SUPREME COURT.

Evening Star, Issue 3760, 12 March 1875, Page 2

SUPREME COURT.

IN BANCO. Friday, March 12. (Before his Honor Judge Chapman.) . Macassey v. Bell. —His Honor delivered judgment in this ease, an application for a new trial, as follows : This k a rule nisi obtained on behalf of the plain, tiff, calling on'the defendant to show cause, first, why the plaintiff should not have Judgment on the second and third pleas, on the following grounds * 1. Because the second plea is bad, as it is pleaded to the whole declaration hut justifies only a part thereof; second, because the third plea is bod in Uke manner—being pleaded to the whole declaration it does not (answer ?) all the allegations of pretended fact, hut is only an answer so far as regards the comments on such pretended facts. The rule also seeks a new trial on the following grounds:— 1. That the verdict was against the weight of evidence; 2. That certain evidence tendered on behalf of the plaintiff was erroneously rejected; 3. Misdirection i.e. that the jury should have been told that there was no evidence in support of the pleas; 4. Unfair conduct on the part of the defendant’s counsel in informing the jury as to what sum would carry costs, and warning them that if they gave even one farthing damages it would carry costs, if the Judge should certify that the libel was wilful and malicious. The action was brought by the plaintiff, who is a hamster, against the defendant, who is the proprietor of the Evening Star newspaper, published in Dunedin. _ The alleged defamatory matter is contained partly in a leading article and partly in a paper appended thereto, which purports to be a trnslation of a Chinese petition to the Provincial Council. The defendant pleaded three pleas :—l. Not guilty to the whole declaration; 2. Ajustiftcation: 3. That the alleged libel was a fair comment on the plaintiff’s conduct. r I postpone the consi* deration of the first breach of the rules until I have considered the more important question of a new tnal. As a general rule, the question of libel or no libel put in issue by the plea of not guilty alone, is a mixed question of law and fact for the jury, acting upon the Judge's definition of defamation. It is competent to the Judge to assist the jury by his opinion that the writing before them is libellous or the contrary; hut he is not bound to do so. This was one of the points decided in Parmeler v. Copeland, 6_M. and W, 105. Tins being the general rule, Courts.are reluctant to disturb the verdict of the inry, and will not do so if the language of the alleged hhel is ambiguous or doubtful, or where there is room for doubt whether the plaintiff is the person meant to be assailed by the defamatory publication. But the authority of the jury is not absolute. If the publication, upon examination, appears to the Court, though perhaps abusive, not libellous, and a verdict has been given for the plaintiff, the Court will set that verdict aside; on the other hand, where the publication is clearly defamatory, as where corrupt conduct is imputed to a public officer, and the jury find for the defendant, the Court will send the case to a second jury. Parmeler v. Copeland was a case of the last kind. The matter was clearly defamafrerdict was for the defendant. The plaintuf obtained a rule nisi for a new trial, on the ground of misdirection, which was the only ground argued. After hearing the report of the learned Judge who tried the cause, the Court called upon the plaintiffs counsel to support the rule, without requiring the defendant’s counsel to show cause. It was held that there was no misdirection, hut a new tnal was granted, on the ground that the verdict in the defendant’s favor was wrong. Parke, V in giving judgment, said: “ The verdict is unquestionably wrong, and there ought to be a new trial, but on the ground of its being a wrong verdict only. I think there was no misdirection on the part of the learned Judge,” This was decided upon the general issue only j so that the case stands as an authority for reviewing the verdict of the jury on the naked question of libel or no libel, unembarrassed by any consideration of justification, fair comment, or Privilege. This case was reviewed and followed by the Supreme Court of Victoria in 1858, in the case of Stephen v. Michie, for an alleged libel in the ‘ Herald’ newspaper. Upon a rule for a hew trial, on the ground that the verdict to the facts and against evidence, the Court, after reviewmg Parmeler v. Copeland, thus stated the rule: “ It is the duty of the Judge, in a case of libel, to dofinn to the Jury what is libellous, and it is the province of the jury to say whether the particular publication or writing falls within the definition laid down “y tbo Judge. If it appears to the Court, however, that the publication is clearly a libel, the Court will that verdict (meaning' a verdict to the contrary) on the same principle that it will set aside any other where the jury, dealing with matters of fact, have found against clear evidence." Now examining the character of the publication com’ plained of by the light of the coses just referred to there cannot be a doubt as to its defamatory character. To maintain the contrary would be to ignore the ordinary meaning of language. The so-called translation appended to the article cannot be separated from the article itself. The printing of that translation” casts upon the defendant as much responsibility os the article, even if the only sting of that translation—as tolthe “lawyer, verv clever, just come from Dunedin," and the nefarious bargain imputed to him—bad not been singled out and rendered more pointed in the article. Even if the other imputations be assumed for the present *o be well pleaded in justification, and satisfactorily proved, this one respecting a nefarious and dishonorable bargain remans wholly unanswered. But it is said there is nothing to connect this transaction f? 1 ® .T er y clever, just come from Dunedin vith the plaintiff. Leaving entirely out of account all evidence on the subject, and looking only to the article, what do we find ? The transaction is desenbed in the second paragraph of the article. It is there said that this statement (ns to bargain) was in the translation signed by Mr Macasjudiciously omitted,” and this is pronounced to be taken altogether as discreditable a matter as overcame before this Council,” and so indeed it would be if true. Immediately following this paragraph occur a few sentences which preclude all doubt as to the person alluded to as the lawyer, very clever, just come from Dunedin, or, as the article ranglates it, the clever lawyer from Dunedin, by saying “ We have dealt somewhat tenderly with Macassey on account of his absence." In other words, whether tenderly or otherwise, Mr Macassey is the person we have dealt with. Again, “We have fixed on* stamp to Mr Macassey’s shoulders as lightly as the nature of the case admits of.” Thus, an infamous bargain is imputed in unambiguous language, and this bargain is unequivocally fixed on (he plaintiff’s

shoulders. It remains uncovered by the plea of justification, and the tardily published apology admits the cause of action. That apology might have been accepted by the jury as some mitigation, but not certainly as any answer to the action. In deliberating on their verdict, I think it not unlikely that the jury may have dwelt too exclusively on the article, and left the appended translations out of their consideration, as matter with which they were not called upon to deal, or perhaps as matter which opened the door to comment. .But even then they must have lost sight of the reproduction of °f a corru Pt bargain in the article itself. As to the alleged erroneous exclusion of evidence, I incline to think that the questions proposed to be put to the defendant's solicitor _as to conversations with a third party. properly rejected, and as I haVo decided that there is good ground for sending the case before a second jury, it becomes unnecessary to go minutely into the question, especial y as it is desirable not to influence the course of proceeding at the second trial to a greater extent than is unavoidable. The same may be said as to the ground of non-direction. Generally, -I think there was some evidence, but there is one ground which demands observation. As to the plea of fair comment, I told the jury that under color of fair comment it was not competent to a defendant to state defamatory matters of fact, and then assuming their truth to proceed to make comments: that assertions of fact were not comments at all. The jury disregarded that direction, and this is an additional ground for a new trial. I think I might have told the july that as the publication embraced numerous assertions, which were not comment at all, they ought to find that issue for the plaintiff, hut X cannot say that my direction was erroneous. [The rest of his Honor’s judgment we must hold over till to-morrow.] The rule will, therefore, be made absolute for a new trial, the costa to abide the event.

-Mr Smith: I ask for leave to appeal against that decision, your Honor. His Honor : Oh, yes. Scott v. Beodbick.— Mr Stout moved .for a rule nisi for a new trial in this case, heard in October last. Judgment reserved.