SUPREME COURT.

Evening Star, Issue 3761, 13 March 1875, Page 2

SUPREME COURT.

IN BANCO,

Friday, March 12. (Before Ins Honor Judge Chapman.)

Mac asset v. Bell.— We give the concluding part of His Honor’s judgment herein, as delivered yesterday:—

The last ground involves a point not hitherto raised in this court, and, therefore, demanding full consideration. I allude to what is called the unfair conduct of counsel in telling the jury that if they gave even one farthing)'damages it would carry costs, provided the Judge certified that the libel was malicious. Of late years Judges themselves, when the question has been put to them, have declined to inform the Jury what sum I 1'?, r,. ca f ry costs, and certainly no Judge would tell the jury what sum carries costs without the question hem ? put to him. I myself have always withheld the information. I« Qhalmevs y. Roberta the question was put to me, and I declined to answer it. In Ford v. Telfer, Mr Justice Richmond took the opposite view.—(Maoassey’s Rep., 140,156 ) The learned reporter odds in a note, “ There are not wanting authorities in support of the opposite course taken by the learned Judge,” and this i§ without doubt true ; but tl}q weight qi authority is now decideclly against imparting the information. In : Wakehn v. Morris, 2, Fos. and Fn., Maule J said, I know of no law which prevents a Judge from answering the question, but as it ja calculated to in(|qonco the juvy, | think it' is better not to answer ft.*’ In SeOy v. Sherlock Law Rep., 1. Q.B CB6. the huy askedthe qSS hut Bramwell, B„ said that it was a mS which he had often discussed with the late Lord aud the conclusion come to was that the questaonros one which ought not tq bo answered by the uqdtfo, It jg not ipilikoiy that u time will .come when the giving of ths information will be deemed a misdirection, as involving an erroneous measure of damages If the question ought not to be answered by the Judge-if a Judgewould tlia when'dealing with the question of damages, A fortiori ought counsel to abstain from so doing, and the doing so has received emphatic condemnation in the case “■ 'v.E.7sLSS,a,S) N f•• 77 °- Tlmfcwasan action for false imprison’ mCnt, and the plaintiff’s counsel pressed upon the % aa *0 give more than L 5 otherwise the costs of the trial would J® TW? ths Plaintiff. The jury found for the plaintiff with L 5 5s damages; and notwithstanding the smallness of the damages and the wellknov,Ti practice that the Courts seldom disturb verdicts m actions of tort in questions as to daiqages, Lie Court qf Queen’s Beqch. granted a new trial, on the gwnind that the JuryTiad probably been influenced by the improper statement of the plaintiff s counsel in respect of costs. In the course of the argument, the plaintiff’s counsel adwou?d in giving a verdict foi detendanl on account of this question of costs; but ho contended that they had a right to take that question into consideration in awarding and assessmg the damages. But the Court, without call-lu-.oli I tlie defendant’s counsel to support the rule made the absolute for a new trial, notwithstanding that the Judge who tried the cause had tried to obviate the ill-effects of the counsel’s statements, by telling the jury that they ought not to be influenced by the iiffomiatitm. If It had not escaped me m summing up, I should have told the jury to disregard the information which had been pressed upon them by the learned counsel, esnecially as what he is reported to have said (and in the course of lus argument he did not even suggest that the report was erroneous) was Incorrect in pomt of law, inasmuch as a Judge has no power to certify that the grievance complained of is malicious, so as to give costs, that being now left to the jpy- . ° u -4*?. authority of Boole y. Whitcombe, therefore, I think this is on additional reason for sending the case to a second jury. It is no answer to say, as I understood Mr Stout to contend, that the jury could not have been influenced in the question of damages, because they never entered upon the question of damages. They were urged not to give a verdict for the plaintiff, because even one torching damages might carry costs, and they gave the only verdict which they were told would deprive of costs.. It was also urged that there was nothing to show that the jury was influenced. How is that possible, in any case? We cannot dive into the minds and motives of the jurors. It was not shown in Poole v. Whitcombe, except by the fact that the verdict complied with the information’giyen by counsel There remains only the questioned the second plea' £ oar , th ? voint - A P lea which is pleaded to the whole declaration, but which iuslines only a fact, is bad upon demurrer. Aiustiflcation of. tacts of a libel, where the defamatory matter is divisible,.may be pleaded, but it must he so expressed. It was contended that the words “in this • i e^®G tually Umitted the plea to the matter justified. But these words have always been understood as necessary on behalf of the causes of action in the declaration mentioned. They are not new words devised by the pleader for the first time to express limitation; taey are words employed in the common terms of the commencement of second and subsequent pleas in all the books of forms known to Biulen and Leake. They have only been dropped out of late years as a useless incumbrance. Ido not think this defect is one which is aided by verdict but the objection should have been taken by demuiTer, and then leave would have been given to the defendant to amend that defect, and any others which could have been shown to exist, if I had come to the conclusion that there was no ground ior a new trial, then I should, perhaps, have thought v u , oc 'r s3 r r >' to Permit judgment non obstante veredicto to be entered; but, having come to the conclusion that the verdict on the principal issue cannot be supported, I do not think it necessary to pursue the course asked for by the first branch of the rule, os it could not affect the costs, and might •throw impediment in the way of an application to amend on terms before the next trial. The rule will therefore be made absolute for a new trial, the costa to abide the event. 1