SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5366, 8 June 1878, Page 1 (Supplement)

SUPREME COURT.—IN BANCO.

Wednesday, Juke'6. 4 , (Before, their..Honors,.,fche-.Chief Justice and Mr. Justice Richmond.) BLUNDELL BROTHERS V. THOMAS GARDINER, DEMURRER. ...\t :■"> "For the plaintiffs, Mr. Travers ; for: the defendant,-the Attorney-General .(Mr, >3tout) with whom was. Mr,Edwards., The.plaintiffs’ declaration was as follows : 1. That they are. and for some time past have been,, carrying on business in copartnership, in the City of Wellington,-In the colony of NewyZealand, as proprietors and publishera of a newspaper publiishod ,in the said city called the Evening rest, which said newspaper, as the defendant at the timo qf the committing ■ of; the. : wrongs > hereinafter ’ mentioned | well knew, has always had a large circulation in the said city'Rnd colony respectively. - ' 2. That they, the plaintiffs, as such proprietors and publishers as aforesaid, have, at great coat to themselves, for some time past employed and still, employ a special: correspondent in Loudon to collect and transmit to them with the utmost despatch : telegraphic abstracts of European news, of public interest to the people of the said colony. • - • ' 3. ;That on or about the tenth day of April, one,' thousand eight hundred ; and’seventy-eight, they, the plaintiffs, as such proprietors and publishers as aforesaid, received from the said agent or correspondent inLondon a telegram containing the following abstract of European news, that Is to sayWakapuaka, 10; 4; -8. —Post, - -Wellington.—Eighth -Russians ' occupied British Consulate, Rustchuck. England claims prompt redress. War excitement increases. i 4. That on the said tenth of April, one thousand eight hundred and seventy-eight, they, .the said proprietors and publishers, believing that the news con tained in the said telegram would be; ’of great interest to the public ; of l the said < city and colony : respectively, ' caused the purport and contents of —the- same to be printed ;and published in their said newspaper, called the Evening Post, with a heading thereto calculated to draw attend /tion to the (said news, which said heading' and news respectively were intbe words ■ and figures following, that is to say Special cable news to the Post.—. Russia gives England- a direct causa belli.. England demanda iustant redreja.War .excitement. F.om: our London correspondent.—London, 9th April.— The,Russians have seized. and occupied the British Consulate Offices at Rustchuck. England has claimed prompt redress for the outrage. , “ The war excitement is increasing.” ’ •« And the plaintiffs say that the news thus published by them was, as a fact, hews of great interest and importance to the public of (he said city and colony respectively. 5. That the defendant was at the time of. the committing of the wrongs hereinafter mentipned the proprietor and publisher of a newspaper published in the said city of Wellington, called i the Evening Chronicle, which said newspaper is circulated in the said city and elsewhere in the Colony of New, Zealand, v r, *’>

0, That the .defendant on or about tho twentyfourth d;iy o[ April, one thousand eight huniired and seven’y-olght, (alsoly and maliciously printed land published in his said I newspaper,;; called' the Etching Chronicle, and Ims sinco the said date falsely j and maliciously publisUed.of and concerning the plaintiffs in the said business.'as such newspaper proprietors and publishers os aforesaid, the words following (that -is to say),—Journalistic Foresight—X,dbklhg"intol the Future—Reporting occurrences which never took, place—Extraordinary workings of a telephone before fciio wires were, connected—Wonderful, feat; In publishing'a speech only two days after the public have read it.in .the, Chronicle,— VVe hayo not the slightest desire to quarrel with any of our contemporarie;!, and ■the following,remarks are'written purely in the interest of the public.. To use every endeavor; to forestall its contemporaries in,tho publication of news is a fair"and legitimate exercise of a journ ilistlc enterprise. lint if; a-journal is to. maintain iisre-pecta-bility some regard must be had for the truth. ; Errors doubtless will . creep into the .most honest laud best-rogniated newspapers, but then they should bo errors of inadvertency, and not through wilful intention to misleadiits readers.” ’A littlo coloring to prosaic matters of fact is-at times allowable, but tho. line ;mustibe drawn’a long way : short of absolutemisslatemonts. nWhen a Journal resorts to, pure in- ; vention, it is a sign that thewrlters in it are not only, depraved, but that they hold in contempt that portion of tiie public whose taste leads them' to read the journal In which the misstatements are published. Concocted stories related as real facts are a fraud upon-, the public. ,A, man does not pay his penny to be regaled with fictions from Iho pen- of, obscure' scribblers,* on I 'such ” commonplace., and everyday : matters- ,as , Police ami City Council ..proceedings, and|lforecasts -,of - the,,.weather. To those who ,are fqnd lof works of Imagination, ‘‘Gulliver's Travels “ and'tho “Adventures of Barqn Munchausen ” will be foundmoro interesting reading. A fortnight ago there was the most intense excitement, on the -Eastern • Question/ every moment England was "expectedlto be involved in a war, and in the midst of that-excitement our contemporary; published the. following startling telegram, purporting to be'from their own correspondent“ Special Cable News to the Post—Russia gives England la; direct causa belli. England demands Instant redress. - —War Excitement.—(From our London Cortespon--dent.)—London, oth April.—The Russians have seized and oecupied- .the .British Consulate offices at; Rustchuck;England has claimed prompt redress for, the outrage.—“The.war excitement is increasing;’'; When people read the- above - telegram; they held their breath awaiting the news to- follow. ’ -However, to those versed in the-tricks practised by, a-certain class of journals, not the slightest credence was given to the emanation of our “ contemporary’s owh eorrespondent.l' On the face of the telegram It was easily, seen" that "it-was a-fabrication. ' The l news r bfl the,, seizure of the British Consulate would have bad to he confirmed before the English Government took'-action .in sueh a.mattcc; but the telegram announcing the -seizure allowed for, no deliberation; on the part of the British Ministry; .but announced that England,had taken action, which virtually amounted to a declaration of war, It is absolutely known that the telegram was a pure fabrication,; but onr contemporary has not thought it worth while to publish either a contradic-' tishlorah apology, for misleading its readers , • • ,7. .That the defendant printed,and published tho names hereinbefore, set .forth .of and concerning, tho plaintiffs, and of and .concerning. the plaintiffs in their.business .as. newspaper, proprietors and publishers as aforesaid, in a, defamatory sense, and especially'meant thereby,(amongst; other, things) that the plaintiff's os; such newspaper I proprietors land; publishers: as ; aforesaid.,,had,.not 1. in fact,' on ; the tenth , day. ,of April,.,onethousand eight, hundred and ; seventy-eight, -..0r ~'at any, time, ; received from. , any,;,special,;,or.r.i.other^.correspondenti lihLondon any telegram containing,or purporting,tp contain the matter or news alleged:, todinve-been com-, municated; to them "as ;in their said newspaper Iwasmentioned.- That tho plaintiffs,had, on or about the; tenth day of April, one.thousand eight hundred ! and seventy-eight, wilfully and fraudulently fabricated a telegram purporting to have been transmitted to them' ,by.a special correspondent in London; under date the ninth dry of April,: one thousand eight hundred .and seventy-eight, and purporting to contain news, which, if true, would be of great interest to the pnbiic of New Zealand, with, a view- to, the publication of s the same as genuine news in their said newspaper, called’ the Evening Po:d, in order dlsiionestly to increase by means, of such-fraudulent fabrication and" publication of news the sale and circulation for the time being of their said newspaper. ■Wherefore the plaintiffs claim to recover, from tho defendant the sum of one thousand pounds for damages, ■ ' ' ■

The defendant demurred on tiie following grounds ’ 1 1. That l the - words alleged-to' have 1 been printed and published by the defendant are not defamatory in their natural and ordinary sense.

2. That 1 the' said wprds do not mean what the declaration alleges'they, mean, , The- Attorney-General, in support ;of the demurrer, submitted; that in-all cases there was a ’ preliminary question of law for the Court to i determine, -whether there was any case whatever, to go to a jury; That was well put .in Giblin v. McMullen, L.R., 2 P.O. 317. In cases of libel, oven when the jury had I found-that the .words were defamatory, if on the face of the declaration ..they could not reasonably hoar that : meaning, the ' Court bad arrested judgment and: disallowed /even ian aider by'verdict in any Way. Hearn v. Stawell, 12 A. and E., 719- There was iu all cqses of a declaration for libel tho question to; bo determined by the Court whether the words in their ordinary sense’ had! a defamatory meaning, and whether the words' had' the .moaning which the innuendo said attaoh’ed to them, if; there was an innilendo. 'There were a good many irrelevant matters; introduced ; for instance, the Chi omcla's article began in a high, falutin way, justf as tho declaration began in a high falutin way,' bat that was of no' moment, in', this action.,. It was put;', in as /judicious padding. Counsel then proceeded to argue that in this "case the demurrer should be upheld, citing Mulligan, v. Colo. L.K. lO Q.B. 549 ; Baylia v. Laurence, 11 A. and E. 525 ; Maw v. Piggott, 4 Irish Rep., C.L. 64, 1869.; Bragg v. Sturt, 10 Q.B. 905 ; Hunt v. Goodlake, 43 L.J. C.P. 54 ; Jenner v, . A ! Bqckett, 7 Q.B. ll ; Cox v, Lee, 4 L.B. Exch.; and referred to,'' Eolkard’s Libel ' and ' Slander, i 4th Kd,V vol." • r I/ ,, >los "• to' 172. ’ Lejiv"cases;' the' rAttorney-General ’ said : Now let us see . what this alleged libel really is. I shall first deal with, the innuendo which alleged that it was meant' that the Evening Pott fabricated the -telegram, I submit that the'charge is not' borne out tin any respect by , the words published by, the defendant. ,:. .The ’ words bearing on this are these,' “ When people read < the above telegram they held their breath, awaiting 'the', news to follow. . However, to those versed in the tricks 'practised by a certain- class of - journals, not ‘ the‘ slightest credence was given to the emanation of our contemporary's own correspondent. On the face of the telegram it was easily seen tbat.it was a fabrication,” asd it goes on to show.the reasons why it was. Non constat, it was not the correspondent that fabricated the telegram, - There-.is .no denial that there was a correspondent, and the meaning is; that the correspondent sent oat something, that was untrue ; but there is; no evidence that the proprietors ‘of the Post were ■ charged with ■ having fabricated this telegram. All that it amounts to is that the telegram was fabricated; and tho inference is, by the correspondent. Let it be taken in another aspect, It was admitted in the declaration that/the .telegram was a fob-, rication.' They admit that they.got this from theiragent;— •’■ p; W»kapn»k», 10; i; B.— Post, Wellington.—Eighth Russians occupied British Consulate; -Rustchuck. England claims prompt' redress.; War excitement. increases.' *- They admit that was all they got from their agent in London ; bat what did they publish ! From our London correspondent.—London, Bth April—Tho Russians have seized and occupied the British Consulate Offices at Rustchuck. England has claimed prompt redress for tho outrage. ■ The war excitement Is Increasing, ; ' ..■ ■■ ; They put in certainly most ..important words, giving quite a different color and meaning ito the teiegramreoeived froaithoir agent.' They

said that the Russians have"seized and occupied, • and added'the words “offices.’''' On' the face: of their declaration they admit that they made, up this telegram iu the Evening Post office, and ' that J the telegram they published contained statements .which they had not . received from. London. ’ < • Judge Richmond : Is not that the heading? . ■’ The,Attorney-General :.No, your Honor, I , am leaving out the. heading., The Chief Justice ; You say that the telegram they received and that published aredifferent. ,

■;v The Attorney-General : Are. different in most 1 important particulars, and therefore it was fabricated somewhere. : I submit that the, addition of these-words gave quite a different color to the whole telegram. The first state? ment is simply that the Russians had oecu-, pied the British Consulate at Rustchuck. There ; may be: no harm in that. They occupied it., Non constat that this occupation may not have been temporary. A hundred things might be suggested as to .what it. means. . Then to the words “ England claims prompt redress,” are added tho words “ for the outrage,” They put in the word “ seized,” and 1 they called it au “outrage.” , I put it to the Cpurt, if a person knew the state in which'this telegram was received; and the, way in which it was, afterwards published, what could they call it ; but a fabrication,’made up somewhere ? -The. article does not say where the' fabrication took place—it may have taken place in Turkey; ’ and news .was always more or. less 'unreliable when it came from ono of the combatants.l 'submit that is meant. There has been amauu’faoture .of the ' telegram ; that; ! presume,- is what is meant by fabrication—something mado up. It will'not. be said it was not made up without some material; for fabrication means the use of materials. , ; , ' , ~ . ,

The' Chief ' Justice/ To occupy must bo, in a military sense, not in the rating clausa. sense. ‘ ‘ ' : ; ■ The' Attorney-General: .We do: not care how’ it is used. We simply mean that they made up the ’telegram, and the telegram' was ( not published iu the form they'got it. Occupy does not necessarily mean seizure. They may have got a loan of it, and have not gone out when they'were asked to go. I admit that the word'fabrication is sometimes used in the ; sense of forgery. . • The Chief Justice : It is possible to use it in a good sense, but. its ordinary' meaning is bad. you, say a thing is a fabrication,; you, mean it Is a-lie.- 1 “■ The Attorney-General: Possibly v ao; that it'isnot true; Tn “Latham’s Dictionary”, the good meaning is given first, which implies that it is the general meaning. ■ : j "' Judge Richmond : That is the .-primary meaning.. . The classical meaning of the word Occitpo is to attack, seize, or lay hold of ;iso< that a Russian occupation may well be understood to-be by force. As to the meaning; of fabricate, you would not say,a novelist fabricated a story ; it means to lie. The Attorney-General : If it means .to lie, the alleged libel does not say that the plain? tiffs made the lie, merely that they published it and made no apology for doing so. It does not say that the plaintiffs told the lie. .. The Chief Justice :■ To 1 simply; say of-a newspaper that it puhlished something which " was untrue could not be laken to-be a libel. 1 The 'Attorney-General : That is all it says. .

“ Judge 'Richmond : There is something here about puro-invention. 1 ; ~v -The■ Attorney-General ;■ That refers to; the. telephone ;■ a telephone-that was never oon-. neoted at all. >My friend has taken good care, to leave that out. It was only a bit of padding in the article. ■ The Post publiahed that a telephone was working splendidly bet ween Mr. Mills office and bis house or some other place, when it had never been connected.' That is what is meant by-reporting occurrences which never took place. ■ I' submit there is nothing to bear out the > allegation -in the innuendo that the -plaintiffs wilfully and ■ fraudulently fabricated a telegram; purported to have been transmitted: All the'article meant' was that'the Post pub-; lished' something which was -untrue.’ The ‘Chronicle • gave its “'reasons’ for believing' tho j 1 telegram ’to' have been fabrifcat’ed,- and said “The news of the seizure of the BritialiCon;' sulate would have had to' be confirmed before the English Government took action in swoh’a matter ; ; ’■ but’ > the 1 telegram*' aiinouncing the seizure allowed for'rio deliberation on the part" of the Biitish'Miuistfy ;’ but anounced that; England' had taken action, which - virtually amounted to a declaration of war, “Itls absolutely known, that .the telegram was & pure fabrication’; 1 hilt' our contemporary has not. thought, it worth, while to publish, .either a contradiction or an, apology, for misleading its, readers.!’ ~ 'I,. ‘ •; ■ : The argument. of .' the . Chronicle was that the tolegramwas untrue', not .that tho plaintiffs’ ’had [fabricated it: I submit that .the words of the libel do not contain anything wrong in : their, ordinary,, acceptation, and they are not' .capable ,of. the meaning put upon them by the; innuendo, and I therefore ask, that the demurrer, l ’may'be'upheld,'-' 1 -.1.1 L /'Mr. Travers : Theresult’of thecases is'tbis,:. ; that if what'is'charged as ’a libel, arid-set, forth; •in the-declaration is absolutely iucapahle/ipcnsz Sf any: defamatory oonstruo'tiqn, no.inniionjlo ' being added, qr 'if there was an innuendo land the 'Ooiirt was'of; opinion''tbal' it''oarriedi the matter no farther than ' the “alleged libel itself, then the Court would entertain the demurrer ; ;hut the Court'will not deal with the question ; on .demurrer if the language is’capable of [any : defamatory construction whatso6ver. ■ Tlio'law, is'well laid down in the case'of-Maw v,” Pig-? 1 gotfc,; 4 Irish L.R., and in Treacy v. Mabkenna, 4 Irish L.R., 374. It is not for the Court to ascertain whether or not the words are capable -of a 1 non-libelious comstructibn. What the Court has’-to decide is simply, are they absolutely incapable in their- ordinary sense, witli- ! out ’an innuendo, of any-defamatory construe-’ tion, or'does tho innuendo carry the matter any further than the < meaning of,the language in its’ordinary sense.' 1 Parris v. 1 Levy, 9 O. :8., N.S., 342,“ Before the-Court could be justified iu withdrawing a case from the jury, it must come to the conclusion that- the language ia hot capable of the construction ■ put upon it, and that the innuendo does not carry the matter any further, My friend took a part of a sen? tonce from the libel, and omitted the other. Hb said—“ On the face of it, it was easily seen it was a fabrication-;’’but the sentence began thus : “To those-versed in tho tricks practised by a certain class,of. journals,” ' jHe oinitted to Show: that these words'. formed a part'of the 1 sentence. Again,’ my friend omitted a former l part of the libel—“ When a journal resorts, to; pure invention”——l-" » jt> • Mr, Stout : That'i’efers to a telephone, i ?or Mr. Travers : If is a sign that the writers, in it are yi,ot only depraved, but that they hold in confejmpt that portion of tho public whose , taste leads them to. road the journal tho misstatements : are published. ’ ,’Cohcboted 'stories related* as ,real facts are a fraud upon, the public.'/The,accusation of fabrication is* not upon' tiie. correspondent but upon,' the' journal. It /closes: “It is absolutely known 1 . that tho telegram Vas a pure' fabrication,” &c. I,submit my. friend’s demurrer is based upon ; an|ent!re misconception of the. relative, duties i of the Court and of the, jury, since the passing of the Common Law Procedure Act, of .which. our’:rule is’merely a copy, and,that the demurrer must be overruled. / 1 / - The Attorney-GeneralMy friend has ad-, mitted mylaw, because he says that the Court' will have to decide whether it can.como.to the' conclusion, that in. no sense the words, would be held t 6 bo. libellous. He does not assert ‘ that th’e innuendo: helps. the declaration l in ■ any respect, and that 1 being’ so, I am willing -to leave the case in that way. ; ■ . The Chief Justice /This demurrer mustihe overruled. Since the Common Law Procedure i 'Act has been law, it has been held (that; if the libel does not in itself contain something: defamatory, the pleader may in; bis inmjendo allege that the words were used in a defamatory. sense, and that question becomes one for a jury. The cases, os I understand them, decide that' if at tho conclusion of the plaintiff’s case tho , . innuendo is not borne out rhy tho evidence, the Court has to resort to tho libel itself. If the; Judge is of opinion that tho words of. that alleged libel cannot ho held to he defamatory, he may decide that there is no -question,to go to, -a jury.-- It ia then his duty to preventi the case going before the jury, and the,plaintiff may be nonsuited, or the Judge may direct a verdict for the defendant. lam not by any means saying that. the. matter,sot out, in the , , declaration is libellous; but if tho jury were, to: find that'it was, it seems to me that they would bo justifiod in doing so. . Judge. Richmond; I am of the same opinion.; I think it is quite plain that the .words of the article complained.of ato such .that a jury may he of opinion that they reflected in a defamatory, way upon the plaintiffs/!. It is ,nofc, fJr : this Court to say. that the article amounts to a 1 libel; wo , cannot do. that; wo cannot say. authoritatively that,tliQ,jarticle amounts to a‘ libel, but wc may say, . and'Wo are entitled sto say, that the jury may take it to be a libel. Our decision stands upon that ground. 1 understand the law to be os tho Chief Justice has stated. The Common‘Law Procedure Act, section 61, was adopted ia No, 86 of oar rules, .and since the 'passing of that act the pleader may put what eense he ploasea upon an alleged libellous publication.’ At the' trial pf,a e>s»,'-

iif it'appears that either the article itself, or'the innuendo—the allegedjmeaning of. the words—is. libellous,'and that is proved to the satisfaction of the. jury, the .plaintiff may succeed in either way. He may succeed exactly as if there were two separate counts; either upon ' the natural meaning of the words, or upon the meaning assigned by the innuendo. ' No doubt when the question arises at nisi prius as to whether the word’s really bear the meaning; which the plnintiff has assigned to them in his declaration, the duty may devolve upon the Judge' to say : that there is no evidence to justify the words being read in such a sense as the plaintiff has imputed to them. At present we have" nothing to do with connecting the innuendo with the libel, and .we have, no material to enable us to do that. : 1 think we cannot say now that a jury may not decide that the article is libellous. The demurrer was overruled with coats, leave been given to appeal within seven days, or if the defendant did not appeal, be should have leave to plead within 14 days from the sth June. ■