SCOTT & MARTINDALE.

Dominion, Volume 5, Issue 1286, 15 November 1911, Page 4

SCOTT & MARTINDALE.

APPEAL SETTLED. DECISION AGAINST THEM. In the Supreme Court yesterday Mr. Justice Chapman decided the appeal caso of Scott and Jfartlndalo v. Kemp In the ease in question tho feature was certain double charts lieaiing the initials "A.B.C" It was an appeal from the decision of Mr. M\ CI. Eiddcll, S.M., who had convicted Scott and Martiudale of publishing ft notification relating to betting. Scott and Martindalo's appeal was made on the ground that there was no evidence to justify the magistrate in concluding a certain card had come from them. Mr. T. M. Wilford appeared for Scott and Martindale, and Mr. T. Neave, of tho Crown Law Office, for the other side.

The Judgment. In the course of his judgment his Honour remarked that the appellants were charged under Section 30 of the Gaming Act, 1008, with having published a certain document which contained a notification os to betting on races at Auckland, on June 3, 1911, and June 5, 1011. —the Great Northern Hurdle Raco and tho Great Northern Steeplechase. Tho magistrate convicted (he appellants on several grounds. Theso mav bo stated to raise the questions:—(l) Whether there is evidence tluit tho document in question was published? (2) whether it is provert that it is a document such as is aimed at by tho section? (3) whether thoro is any proof that it was published by or with the authority of the appellant*? On May IS Mr. Fred Mowlom, insuranca agent, Palmerston North, received through the post four documents to which reference will be made hereafter. The envelope,"which is not produced, was addressed ii his son, who lived with him. Mr. Mowleui opened the letter, and, some time afterwards, passed on the 'letter to Detective Quirke. There is no evidenco as to where the packet was posted. Of these documents No. i was a card of tho size of a business or visiting card, on which was printed: "Scott and Martindale, woolbrokers, AVellington." No 1 is admitted to bo what is technically called a double chart. In the left-hand upper comer of it appears the letters "A.8.C." These letters appear in tho same position in Nos. 2 and 3. There is no actual evidence that tho other two cards (2 and 3) are double cards, but it is impossible to examine them without seeing that they can be nothing else."

What is "Publication"? Referring to tho question as to whether double chart No. 1 was "published" within the terms of Section 30, his Honour < ,i ■ D 0 * xact "acanins of the word publish must dppend on tho context in which it is found. To prove publication ot an obvious libel, it inav lie sufficient to show that the manuscript containing it has bwn handed to a printer with the object of getting it printed; to prove publication as a breach of copvright, something moro would be required. It it quite certain that publication need not be to tho whole public. . . . Tho expression is nearly always in some way limited. In the same way, publication is, practicallv speaking, always limited. Thus document is in eftect a circular. If its circulation is illegal, it is published to those to whom it is sent, and, beyond them, to such as in the ordinary course may nnd do sco it. Iho evidence ought not, however, to be too narrowly read. It must be interpreted as common sense peoplo would understand it. ... This document is a circular, and if this evidence wero beforo a jury it would be entitled to find that it had been circulated in the ordinary senso by a business firm to its confidential customers. ''Then is it proved to be such a document as is aimed at by Section 30? I see no reason to doubt that it is. It fulfils the conditions of that section by containing a notification respecting a horse race or horse races to be run; And Who Published? i "The. more ■ important question is whether thertf. is sufficient evidence to justify the magistrates conclusion that it was published by the appellants. It is. evident that the document has been prepared with great care, and by someone possessed of an intimate knowledge of the subject. A considerable time has in all probability been occupied in its preparation. An 'equal amount of labour bestowed on a time-table, or a similar scheme, involvin" both calculation and judgment, • woul3 produce a document of considerable copyright value. "An attempt was made to nrove that it was printed for the appellants. Dennis Driscoll, a printer in Wellington, who was called presumably with fiiis obiect, preferred not to answer this nucstion on the ground that he might incriminate himself. He says, however, that lie has printed double charts for the appellants, and has done some printing for them this year. Beyond this his evidence dees not go. "We have Found theso Facts." "We have, however, these facts: Defendants aro bookmakers in business in Wellington. The card, with the name and address of the firm unon it, is not repudiated by means of anv ovidence. Tho double- chart and tho two other cards which are, prima facie, double charts, all having appellants' sign upon them, arc found with this card in one envelope. It is morally cortaiu that all.theso four things wero their property. No. 1 is, in its nature, a circular printed for no other purposo than to be circulated. In company witli the card, and two other circulars, it reaches tho house where tho person to whom it is addressed lives. This person is a person with whom appellants have before done business ot this kind. . . . The evidence does not point to tho solitary fact of a single document posted to C. A. Mowlem, but it does point to the issue of a circular to an unknown numlier of persons interested in receiving it. "At first sight this evidenco may appear plight, but tbe small factors all point in tho same direction, and the appellants had tho_ opportunity of answering it. It is their failure to give ovidence in denial of any of the facts, or in explanation of the matters telling prima facie against them that gives cogency to this evidenco and justifies the conclusion. For these reasons I hold that tho aprieal must lie dismi«ed with costs £q 55."