SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 5086, 12 July 1877, Page 3

SUPREME COURT.

CIRCUIT SITTINGS, Wednesday, July 11.

(Before his Honor Judge Richmond and .Special Juries of Twelve.) ANDERSON V. GILLON AND OTHERS.

This was an action for libel. Mr. Allan (with him Dr. Buller) appeared for plaintiff ; Mr. Travers for defendants. Jury : Messrs. G. E. Tolhurst (foreman), C. P. Powles, J. O. Kreeft, J. McDowell, R. S. Ledger, John, Sawers, S. Carroll, J. R. Blair, W. J. Gandy, A. Jackson, E. W. Morrah, and Charles White. The declaration alleged that on the 10th day of January, 1877, the, defendants falsely, ironically, and maliciously, and iu a defamatory sense, printed and published of and con oerning the plaintiff, in a newspaper called the Evening Argus, printed and circulated in the city of Wellington, an article in which it was stated that the plaintiff, as a member of the Wellington Provincial Council, iu a certain debate, “ denounced the iniquities of Mr. Henry Bunny, and sought to drive that gentleman from office; that an leaving the hall after that same - debate, to cool his feverish brain, to moisten his parched lips ... he met the man he had denounced ; there was a private conversation ; Mr. Anderson, always open to conviction of the right sort , . . ■ entered the hall and voted for the man and the measure which had alike been the object of his vigorous- denunciation just before. It was, of course, purely accidental that this vote saved the Government; that Mr, Anderson almost immediately resigned his seat, and that he received from Mr. Bunny a permanent billet, which, as providing bread and butter, he then very much needed. Censorious people may think they can trace ■ some connection between those but these people 'do not understand the pure, patriotism* of such noble characters as Mr. Henry Anderson.” Meaning thereby, that the plaintiff, while a member of the Provincial Council of the Province of Wellington, and been guilty of bribery and corruption as such member, and had as such member corruptly voted contrary to his expressed convictions, and had corruptly accepted an office of emolument under the Government of the Province of Wellington as a bribe for so corruptly voting as aforesaid. 2nd. That in the same paper, on the same day, another article appeared, in which the following words were contained :—“ Eor, the moment he (McKenzie) forgot all about the unfortunate results of Mr. Henry Anderson’s canvassing trip to the West Coast, which terminated Mr. Anderson’s connection with the Independent in a somewhat unpleasant manner,” also referring to the plaintiff as “ the Prince of Humbugs.” The innuendo complained of being “ That the plaintiff had been guilty of misconduct and dishonesty in collecting such money and in transacting such business on the occasion of such journey as aforesaid, and that the plaintiff had been dismissed from his employment in consequence of such imputed misconduct and dishonesty.” The defendants, in their pleas, denied all the material allegations, admitted the publication of the words quoted, but denied that the words had the meaning imputed to them, and asserted that they were true in their natural sense.

Dr. Buller having opened the pleadings as above stated, Mr. Allan opened plaintiff’s case, and proceeded to call witnesses. Hon. W. Gisborne, M.H.R., examined by Dr. Buller, said he had heard the alleged libels read His impression on reading the first article was that Mr. Anderson had been guilty of voting in the Provincial Council against his conviction, in order to obtain an office from the Provincial Secretary, Mr. Bunny. The other paragraph did not convey any distinct impression to his mind. - He did not know what a canvassing tour meant. ■ He understood that, in consequence of some disagreement, the connection between the proprietor and editor had ceased. It did not appear to him to impute dishonesty. Henry Trueman expressed the opinion that the first article imputed that Mr. Anderson had voted against his own conscience to secure a Government billet. As to the second article commencing, “ blessed are the peacemakers,” he took it to impute dishonesty. A canvassing tour meant that a man had gone to collect money and canvass to advance the interest of the proprietor of the newspaper. His impression certainly was that the .article imputed that Mr. Anderson had been appropriating his employer’s money, or had been acting contrary to the interests of the proprietor. To Mr. Travers ; I am a bootmaker, and reside in AVellington. I have never, had any connection with newspapers. I know that canvassing means collecting money. I do hot know that the article necessarily means embezzlement, but that is the impression it made upon my mind. I was a supporter of Mr. Anderson, just as I was a supporter of you at your election. (A laugh.) I proposed him as a candidate for the Superintendency in 1871. I cannot give any grammatical reasons why the words conveyed to my mind the imputation of dishonesty. ,' Re-examined: I have seen notices in the papers with reference to canvassing, and from them have gained my impression as to the meaning of the word canvassing. The Hon.' John Johnston said the first article conveyed the impression to .his mind that Mr. Anderson had sold his vote. As to the second the impression it made was slight. Taking the definition of canvassing to be collecting money and promoting the interest of the paper, the impression was that he had misconducted himself-r-that he might have got “screwed” or had pocketed the money. Cross-examined: It does not necessarily mean that he had embezzled money. Thomas Whitehouse, storekeeper, of Wellington, thought the first article imputed that plaintiff had sold his vote to Mr. Bunny; the second paragraph, he thought, imputed that plaintiff, had made use of his employers’ moneys or done something else equally wrong. Mr. Francis Sidey gave similar evidence. Henry Anderson stated he was plaintiff, and editor of the Evening Post. He was connected with the Wellington Independent from 1362 as sub-editor till 1864, when he became editor. He then gave evidence as to a canvassing tour in 1869. Before starting, notice was given by the:proprietor to the subscribers to pay all due moneys to him. The journey was commenced-'in January and lasted till March. There ' was not a large amount of moneys due, but he, made exertions, and brought home £SOO, which he paid over to Mr. McKenzie. On. his return he resumed the duties of editor of the paper up till 11th August In the same yeqr.o'He resigned his office owing to a disagreement in politics between himself and the..proprietor. The circumstances of his trip hadhadnothingto do with his resignation.. Ten weeks after his return Mr. McKenzie assisted in getting elected in the Provincial Council for Wellington. • He was opposed to Mr. Fox, while the proprietor took an opposite view. The position of affairs’ fretted him, and during the last two or three weeks of his tenure of office he gave way to a' little intemperance. : He was ill in consequence, and therefore resigned. Mr. Halcombe, Mr. Fox’s nephew, succeeded him, and as a consequence, the paper .“ratted” and supported Mr. Fox instead of Mr. Stafford. Witness then proceeded to give evidence as to his connection with the Wellington Provincial Government and Council shortly afterwards. Mr. Bunny opposed the Brandon Government, and he allied himself' with Mr. Bunny. He voted with Mr. Bunny'almost in every instance. That was in the 1870 session. In the March session of 1871 he still supported Mr. Bunny, except on points of minor importance. In the interval between March and June Dr. Featherston went out and Mr. Eitzherhert came in, Mr. Bunny and Mr. Halcombe forming the Executive. Witness supported the policy of Mr. Bunny, which was to borrow £IOO,OOO. This was the session in the Odd Fellows’ Hall. From beginning to end he voted in favor of Mr. Bunny’s Government. He announced that ho should give Mr, Bunny a discriminating support. At the end of June, 1871, he received an appointment in the Land Office, at the special recommendation of Mr. Bunny, having resigned his seat in the Council; and he hold this office till he accepted the editorship of the Evening Post. It was not true

that prior to the month of June, 1871, he had been a strong and consistent opponent of Mr. Bunny. On the contrary, he had supported him when in Opposition, and when in the Ministry. He had never, at the request of Mr. Bunny, changed Iris policy. Cross-examined : Had been a candidate for the Superintendency in opposition to Mr. Bitzherbert. The speeches on that occasion were partially reported in the papers. He remembered the report published in the Independent of his nomination speech. It was a grossly inaccurate report, in many particulars. He had not furnished the report himself. Was under the impression that he had used the following expressions:—“Mr. Bitzherbert had deliberately insulted the electors at the Athenseum, and had been happily named when he was called the political Bagan of Hew Zealand. The title had been admirably deserved by him. Place and pay and power had always been his creed, whether serving in a Pox, or a Weld, or a Stafford Ministry ; but he did not blame him, as the man had only acted according to his rights.” His opinion of Mr. Bitzherbert had not undergone a change during the time between the election for the Superiutendency and the session of 1871. His opinion had been that Mr. Bitzherbert wished to uphold provincialism on account of the profit it would bring him. He did not say Mr. Bitzherbert was the political Bagan of New Zealand ; but that he had been called so. In fact that had been said 500 times by public men. He opposed Mr. Bitzherbert because he had provincialistic ideas. Mr. Bunny was opposed to provincialism, but when he saw a chance of getting office he expressed willingness to see the particular instance of Wellington provincialism continued ; he was willingtoseeif he could not get our “cart out of the rut.” The proposal that he should getabillethad not been discussed before he resigned; There had been conversations between himself. and Mr. Bunny during theprevioussession, and even before he had been a member., He was aware* when he resigned his office that he would be offered some position. There had been an understanding between them as personal and political friends, that if any time he should want assistance it should be afforded him. ■' He had resigned his seat because he could not afford to remain in, and because while he was in the Provincial Council Mr. Bunny could be of no use to him. He subsequently found out that there had been dissensions in the Cabinet in consequence of the appointment. Mr. Halcombe and Mr. Hunter were in the Executive. They resigned their seats in consequence of the appointment. He admitted having read an article which appeared in the Independent, which describedhim “asamauwho has more than once figured as a drunken brawler and a bully in our Police Courts, and who has grossly insulted our Superintendent by applying to him at public meetings epithets too shameful to be introduced.”

Mr. Allan raised the question whether such an article could be admitted.

His Honor thought it was not admiasable unless in mitigation of damages, but no notice of mitigation had been given. It was rather a dangerous thing if persons were bound to answer everything against them which appeared in the Press, or else have it brought up against them years after as being true. Mr. Travers said it was a question of character. If a man allowed such a statement as that to pass unchallenged could he value his character very highly. The Judge ruled against Mr. Travers. Cross-examination continued : Did not oppose the education measure of the Government in 1871, except as to the denominational question. However, Mr. Bunny said the measure would stand or fall by the clause, so he supported the Bill as a whole. The District Highway measure was brought forward by Mr. Bunny. He supported that measure. The Court adjourned for three-quarters of an hour.

Oh resuming, Mr. Travers cited Queen v. Newman, Ei and'B., in reference to his attempt to introduce the evidence which had been refused by the Court. However, he said he would hdtpress the matter.

Cross-examination continued: At the time he wasi in the Provincial Council he was a poor riau. He considered four days before accepting the office, because .he might have got a better office had he remained- in the Council. He thought he might' possibly have, got a seat in the Cabinet. Ha took the billet also because of bis health. The billet was first offered to him four days after the session. He doubted whether he should resign and render it possible to get a billet, or whether he should hold on to politics and leader writing. He knew pretty well that he would get something, because Mr. Bunny had promised if he voted with him and assisted him to get into office to help him if opportunity offered. He knew from the services he had rendered Mr. Bunny both in the Press and in the Council that he had a claim upon him. But he had higher motives ;he desired to see a do-nothing policy overturned. Hesupported Mr. Bunnymainly from a sense of public duty ; secondly, because it was the wish of his constituents; and thirdly, and lie did not think any shame attached to him for it,because he thought by supporting Mr. Bunny he would have a claim upon him for assistance in the event of his quitting public life, for which he was not altogether fitted owing to a physical infirmity ; but there was not any corruption as between himself and Mr. Bunny. He resigned his position on the Independent because his eyesight was bad, because his health was going, and for political reasons; hut he admitted that during the last few weeks of histennreof office he had been intemperate. The letter produced was that in which he had tendered his resignation. FThe letter was put in. In it lie acknowledged hard drinking for two years, and bad health in consequence. A letter in reply from 3Mr. McKenzie, accepting the resignation, was also read.] During his trip to the West Coast he had not been frequently drank ; he never neglected his work. He did not believe lie had been drunk four times during the whole course of his life. He had no disputes with Mr, McKenzie about money matters. There was no arbitration about accounts.

Ke-examined; None of my votes were given on the promise that I was to get a billet. I never made any speech denouncing Mr. Bunny in my life, therefore I could not, as alleged in the libel, go out, have a conference, and change my views. Arthur Edward Grimstone produced certain journals of the Provincial Council. He could only produce the votes and proceedings for the session of 1871. John M. Taylor, ex-clerk to the Provincial Council, proved that the records produced were original. This was the case for the plaintiff. Mr. Travers then addressed the jury for the defence, and indicated the nature of the evidence he should call. Mr. Allan objected that the class of evidence Mr. Travers intended to produce was shut out from him, owing to the manner in which he had pleaded. His Honor thought there was something in the objection, and Mr. Travers said he should not call any evidence.! He then proceeded to criticise the evidence given for plaintiff, and referred at great length to the manner in which the appointment of plaintiff had been made, and remarked especially on the ‘ attitude Messrs. Hunter and Halcomhe had taken up in reference to the transaction. It was absurd, he contended,, that a political man and newspaper editor who had frequently criticised the actions of other , men in no measured language should himself object to criticism. As to the second alleged 'libel, he contended the case for the plaintiff had utterly broken down. No doubt the statement that the West Coast trip had led to a rupture between Mr. McKenzie and plaintiff was entirely a mistake ; but after the evidence given, could they come to the conclusion that there was any libel in the statement ? , Mr. Allan remarked that there was no attempt to justify the libel ; but there had been an attempt under the personal direction of Mr. Gillou to blacken plaintiff's Did this not prove malice ? He thought it did, and he asked the jury to punish.malice by a verdict for plaintiff, with substantial damages. The libel was all the worse by reason of the fact that after a considerable period of trust plain - tiff had been attacked on a matter which had

passedover some years,and had been almostforgotten. He had not been charged with political dishonesty, but with personal bribery and wanton corruption ; but there had not been the slightest attempt to justify or prove the truth of the 'statement. As to the second alleged libel, there could be no doubt that it had a- defamatory effect, and whether the construction they put on it were really correct or not, still the verdict must be for plaintiff. His Honor charged the jury. He said this was a case which must be left almost—he might say wholly—to the jury; but at the same time, there was a task before him of some’ little difficulty. Now as to the first alleged libel. If there was anything at all clear, it was this—that plaintiff' had been charged with having on a particular occasion and in a particular place sold his vote on a particular question—that he had up' to a certain time adopted a certain political course; but had on a particular occasion gone out of the place of meeting of the Provincial! Council, saw the chief of the Executive, gone back to the hall, changed his opinion and voted for him. There could be no mistake about conversions of that sort, and such a transaction, if true, must stamp a man with ignominy for the term of his natural life, or at any rate should do. “Mr. Anderson went out of the Council Hall .

met the man he denounced, there was a private conversation ; Mr. Anderson, always open to conviction of the right sort, saw the error of his ways . . . and being conscientiously convinced that he is wrong, he, careless of d-he world’s opinion, proudly conscious of his own rectitude, caring not to justify himself so'loug as his own conscience approved his action, re-entered the hall, and voted for the man and the measures which had alike been the object of his vigorous denunciation shortly before.” That plaintiff had sold his vote, therefore, was most distinctly imputed, and the question was, had the statement been borne out. Hooking at plaintiff’s evidence it seemed to go to show-first that he had generally agreed in provincial politics with Henry Bunny; that in previous sessions when Mr. Bunny was in opposition he gave him his support, and that he also supported him s when at last he got into office. He did not deny at the same time that he looked forward as a reward for that support to a possible advantage to accrue to himself by reason of Mr. Bunny obtaining office ; not that there was a definite understanding as to his being given a particular place, or that he was in any sense a bought man, but that his votes were given to Mr. Bunny conscientiously, though he at the same time looked to him when he left the Council for a reward for his political services. That was his (the Judge's) impression of the evidence. Mr. Gordon Allan had told them that this was a very usual sort of thing among politicians ; however, it was to be hoped that our first-rate politicians were a little more honest. Yet when electors returned men who were wholly without means they could scarcely expect that what was called “ the bread-and-butter question” should in all cases be lost sight of. That, however, was a very different thing to selling a particular vote, because it was by no means inconsistent with reason that a man might be voting according to his conscience and not betraying his constituents, and yet have an eye to “ the bread and butter question.” His Honor pointed out that what the jury had to discover in the first instance was, whether the statements made by the defendants in the .article complained of were or were not true. The plaintiff’s evidence was the only evidence there was on the subject, and he referred to the evidence given, and asked, first—Whether it was shown that plaintiff had ever been an opponent of Mr. Bunny ? He then went through the evidence of plaintiff generally, and asked whether it supported the allegation that plaintiff had, on a particular occasion, sold his vote to Mr. Bunny ? That was the most important point in the case, and it was for the jury to say whether such a bargain had been made. It was not enough to say that he may have had a corner in his political mind devoted to his own interests. The plaintiff, in fact, almost admitted he had been in that predicament, but that did not support the allegation—that did not afford justification for the libel. As to the setond, count there was more difficulty. Defendants had pleaded that: the language used was not capable of the construction which had been placed upon it—that it was not defamatory. His Honor went through the evidence, pointing out that .the witnesses had differed respecting the meaning of it; and he said if they came to, the conclusion that .it was defamatory, they must recognise that the libel was worse if. it imputed embezzlement than it would be if only misconduct were imputed. The jury must judge of that. This, however, was certain, for the defendants had . never questioned it, plaintiff had not been dismissed from the Independent in consequence of anything which took place in respect of the West Coast trip. His Honor then went through the issues, explaining each, and asked the jury to consider their verdict. The foreman drew his Honor’s attention to a remark made by Mr. Travers to the effect that if the jury could place an innocent construction on the article they were bound to do so, and inquired whether the law so stood. His Honor said Mr. Travers had put the question rather too. broadly. The jury had to consider whether the words might have had and were calculated to have had anjurious effect with the persons to whom the alleged defamatory matter was addressed. If they thought the words were used in an injurious sense, and had been. taken in that sense, the plaintiff would be entitled to damages. The jury retired, and after half an hour’s consideration returned with the issue paper as follows tr—

1. Did the defendants print and publish of and concerning the plaintiff the words set forth in the first count of the declaration in manner therein alleged ?—Yes ; admitted. 2. Were the words set forth in the said first count of the declaration defamatory of the plaintiff in their natural sense ?—Yes. 3. Had the said words set forth in the said first count of the declaration the meaning alleged in the said first count of the declaration, and were they in that meaning defamatory of the plaintiff ?—Yes. 4. W ere the allegations in the said words set forth in the said first count of the declaration true in their natural sense ?—No.

5. Did the defendants print and publish of and concerning the plaintiff the words set forth in the second count of the declaration in manner therein alleged ?—Yes.

6. Were the said words set forth in the said second count of the declaration defamatory of the plaintiff in their natural sense ?—No.

7. Had the said words set forth in the said second count of the declaration any meaning alleged in said second count of the declaration, and were they in that meaning defamatory of the plaintiff ?—No. 8. Is the . plaintiff entitled to recover any, and if so, what damages, by reason of the cause of action in the first count of the declaration alleged ?—Yes ; 40s. 9. Is the plaintiff entitled to recover any, and if so, what damages, by reason of the cause of action in the second count of the declaration as alleged ?—No. The jury were then discharged, and the Court rose.