THE CASE OF MACASSEY v. BELL.

New Zealand Times, Volume XXIX, Issue 4178, 11 August 1874, Page 3

THE CASE OF MACASSEY v. BELL.

In the Supreme Court, Dunedin, on the 6th inst., Mr. James Smith, addressing His Honor Mr. Justice Chapman, said he wished to make an application under the quasi criminal jurisdiction of the Court. He had been instructed to move for a ride nisi calling upon Mr. James Maeassey, barrister of that Court, and plaintiff in the action of Maeassey v. Bell, to show cause why he should not answer the matters complained of against him in the joint and several affidavits of Mr. G. K. Turton, solicitor for the defendant in Maeassey v. Bell, and of Mr. William Carter, Mr. Turton’s managing clerk ; why he should not also pay the costs of this application ; and, in default of sufficient and satisfactory answers to the said affidavits, why attachment should not issue against him for contempt of that Court for having published in the Otayo Daily Times newspaper of the 27th July last a letter and telegrams strongly calculated to px-ejudice the trial of the action of Maeassey v. Bell, still pending in that Court, which action, if the motion for a new trial was granted, would go before a second jury. He read the affidavits on which he made the motion, and, referring to the last paragraph of Mr. Macassey’s lettex-, continued : So far as that letter was concerned, Mr. Maeassey was right, possibly, as regarded the observation contained in the last paragraph; but it would be seen, on referring to the documents appended, that it was a very shallow pretence. Among other documents, there was appended the following telegram : [Mr. Maeassey to the Attorney-General.] “The Attorney-General, Wellington. “ Dunedin, April 2, 1874. “ The trial of the action is fixed for the 15th instant, and as a heavy criminal calendar has first to be disposed of, it will be impossible to get the point, argued in time. ' “ The terms of the Judge’s order I know nothing of, and regret if there- is anything unusual in it. All that I wished was that the Telegraph Department would follow the same course in Maeassey v. Bell as in Wenkham v. Arndt, Anderson v. Burke, and many other cases in which I have been professionally engaged; My object is to show up Judge Ward’s connection with the article complained of, as well as a previous one in the Tlmara Herald, and to that end I desire that all telegrams between himself and others (excluding past oxpresent Ministers) relating to myself should be produced. That there are such telegrams I am well aware, as I have copies of some few of them in my possession. If the department will not, under the cix-cumstances, send the telegraphist the telegrams for production under protest at the trial, I am x-emediless, as it is too late to move the Court or obtain Judge’s opinion. “ I have no wish to copy or inspect the telegrams before trial, but I want, if possible, to have the telegrams ready for production at the trial, should the Judge’ decide that they are admissible. I thank you for your courtesy in communicating with me dix-ect. “ James Macassey.” Now, he (Mr. Smith) apprehended there could be no doubt that the publication of this telegx-am at the time the case of Macassey and Bell was pending, with a motion asking for a new, trial undisposed of, when, consequeixtly it was possible the case might be tried by asecond jury—the direct tendency, ho said, of the publication of these documents was to prepossess the public mind with the idea that Judge Ward was the author of the article complained of by Mr. Macassey, and which, taken with the other cix-cumstances, was calculated to prejudice the defendant. Mr. Macassey’s counsel previously undertook to px-ove that Judge- Ward was the author of the article, and that circumstance was known to Mr. Bell, the defendeut in the action of Macassey and Bell; also, that it was known to Mr. Bell that Judge Ward was actuated by malice against Mr. Macassey ; and therefore the contention was that Mr. Bell, by allowing his newspaper to become the medium of publishing the alleged malicious article, took upon himself the whole responsibility attaching to such malicious publication, and desex-ved to be cast in heavy damages. The intention of the publication must have been to poison and prejudice the public mind with the view of securing a verdict for heavy damages against Mr. Bell, on the ground that he made himself x-esponsible for all the malice by which the supposed author of the article was actuated when he wrote it, by allowing it to bo published in the Evening Star. Ho (Mr. Smith) believed Mr. Macassey was the only counsel at that bar who had over urged the Court to use this highly penal power. Mr. Macassey had succeeded in inducing the Court to exercise it on several occasions. - He (Mr. Smith) mentioned the case of Camex-on v. the Otago Daily Times, and submitted that that case, as compared with that now befox-o the Court, was mild, perfectly mild. In this case a barrister of that Court— His Honor pointed out that the gravamen, the part which he regarded as repugnant, was that which set him (the learned Judge) up in opposition to the other Judges ; praising him and dispraising them, while the suit was pending. Mr. Smith : But it will scarcely he thought your Honor’s mind would be influenced by such stuff as that. ' ' His Honor said that he did not know. The matter was put in such a way as to prejudice the suit. No doubt it would not influence the other Judges; but it might have prejudiced the suit which was then pending. The Court, 'of course, could take care of itself. Mi-. Smith said dolibex-ately that the attempt now under notice was a vex-y gross and indecent one to influence the course of justice, and the more so, because it was committed by the only counsel who had induced the Court to exercise

this highly penal power against others; he (Mr. Macassey) had himself been guilty of that charged against others, and in a most aggravated form. He (Mr. Smith) admitted that this highly penal power of the Court should be sparingly exercised in such cases, and the Court should not entertain such an application except on the clearest ground; but this he submitted, was so clear a case of an attempt to pervert the course of justice, aggravated by the circumstances that what was done had been done by a barrister of the Court, that His Honor could scarcely refuse to grant a rSEe. His Honor ; You can take a rule. Mr. Macassey said that, as a person interested, he had a right to show cause in the first instance. His Honor intimated that he had made a note of the fact that Mr. Macassey interposed, and said he had no objection to the application being made at once. Mr. Macassey said, that all he wished to do was to direct the attention of the Court to the case of Meitzler v. Gounod, L.T., N.S., 264, to show that attachment would not issue after a verdict obtained, when there was simply a rule nisi pending, and where the plaintiff had leave to move for a new trial or nonsuit. He also drew attention to the fact that there was no evidence before the Court of authorship of publication by himself. These were points that he desired to throw out at that stage of the proceedings, so that, when it came to a question of costs, the other side might not have to say that they had been leaping in the dark. His Honor : Had the rule nisi been granted in that case ? Mr. Macassey : The time had not expired. The matter then dropped.