LIBEL CASE.

Lyttelton Times, Volume LIII, Issue 5949, 20 March 1880, Page 3

LIBEL CASE.

An action .for libel was tried yesterday at •the Kesideht Magistrate's Court, before Mr «G. L. Hellish, and Mr J.Ollivier, wherein <G. G. Stead charged the : defendant*— Directors of the Olagd Daily Times 'and Witness Company, limited (James Smith of Dunedin, Thomas Moriand Hooken of Dunedin, XUrhard Henry Leary of Dunedin, Walter Guthrie of Christchurch, James Marshall of Dunedin, William Hunter Eoynolds of Dunedin, and George Fenwick of Christchurch) —that fully and maliciously write, print, and publish and cause and procure to be written, printed, and published,-a certain false, scandalous, and malicious and defamatory libel of and concerning the complainant, George Gatohby Stead, contrary to the form of the Statute, &c.”

The libel, which appeared in the Otago Witness of Feb.-7,1880, was os follows; “ Mr Q. Fraser’s chestnut gelding Longlands, by Totars—Marchioness, syrs, 7sfc 121 b, was bred in Auckland by Mr James Watt, .and is a very good horse for handicaps, though scarcely able to hold his own with •the best at weight for age. He has achieved * great reputation for gameness and speed; but is principally notorious for his two conwins in the Great Autumn Handicap.' Ho has not done a great amount of work, the being course observed much the same as is pursued with Mata—score a remunerative win, and then either lay him up for a time or run him totally unfit, the result being that some handicapper lets him in cheaply for another big race, and again he lands a moral.” Mr Spackman appeared for the complainant, and Mr Garrick for Mr Fenwick, one of the defendants who was present. The other defendants did not appear. Mr Spackman said he was willing to proceed with the case against Mr Fenwick alone; the other defendants should have appeared, as they were summoned. His Worship did not see any necessity for taking se»en sets of depositions. It would be well to adjourn in order to allow the other defendants to he present. Mr Garrick said ho appeared for all the defendants.

Mr Spackman thought all the defendants should be present. 'The informations were separately laid. Mr Garrick said the offence of publication was a joint one. Mr Spackman could not see, if the other side admitted that the offence was a joint one, how it was that the defendants did not all appear. Mr Garrick would apply for an adjournment, if the other defendants were to be called upon to appear. Mr Spackman would oppose tho adjournment.

Mr Garrick had only been recently instructed, but believed the other defendants had been acting under a misapprehension in notappearing, Mr Spackman pointed ont that the defendants had been duly summoned, and had, by not appearing, been gnilty of contempt of Court. His Worship was inclined to adjourn. Mr Spackman c intended that the Magistrate could nob adjourn without issuing a warrant against defendants. He (Mr Spackanan) did not wish to urge His Worship to .adopt this course. Mr Garrick said evidently the absent defendants had been under a misapprehension from the advice given by two eminent counsel in Dunedin. He would taka the objection r when the evidence was called that the other ■defendants most be present. He could not -accept a courtesy from his learned friend and then make an objection. He would apply for an adjournment till Monday. Mr Spackman objected to an adjournment. His learned friend had no right to make such an application. His Worship said the Bench would adjourn the case. Mr Spackman argued that the only course ■open to the Bench was to issue warranty against the absent defendants. His Worship asked what course Mr S packman propt sed to adopt. _ Mr Spackman bad no objection to proceeding against the single defendant, but he presumed the other defendants would have to appear. , His Worship said they certainly would. "The Court could ad jonm at any time. Mr Spackman would go on if his learned I friend would admit his right to go subsequently against the others. Mr Garrick could make no admission, how- • ever much he might like to do so. i Mr Spackman submitted that under section 18 of the Justices of the Peace Act the Bench had power to go against all the defendants though they were not ell present. _ Mr Garrick had no objection, bat _ the ■clause only referred to summary proceedings. Mr Spackman did not think no could do -otherwise than leave it to the Court, against which the defendants bad been guilty of ■contempt by nob appearing. Ho would object to any adjournment. , Mr Garrick would undertake that the defendants would appear on Monday. His Worship supposed that in order to be strictly in order warrants should bo issued. Mr Garrick thought no warrants should be issued unless the Bench believed that the defendants had intended to act contumaciously. An opportunity, he • submitted, should be given to the defendants to appear without warrants being issued. , _ , Mr- Spackman contended that the Bench had no alternative. As to the defendants not being contumacious, the fact of their nonappearance spoke for itself. ' Mr Garrick argued that if the warrants were issued, the case would have to be adjourned. There would, therefore, be no hardship in adjourning without warrants, _ His Worship did not see anything in fhe Act compelling the issue of warrants. The word was "may,” not "shall.” Learned counsel undertook that his chants would appear. The accusation of libel was not exactly of the same class as a case Of picking pockets, , ... Mr Deacon here said that he appeared, with Mr Spackman, for Mr Stead, and argued that defendants were all liable, as they were all Directors of the Company. One was present, tb e others were not, having, as had bean stated, been advised under a misapprehension. If the Bench adjourned the case the- defen*

dant now present would not bo compelled to appear again. , His Worship sold the defendant could be admittedto bail.

Mr Deacon argued that the defendant was not in ; custody.. Bis Worship asked if learned counsel contended that if tho case was'partly heard the Bench could not adjourn. Mr Deacon ad milted that it could. ' The Bench, had,, however, no power to adjourn in tho present stage. His Worship was prepared to take the responsibility. Mr Spaokman asked that he might bs allowed to opea tho case without prejudice. Would His Worship say to what day ho pro,posed to adjourn ? , ' Mr Garrick agreed to admit the evidence of witnesses from n distance, as against the absent defendants.

His Worship would adjourn to Monday, at 8 o’clock, after hearing what evidence conld now be taken.

Mr Spaokman then called the following evidence:—

F. B. Smith, who, after being . sworn, asked for his expenses. His Worship informed tho witness that the case was a criminal one, and had he refused to come, a warrant to bring him up would have boenissuod.

Witness; "It is hard lines, yon know.” Francis Bussell Smith, Registrar of Joint Stock for Otago, deposed: I produce the memorandum of association, the articles of association, and the annual list of shareholders of tho Otago Daily Tim's and Witness Newspapers Company, limited. (Documents put in). I have received no disclaiming affidavit from any of the defendants. Their names appear in the annual list as shareholders,'! believe. Ido not know that they are Directors of the Company., Mr Spaokman asked that the defendant might be bound to appear on Monday. Mr Garrick hod no objection tothe defendant’a being bound in his own recognisance. His Worship said the defendant would be so bound.

The case was then adjourned till Monday, at 3:p;m., the defendant and • witnesses being, bound over to appear.