SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 4987, 17 March 1877, Page 1 (Supplement)

SUPREME COURT.

IN BANCO. Thursday, March 15,

(Before their Honors the Chief Justice an' Mr. Justice Richmond) BALXAXCE V. CARSON.

This was a demurrer by the plaintiff to the pleas of the defendant in an action for, G. Hutchison appeared in support of the demurrer ; Mr. Hart, with him Mr. G. E. Barton, for the defendant. The declaration averred (1) that the plaintiff was member of the House of Representatives for the district of Rangitikei. (2). that on the 31st day of October, 1876, the defendant falsely and maliciously printed and published of the plaintiff, and of and concerning him as member of the House of Representatives, a libel in the Wanganui Chronicle newspaper; the defamatory passages relied upon being in effect that the plaintiff had abused his position as member of the House of Representatives in order to gratify personal bitterness and wreak vengeance on a political foe, and also that he was*looked upon with suspicion as being capable of indulgence in spiteful and ignoble retaliation. A second count to the declaration repeated the first, and added a further passage, which by the innuendo alleged that the plaintiff as one of the representatives of the people had prostituted his position to gratify personal feeling and had used it ns a cloak for venting malice, untruths, and hatred. To this the defendant pleaded, as to so much of the first count as referred to statements of fact, that the same was true. Paragraphs 1 to 11 inclusive set up certain allegations following upon this introduction, and the twelfth paragraph proceeded to allege that the article complained of was written and published bona fide with reference to the facts, matter* and things before set forth, and justly and fairly commenting thereon without any malice, and that the defendant also denied any other meaning than that justified by the preceding paragraphs The substantive justification was contained in the ninth and tenth paragraphs which alleged that an increased amount of work imposed by the Executive Government of Hew Zealand on a magistrate m the Rang.tikei Pistrict-an amount of work beyond the Skical ability of such magistrate, and beyond what could be reasonably expected of him to perform —was imposed after the plaintiff nad been consulted as such member by the Executive Government, and after he had recommended B uch increase, notwithstanding, a*i alleged by the plea, that he then well knew that such mJre JL exceeded the work and labor that should be required of the Resident Magistrate. A second plea adopted the first, except as to the recommendation bef ore mentioned, and alleged in lien thereof that the plamtiff had maliciously, and with intent to injure the Resident Magistrate, abstamed from informing the said Executive Government that the mcrease of work proposed exceeded that which should be reasonably required. The thwdancl fourth pleas were variations of the former. There was a fifth plea, alleging bona fide comment without malice on a matter of public interest. In the second count of the declaration, in so far as it was a repetition of the first, the same pleas were repeated. To so much of the second count as was not included in the first there was but one plea; that of a bona fide comment. To all these pleas the plaintiff demurred ; in effect (1) that the first to fourth inclusive failed fco set forth any

facts which if proved would amount to a justification, (2) that such justification as was pleaded did not cover the whole of the defamatory averments set out in the first count of the declaration, and (3) that the defendants pleas being in confession and avoidance, or affirmative,” nevertheless denied (in paragraph 12) certain material allegations otherwise admitted. As to the fifth plea that—(l) there wore no facts alleged nor shown which would support a plea of comment, (2) that there were substantive defamatory averments in the libel, and (3) that the matters alleged to he commented on were assumptions of fact shown by the declaration to be false and defamatory. To the sixth plea—the only one to the newmatter of the second count—the objections stated to the fifth were in effect repeated, with the additional objection that there was no justification whatever pleaded to such new : defamation as was contained in such part. : Mr. G. Hutchison, in support of the demurrer, argued that assuming (for the purposes of .the demurrer) that the plaintiff had onbeing'consnlted recommended that the duties of the Resident Magistrate within his district (who it was alleged had incurred the plaintiffs resentment by taking an active part against him at the election), yet that such recommenelation going only as it did to the reasonableness of the work so imposed, was not necessarily nor by allegation connected with the imposition of work by the Government which was, according to the ninth paragraph of the first plea, more than the Resident Magistrate could physically perform ; that the advice having been given on a privileged occasion, ■' and "not being alleged to have been given maliciously, afforded no justification of the charge that the plaintiff had abused his position as member. Moreover, the other paragraphs of the plea showed that he had acted conscientiously, and out of a regard for the public interests. The plea being one in confession and avoidance, was bad in denying malice, which was necessarily admitted by a, plea of justification (per Holyrod, J., in Lewis v. Walter, 4 B and Aid., p. 613; Beg. Gen. 45, 50, 85, and 88, Stephens on Pleading, 185.) It was also objectionable as seeking to set up • a meaning different from that declared upon, and seeking to engraft a justification on that - (Bremridge v. Latimer, 12 W.K. 878 ; Bullen ■ and Leake’s Precedents, 725,) As to the second plea, alleging abstention from giving advice, that afforded, in the absence of any duty, no justification. As to the fifth plea . (that of comment), if there were no sufficient ' justification under the former pleas there could be no foundation for comment, in the absence of any ascertained or admitted facts. (Eyes v. Henderson, 1 N.Z. Jurist, 35; Macassey v. Bell, 2 N.Z. Jurist, 70, per Chapman, J.; N.Z. Banking Corporation v. Cutten and another, - Mac, N.Z. Bep. 227; Lucan v. Smith, 26 ■' L J Ex., 96, and note thereon in Starkie on Libel, 3rd Ed., 383.) The sixth plea being . the only one to the new matter oi the second count, (which alleged, as a distinct and substantive piece of defamation, that the plaintive had used his position as Member of the - House of. Representatives to vent untruths, besides malice and wholly uncovered by any justification, afforded no foundation for comment ; there being besides no expression of opinion in the libel, but the assertion of what the declaration showed to bo false and defamatory. Mr. G. E. Barton, in support of the pleas, • argued that the whole of the matters referred to in the foregoing pleas was available, as affording grounds for comment in the last. He contended that the plaintiff’s proper course was to have objected to the sufficiency of the facts by summons at Chambers, when the defendant would have been ordered to furnish more, and so on, upon interrogatories, when if the facts were insufficient those which had been pleaded might bo struck out as false. Or the plea might be taken to be a general justification, by striking out all but the allegation that the facts in the libel were true, and leave the plaintiff to apply in Chambers for particulars, as is the practice in England. (Gourlay v. Plimsol, 42 L.J.C.P., 121, citing Jones v. Bewitt.) The learned counsel proceeded to analyse at considerable length the allegations of the first plea (incorporated also in the others) with the view of showing that the subject matter of the libel had for some time f been in controversy in the district, and was thus to be considered sufficiently in the possession of the public to warrant comments on these points, without any further foundation. Mr. Barton cited the case of Tigho v. Cooper (7 El. andßl. 039, 26 L.J., Q.8.,215) m support of his contention that the justification pleaded need not go to every length of the defamation, - if it substantially cover the libel, on the ground that it must bo understood with reference to the subject matter. The fourth plea ■ he did not defend ; it was evidently a blunder, but not one to bo taken advantage of on demurrer.

Mr. Hutchison, in reply, submitted that the defendant not having pleaded a general justifi-

cation, there was no reason for an application in Chambers for particulars. Tho defendant had pleaded his facts, such as they were, and it was for the Court to determine on demurrer whether these facts, if proved, would in reality justify the libel. Tho Court intimated that time would be taken to consider its decision. Ekiday, March 16.

(Before their Honors the Chief Justice and Mr. Justice Richmond.) SCUUWZE V. THE MAYOR AND CORPORATION OP THE CITY OF WELI.INOTON. 11l this case Mr. Chapman, instructed by Mr. Brandon, applied to the Court for a rule nisi fora review of the Registrar’s taxation of costs. The facts of the case are pretty well known. Plaintiff sued defendants for damages, for that they had diverted a certain stream of water, whereby his property was injured; and at the trial the jury returned a verdict generally in favor of plaintiff, and assessed damages at a certain amount, this course being agree upon conditionally on the statement of a .case for the Court above as to whether plaintiff had any right of action at all. The Court above gave judgment on tho special case stated and in favor of defendant, and judgment was entered up for defendants in due course, and costs in the cause duly taxed. Plaintiff now asked for a review of the taxation, on the following grounds : —lst. That the Registrar should have allowed no coats to the defendants subsequent to the replication, all subsequent proceedings being consequent on their (defendants) own mispleading in not demurring thereto. 2nd. That the Registrar should have allowed defendants no costs of the trial, because the plaintiff had succeeded on all issues tried thereat. 3rd. That in the taxation of the defendants’ costs the Registrar made no deduction on the brief fees or general costs claimed in consequence of the plaintiff having succeeded at the trial as aforesaid. 4th. That the Registrar refused to allow to the plaintiff any portion of the costs of the trial in reduction of, or as a set off against, defendants costs. Mr. Chapman contended that at the trial one after another of the whole of the issues were admitted till the question for the jury was reduced to an assessment of damages, and as all the expense of trial had been incurred the expenses were practically the same as if the issues had been contested to the last. No doubt the result of the case had been in favor of defendants, but defendants had forced plaintiff to the trial of certain issues of fact, which were decided in favor of plaintiff, and therefore plaintiff was entitled to his costs of trial. Then in reference to the pleadings. The replication being bad the defendants should have demurred, and so have stopped the case at that stage. The failure of defendants to take this course, there were several authorities to show, would render them liable for a portion of the costa.

The Chief Justice said that there were no facts found by the jury, and that’Sir. Brandon, whose affidavit was before the Court, was quite wrong in his assumption that the facts were found for the plaintiff. A general verdict was found for plaintiff, the issues being answered formally only, and damages assessed, subject to a special case being stated as to whether plaintiff had any right of action. The Court above decided that plaintiff had taken wrong proceedings—that he had not exhausted his remedies under the Lands Consolidation Act, and judgment was entered for defendants.

After considerable argument, Mr. Chapman said, if the Court held that there had been no issues found in favor of plaintiff, of course he could not proceed further.

The Court refused the application, on the ground that there had been no issues found for the plaintiff at the trial, and further intimated that it was not disposed to indicate its opinion as to whether, even in the event of there having been certain issues found in a suitor’s favor, while he at last failed to succeed in his action, there should then be an apportionment of costs. IK the matter of the licensing acts, and in THE MATTER OF AN APPLICATION OF THOMAS UR WIN. This came before the Court in the shape of a notice of a motion for prohibition, but when called on the.xe was no appearance of the parties, Notice struck out. IK THE PETITION OF THE TOWN CLERK OP PICTOK. This was a motion for an order of the Court on the petition of the Town Clerk of Picton. Certain absentees had been proceeded against for non-payment of rates, and as the judgment of the Resident Magistrate remained unsatisfied, the Court was now moved for an order for the sale, under a provincial Ordinance, of the lands in respect of which rates were due, Sir. Hart appeared in support. Order made as prayed. The Court then rose.'