Local Intelligence.

Lyttelton Times, Volume X, Issue 630, 20 November 1858, Page 4

Local Intelligence.

SUPREME; COURT. The civil sittings of the Supreme Court commenced at the Court House, Lyttelton, on Thursday^ the 18th instant, at 11 o'clock, before Mr. Justice Gresson. There-were, four special jury cases in the paper, three of which had lu-en brought from Wellington by an order of the Court on the application of the plaintiffs, on the ground that they could not have an impartial trial at that place. The only local case, the first on the paper, was, on its being called, postponed till Wednesday, the 24th instant, and

the Wellington cases were proceeded with, the' first being BOWLER V. MCKENZIE TD -3IUIK. 'This was an action a-jainst the defendants.who are the proprietors of the ' Wellington Independent,'for a libel published in that newspaper under date the 14th August, 1858, and also in the same newspaper under date the 2lst August, 1858. ■ ./ The following gentlemen constituted the special jury in this case: Messrs. IT. A. Scott (foreman) A. C. Croft, G. I). Lockhart, J. 1. Peacock, F. E. Stewart, T. B. Wynter, C. K. Vigers, C. W. Bishop, J. Palmer, A. R. Creyke, E. A. Hargreaves, A. J. Alport. Mr. King, with whom were Mr. Dampier and Mr. Borlase appeared for the plaintiff. Mr. Fox and Mr. Travers appeared for the defendants.

Mr. Darapier, in opening the case to the jury, read the pleadings, which alleged that the defendants, on or about the 14th day of August, 1858, at Wellington aforesaid, falsely and maliciously printed and published of the plaintiff and of and concerning him in his public character as one of the members of the Provincial Council of the Province of Wellington, in a newspaper called the * Wellington Independent,'in one part thereof a false and malicious libel, which libel is in the words following, that is to say:—"Now if grants in the two latter cases were paid to-mor-row, the greater part, if not the whole of them, would go into the pockets of John Varnbam, M.P.C., and the managing committee of the Wonga Wonga Steam Company, of whom Messrs. Bowler and Hunter are two. We call particular attention to this little fact, that, while these patriots declined to consider a single item for public works, official salaries, or other purposes, they took especial care before stopping the supplies to sanction the payment of two large sums, which were to come into their own pockets " (meaning and intending thereby that the Plaintiff had in sanctioning and voting such payments been influenced by corrupt and unjust motives, and for his own personal benefit). 'Fortunately, however, they have overreached themselves—the payments are not sanctioned in law by their merely passing them. They require an appropriation .act, as Mr. Fox reminded them to their evident discomfiture; and as no act will be passed we should think the Superintendent will not be likely to assist them in carrying out the exceptional appropriation for their own benefit."'

The alleged libel set out in the pleadings as contained in the 'Independent' of 21st August, 1858, was as follows:—" That the conduct of men, who, in the exercise of a high public trust, did not hesitate to stop the bulk of the supplies for the services of the province (an act by which they might have thrown out of employment 4CO or 500 working men), and yet made an exception in their own favour of two items which would put a considerable sum of money in their own pockets, is deserving of the strongest condemnation of which the courtesies of speech will admit,"

The damages were laid at £500; the defendant pleading Not Guilty. The evidence, which was entirely of a documentary; nature, consisted of the newspaper of 14th August, 1858, containing the first alleged libel in an article entitled the "Dead Lock," and also the newspaper of the 21st August, containing the second alleged libel, under the head "Messrs. Varnham and Bowler." together with a copy of a letter from Mr. Bunny, plaintiff's solicitor, to Messrs. McKenzie and Muir, requiring an apology, and threatening proceedings, and an answer from Mr. Wrn. Fox, acknowledging that he was the author of the article complained of. and using the language of the second alleged libel; another newspaper, dated 6th November, 1858, in which the offensive part of the article of 14th August was republished, together with the above correspondence, and the printed "minutes of the Wellington Provincial Council, which recorded the passing of the particular items referred ,to in the alleged libel. These several documents having been admitted by the defendant's counsel, and read by the Registrar, closed the plaintiffs-case, there being no evidence for the defence.

Mr. King proceeded to state to the jury on behalf of the plaintiff, that the plaintiff was a member of the Wellington Provincial Council, and that on the 11th of August Mr. Fo* (the leader of the Government, and the avowed author of the alleged libel) moved the Housa into committee on the estimates, and that Mr. Allen, another member, moved that they should commence at the 14th page, instead of at the beginning, ivhich was carried, and the two items ''• Subsidy to the. Wonga Wonga " and " Mail Packet Service" were passed, and the further consideration of the estimates adjourned until 7th September. That on the 14th August the alleged libel appeared in an article entitled the " Dead Lock." which after asserting that the Council liad stopped the supplies proceeded to use the language complained of; that the plaintiff's solicitor wrote a letter to the defendants, demanding an apology, which was answered by Mr. Fox, who acknowledged he was the author of the article, and refused an apology; and that on the 21st the correspondence was published with an article headed " Messrs. Bowler and Varnham," and repeating the offensive part of the article of the 14th, with further remarks of an injurious character to the .plaintiff; and that again on the 6th November last ■ the. whole affair, was republished with some observations designating the action as a trumpery one, and an attempt at intimidation and to gag the press. Having commented very fully on these articles, Mr. King denied that any intimidation was intended, but that the object of the plaintiff was to prevent the licentiousness and prostitution of the press for the purpose of crushing a political opponent. He contended that the defendants should have pleaded the truth of the libel, a course which by their avoiding they stood upon legal technicalities which they had accused tho plaintiff of proposing to adopt. From the position he was placed in, having no opportunity of reply, he (Mr. X.) would have to endeavour to anticipate the defence—the only ground of which | would probably be that the communication was privileged; but ho should show that such a defence would not avail. After calling the attention of tho jury to the refusal to apologise,

and that the defendants might have stated that they were sorry the plaintiff had formed a different construction to what was intended, and alluding to the reiteration of the offensive lan* guage as evidence of malice, Mr. King pointed out that the Council had passed the estimates for the-necessary expenditure of the province up to the end of June; that no Appropriation Bill had been sent down to the House by the Government, and therefore the statement that the Council had stopped the supplies was untrue; and besides that course was not in their power. The article was published to damage the plaintiff in the eyes of the electors as an imputation on his public character that he had been improperly .voting the sums mentioned. He (Mr. X.) pointed out that the jury must not look at what the writer intended, but what would be its effect in the eyes of a disinterested party on reading the article, and proceeded to refer to several authorities on the subject of libel, more particularly to Parmiter v, Coupland, 6, M. and W., 105, where Baron Park laid it down that any imputation of wicked and corrupt motives was libellous. Having also referred to the circulation of the newspaper of the 6th Nov. in this province, and made some very lengthy observations as to the political motive for the publication, Mr. King said if the jury thought the words used bore the, construction he put upon theni, they would find'a verdict for the plaintiff. It j was entirely for them to decide wlfether there was malice or not, and having recapitulated the arguments in support of his case, concluded by reminding the jury that the plaintiff did not want vindictive damages, but only a verdict to act as a warning to the defend? ants against using the press as a means of writing down political opponents. ' .

Mr. Fox in his address on behalf 3 of the defendants, expressed his sorrow that the jury had been brought from their distant homes to try the case. He declared his willingness to have had it tried in Wellington, where the circumstances and the ; characters of the' parties were known, and explained that he himself should have been the defendant instead of counsel,-but; ' the plaintiff! had refused to place him in that position; ; He admitted that lie was the author of the libel in question, and in every way responsible for it, and although he denied ever having any pecuniary interest in a newspaper^ he admitted he had made the press the means of conveying his opinions to his fellow colonists. Mr. King had anticipated that he (Mr. Fox) would ground his defence upon legal technical^ ties, but he was very far wrong, for no one could have a greater contempt for technicalities than he had. Mr. King had also talked a good deal of the licentiousness and prostitution of the press, endeavouring to create an impression that the 'Wellington Independent' was the satirist of the age, &c, but the fact was that for the last twelve months there had been a brace of keeneyed lawyers carefully examining every article as it appeared, for the purpose of bringing an action again st the press, and during that time they had only found two. (Mr. Fox was here proceeding to comment upon the articles he referred to, but was i-eminded by the judge that he was going into irrelevant matter.). Mr. Fox . complained that he had not interrupted Mr. King, who had also gone into • irrelevant matter. He had many subjects bearing upon the case, which might perhaps be irrelevant, more particularly the reports as to the circulation of the paper in the province, referred to by Mr. King, and thought it hard he was not permitted to explain them to,the jury. As an instance of the weakness of the plaintiff's, case, Mr. Fox pointed out that there were four lawyers "engaged fin his side, and drew some comparisons between tlie present case and the movements of celebrated Generals, who had sent away part of their strengh, being confident in obtaining a victory in a strong position. He also humourously referred to the case as a sickly child being taken to the sea-side by its nurses, Messrs. Bunny, King, Borlase and Dampier, to whom he assigned the characters of Messrs. Gamp, Susan Nipper, &c, &c, creating much merriment in the court. With regard to that part of Mr. King's argument which complained of the defendant's not having pleaded the truth of the libel, they (the defendants) said that it was no libel at all, and contended that a person in the plaintiff's position, if he felt himself aggrieved, would have filed an information'and sworn that the charge made ag a'nsthim was un- ~ true. Mr. Fox regretted that Mr. Bowler'was not able to be present at the trial.. as he had many questions to put to him; and then referred to several authorities on the law of libel, and commented upon them at length. He declared that the article never was intended to impute corruption to the plaintiff, but want of patriotism. There had been no attempt to show corruption in the address of the plaintiff's counsel, who should have put a witness into the box to prove that he was impressed with the idea that there was corruption upon reading the article!. His (Mr. Fox's) letter to the plaintiff's solicitor said that he did not impute corruption, and the case had therefore fallen to the ground; they had not attempted proof of it, and there, was no < libel at all. The plaintiff had not proved any damage, and although it was not necessary by „ law, he was sure the jury would not;give damages^ to a person who had proved none. The plaintiff and Mr. Varnham had suffered nothing^ but, on the contrary, had gained by it; they . would be handed down to posterity as the great Bowler and Varnham, who brought" the'great action against the ♦ Independent,' and whose ' names would be cited in courts of law for centuries to come. He (Mr. Fox) believed that thia was really a lawyers' action. ".Messrs. Varnham and Bowler did not want the lawyere, it was the lawyers wanted clients, and he hoped they would . not get their costs. , I His Honor the Judge, in summing up,^expressed his opinion that the communication was not privileged, and left it to the "jury to determine whether the words used had the tendency of attributing unjust and corrupt motives. ; The jury having retired for a short time re turned into Court -with a verdict for defendant. The Court then adjourned till ten o'olock next day. The Record in the companion case, to the above, Varnham v. McKenzie and Muir, wn» withdrawn.

Friday, November 19th. . v baker v. schroder. "this case, which was the third of those removed from Wellington, commenced this day. It waa an action for an assault committed by defendant on plaintiff, the case of the former resting upon alleged indecent conduct by the latter towards defendant's daughter, the particulars of which, as exhibited in a trial before the Resident Magistrate's Court at Wellington, have been already alluded to in our columns. Mr. Schroder had violently assaulted Mr. Baker by horsewhipping him in the street, and pleaded provocation and consequent justification. The tendency "of the action would be either to prove jiueh provocation, thereby involving virtually a second verdict against Mr. Baker in the original case; or to award heavy damages to Mr. Baker, thereby removing the stain from his character on the evidence. With this object the counsel for the plaintiff permitted the plea of justification to be fully investigated, and, the assault itself being admitted, the case was virtually the original one over again. Mr. Baker's examination and cross-examination occupied the whole of the forenoon; and after adjournment, Miss Burbidge was put in the witness box for the defence, the girl Mary Schroder being too ill to Allow of her evidence being taken in the proper place. This course proved an inconvenient one, 4nd early in the afternoon the Court adjourned till this day to s4lo"w of Mary Schroder's appearmce. \