SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 3910, 28 August 1874, Page 2

SUPREME COURT.— IN BANCO.

Thursday, 27th August. (Before His Honour Mr Justice Chapman.)

APPLICATION FOR ATTACIIMBXT TO ISSUE.

The plaintiff in the case of Macassey v. Bell applied through his legal representatives, to the Court, that a writ of attachment should be issued against the Guardian Printing Corajiany (Limited) for contempt of Court. On the ICth of May last a rule nisi was obtained by Mr Macassey, and application was now made that that rule be made absolute. Mr Haggitt, with whom was Mr Stewart, appeared for Mr Macassey • Mr James Smith, with whom was Mr Stout, for the Guardian Company. Mr Smith, in showing cause, said this was a rule calling upon the Guardian Printing Company (Limited) to show cause why the said Company should not through Us proper officers, answer the matters comPiamed of against the said Company in the affidavits of plaintiff, his solicitor (C. C. Kettle), and others sworn and filed, and pay the costs of this rule • and why, m default of a good and sufficient answer to the matters complained of aforesaid, such further1 order might not be made as to the Court might seem meet He would read the principal affidavit ujron which that rule was obtained, and the affidavit which was filed by the Guardian Company in answer. He then read the joint affidavit of James Macassey and Charles Cartful Kettle. It was to the following effect:—That the leading article in the Guardian of 24th April had reference to the action of Macassey v. Bell. That nwny of tUe statements and assumptions of fact contained in and made by the said aiticle were wholly untrue C. C. Kettle, for himself, said that there was not the shadow of foundation for the statement that " every telegram which has passed betweenthem" (Judge Ward and Mr Turton) "on the most private matters, if it contains any reference to the article in the Star, has been without their knowledge read and copied by Mr Maeassey's solicitor for his perusal " fhat.at the time of the publication of the article the said telegrams had not to his (Kettle's) knowledge reached Dunedin, and ifc was only on the ■ 4;h April that the telegrams reached Mr Lubecki, principal officer of the Telegraph department, in Duuedin. And James Macassey, for himself, said that the "said telegrams had been forwarded to Dunedin 'upon the conditions imposed by the Telegraph department, with the approval of the Attorney-General, that they be not inspected by him or his solicitor before trial, and that upon thoir production at the trial the question of their b3ing put in evidence be raised. The passage contained in the said article: "It is obvious that by inspecting telej^rams Mr Macassey may have obtained a complete I map of the defendant's case without the slightest suspicion bciig- aroused in his opponent's camp, and it is impossible to overrate the advantage which may thus have been granted to him," was in his (Maeassey's) judgmenfcculculated to convey a most injurious impression to the minds of the jury by whom the cause was to be tried. That inasmuch as the order referred to in the article was not applied for under the advice of counsel, but as a matter of course, as in all previous cibcs, lie interpreted the passage following to mean that his counsel, Messrs Barton and Smith, should throw up their briefs ; " The counsel for the plaintiff are MessrsG.E.BartonandHaggitt. If these gentlemen retain their briefs the public are entitled to suppose that Mr Maeassey's application for an ex parte order in Chambers to be allowed to inspect privileged telcrams passing betwceii the defendant and nis solicitors, was made by_ their advice, or at least that on its success the application received their subsequent sanction and approval." The passage quoted, and many others were, in the judgment and belief of plaintiff and his solicitor, calculated to influence the public mind and unfairly to prejudice the fair tri»l of the action. The order referred to in the article was at the time of the publication a matter pending in this action (Macassey v. Bell), as a rule nisi had been obtained on behalf of the defeudant to rescind the same. That they did not furnish the Guardian with the information in the article, and that in their judgment and belief the various facts and particulars connected with the case must have been furnished to the publishers by the defendant or his solici-or, or some person acting with their privacy and consent. C. C. Kettle, on the 24th April, by direction of the plaintiff, wrote as follows to the Directors of the Guardian Company :—" Macassey v. BelL -Gentlemen—l am instructed by Mr Macassey to cull your attention to the Leading Article in today's Guardian, and intimate to you that at the next Banco sitting of the Supreme Court, a rule nisi will be moved for, to attach the Comiiany for the contempt of Court committed in permitting the publication of such an unbridled comment upon a matter which is at present ■iirOJiidice. lam also directed to put it to you asiiK-nof honour, whether.upon thecveof an approaching trial, involving possibly the character and repute of more than one person, it is consistent with your views of the duties and the functions of the Press that such mix-statements of fact, and untrue aud dishonouring suggestions, should find a place in the columns of your paper, apparently with the sole object of injuring Mr Maunssey in the eyes of his fellon-citizeus, and prejudicing the fate of the fciidtiy action. Ii is needk-ss to point out that the article alluded to contains internal evidence

tiiafc it has been written in tho interests of IDr Maeassey's oplmxmt—containing, as ifc does statements and references to facts which could only come from some person cognisant of the course of the pending action. Mf Macassey hopes that you will in. justics to him as wcH' as to the character of your journal, cause an mqufryto be.forthwith made into the unprecedented course1 which has been adopted by your editorial staff. In conclusion, I beg- to express a. hope that immediate and effectual measures will ba taken to remedy the mischief which the publication of the article in question is- calculated to cause delay. Should Mr Maeassey's appeal meet with that response which he looks for at your hands m> further action need be tiken against your journal " K. as Secretary to- the Company on the same date, April 2-ltbi wrote, in reply: 'My directors cannot regard- tlic article in. question as a comment upon the case mentioned by you, nor as a reflection upon any of the-parties to the action. The publication of the article was- never intended to prejudice ' the fate of the impending-.action * but merely to uphold the principle of the inviolabilitvof telegrams. My directors fail to see that the article contains any ' untrue and dishonouring- su'westions " and regret very much that Mr Macassey shouldihave misunderstood the object of the article. If you wilL be good enough to point out the misstatenients oE facts and the paragraphs which may bear the- construction placed upon them by Mr Macassey, my directors will most willingly make ample amends for any injury the publication of them may have occasioned. Meantime my directors fail to see that the article can bear the unfavourable construction your client has placed upon it. In conclusion, lam directed to assure you that the article was published solely in the interests of the public, and was not intended in any wajr to influence the action alluded to by you " In the reply, which was dated on the following day, April 25 Mr Kettle conveyed his sense of the courteous terms in which the directors had exoressed themselves He was requested to say: " Whether the article contained in your issue of the 24th inst. is or is not a comment upon the pending action of lfacassey v. Bell, is clearly a matter of opinion,- upon which Mr Macassey feels himself compelled to differ from your directors. Mr Macassey does not for a moment suppose that yourdirectors would personally lend themselves to any unfair dealing with a pending action ; but there can be, he thinks no possible question as to the aba and drift of the writer, and the tendency of the article Mr Macassey bavin-, from the internal evidence offered by the article itself, strong reasons forcallinnm question the bona fides of the writer, has resolved J» move for a rule nisi for an attachment on Monday next, at ten o'clock. The writer will have then afforded nun the opportunity of making the usual exculpatory affidavit, and of explaining how he became possessed of a knowledge of the proceedings in the pendin- action, except through the medium of the defendant Had your directors, in accordance with the request made by me, agreed to enquire into the circumstances attendant upon the publication of the article no further notice would have been taken of it I am. however, directed to say, in conclusion, that^tr Macassey would gladly have given your directors time for further consideration; but, inasmuch as the trial i i^Thi^K ' 'fc *, absolutely necessary that the Court should be moved at once." The joint-affidavit concluded:- And we,.the said James MacWyand Charles Cargill Kettle, swear that the applicationfork rue mn for attachment is made bona file, and in tit belief that the said article is calculated to prejudice the fair trial othis action." Mr Smith then read the* affidavit of Kobert James Creighton, Registered Manager of the Guardian. In answer to the"ntatbt paragraph of tlie said affidavit of the plaintiff andhta solicitor, lie (Creighton) was not aware, and he bf heveii that the Guardian Company was not aware, tha& a rule mm had been obtaiued by the defendant to rescind the Judge's order allowing plaintiffMdhil solicitor to take copies of telegrams; that he believed that the information in the leader of the 24th Am« was not supplied by the defendant or his solicitor alleged for the plaintiff; that at the time when tt£ leading article of the 24th April appeared he had nol ■ as such registered manager, and he believed that the Guardian Company had not, any intention to comment upon this action, nor to cast any reflection upoTany 01 the parties connected therewith ; neither was there any intention to prejudice the result of this letter but on the contrary, the said anicle was S solely in the interest of the public, wit h the objects pointing out the necessity for an amendment ofMil law unaer which the Judge's order had been so that the secresy of telegrams might be prS^ed* and he believed that had a similar order been Sad^fn any other action and had become kC™ the oSa^. Company would have published a similar iSSteto that in the-Guardiau of the 24th April; that the GmZ dian was willing to make amends for any injury t mcd by pkmtiff, and had offered to do so on 2wu?r th« same pointed out, but the plaintiff or his soueitc? never pointed out any such alleged mis-s ailment^ that he regretted that such article should haVet^ misunderstood, and thought to have been writtenin contempt of Court, that aud the Judge's orderhavhSbeen published solely lor the purpose! explained *thaf the auuexed was a copy of a leader of the Guardianol the 2jt i April, on which day the rule nisi ohtSbl the ptamtuf was applied for. [Mr Smith saidthat hf relied upon this article, as depriving Mr Macassey o! all excuse for putting the peualpowers of thTcTurfc in motion.] "Our readers will remember that on R^--day last we pubhshed an order by Mr Justice Chapman authorising the plaintiff cr his solicitor in the actfondt Macassey v. Bell, now pending in the Supreme Court* to inspect and copy all telegrams in the possTssiorfoE theiocal telegraph manager, Mr Lubecki, having reference to that action We explained the circumstances under which the order was maie, aud we now addthat: i rV aot!£ UpOlH ft hi viu ° beon Presented to Mr Lubeckv We carefully abstained from expressing any opinion whatever on the merits of the action of M£cassey v.Bel. i hit is a cause with which tom journabsts, have nothing to do at the present sta.«T Neither did we say or insinuate any thing to the Sdice oi Mr James Macassey orhis solicitor, who havea perfect.right to do whatsoever the law permits them to do to st engthen their case. Nor did we ventureto call m question the perfect legality of the Judged orde We assumed that all things had been righUy done, but while imputing no b ia me to either tite Judge or the defendant and his solicitor, we did that which we had a perfect right to do and whicft we should liave failed in our duty if we had not done.We pointed out the necessity for art amendment of the law, so as to secure the inviolability" of telegrams, thereby assimilating the law of New Zealand m this respect, to the law of England as ioterprettd by the English Judges. It is not our faule that this very serious question has arisen hi connect tion with thereof Macassey v. Bell We should have commented on such an order in precisely similar terms it it had cropped up in the same way iHoy other case. We have also the satisfaction of "kiiowimr that our conCuctr uiet^vStfc-^cncral a^ro^l in^fcil community.and we feel satisfied that it will be ent f, 0I?' C« »f lhe pu^ilc oyiniou of the wh<>le Colony But Mr Macassey. is not by any means satisfied witrl our article and, entirely misinterpreting it, he has threatened to attach the Guardian Printing G!onWr or contempt ot Court, and to do something terrible mdenuiie to the writer of the article. Nov wHh "I respect to MrMac^ss.y and his solicitor, MrCharks C. Kettle, we tfcink they are going rather fast^ It is quite true f that these geutlemeu, as barristers and solicitors of the Supreme Court,'are officers of the Court but they are not the Court itself. Ite dignity and independence are not in their keeping, but bl this instance are m the keeping of a JuoVe of exnerf ence, who wiU doubtless tak^e clre, Without theffi that no contempt of Court passes unrebuked When w^V? IS rU!f l tUe despondence follo^ we felt that Mr Maeas=ey and his solicitor wot assuming a position they were not warranted indoinsr aud were themselves guilty of something very nearto approaching to contempt of Court. Jor how doesthl matter really stand V We accepted the Judget^rder" as perfectly regular and unassailable. Mr Macas^r Hirough his solicitor, threatens to attack the GuardSi Company for contempt because we did so. Has ifc come to this, then, that a journalist is guilty of. con.V^ lJt °/.i he Supreme Court when he sa/s that a. Judge of that Court interprets the law rightlyiu. t particular case and delays to no man justice 2— speedy justice being done in this case to Mr Macassey oil the application of his solicitor. If that be contempt of Court, we do not understand the meaning b£ the phrase, and we have therefore erred through'ignorance. But we shall be surprised if any professional luan can be found to maintain h& gravity whole asking a Supreme Court Judge to rule that is a contempt of Court to publish an article in a newspaper recognising the strict leffality of the Judge's own judicial act, while stating that the law on which that act was founded should be chanaed. As we have already hinted, however, the Jud-e woukl be quite justihcd in treating such a motion hy any solicitor as a contempt of Court. To laymen, at all eveuts, it wouldlook very much/like adeliberate insult offered to the Judge. So much for the generaE bsariug of this question. We now come to the alrrest poiideiice which passed between Mr Macassev's sonct torandtheJJirectors of the Guardian Company^Tßcethe publication of last Friday's leading article. rHere followed Mr^Charles C. Kettle's letter of the^aS April as published above.] This letter- was cohsidere* by the Directors of the Guardian Company at thdr meeting, and replied to by the Secretary, but asin«ul larand wholly unprecedented thing happened. This private and pnvUeged communication appeared next morning m the local. columns of the Oia^ l£§r liiues with the followinij suggestive introduction •— Macassey v Bell.—The following has been handed. 1£ f?r Pubhcatiou.' Handed to the conductors: of the Daily Times? Bywlioin? The letter was the property of the Guardian Company, who gave no authority for its publication, and permitted nS copy of it to be taken. By whom, then, was it furnished to the Daily Times for publication, and with what object? 'ihese are questions which Mr Kett'e may have to answer, as well as for the statements it contains • but the questions as now put are material to the issue between ourselves and Mr Macassey, and doubtless will not be overlooked by the Judge should Mr Macassey carry out his threat of moving for an attachment for contempt. Meanwhile, we direct the attention of the honourable profession to which Mr Kettle belongs to* this glaring violation of professional usaire. Should, such an act as this pass without notice by the Law Society, which is incorporated by Act, the relations of the public to the legal profession will be entirely altered, and ifc may become necessary for the nrotection of the public to withdraw the exclusive - privileges which lawyers possess. If it be recognised ; as the correct thing for a solicitor to write a letter in the interest of his client to a third party contaimug mis-statements, and imputing impronoemotives to the party written to, and then publish ifc without his knowledge and to his prejudice, as has been done in this case, then, we say, all confidence in: the legal profession is at an end. The privileges of the profession may, in this case, be made an instrument of intolerable oppression. This is a matter, we subnut, which the members of the profession cannot afford to overlook. Touchiug the publication of the letter m question, the motive is transparent, but were there any doubt, upon the point it would be set st rest by the letters following. We may add that the Secretary's reply, although written and posted on Friday evening, could not have reached Air Kottle till Saturday morning, and therefore it follows that a copy oE Mr Kettle's communication to the directors of the Guardian Company asking for an explanation was handed to the i,aily finies for publication before he knew what the reply would be. [Here followed the Directors' reply.] .Nothing could be fairer or more conciliatory than this letter, but it did not satisfy Mr Macassey, as we shall preseutij see. He fails to recognise the reasonableness o£ the request that he would be good enough to joiiitout the mis-statement of facts of wh eh lie complains, and the paragraphs in the article which might bear the construction he has placed upon them, or at all events he declines to point them out, and resoh'es 'to move the Court at once.' He was promised ample; amends for any injury the publication of the article may have occasioned, if he only took the trouble to iudicate the. passages which could bear the construction he placed upon them. This, however, lie has declined to do Mr Kuttlo's letter having been published in the local columns of the Daily Times, may be regarded as a deliberate reply to the article in the Guartlian-a. reply, moreover, which is far from .being characterisedtiy the moderation of tone aud language, and accuracy of statement of our article. Bui even the unauthorised publication of a privileged communication, and theofcerot amends by the Guardian Company superadded, did not appease Mr Macasscy's wn,Ui He hax taken the Supreme Court under his wing, and nothing- it appears will stay him moving it as he lists, save the Court itself. Accordingly the latter dated 25th April was written by his instructions, and received in due course on &iturday. [Letter read.] And so tlic matter advances at present The narrative wehavegiicu, taken in connection with the conclude jKir.igraph of Mr Kettle's letter, should sufP.ce to convince any dLspr.ssiouate person that zeal for the dignity of the Supreme

Court is not Mr Macassey's only motive. For ourselves, we disclaim any intention whatever of prejudicing the fate of the impending action of Macassey v. Bell, nor have we commented upon it at all. *\Ve altogether deny that our comments upon the Judge's Order for the inspection and copying of telegrams reflected injuriously upon any one. And we as emphatically deny that the article was written with any intention of injuring Mi- Macassoy in the eyes of nis fellow citizens. Mr Macassey's position with his fellow citizens never once crossed our mind. He is not the ■central figure even in the small world of Duncdiu, but our thoughts were with the public, whose representative we are in this matter. It is the duty of a public journalist to lay hokl on and expose any defect in the law which may work to any man's hurt. That duty -we have discharged fearlessly and without prejudicing anyone whose name was necessarily mentioned in our article ; and we are content to abide by the judgment •of our fellow-citizens in this matter. As for the Supreme Court, we have no fear for ttie motion for attachment. We believe we are not in contempt of Court; and should such general comments as we have made be ruled to be a contempt of Court, then the freedom of the Press in New Zealand is a popular delusion, and the law in that respect requires amendment fully as much as that affecting telegrams." The sequence of dates was as follows:—The article complained of was published by the Guardian on Friday .morning, 24th April; on that day Mr Kettle addressed his letter threatening the Guardian Company with a motion for attachment, that letter appeared in the Daily Times on the following Saturday, the most—he would not use the term by which such a proeeedin<>•ought to be characterised, it would speak for itself. A public discussion was thus made of the merits of the case between the Guardian and Mr Macassey. Mr Macassey voluntarily entered the lists in discussing the •question with the Guardian whether or not the tendency of the article was improper, and he did that by or through his solicitor—of course, Mr Kettle was act--mg under his instructions—by the commission of a -gross breach of propriety. Mr Haggitt said that conduct was not a matter ;under discussion. His Honour: If both parties chose the Press it may affect the decision of the Court. Mr Haggitt: This is not a question affecting the parties, but the dignity of the Court. Mr Smith submitted that the publication of Mr Kettle's letter before the courteous reply from the Guardian—it was at the time a private letter belonging to the Guardian Company alone—besides being a gross violation of decency was a voluntary choice on the part of Mr Macassey, of the public, as a tribunal, as to whether the Guardian had or had not sinned against him. . Mr Haggitt applied for leave to file an answering affidavit containing new matter. In answer to His Honour, Jlr Haggitt: The new matter is this. The article complained of xhows.pi-ima facie, a contempt of Court. Mr Crcighton's affidavit pretends to sot out publication in good faith—that the article was not published with the intention of committing a contempt of Court, but on fair and open public grounds. The affidavit which 1 shall file in answer refutes Mr Creighton's answer to our affidavits, and to the case that we set up, by showing continued subsequent publication of articles for nearly a-month, similar to those now before the Court. His Honour said that was not new matter. Mr Haggitt contended that the allegation that this was done with the intention of committing contempt or Court was new matter. His Honour said what was proposed was only a disclaimer. New matter meant new fact-*. The usual disclaimer was sufficient without an affidavit. There were enough affidavits already. After further remarks between Mr Haggitt and the Judge; His Honour refused to allow the affidavit to be filed. Mr Smith then read the leading articie of the 24th of April. It was as follows:—"Friday, April 24.—As j our readers are doubtless aware, there is a libel action set down for trial at the present sitting of the Supreme Court. Tue defendant is the proprietor of the Evening Star newspaper; the plaintiff is the senior partner in the firm of Macassey, Holmes, and Chapman. Into the merits of the case we do not propose to enter at present. So long as it lemains IU penitents it would be improper in us to do so. But an order fraught with the gravest importance to the public has recent)v been made by Mr Justice Chapman in this matter; and to this we desire to draw the especial attention of our legal and mercantile readers. On the 13th of March last, Mr Charles C. Kettle, who appears on the records as _ the plaintiff's (Air Jlacassey's) solicitor, filed an affidavit stating in effect that he bad served Jlr •Lubecki, the chief telegraph officer at Dunedin, with a - subpoena. requiring him to produce at the trial of this case certain telegrams alleged to have passed between Judge Ward, Mr Bell (the defendant), and his solicitor (Mr Turton) ; that Mr Lubecki stated that he should not allow him (Mr Kettle) to inspect telegrams without a Judge's order, and that the plaintiff would gain material advantage by the production of these telegrams. Whereupon, on Mr Kettle's application on behalf of Jlr Macassey, His Honour forthwith signed an order, which we print at the foot of this article, bearing dite the very day of the application, and directing that the plaintiff should be allowed to inspect and take copies of all telegrams relating to the subject matter of the -action. This order was made by His Honour ex parte —i.e., without notice to Judge Ward, to Mr Turton (the defendant's solicitor), or to the defendant himself. In fact, we are informed that, although it was served on Mr Lubecki above a mont.i ago, the fact of its existence has only just become known to the defendant's legal advisers. Mr Turton himself was absent from Dunedin at the time of its issue. We are not of our personal knowledge . aware if this order has been obeyed or not. We have a right to suppose, however, vmnia. rite fuisse acta, that all things "have been rightly done; that the order was pro,»erly made, and was duly obeyed. Assuming ihis to be the cas9, what are the consequences ? It is wellknoivn to the plaintiff, and to most others, that 3Sx Tin-ton has acted as Judge Ward's solicitor. Every telegram which has passed between them on the most private matters, if it contains any reference to the article in the Star, has been, without their knowledge, read and copied by Mr Macassey's solicitor for his perusal. Hitherto,'communications between solicitor and client have been considered privileged. Moreover, some time previous to the application for the ■ -order in question, Mr Bell filed au affidavit stating that, . bo fir as he knew, Judge Ward had nothing to do with either r the article or the action—a statement which would prevent these telegrams, if any such exist, from ■being put in evidence at a 11... But the other effects of the order are even more serious. All communications by wire between the defendant's solicitor and the defendant himself; all telegrams referring in any way to this action between Jlr Turton and his partner, his agents, clerks, witnesses; his brother, Jlr Wesley Turton, who, is getting up the case at Queenstown, . and any of his friends and clients, have been placed by this order at the disposal of the plaintiff—au order, as we have already observed, which is made without the slightest notice to those whom it principally concerns. In effect, the order allows'Mr Maeassey to peruse and obtain copies of all telegrams which up to the date of the 13th March may have passed even between persons totally unconnected with the suit if " they contain reference thereto. And we may here remark, with.regard to the length of time during which . suchtelegrams miy have been passing, that the article which forms the subject matter of this action was pub- . iished on the 23rd of June last, ten months ago, and that notice of action was given at once in a letter published in the Star by Messrs Jlacassey, Holmes, and Chapman. Thus, by this order, all the telegrams which have passed through the New Zealand offices during nearly nine months, which bear any relation in my part of them to the-article in the Star, are exposed- to the inspection. of Jlr James Macas- • Bty, and, in thus limiting the time, we are lasting thy view of the order most favourable to the de- .. fendant.: According to its prima facie meaning, Jlr Ka«issey or his solicitor would be entitled at any time prior to the trial, to walk over to the lelegmph office = and denund to inspect and copy all telegrams arrived up to that date, while the defendant and his solicitor were utterly without notice of this private arrangement, aud correspond by wire in full confidence of the fcvibUbiUty of their telegrams. It is obvious that by inspecting telegrams Mr Macassey may have obtained a complete map of the defendant's case without the slightest suspicion being aroused in his opponent's camp, and it is impossible to overrate the advantage which may thus have been granted to him. It is probable, however, that the Telegraph Officer has not obeyed the order, knowing that the plaintiff could only enforce it by attachment, and that such proceed- . ing must attract the notice of the defendant's legal advisers, who would thereupon apply to have the order rescinded. In fact we believe that such an application is now pending. If this be the case, no harm will accrue to the defendant But the fact of such an order having been mide deserves the nio.-t • serious consideration from the Legislature and .the public. We do not presume to question Judge Chapman's law on the point, but we may humbly venture to point out that it is in direct opposition to the.latest English cases. The latest ruling on the subject with with we are acquainted is that of Justice • Grove, given during the jiroceediugs on the Tauntuii election petition, reported in the Daily .News of the .19th January last. Application was made to this learned Judge in open Court with full notice to the ■ other side for an order for die production of certain ttelegrams from the Government Office. The order was not opposed, but Mr Justice Grove took time to consider, and subsequently stated that he had consulted the other Judges, and that they were, all ■ Strongly-of opinion that the order should not be granted-^that, in effect, on grounds of public policy, telegrams should be treated as mailed letters The opinion of the legal profession on this matter remains to be shown. The counsel for the plain\tiS are Messrs George E. Barton aud Haggitt. If these gentlemen retain their briefs, the public are ■entitled to suppose that Mr Macassey's application for an ex parte order in Chambers to be allowed to inspect privileged telegrams passing between the defendant and his solicitors, was made by their advice, or at least that on its success the applicat on received their subsequent sanction and approval. We now leave this case in the hands of the public. We have only to observe that if, as we are bound to suppose, Jlr Justice Chapman's order is in accordance with the New Zealand Statutes, the sooner our Telegraph Acts are assimilated to those of England the better. For the present we refrain from further comment,'and are content to predict, as the direct consequence of this order, au immediate increase in cypher telegrams, aud a marvellous diminution in the number of telegrams trusted to the office, and consequently in the telegraphic revenue." He invited the attention of the ■Court to the terms in which the article complained of was couched, and pointed out that Me : srs Macassey and Kettle, in their joint affidavit, misapprehended it. They alleged as a positive statement that the article said they had read ihe telegrams. 'J he article placed the matter hypothetically. The article said—"We are not aware of our owu'personal knowledge if this order has been obeyed. We have a right to suppose all things have been rightly done and the order duly obeyed." The article then said " assuming" this to be the case, every telegram had been read and copied. It was not too much to point this out as one of the misapprehensions —very glaring misapprehensions — into which Mr Hacassey and Jlr Kettle had fallen. Now, there was, he submitted, nothing in that article which brought it within the well-defined limits which the English Courts of Justice had prescribed, and the transgression of which involved the penal power of the Court, the exercise of which Jlr Macassey now asked for. The article properly disclaimed to prejudice the merits of the case, Macassey v. Bell, for the reason that it was .Still lit pendent.

His Honour asked if that were consistent with the paragraph, "The counsel for the plaintiff are Messrs Barton and Haggitt."

Mr Smith submitted it was. That paragraph, he submitted, should be read with the paragraph preceding it. Resuming the thread of his speech, he said that the article commenced with a preface that it abstained from saying anything regarding the merits ci the case, and then went on to describe the purport ■of the order which had been granted, and to poim out "the consequences which possibly had resulted from the obtaining o! that order. The writer assumed that the learned Judge had been acting according to law, and that the pcr»on who applied for the order had been equally within the law, and only exercising a legal privilege ; but he (the writer) proceeded to point out oow entirely destructive of the inviolability of telegrams the principle which had been so recently and earnestly upheld by the learned Judges in England— how entirely the existence of such a law here would be destructive of that inviolability. The writer proceeded to point out how, in this particular case, if the order had been acted upon, it gave advantages to the plaintiff, unknown to and uot possessed by the other side—which had not known what had passed between plaintiff and his solicitor. It gave access to what by Jaw-was the most private and privileged cuintuunicatiun—that between a,, client and his solicitor.

These remarks showed how such au order bore on the case, and, lie submitted, were used by the writer.-; by way of pointed illustration. They did not touch the case, they did not impugn the conduct of Mr Maeassey in availing himself of what was assumed to be the law, they did not hold him up to public reprobation ; they were me;ely a pointed illustration of the undesirable tendency of the telegraph law as interpreted by the learned Judge ; and upon that foundation the writer contended strongly for the necessity of altering the law so as to prevent the recurrence of such an order. Now he submitted there was nothing1 ii that which brought the case within the principle of those in which the penal power of the Court, which was now sought to be exercised, had been exercised in England, namely, cases in which there had been a contempt cither by act, or by some publication, to interfere with, or to obstruct, the due course of justice. The jurisdiction of the Courts for the purpose of preserving' their pro-' cucdings from being perverted or obstructed was very clearly defined in very recent cases. He then cited re Skiijicorth, • L.R., 9, Q.H., p. 230. That was a case arising- out of the Tiehborne trial, and the ground upon which the attachment was moved was that Skipworth had presided at n meeting in which he had spoken of the Court of Quoin's Bench in violent language, and accusing the Chief Justice as prejudiced, and unfit to try the case. Mr Smith then read .Mr Justice Blackburn's judgment on the occasion, and submitted that the present case could not be brought within the limits of the la>v of contempt as accurately and broadly defined in that judgment. The ground upon which the Court was asked to exercise this highly penal power was by the interposition of its authority to prevent something calculated to interfere with the course of justice. Could that ground be said to have existed when Mr llaggitt applied fur a rule nisi! Mr Mauasscy was without the shadow of ground to exercise this power. Through his solicitor (Jlr Kettle), he had addressed the Guardian, beginning by threat'en'mr it with a motion to attach it for contempt, but ultimately, that if they made inquiry into the question and informed him by whom the article was written, that'no such proceedings would be taken. Mr Macasscy, in other words, hel<l that highly penal power in ferrorem over the Company as a means of extorting from them the name of the writer of the article. 'I hat letter was answered by one which Mr Maeasxey admitted to be courteous, disclaiming any intention of prejudicing the tria', explaining that the object of he article was the public one of advocnti g the inviolabi.ity of telegrams, asked him to point, out the passages characterised as " injurious mis-statements ami erroneous assertions," and said that all possible amends would be made if they bore the construction Mr Macassey placed upon them. Instead of complying with thai request, Mr Macassey, through his solicitor, wrote in.his most high and mighty style to say that he entertained a different view of the article to what the Directors of the Guardian did, and that as they had not thought proper to comply with his request of holding an investigation into the circumstances under which the article was written, he would move the Court for a writ of attachment. 'Ihun another article appeared in the Guardian, emphatically disclaiming any intention of interfering with the fair trial of Macassey v. Bell. Next cane the correspondence, and the publication of Mr Leary's letter by Mr Macassey's authority making the public the tribunal to decide as to the propriety of the article in the Guardian. Now, he did submit that under those circumstances Mr Maeassey had 1:0 right whatever to come to the Court to ask it to use this highly penal power. It was a mott exceptional law, necessary to bo used by Courts for the maintenance of the purity of le^al proceedings, but being a departure from the gre.it principle of British law, that no infill shall be condemned except upon the judgment of his peers, it was never ventured to be used by any courts of justice except in the clearest, and, he thought he might add, the strongestca;cs. He had a list of the leading cases in which the courts of justice in England had exorcised this power, and in every one of them it woiiid be seen that there had been a deliberate attempt to pervert or obstruct the course of justice, either by prejudicing the merits of a case or by intimidation. He then cited a number of cases, and s-übmitted that this highly penal power was never used except in the case of a gross, or, at all events, a clear attempt to influence the course of justice or to obstruct justice, and he submitted that the present case could not be brought within the principle of these..

His Honour: The question always-arises whether the article complained of has a tendency to produce the object charged against it. Mr Smith was quite willing to apply that test. There was no such tendenc3 r here. He submitted the writer was at perfect liberty to show the consequence of acting upon the law as it then stood, as exemplified in the particular case vthcn before the public. 'J he using of that highly pointed illustration left entirely untouched the merits of Macassey v. Bell. His Honour: Well, the part particularly complained of in the affidavit is that referring to counsel throwing up their briefs.

Mr Smi-.h submitted that Mr Macassey misinterpreted the article when he said it advised these gentlemen to throw up their briefs—that was the most violent perversion of language. To say tin-re was intimidation to these two gentlemen to throw up their briefs, was a straining of language to which the Court would not assent. Only in one point was the article in the slightest degree equivocal; but he submitted it was not because the article contained such a, passage as that that the Court would allow such a highly penal power to be set in motion. On that point, he submitted that the rule nisi should have been refused in the first instance, and that, according to the practice in England, to judge by the course of practice, it would have been refused there; and this rule, he must submit, had been granted inadvisedly. Every rule nisi was moved by the applicant at his own proper peril, and Mr Jlacassey must take the consequence of obtaining a rule nisi, for which it turned out on examination there were no grounds in the first instance. He was bound to remark upon thi 'angular departure from the English Courts which had been exercised in this. This application for the penal power of the Court appeared to have been treated by the Court as a private remedy. His Honour: Oh dear, no. Mr Smith said that was how he took it. He would stae the grounds on which he entertained this opinion : The rule was moved for on the 27th April. His Honour afterwards stated that he thought it would be better to postpone deciding the point until after the hearing of Macassey v. Bell, on the ground that the lemedy might prove worse than the disease. He took it to mean'that in His Honour's opinion the postponement was made as the application was for Mr Maecassey's pri ate remedy.

His Honour said it was hot so. The postponement was made because there was a good deal 01' irritation, which he thought might be increased rather than* allayed by the rule.

. Mr Smith said this was a matter of public justice. The nile in this case appeared to be 1 A-kiug the door after the steed was stolen. After the action tri> d, the course of which it was alleged had beon interfered with, an alleged contempt was dealt with. . lie submitted it was high time the Court should not allow this highly penal' power to lie flourished in people's faces, as had been done by Mr Jlacassey. Ku member of the public, stili less a member of the Court, should be allowed to threaten this terrible weapon on so trivial an occasion as this. It was a monstrous abuse to use this threaten correspondence. It was to used as to imply that Mr .Macassey had only to come to the Court to ask and he would have it exercised—a conclusion in which he (Mr Smith) hoped Mr Macassey would find himself mistaken

Mr jStout spoke on the law of the case, • quoting authorities, and submitted that it was not every attack on a suitor that could be a contempt of Court; nor was it every matter that wight • iiifereutiaUy affect a proceeding that would be a contempt. Before there was contempt, there must be something tending to iunueucethemindof the Judge. Ho then read and criticised the article of the 24th April, and contended that what appeared in the affidavit of Messrs Macassey and Kettle were not fair representations of the whole article. It was absolutely unfair where there was a charge of crime to pick out one part of the article, omitting the context and qualifying sentences. By this means what was put as an assumption was made to appear to be a mis-statement. In moving for this rule was it to be contended that because a subject incidentally affected a case, that all discussion on that subject was to be prevented while the case lasted 1 He reviewed the correspondence, and submitted that if anyone had to complain it was MrMl.f. * the publication by the Daily Times, Guardian, and Mr Macassey of the correspondence, which publication, if tending to do anything, Wuiild tend to injure Air Bell's case. The Court should look at the party that brought the matter before it. .He submitted that.the Court on reading the paragraph and Mr Macassey's letter would see the object for moving- for attachment, namely, to ascerta'n the writer of the article He submitted that the rule had not been moved boa A fide, but because Mr Macassey wished to find out who wrote the article—it was a sort of inquisition. The article d d not discuss the merits of the ease in the slightest degree. This case might last for years, and was all discussion, on that account, as to the policy of the Department producing telegrams, to stop? He submitted that the rule should be discharged, with costs.

Sir Haggitt replied to the arguments of Messrs Smith and Stout. What more easy thin-' to avoid a charge of contempt, if the writer could do so, by prefacing his remarks with the words, "Into the merits of the case we do-not propose to eutcr at present."

Sfr Stout submitted that such an argument had not been used.

Mr Ilaggitt contended it did not matter whether it were tr.ie or uniriie, fact or assumption, that was stated—so long- as it affected proceedings pending in a Court of Justice it was contempt. He cited casei in which it was clearly laid down that no person should do anythin<; that would pervert the course of justice. Such had been done in this case—circumstance* were mentioned which could have no other object than to prejudice the public mind against the plaintiff* case. Nothing could be more prejudicial to the case of a suitor in a cause than that it should go abroad publicly th ,t he had obtained by questionable means -not to go so far—that he had obtained a knowledge of the case of the other side, parties on that side not being aware of such knowledge being- obtained, and corresponding with one another under the sense of perfect security, and that what th-y wrote was concealed from the knowledge of any other party. Inferences were drawn, the public were invited to draw their inferences, and the injury was done, whether it was by hold assertion or covert insinuation. He submittted that the language would not bear the interpretation llr Smith had sought to place upon it. They said in the article they bad a right to suppose the telegrams had been read, everb dy else would think he had a similar right, and therefore the injurious impression would go abroad among the public, from *horn the jury, in the event of a new trial, would be drawn. If this practice of unfair comment was found to be so prejudicial in England, where the numbers from whom the jury was taken were so very large, it must be much more so in a community like this, where every person has the opportunity of reading a newspaper, and where everyone knows more of the affairs of others. The circumstances of the place aggravated the offence. It was not necessary for him to dwell at any considerable length on the question whether the article were a contempt or not: he would take on that head the written judgment of His Honour in the granting of the rule nisi. (Mr Haggitt then read the judgment.) The rule nisi was granted after due deliberation, and with the article before His Honour's mind. The article of the 27th April was a gross contempt of (Joint, inasmuch as it reflected upon Mr Kettle, a solicitor in the action, and he cited ca?es to show that to reflect on a solicitor in a causewasacontempt. If the lawyers were not deterred from doing tlieir duty by intimidation, yet there might be a constant diead, and one who was on the watch for opportunities to vilify them might prevent them from giving that attention to the case they otherwise might give. The language used was very strong. The only conclusion as to the remark about Messrs Barton and Haggitt was that they should throw up their briefs, or that if they retained them they approved of such an order being made as was made, and that it was applied for upon their advice, or at lea t, under the sanction and approval of advice which anybody ought to sanction. He would now refer to the affidavit made by Mr Creighton. Mr Creighton was the only one who had given any explanation upon the subject, and he clearly showed upon his affidavit that he personally knew nothing about it. .He asserted no facts—it ivas all belief. Mr Creighton negatived, so far as his belief went, the statement that the information in the article was furnished by the defendant or his solicitor, ignoring that it might be furnished by some one else at their instance. This case was not one of injury to the plaintiff, but a, contempt of the Court itself. At.d this brought him to some remarks by Mr Smith as to how the power of the Court should be used. If that vower were not used they would have no justice in this Colony. The Court could not institute proceedings itself; someone must bring it under its notice; and instead or its being a, disgrace

to Mr Jfacassey to have it said of him that he had 'the dignity of the Court at heart, it was a credit to him that he was willing to sacrifice his time and go to the trouble in bringing under the notice of the Coiir t, cases which his reading had shown him were punished in other places as a gioss contempt, and as calculated to interfere with the due administration of justice. As to the letters, what Jlr Jlacassey asked the Guardian Company to do was to give up the name of the writer, in order that proceedings against them might not be necessary. To that there had been a refusal to accede ; and they were still trying to conceal the writer from the Court. They published at the instigation of some unknown person an article which was a contempt of Court, and then they used every possible means to screen the writer, aud prevent him from being discovered and dealt with as he deserved te bo. As to the expression of regret from Mr Creighton that the article should be misunderstood, how w;u> Jlr Creighton in a position to swear that it had baen misunderstood, and been written in contempt of Court V He did not know the object of the writer of the article. •'Mr Croighton's affidavit afforded no answer ; he did not admit he was the writer, nor did he disclose the writer, and it was evident that Jlr Creighton intended to screen the writer, and thereby prevent the Court from dealing with him. He submitted that the rule must be made absolute.

Mr Stewart submitted that the publication of an article of this kind wii.s calculated to prejudice the minds of the jurors and witnesses, and to throw odium on the cause of the plaintiff. The article had a tendency as a whole to leave in the mind of a disinterested person the impression that the plaintiff had, by an artifice, succeeded in getting an order from the Court which gave him an unfair advantage over his opponent. The article was a deliberate contempt of Court, ingeniously.no doubt, worded, with the intention of evading the consequences of contempt; but notwithstanding, he maintained the Directors of the paper were amenable to the jurisdiction of the Court. The affidavit was written by a person who had no knowledge, and he apprehended that the proper course was the production of an affidavit by the writer of the article, showing the circumstances under which he wrote it and he must show contrition for havi'g done injury to one of the litigants whose case was pending. The second article was an aggravation of the first. It set the law at defiance, and provoked plaintiff to come to Court; an appeal was made to the public, and the plaintiff and the Court were set at defiance. The whole tenor of the articles was of a very objectionable character ; and the affidavit of Jlr Creighton did not exonerate, or show circumstances to exonerate, the Company from the consequences of them. He submitted that the Court should make the rale absolute, with costs. Jlr Smith replied. The cases cited by the other side were strong attempts to prejudice the hearing of cases, and very clearlj' distinguishable from the case before the Court. The attempt to torture the meaning- of the article into intimidation of the plaintiff's legal representatives was really absurd. The writer merely applied the test of the retention of briefs as a sign of their approval of the legality of the acting on the order. His Honour: I will take time to consider. The Court adjourned till Wednesday.