SUPREME COURT.

New Zealand Mail, Issue 859, 17 August 1888, Page 23

SUPREME COURT.

IN BANCO. Friday, August 10. (Before their Honours the Chief Justice and Mr Justice Richmond). REG. V. GARVEY, EX PARTE HENRY. On the 31st July, 1888, a rule nisi for a writ of habeas corpus was obtained by Mr Jellicoe, counsel for Charles Henry, a prisoner in the Terrace Gaol, committed by the District Judge, at Palmerston North, for an offence against the Bankruptcy Act, 1883, calling on the gaoler, Patrick Garvey, to show cause why the rule should not be made absolute, and the prisoner discharged' on* the grounds that the warrant, under which he was detained, did not specify the prison in which he was to be imprisoned, and did not show that the Court purporting to commit had jurisdiction and on other grounds. It appeared from tlie affidavits filed that there are two distinct gaols in Wellington, the Terrace Gaol and the Mount Cook Gaol, separately constituted by proclamation,- one twenty-five years after the other, with two offices of gaoler, though Mr Garvey now fills both offices. Mr Bell now showed cause : It is not necessary to specify the particular gacl ; it is sufficient to specify the locality. The prisoner can then be found. Rox v Smith, 2 Strange 934. If the Court grants a rule it will require that a rule for a certiorari be taken out at the same time to bring up

the conviction. The adjudication may show jurisdiction. R. v Taylor 7D. & R 622. The Court should follow this decision, and not Mr Justice William’s decision’in in re Crow, 4 N.Z L.R S.C. 266. Lindsay v Lee, 17 L.J. M.C., p. 50, is not an authority for in re Crow ; there avis no offence, only an aifthonty to commit. There is sufficient on this warrant to show jurisdiction ; ex parte Smith, 27 L.J.M.C., p. 186 ; in re Clark, 2 Q.B. Rep., 619. Mr- Jellicoe, in support of the rule : Ex parte Crow was rightly decided. Lindsay ;v Lee settles the point I am now contending for. Section 171 of the Bankruptcy Act, 1883, only contemplates one document to contain the adjudication and warrant of committal. Ho was liere stopped by the Court. His Honour the Chief Justice : The District Judge did what might very well have been done by a Judge of the Supreme Court in Wellington, and is not very much to be blamed. He was not aware that there are two gaols in Wellington. This fact is now brought before us by affidavit. There are two gaols widely apart, the one constituted 25 years after the other, although the same person is in charge. The Act of Parliament under which the adjudication is made requires that the Judge shall

adjudicate, and as part of his adjudication define the prison. Here the adjudication does say that the prisoner is to be imprisoned in the gaol at Wellington. This is on the face of it certain, but read with the fact that tlffire are two gaols is uncertain. No conviction, adjudication or order that could now be drawn up could get rid of this difficulty ; that being the case, the writ must go. His Honour Mr Justice Richmond concurred. Mr Jellicoe then asked for a rule, absolute for the discharge of the prisoner, and Mr Bell not insisting on a return of the writ, this was granted. IN RE COOKE, A SOLICITOR, EX PARTE BEARD. This was a motion calling on Mr Cooke to answer affidavits, which has been sometime before the Court. The affidavits showed that Mr Cooke had received a lump sum of LIOO to carry through a certain transaction ; that he had only partly completed the work, and had for a long time withheld the incompleted documents from the persons who had employed him. An affidavit by Mr Cooke had also been filed, stating that he had then handed over the documents in question. Mr Bell appeared for Mr Beard, Mr Jellicoe for Mr Cooke. The Court ordered Mr Cooke to pay the costs of this application, L 7 7s, but made no further order pending an oiler to be made by Mr Cooke as to the completion of the work.

CIVIL SITTINGS. (Before Chief Justice Prendergast and a jury of twelve.) BUTCHER V NATION. This was an action for libel brought by Richard Angus Butcher, journalist, against William Charles Nation, proprietor of the Wairarapa Standard. Mr Jellicoe, instructed by Mr Middleton, appeared for the plaintiff, and Mr Grey for the defendant. Mr John Thorburn was chosen foreman of the jury. The statement of claim set forth that on the Bth July the defendant published in his paper (the Wairarapa Standard), under the heading of “Mr Buchanan and Subsidies,” an article in which the plaintiff was libelled in the following terms —“The Post has had the misfortune to engage a Carterton correspondent who, owing to circumstances beyond his control, cannot write English or sense, and is unable to recognise the the truth when he stumbles across it by accident. The individual alluded to is afflicted, among other things, with a violent animosity to our sitting member. He contracted the disease .prior to the last election, and has never been cured, although repeatedly drenched with doses of derisive ridicule. This person’s feeble malice would, like himself, be a matter of no account did not his effusions appear in so respectable a journal as the Post, and did all those who chanced to peruse them happen to know that the Carterton correspondent of the Post is the same individual who for months during election time afforded the district endless food for merriment and contempt. Writing to the Post under date July 2nd, this person says 1 Mr W. C. Buchanan, IM. H. R., has "iven great offence to the settlers in the district on account of his opposition during the tariff debate to granting subsidies to local bodies for roads and bridges. ’ The writer of this sentence would probably be unable coherently to explain the difference a subsidy and a simple subtraction sum, and bis acquaintance with public political feeling in the district does not extend beyond the limits of mere tap-room talk.” The prosecution alleged that the above article was intended to refer to the plaintiff, was written falsely and maliciously, and was calculated to injure him in his occupation as journalist. The amount of damages claimed was L3OO. . Richard A. Butcher, journalist, residing at Carterton, deposed that he was engaged in June and July last as correspondent of the Evening Post of Wellington and also as editor of the Carterton Observer. He had acted as Mr H. Bunny’s agent during the last general election. He had bad opportunities of meeting several of Mr Buchanau’s supporters after the debate in the House on the tariff, and they bad expressed surprise at his having voted against local subsidies. He witness, bad, in writing to the Post, mentioned this as news. Witness believed he was justified in writing as he did to

the Post. He was opposed to Mr Buchanan politically, but had no . animosity to him privately. His business was to write the truth, and his employers had never found fault with him for having written anything in a malicious manner or in bad English. By Mr Grey : He had been a pressman for about two years, and had been editor of the Carterton Observer for about three i months. E. T. Gillon, editor of the Evening Post, gave evidence to the effect that he had been acquainted with the plaintiff for nearly two years. It was necessary for a correspondent employed by the Post to be competent and truthful, and to write without malice. The article which appeared in the Standard complained.of by the plaintiff would be likely to injure a paid correspondent if he was looking for employment, bus with ; himself it had no weight, as he had confidence in the man. By Mr Grey: He did not remember ever having had to revise the plaintiff’s letters, although they all passed through his hands. , This concluded the case for the plain* tiff.

Joseph Evison deposed that he was leader-writer to the Standard. He wrote the article which appeared in the Standard headed “Mr Buchanan and Subsidies ” on the 6th July. He had been eight years in the Colony. He had been a book traveller for Virtue & Co. In England he had been an auctioneer and Government clerk, and in this Colony—between 1883 and 1886 —a secularist lecturer ; had edited a newspaper in Auckland —the Rationalist —and had edited the Wairarapa Standard from Wellington, He had not any malicious intent against the plaintiff in writing thearticle complained of,- but merely wrote it to discount the statement of the plain* tiff which had appeared. William Charles Nation, proprietor of the Wairarapa Standard, stated that he had read the article complained of, and it appeared in his paper with his full sanction. He thought it did impeach the plaintifl’s veracity. It was not intended to injure the plaintiff, but was merely a statement of fact made in a jocular way. He did not wish now to withdraw anything in the article. This concluded the evidence. After Mr Jellicoe had replied, his Honor summed up, pointing out the difference between what might be considered fail’ comment and what was libel. The jury returned a verdict for the plaintiff and awarded damages .to the amount of L 25. Costs were allowed on the lowest scale. Tlie Court was adjourned to next day.