THE CASE OF MACASSEY v. BELL.

New Zealand Times, Volume XXIX, Issue 4202, 8 September 1874, Page 3

THE CASE OF MACASSEY v. BELL.

The case of Macaasey v. Bell came before the Supreme Court, Dunedin, in Banco, on the 27th ult., in the form of an application for a writ of attachment to issuejagainst the Guardian [Printing Company for contempt of Court. The morning papers contain very full reports of the argument—too long for quotation in our columns. The following summary, evidently very brief, appears in the Star : Mr. B. 0. Haggitt and Mr. W. D. Stewart, appeared in support of the rule; Mr. James Smith and Mr. Stout for the defendants. Mr. Stout addressed himself to the law of the case, and submitted that every comment upon a suitor to a case pending in Court was not necessarily contempt of Court, even although it might inferentially affect the proceedings. To create contempt of Court it was necessary to bo .some act calculated to influence the mind of the Judge. After reading over the articles complained of, he said it was unfair to select some portion without the qualifying context. Reviewing the correspondence, he observed that if anyone had reason to complain it was not Mr. Macassey, but Mr. Bell, for its publication by the Daily Times and Guardian ; as, if it would produce any effect, it tended to injure the case. He submitted the rule had not been moved for on bona fide grounds, but merely for the sake of ascertaining the writer of the article in the Guardian. The case, as proceeded with, might last for years. He submitted that the rule should bo discharged, with costs. Mr. Haggitt, in support of the rule, contended that whether what was written were true or untrue, if it affected proceedings pending, it was contempt. In support of this he cited many cases, and maintained that circumstances werementioned calculated to pervert the course of justice. Nothing could bo more prejudicial to a suitor than that it should go abroad that he had obtained knowledge of transactions on the other side by questionable means unknown to them. Inferences were drawn, and injury was done. The interpreta-

tion put upon the verbiage of the article by Mr. Smith was one that it would not bear. Unfair commentwasinjurious inßngland, where juries were chosen from a large population, and must be much more so in a place where everyone knew everybody elae’s affairs. The rule was granted after due deliberation. The article reflected upon Mr. Kettle, a solicitor in the action, and was therefore gross contempt of Court. If lawyers were not deterred from doing their duty by threats, there might be a constant dread, and the language used regarding their retaining their briefs was very strong. Mr. Creighton had not given any explanation. The case was not one of injury to the plaintiff, but contempt of the Court itself. If the power of the Court were not used, there would be no justice in the Colony, and since the Court could n t institute proceedings, it was a credit to Mr. Macassey to have done so, as it showed that he had the credit of the Court at heart. The only request made by Mr. Macassey was that the name of the writer of the article should be given, which was refused. It was evident the intention was to screen the writer. He asked that the rule be made absolute. Mr. D. Stewart argued that the tendency of the article was to cast odium on the plaintiff, as it led to the conclusion that he had attempted to gain an unfair advantage over the defendant. It was ingeniously worded with the intention of evading the consequences of contempt. The second article was an aggravation of the first, and set the law at defiance. The whole tenor of the articles was very objectionable, and Mr. Creighton’s affidavit did not exonerate the company from the consequences of them. Mr. Smith replied, and showed that the cases cited differed very materially in circumstances from that before the Court. The attempt to torture the article into intimidation of counsel was absurd. The writer evidently only applied the test of the retention of briefs by counsel as an expression of opinion of the character of the proceedings. His Honor postponed his decision.