SUPREME COURT.

Globe, Volume XXIII, Issue 2157, 24 January 1881, Page 3

SUPREME COURT.

SITTINGS AT NIBI PIUUS.

MONDAT, JaNTTABT 24,

[Before his Honor Mr Justice Johnston.] The sittings of tho Court wore resumed at 10 a.m.

ITHBH V OTISP.

This was sn action in which Joseph Ivess was plaintiff And Edward George Crisp defendant. The plaintiff was at tho time that the oaase of the action arose proprietor and publisher of the "Ashburton Mail," and the defendant the Borough Solicitor of Ashburton. The plaintiff was charged by the defendant with having published of him a false and defamatory libel, and was committed by the Bench at Ashburton to take his trial at the Supreme Court session then next ensuing. Just before the session the cose was withdrawn by the defendant. The plaintiff now brought on action for £6OO d&mogei, which he

had boon put to in defending himself from I tho said oharge, and also loss sustained by him in not being abh> to extend hie business a* he purposed so to do. Mr Button, with him Mr Gresson, for tho plaintiff. Mr Weston for the defendant. Mr C. W. Bishop was chosen foreman of the special yary. Mr BuUod was opening tho ease for the pluintiff, when His Honor pointed out that tho declaration did not aKege that the prosecution had beon determined. In all cases for malicious prosecution it was laid down that the declaration must contain an averment that the prosecution had been determined. Ho was not quite sure whether the abandonment by tho defendant was a determination of the case as laid down the books. Mr Button said that he had searched for authorities that the withdrawal by the defendant made such a determination as the books demanded. Ho would, however, submit to his Honor that the now defendant was stopped from bringing this because ho had not gone before the Grand Jury with his bill, and had given notice of withdrawal. His Honor said that there was not any authority, so far as he could gather from Mr Button, for the holding that tho withdrawal by the defendant constituted Buch a determination as would be required by law. However, they would leave the matter for the present, and it could be argued afterwards. Mr Button said that he should bring evidence to prove that the now defendant had withdrawn the record, and that, therefore, ho was stopped from saying that the case had not been determined. Mr Weston desired to point out to his Honor that there was nothing to prevent Mr Orisp going on with his action to-morrow. Tho withdrawal of it did not affect this; hence there could be no determination-of the

case as contemplated by the law. Mr Button than proceeded to open the «ase to the jury, stating what he intended to prove by evidence. On Mr Button concluding the reading of the artiole upon which the alleged libel was founded, His Honor asked Mr Button whether he could prove that anyone read the article through ? ' Mr Button stated that he could do so.

Some argument ensued as to the evidence neoessary to be given by the plaintiff to show reasonable and probable.cauue for the publication of the article commenting upon the oonduct of the now [defendant as borough solicitor in charging certain fses for writing letters demanding payment of rates. Mr Button contended 'that, though he was not prepared to state that in charging 6a per letter by Mr Crisp as borough solicitor was unprofessional conduct, or wrong, but he contended that the article was only a fair statement of facts, and such as any journalist in the interests of the public might fairly comment upon. Mr Weston pointed out that this was the state of the case, that there was no allegation of unprofessional oonduot on the part of Mr Crisp, and yet it was sought to be held that the plaintiff here could go and make statements upon false premises, the facts of which could have been ascertained at once.

Mr Button then continued his oponing address at some length, and called evidence. A. B. Bloxam, Deputy-Begistrar of the Supreme Court, produced the depositions and exhibits in the case of Begina v Joseph Ivess for libel, as sent from the Ashburton Besident Magistrate's Court. Edward George Crisp, the defendant, deposed to having sworn a certain information against the present plaintiff for libel at Ashburton. The notice of discontinuance of

prosecution of the case of Begina v Ivess for libel was written by witness and left at the office of Messrs Harper, Harper and Scott, the present plaintiff's solicitor. The notice of discontinuance stated that the Crown Prosecutor, not intending to prefer a bill, he (witness) did not undertake to prosecute privately. His Honor asked Mr Bloxam whether the recognizances of the witness who was bound over to prosecute had been eatreated.

Mr Bloxam replied in the negative. His Honor asked what was the use of binding people over to prosecute without enforcing the bonds. The witness had rendered himself liable to have the recognizances estreated.

Examination continued—There had been a demand made upon him for £SO for costs by Messrs Harper, Harper and Scott, which had been referred by him to Mr Joynt, who was conducting the case for him. It was not paid. Witness never saw the schedule of duties of borough solicitor. He had read the artiole in the " Ashburton Mail" of February 26tb, 1880. It was on that article that he laid the information. It appeared to him witness wrote twelve or fifteen letters always to the better class of ratepayers, except to clients of my own. The letters were set writton on the same day the rates were due. Witness got a list of defaulters in arrear of rates, and in writing the letters made a demand also for 6s costs for writing the letter. In some cases he had not oharged this. In writing to solicitors he had not oharged the 6s. He had not done so out of professional etiquette; he had not oharged the 6s to Messrs Nalder, Gorriok, or Wynn Williams. His Honor—You only oharged the unprotected ratepayers the 6s. Examination oontinued—Witness recovered the 6s by adding it to the summons. The summonses were taken out in the name of the rate collector. Witness had no authority for adding the 6s to the rates sued for by him.. Mr'Truokle objeoted to pay the 6s, and as he was a olient of witness, and had paid him a bill a few days before, he did not press the demand for the 6s. Witness had a letter from the Town Clerk, by request of the Borough Counoil, asking for an explanation of the oharge of 6a. He had told the Mayor that he was ready to explain whenever he made an appointment with him to do so. He was not at present the solicitor of the Borough. Cross-examined by Mr Weston—Witness elected to send letters to the parties to avoid the sending of a summons. It had been held by the Beaident Magistrate that the sum of 6s 8d oharged for a letter was a reasonable charge, and that he should allow it in any other case, as it was no port of a solicitor's duty to rush' a man into Court. Miss Callaghon paid the amount of the debt and costs into Court, and never made any objeotion to the 6s charged for writing the letter. There was no arrangement between Mr Friedlander, the rate collector, and myself that the 6s should be divided between us. Miss Callaghan had made a complaint to the Council as to the 6s costs, and that complaint was sent to me for explanation. The artiole was inserted in the " Ashburton Mail" before witness had time to explain to the Council. Witness was not dismissed.

Re-examined by Mr Button—Branson and Purnell do the solicitors' work of the borough. Witness was not re-appointed. Walter Martin, clerk to the Court at Ash* burton, was called to produce the documents with respect to the cases in which Mr Crisp had taken out summonses, but His Honor held that it was not necessary, as there was not any dispute. Joseph Ivess, the plaintiff, deposed: That in conscquenoe of the proseoution in the case of Regina v Ivess he was compelled to lease his business at Fatea. Ho was committed for trial, and engaged Mr George Harper to defend him. There was also the costs of the witnesses in the Resident Magistrate's Court, Ashburton. The costs actually out of pocket was about £SO, and he lost nearly three weeks of time. The £SO costs incurred was the demand made of Mr Crisp. He should not have brought tho action had this been paid. Mr Crisp appeared by counsel in tho Resident Mogistrate's Court. A commitment was prossad for by Mr Crisp's counsel. The commitment was on tho 12th March, and the notice of abandonment was given on April 3rd, two daya before the Criminal Sessions. Tho magistrate in the Court below at first refused to allow his defence until he posted an authority. The counsel for the informant urged the commitment of witness under any circumstances, without hearing evidence of justification. Tho present defendant was in tho Court at the time. Witness was in attendance at the Criminal Session, but was not called upon to surrender. His Honor in hia charge stated that it was not necessary for the persons charged with libel to attend further, as the Grind Jury had not found a bill. Miss Callaghan called upon witness, and mentioned the circumstances of her caso stating that she had been hardly dealt by in having tho 6s charged by Mr Crisp. Cross-examined by Mr Weston—Miss Callaghan called upon witness with her summons, and showed 0 charge of 6» for letter writing, and asked hia Advice, He advised her to pay >

the money into Court less the 6s, and contest tho matter, as he thought it was illegal. She said she would sooner pay tho 6j than appear in Court. By hor request the witness paid the amount into Court. Ho then asked her permission to expose the demand in his paper. She declined to do so. Witness utiorwards drafted a lottor by Mies Callaghan's request to tho Borough Council, which letter was amongst his papers. Witness got the letter from the late clerk of the Court. Tho Borough Council had nothing whatever to do with it. Ho did not think it necessary to ask Mr Crisp to withdraw his demand for the 6s. The article was founded on what Miss Callaghan told witness, the report of the proceedings of the Ashburton Borough Council appearing in tho " Ashburton MaU " of February 24th, and what he knew ■of his own knowledge. His Honor did not see how Mr Weston intended to make this relevant. Mr Weston said that he wanted to show that there was no ground in that report for the article which was alleged as a libel. The witness said that the article was written . after the report appeared. Two days intervened between the appearance of tho report and the article. Witness knew of his own knowledge that Mr Crisp's action in charging 6i was condemned by all the members of the Borough Council. It was on tho report on Miss Callaghan's statement, and the knowledge that tho charge made was unusual, that witness built up the article; Witness did not go to any solicitor on the subject of the oharge. ihe Council condemned* Mr Crisp's action. [Witness read a portion of the report of the Borough Councillor's speeches on tho subject.] The matter was ultimately referred to Mr Orisp for an explanation. The article appeared before Mr Orisp had time to make an explanation. Mr Weston said that if his Honor had not disallowed a previous question, he should ask Mr Ivess as a, newspaper editor and man of the world whether he should not have waited till after Mr Crisp's explanation before writing such an artiole. His Honor to witness—You need not answer that question.

Cross-examination continued—Witness apologised to tho rate collector after hearing his denial on oath. The rate collector is brother to the present Mayor. Mr Button objected to this evidence. His Honor overruled the objection. The oase before them that day was whether the artiole was a libel, and also whether there was reasonable and probable cause on the facts for the artiole. It was, therefore, admissable to show what was the condition of his mind as to the facts. Mr Button contended that the evidence was not admissable, as it was endeavored now to move by something which took place afterwards that he was aware of the publication boing made without reasonable and probable cause.

Cross-examination continued The paper produced is the "Ashburton Mail " of March 10th. There is an apology in that paper to the rate collector for the statement made in the artiole of apology read. His Honor said that this apology was clearly not relevant. Mr Weaton said he would make it relevant by asking the witness to road an article written on that apology. Witness then read an article in the same paper on the subject. Hie Honor said this was clearly inadmissible, as so far from apologising, thejarticle went on ti repeat the charge against Mr Crisp. Mr Weston said that what he intended to show was that there was express malice on the part of Mr Ivess, who apologised to Mr Friodlander, and made a second attack against Mr Crisp. * Cross-examination continued—There was no intention at all to make the amende honorable to Mr Crisp. Mr Friedlander swore in the box that he knew nothing of the 6s being oharged, and never authorised the solicitor to make the charge. He thought that there had been a sharing of the plunder between Mr Friedlander and Mr Crisp. The full and complete facts were before him at the time he wrote the article. There was no necessity for him to aak Friedlander, because he knew the facts. There was a resolution of censure of Mr Crisp's action by the Borough Council after the article had been written. Witness was a member of the Borsugh Council at the time of Mr Crisp's appointment as Borough Solicitor, and knew the terms of the letter under which he was appointed. Mr Weston read a portion of the article charging the rate collector and Borough solicitor with extortion, and proposed to ask the witness how it was he had not apologised to his client as well as Friedlander. His Honor said that this need not be asked, as it would bo for the jury to decide if this was a libel or not. They would probably come to the conclusion that it was a libel to acouse a solicitor of extortion, but then they had to consider if it was warranted on the facts. Witness owned the "Fatea Mail." The article appearing in that newspaper of June Ist, 1880, was written by his editor, and inserted with his concurrence. His Honor asked if this was relevant to the oasep Mr Weston said it was. His Honor said if they went into every little detail of the case the jury would be there till midnight. Mr Weston objected to time being thrown into his teeth whilst conducting an important oase such as this.

The Witness then read the article, and also a demand for an apology for the one appearing in the " Ashburton Mail." Cross-examination continued Witness never apologised in any way whatever, and wrote to Mr Crisp's solicitors stating that, after reading Mr Crisp's explanation, he would consider the matter. He considered the facts true, and declined to apologise. This closed the plaintiff's oase. Mr Weston then opened the case for defendant, and called Edward George Crisp, the defendant, who deposed that the Beaident Magistrate at Ashburton had fixed the rate of 6s 8d for letters written in demand. Owing to Mr Joynt's advice witness hod withdrawn from the prosecution of the case of Begina v Ivess. His Honor said as at present advised he should lay it down to the jury that the writing of these letters was entirely gratuitous, and that the defendant had no right to charge the 6s each. It was not money out of pocket, and therefore he thought that the charge could not be made.

Some argument ensued as to the point of the defendant being entitled to charge these sums under the arrangement for payment of costs out of pocket by the Counoil. The oounsel on both sides having addressed the jury, His Honor summed up. [Left sitting.]