Court to put that construction on the plea, the words of which were quite sufficient to bear it. He submitted the C ourt would not favor the course the plaintiff was now taking, lor the plea was a warning to plaintiff that something more was meant than a justification of the mere comment in the article. Aa to the second branch of the rule : “Why the findings of the jury should not be set aside, aid a new trial had be tween the parties, on the grounds following: —l. That the findings of the jury were against the weight of evidence.” To the first question put to the jury—“ Did the defendant falsely and maliciously print and publish concerning the plaintiff the article in the dselaration set forth —the answer was “No”; in other words, the jury decided that the article was not a libel upon the plaintiff. Lhe verdict, though now alleged to be against the weight of evidence, was a question peculiarly within the province of the jury, and therefore one which the Court would not seek to disturb, except the weight of evidence should be most clearly and un mistakeably the other way. The evidence given at the trial showed that the jury were quite justified in coming to the conclusion they did. With regard to the second issue—- ** Are the statements of fact contained in the said article true in substance ?”—the jury found in the affirmative. The evidence

at the trial fully justified that finding, as well as the finding upon tho third issue. Coming to the next ground —“ That the learned Judge who presided at the trial erroneously rejected evidence tending to connect Mr Ward with the writing and publication of the article, and the defence to the action, and to show that the publication of the said article was malicious to the defendant’s knowledge, and more especially erroneously rejected the answers to several questions pit to Gibson Kirke Turton, a witness called for the plaintiff”—he submitted that the learned Judge very properly rejected all such evidence on the simple ground that every one of those questions tended to disclose what had taken place between defendant’s solicitor, himself, or third parties, relating to the action. No one of the eases cited in moving for the rule supported the contention on the other side that the Judge was wrong in excluding the evidence In nearly all those cases the qu-.s-tion was whether communications that had passed between the parties should be considered admissible. The evidence rejected at the trial was inadmissible on two grounds. First, if Turton, as defendant’s solicitor, had any communication with Judge Ward, the defendant was entitled to have that evidence excluded, as he had a right to treat any such communications as privileged. Secondly, it was objectionable, on the ground that it was a communication between plaintiffs own witness and a third party, the defendant himself not being present. If such evidence were admissible, there was no reason why conversations between defendant’s solicitor and any other person with reference to the subject-matter of the action should not be equally admissible. At the trial, when refusing to allow those questions to be put to Mr Turton, his Honor said that the very questions about which he had any doubt were the two last—whether or not Judge Ward had indemnified the defendant, or whether he was looked to to indemnify the defendant. He {VI r Smith) submitted that those questions directly trenched upon the privilege of the defendant, namely, that any communication made to bis solicitor, or any knowledge possessed by his solicitor having reference to the action, was sacred. It appeared at the trial that Judge Ward was one of the plaintiff’s witnesses. He was called but didnotappear. The object of thequestions put to Mr Turton was to elicit what communications, if any, had taken place between the client’s T*ritnossps and defendant’s solicitor, whom plaintiff had phosen to make his own witness. It would be a most unheard of prooeedingif any such evidence were admissible against the defendant. One distinct ground of objection to it would be that it would be admitting hearsay evidence. As to the around that the learned Judge misdirected the jury, he had to repeat the remarks he had made in regard to the ovidenoe. But there was another ground upon which it might be met. The Judge was not asked at the trial to give any such direction as that specified in the rule, and therefor it was not competent for the plaintiff now to urge that the Judge should have so directed the jury. —(Archbold, p. 513, head 5.) The last ground was unfair practice on the part of the and his counsel at the trial, to the prejudice of the plaintiff in that tho observations the counsel for the defendant, on the subject of costsj were calculated unfairly to bias and prejudice the minds of the jury. A short discussion took place between big Honor and Mr >’mith in regard to this ground. His Honor stated the practice of the Court was that neither counsel nor Judge should instruct juries as to costs. Mr Smith contended amj. cited M'Kellar v. Brown ( Maoassey’s Reports), t(j that the practice had not been uniform/ 1 Mr Stout proceeded to address the Court on the same side, and did not conclude before the Cou.rt j'osp. '

Thursday, September 2i.

The argument of the rule was resumed in the Supreme Court to-day. Mr Stout having concluded his argument showing cause, Mr H aggitt and Mr Stewart replied. The latter had not concluded his argument at 3.45.