A LIBEL CASE.

Auckland Star, Volume XXVI, Issue 74, 28 March 1895, Page 5

A LIBEL CASE.

, AR y^KNOXY. THE "HERALD."

Verdict for the Defendant.

W morning ab the Supreme Courb civil • inn an action for alleged libel against iSfSoprfetora of the » New Zealand •fa" was commenced before His Honor wTusttce Conolly and a jury of four. I Mr Baume (instructed by Mr Napjer).apX for the plaintiff and Mr G." B, ;Qon for the defendants. • ;.; ~ This 'waa an action brought by Mary ■'ir ni: wife of William Walter Knox, of lokland, baker, againab William Scott Wilson, Joseph Liaton Wilson and Alfred r. r29 Horfcon, newspaper proprietors, to 'tfw'&dO for alleged libel. ; / . ■' ' ;:'■':;"a preliminary' objection. , ,;- ■■■

sirßaome said that before the jury was moa ii D elled he had an objection to make. 5° jQb'mitted that the defence was bad in \* A person could not file a statement of Lends and pay money into Court in miti* ■atiori of damages. ... , His Honor: A portion of it, at any rate, i inadmissible. You say the only defence the eighth paragraph of the statement of :Mr Baume. Mr'Eaume: That is really all the de; -^His Honor said in reading the pleadings itetruck him that pleadings five and/sevfin iffefsnot admissable. - •■':,'. ', ' '"'" ''-,' jit Baume submitted thab'. all. the evidencaniuat be in' mitigation of damages so far as the libel is concerned. The libel was a statemerib that plaintiff was "convicted of having used obscene language ab the Police Court and fined. He contended that was the inuendp. Mr Button said he would not dispute the inuendo. ,-■ Mr Baume then submitted thab the statenent of defence, with the exception of pleadingseven, was Irrelevant. ■, /. His 'Honor said hia notion was that a person caanob file a statement of defence toaoy cause of action in respect to which bshas paid money into Court. ilrßubton'contehded the pleadings were admissable. A libel was a peculiar thing, A part of it might be true, and a part untrue, and it was necessary to plead in regard to the whole. His Honor said the pleadings would have been admissible had, the money nob been paid into Court. The question waß whether having paid the money into Court he,could in the statement of defence plead justification.' ~."• ■.'■■>■■■ ■'■-■ '■■■■ ; -':''. .

Mr Button said that the ground of action on the part of the plaintiff was the whole paragraph. Up to the point) where the charge waa stated the paragraph was true, and his friend had not separated the words of the paragraph. The first; part without the second pare was libellous it ib was not true. The part containing the inuendo was published in inadvertence. : Hia Honor said thab of course would be a matter for the jury. ; As yto the pleadings; Mr Button should have pub in an alternative defence, stating thab so much of the paragraph was true, and as for the rest, 40a was paid into Court. ■ . . : Mr Button : That is whab I have done.

His Honor : No ; you have nob. . j : Mr Button,: Then I ask you to take-Hi-in ;. mitigation of damages. \,\ His Honor; I think I shall strike oub in this statement of defence all but the last paragraph. But at the same time I shall probably allow evidence to be given. ; : ■•:'■■ , THE JURY. , ; The following gentlemen were then empaanelled as a jury:—Wm. Thompson ■ Parker; H. W. Batkin, Thos. Atherton Aehtotf M& BaYthblemetf Kent. Mr Kent ifas,chbsen foreman. • , ' ' . STATEMENT OF CLAIM, ••' MTTJairae then opened the case for the plaintiff,' and read the statement) of claim. I I'laintiS's statement- of claim was as follow :-(l) On the 12th day of February, ISSS, at Auckland, the defendants pubMedina newspaper call "TheNewZeaisiidHerald " the following words concerning "• the plaintiff: — Alleged Obscene laDgheee.—An elderly woman named Mary; Knox was charged with having on'tbe 31st January used ; obscene| lingtiage in Rokeby-street. She was ordered to pay £2 5a costs (meaning thereby that the plaintiff had- been convicted of the offence of using obscene language, and had, been ordered to pay £2' 5s ■costs); (2) the publication was false and malicious ; (3) the plaintiff prays judgment (or £200 compensation. i STATEMENT OF DEFENCE^ . ; The statement of defence was as follows : !. -(1) That the publication referred to in I "t¥e statement of claim was made by iriadTertence and without actual malice ; (2) that the publication occurred on,the' mornviagof the 12th of February, 1895 ; (3) that bo the 13th of the same month the defendinta'. attention was called to the publi- ; catjon by a letter from, the defend- / atlts' solicitor ; (4) that on the day fol- ' .lowing, viz., on the morning of the 14th ;,,- day f of February, 1895, the defendants published ia their newspaper referred to in the! statement of claim, a correction of the paragraph complained of; (5) that so much of the publication as states that the plaintiff wa3,charged with having, on the 31 st day of January, used obscene language in .. Kokeby-street;"waß true; (6) the defendants admit that bo much of the said publication as states that the plaintiff' was ordered to pay-£2 sa.costs is untrue, but; the,same was published by inadvertence and without) actual malice as aforesaid ; (7) tbab the facts of the case were that two wit»e»ses deposed on the hearing of the charge that the plaintifF used obscene langnsge.on the occasion referred to, but ftp Stipendiary Magistrate" held that the evidence did not prove that such language was uaed in a public" place, and on that ground and without calling on the plaintiff for-her defence he dismissed the information and ordered the complainant! to W£2 5s costs;".'' (8) the defendants - ; briog;into,Courb the sum' of 40a and say that; that gam is enough to satisfy the plaintiffs claim. * , PLAINTIFFS CASE. Michael Joseph Lynch, solicitor's clerk, "siding in Auckland, deposed that on the 4-th February he purchased a copy_of the 'Herald" newspaper. ■ He. put in the Paper, and the alleged libel was read by the Kegistrar. In cross-examination, witness said he was clerk to Mr Napier. The witness admitted 1 seeing the "Herald " of the 14ch February, wntaining a correction of the Police Court Proceedings of the llbh February. The Paragraph was printed in the same type and in the same part of the paper. A copy wa'letter sent to the proprietors, of the . Herald," claiming £200 damages, was put w the hands of witness. Witness said the letter was in Mr Napier's handwriting, and wat the writ was issued on the J4th ■eebmary, the sama day on whicH the co"cc«on appeared. •Mr Baume stated thia was the plaintiff's ease. ; • ■■•■■ - ■ ;' ': ; . THE DEFENCE. '• •, Mr Button in openiug the case for the Defence said that the attention of the Proprietora was called to the mistake on ™e*3th February by a letter demanding uh? wageß' and awrib was issued on the vi Ho Baid tn»t> there was no malice • , Df "fcl Connor, formerly a waterman, {""Y a restaurant keeper, bub now pub of Rainess, deposed that he lived in Rbkeby ■ sweet. He- knew Mrs Knox, and laid an wiortnatwn against her on the last day of , sanuary.

Mr Baume objected to the; proceedinga in the Police Courb being pub in, on the grounds that it was not evidence in mitigation, but practically of justification. After argument,'>'iMr','.6dume allowed the evidence, His Honor noting'the objection. Before the information was read Mr Bubton said there were ladies' in Court. He asked that they be asked to leave. Witnesses in the case then left the Court.■ I The Registrar then read, the information to the Conrb.

Ab bhis stage the witness Connor stood down, and Mr'Northcroft,1 S.M., who had been called at the opening of the case, pub in an appearance and gave evidence. Witness gavo evidence as to the proceedings ab the Police Court, Connor v; Knox, and stated that he dismissed the-information. Mr Brassey was counsel for the prosecution and witness told him he did not think it worth while' going on any further,' beeauee the information alleged thab tho language was used in a public place in Kokeby-street, and Mrs Connor and the other witness ewore tliab Mrs Ehox was standing in her own. porch when she ÜBed the language complained of. V On that ground witness dismissed the information without calling evidence. Witness said it was nob on the merits ho dismissed the case, but on the technical merits. He allowed the defendant £2 os costs.

, The witness O'Connor was re-called, but he was nob cross-examined by Mr Baume. Harry "Woodward, chief reporter of the "Herald," said that he furnished the paragraph referred to. The caße 'was reported by a junior reporter, and witness reported the part where the mistake was.

Mr Button : Did you do it intentionally or inadvertently ?

Witness .- Oh, inadvertently; I furnished the erratum correcting ib.

In cross-examination witness said that of course ho regretted that the error occurred.

Mr Baume : Did you express thab regret to Mrs Knox. . ■ Witness : I never had an opportunity. Mr Baume : Did you write to Mr Napier expressing regret? . ■ .;-, \ ' His Honor: He never gob an opportunity. The writ was issued at once. Mr Baume did nob call witnesses, saying he had nothing to contradict. . Mr Button then addressed the jury, and submitted that the sum of 40s paid into Court was sufficient to satisfy the plaintiff's claim. , Mr Baume addressed the jury for plaintiff, and Hia Honor summed up the whole case. THE JUDGE'S SUMMING UP. In the course of summing up, His Honor said the jury would take into account, though ib was nob evidence! the extraordinary conduct of the solicitor for the plaintiff. The first paragraph appeared on the 12_th February, and the very next day following a letter was written by the solicitor for the plaintiff demanding £200 damages. At wha6 time and on whab day the letter got to "Meesrg Wilson and Horton — whether ib- was on the 13th February or. by poßb on the 14th, there was no evidence to show. The only evidence was the writing of this mosb extraordinary letter demanding within 24 hours payment or an action would be j taken. . Thab was within the law, no | doubb; there was nothing illegal in it, bub to Ilia Honor's mind, ib was extremely reprehensible. The action was commenced immediately without any chance of an apology, without even .giving a chance of or asking for a correction, which the defendants did "give either before or immediately after the letter was sent. The defendants did nob apologise, but they were never asked to. The learned counsel for the plaintiff said they should have come to Mrs Knox and apologised. If they had no doubb she would have: said the matter was in the hands' of her solicitor. The jury were asked to infer the damage was done by this error, an'accident which would happen to the fflbst careful people.* In .concluding summing up, Hia Honor said the* jury had" to consider whether the correction published and the amount paid into Court •was sufficient. The question of there being no 'apology the jury need nob consider. Afterthe note of Mr Napier's, an apology would have been an absurdity. The jury then retired to consider their verdict. THE VERDICT. - Alter five minutes' deliberation the jury returned into Court, and the foreman, in reply to the usual question by the Registrar, said: "The jury find for the defendants." ■" - ■Mr Button asked thab judgment be entered for the amount paid into Courb and for costs for defendants subsequent to the payment into Court. AfSer argument, His Honor entered a verdict for defendants, with costs on the lowest scale from the time of paying the money into Court.