SUPREME COURT.

New Zealand Times, Volume XXXIII, Issue 5485, 25 October 1878, Page 3

SUPREME COURT.

Thursday, October 24. (Before His Honor Chief Justice Prendergast and a special jury.) Blundell Bros. v. Gardiner. The following special jury were sworn in Messrs. J, B. Ilarcourt (foreman), W, A. Fitzherbert. 15, H. Crease, J, W. Stevenson, J; F. 15. Wright, H. Wilcox, W. Dawson. J. T. Hurst. G. Roxburgh. A.. A. Shaw, C, Tringham, G. Denton. . '' This was an action for libel, in which John, Henry, and Louis Blundell, proprietors of the Evening I’osf, sought to recover £IOOO as damages for an alleged libel published in the defendant’s newspaper, the Evening ChronicU, on or about the 24th of April List. Mr. Travers appeared for the plaintiff, and the Hon. the Attorney-General, with Mr. Samuel, for the defendant. ■ The plaintiffs, in their declaration, set forth that they were the proprietors of the Evening Post, a newspaper published in Wellington. 1. That they employed, at great coat, a special correspondent in London. , 2. That on or about the 10th of April last, they received the following telegram from their London correspondent Eight Russians occupied British Consulate, Rustchnk. England claims prompt redress. War excitement increases.” 3. Tint they published this telegram in the following form “ Special Cable News to the Post. “Russia gives England a direct Ouusa BtUi. " England Demands Redress. . , (“ From our Loudon Correspondent,) .“London, Aprilo. “ The Russians have seized and occupied the British Consulate offices at Rustchnk. “EnUand has demanded prompt redress'for the outrage. “Tho war excitement is increasing.” .. 4. That the defendant falsely and maliciously printed and published in his newspaper, the L’wnbifl Chronicle, on or abmit the 24th of April last and since that date, the following words “ Journalistic Foresight. • “Loolcing into the. Future. . “Reporting Occurrences which Never took Place. “Extraordinary Workings of a Telephone Before tho Wires wore Completed. “ Wonderful Feat in Publishing a Speech only two Days after the Public had read it in tho C hronide I” { - Tho main allegations in tho article wero that tiro Evening Post had wilfully misled its readers by publishing, as having been received on tho Oth April last from its own London correspondent, tho telegram quoted above, when in fact no such telegram had been received. It also assorted that not the slightest crodence was given to the article at the time of its publication by th -se versed in the tricks practised by a certain class of journals; and it went on to point out, “ on the face of the telciaam, it was easily seen it was a fabrication,” The article also went on to state that the Evening Post had published a quarter of a column describing experiments with a telephone which never took place. Further, that it gave us nows to its readers a speech of g eat importance two days after it had appeared in tho ' hronide. Tho plaintiffs declared that tho defendants printed and published this matter in a defamatory sense of. the plaintiffs, and especially meant thereby that they had nob received tho telegram published on the 10th of April from any correspondent in London, and that the plaintiffs had wilfully and fraudulently fabricated tho said telegram In order dishonestly to increase tho sale and circulation-of their newspaper. Wherefore tho plaintiffs claimed to recover from tho defendant the sum of £IOOO for damages. With tho exception of admitting tho publication of the above articles, the defendant denied all the mdcrinl allegations set forth in'‘the declaration : and as a further plea to the whole declaration, the defendant asserted,That the said article was and is true in substance and in fact, and was and is a fair and bona fide comment on the action of the plaintiffs in publishing a telegram as true which was nob true; for (I) Tho English Government did not demand redress from tho Russian Government, as stated in the said telegram, (2) The Russians did not seize and occupy the British Consulate Office at Rustchnk. (3) The telegram published by tho plaintiffs-in the Evening Post was not published in the same words as received by them. Mr. Travers, in addressing tho jury for the plaintiffs, said lha*. tho publication and proprietorship of the journal were admitted. Should tho plaintiffs fail to establish the specific moaning which was set forth in the declaration, it did not follow that tho plaintiffs were not entitled to a verdict; that is, if tho publication was in any way defamatory. It was the tendency which the jury would have to consider. Mr. Travers then read the article containing the alleged libel. The learned counsel then went on to that the plaintiffs in their declaration said tho article was printed and published iu a defamatory sense, and that tho proprietors had not on tho 10th of April received from a special correspondent any telegram from Lbndin containing tho news alleged to have been received. The.defendant denied that the article was a defamatory one, but was true in tho ordinary meaning of the language used. If it were true in a defamatory sense, then, according to law, it would not bo a libel, because although formerly it used to be said,-“Tho greater tho truth tho greater tho libel,” they had now arrived at a more advanced a:e and a more satisfactory state of law. The defendant states that it was a bona-JUU comment on tho action of tho plaintiffs by publishing a telegram ai true which in reality was not true. Tho defendants stato that the English Government did not demand prompt redress from the Russian Government'; secondly, that tho Russians did not seize and occupy tho British Consulate offices at Rustchuck ; and, thirdly, that the telegram published in the Evening Post was not published in tho same words as received by them. The plaintiffs maintained that they had intoduced several words into the telegram to make it road intelligibly, without altering tho sense of the words of tho original. Mr. Travers then read tho original telegram, and compared it with the published one to show the “extension.” If it was shown that this was defamatory, no one would deny that it was a fair comment. ' If a journal resorted to fabrications and insinuations for dishonest purposes it decidedly deserves little or no mercy from tho hands of its contemporaries. At the same time, every publication nay bo made thesubjeetdf honajldc comment and fair criticism.

Isaac Plimmer, the first witness, deposed that at present he had no occupation. (Ewninu Chronicle of 28th April last shown to witness.) He wouldc maider, reading the article, that it was a malicious one. Mr. Stout remarked t'uat that was no object. Witness continued : The article would lead people to believe that the public were gulled, that it was a bogus telegram made up by the editor of the Post. He did not think tliat the part referring to a " fabrication” meant anything. lie would infer that it was considered by the owners of the Chronicle to be a lie, and that the owners of the Post had made them up for their own purpose. 15y Mr. Stout: I do not profess to bo an expert in the English language. This is the first time I have had anything to do with a libel action. I should think the person sending the telegram fabricated it I have read about the telephone in the article in question. I have never seen one at work without a wire. I should thiuk that if a paper stated that a telephone was at work and that there was no wire that it was untrue. I should say that it was a pure invention. I should think calling it ‘‘journalistic foresight ’’ rather strong. Afterwards witness thought it might perhaps bo right- I should say it was an extraordinary fact for a telephone to work without a wire. I should say that by reading ‘J Special cable news to the Feat " that the proprietors of the Post had a special correspondent in London. 111 saw the same article in any other papers, I should s ty that they also had correspondents. Edward Thomas Gillon deposed that lie had been connected with the New Zealand Press for twenty years. He had read the article in the Chronicle, complained of. By reading th it article he would understand that the article was concocted in the oftice without any telegram being received. By Mr. Stout; I consider that the word “ fabrication" means "made," ‘‘ Invented," or “ a falsehood invented.” I have not the slightest idea how it is tliat I am subpoenaed as an expert. I was asked about ton minutes ago to come and give evidence. On reading " Plevna has fallen," I should say that it had been taken by the enemy. If I road the same thing three months afterwards I should say that it would bo the subject for a little chaff. I should say, by reading “ Specialto the Post," tliat the telegram cunc only to the Post. T. J. Mountain deposed that ho read the article, referred to for the first time about a week ago, lie would say by reading that artiol> that the telegram in the Post was a pure fabrication of their own. Mr. Stout, for the defence, said that ho scarcely know how to address the jury in such a case. ‘ Ho thought, however, before.he had finished—and ho did not intend to speak long—that ho wnuldshow the jury that the present was one of a class of cases that should never have come before the Court. If our newspapers could not settle their differences without coming into Court and have them settled by a jury, such papers should be done away with—put under the pump. The ■Evening Post had been oaught tripping about Clarke’s speech and the telephone. They got excited, and had shied a writ at the head of the proprietor of the Cliro\xicle. , Mr. Stout argued at some length thafc.the words set nub in the declaration as libellous did not apply to the proprietors of the Post, but to the e London correspondent. The action had been brought to crush a rival newspaper. It was admitted that the telegram had been altered, and ho read the original telegram as follows Wakapuaka r Eight Russians occupied British Consulate, Butscliuck; England claims prompt redress. War excitement Increases." He contended that this did nob justify the extended telegram that appeared in print, and pointed out there was nothing to show that it oame from their special at London. Mr. Stout recommended newspapers to follow the example of the Eatcm*v:ill Gazette and Hi. dependent, and fight out their battles without appealing to law. He considered it a very bad precedent for our papers to have tholr differences settled by a special following evidence was then taken..... John Bluudell.one of the proprietors of the Evening Post deposed that ho had a special-correspondent in Sydney, along with other newspapers. His name ia Hayes. The telegram in question came from him, and not from London. By Mr. Travers: We forward the money to Mr. Brett at Auckland, who forwards it on. Wo treated the telegram as a London telegram. By Mr. Stout: Kour orflve p'apovs in Now Zealand made arrangements with Brett. Wo do not communicate with our I.ondon correspondent. Wo have never, appointed any individual in London., At the present time I do not know who our London correspondent is. . Arthur Biddle, manager for Mr. Mills, deposed; Mr. Mills has his business pi tecs connected by moans of a telephone. At the time an article appeared in the Post, stating that the telephone was at work it was not opened. It appeared in the Chronicle six days later. At tills time It was at work. By Mr. Travers : At the Prae the orfcicle appeared in the Post the wire bad not been connected, ami no experiments had been made. J. E. Hayes, plumber deposed that ho was employed to erect a telephone for Mr. Mills. Ho remembered seeing an article in the Evening Post. Ho had actually worked that telephone before the article had appeared. Cross examined; The telephone was not permanently fixed when the article appeared In the Post.- Ho had not been taking-lessons in the English language from Mr. PUmmer. . ' ; . Mr. Travers, in replying, said that Mr. Stout had drawn a redherring across the trail; Ho would call the jury’s attention to the fact that there was no ovi-, donee before them to show whether the news sent from England was true or not. With regard to the fair of Plevna, it was reported as having fallen in London before it really did, and the telegram in the meantime hud been sent off. That was a matter for which tlm wav correspondents wore responsible/ and hot the London correspondent of the Evening Post. His Honor,. In .summing up, pointed out to tho Jury that they would. have to consider whether the

matter contained hr the alleged libel was defamatory or not. -If the raster commented upon was-a public matter, comment to a esrta n extent was justifiable or privileged, providing it was written in the interests of the public,' and without malice. In this case he considered tho jury were quite as competent as Mr. riimmer or Mr. Mountain to understand the English language. The jury were not bound by the evidence in this respect, but wero to use tlieir own intelligence in saying what meaning was to be attached to the article. if they came to the conclusion that tho words complained of imputed to the plaintiffs dishonest conduct in the transaction of their business, they ought to find a verdict for the plaintiffs. The jury retired at 2,35 p.m,; at 3.15 tho foreman of tho jury came into Court and said they de tired to know what sum would carry costs. The Court declined to answer the question, but subsequently said if the counsel on both sides agreed, he would answer the question. The counsel di i not agree to this. The Court observed that there must be some mis-:' take. The'answers’to the 3rd and Bth issues wore inconsistent. They had returned “Yes” to the 3rd issue, which was inconsistent, with a finding for plaintiffs with £5 damages. He asked tho jury to reconsider the verdict. The foreman said the jury had misunderstood. Thov meant to say “ No " to the 3rd issue. The verdict la therefore , one for plaintiffs, with £5 damages. . . Mr. Travers asked the Court to certify for a special Jury. * . Mr. Stout objected. • His Honor said ho did not see how he could refuse to certify. , ~ Mr. Stout gave notice that ata future day he should move to set aside tho verdict, and enter it for defendant, the 3th, Cth. and 7th issues being in his favor. It was agreed that the application should bo made at the first sitting in banco after the Court of Appeal.