SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 3934, 25 September 1874, Page 3

SUPREME COURT.—IN BANCO.

Thursday, 24th September.

{Before His Honour Mr Justice Chapman.)

MACASSEY V. BELL.

Argument of rule nisi calling upon defendant to show cause why judgment should not be entered up for plaintiff on the second and thi id pleas, non obstante veredicto, and for a new trial.

Mr Hagqitt, with him Sir Stewart, iv support of the rule; Mr James Smith, with him Mr Stout, to show cause.

Mr Stout resumed his avgument, com meuting at considerable length upon the differ ■ent cases cited.

Mr Haggitt snicl that his learned friend Mr Smith had replied that the plea did not profess to ar.swer the whole declaration, and in proof of that assertion he referred to tlie words in the second plea, " and for a further plea in this behalf." He (Mr Hapgitt) contended that those words were not sufficient to limit the effect of the plea to any portion of the declaration that it may be said to cover. As n matter of fact, tho plea did not niiswer'any thins? in the declaration. It'contained much that wasimmateiial, and throws ti lot of dirt at the plaintiff. There was a proper Avay of limiting a plea pleaded to only a part of the declaration, and that was the way pointed •out in Dullan and Leake, p. 4A(i. And as to the rest of the avgument, the observations in Note A, which were fully borne out by the •cases collected in the note, aud cited at the moving for the ruling, clearly answered his learned friend's contention. His learned friend, Mr Smith, had treated this question properly in treating it as a question of pleading. IL was not a matter that depended in any degree upon the evidence. Neither the verdict of the Jury noithe evidence would have the slightest effect in discussing this question as to whether this nlca was or was not an answer to the action. Both his learned friends had misunderstood tlie doctrine of " aided by verdict," which was explained and commented npon at considerable length by Stevens on Pleading, in sec. 120. His learned friends had not attempted to answer the argument with regard to the second objection. As to the first, that the verdict was against the weight of evidence, the only contention made by tlie plaintiff was tliat, although the matters referred to were questions for the Jury to decide, yot the Jury were bound to treat that question as every other question for a Jury. The Jury had not decided in this case by tho evidence, but diametrically opposite to the evidence. Nobody could read the article without coming to the conclusion that it was grossly libellous. Every paragraph contained defamatory matter, and it was equally clear that it was directed against Macassey. The verdict being against the weight of evidence, there was nothing to be got over except that it was unTisual to grant a new trial in such cases. He liad already mentioued that ifc was dene in the case oi Palniittm- v. Copeland, and in the case of Walker y. George, upon the simple ground tliat the verdict was against the weight of evidence, although there wore other grounds. His Honour : The Courts are more reluctant to grant a new trial in those cases where the verdict is for the defendant than where it was for the plaintiff. A new trial was never granted in criminal cases.

Mr Haggitt said that Palmitter v. Copeland ■was a case in which the verdict was for the defendant, and Walker v, George was another case --in whicli a new trial was granted, although he ■ admitted the verdict was for the plaintiff. As to the second point, that the Judge neglected certain evidence, he could point out that his ■ side never contended that communications between the defendant and his solicitor were admissible as evidence, bufc he did contend that ■communications between defendant's solicitor and third parties, whoever they might be, provided the communications related to the subject matter of the action, were clearly admissible in -evidence. He had a case which went fully the length of saying that auy communication whatever on the subject matter of an action made to a solicitor employed by one of the parties—any communication made by third parties, not his own clients—was admissible in evidence. It was .not a case decided incidentally, but a case which arose in an equity suit upon a demurrer fir evidence. The ease was Ford v. Tennent, 7, 1-.3., N.S., 733. It had been contended that evidence that the defendant had received this -article from Judge Ward, could not be evidenco in reduction of damages, and therefore it could not be evidence against the defendant to increase damages. He submitted the law was clearly 'otherwise. In Duncan v. Daniel, 2, Jurist, Old 'Series, 32, it was held that in reduction of damages the defeudant might show he had received the libel from another person. I f, therefore, the defendant, in reduction of damae?s, might show that he had received the article from another person, surely the plaintiff, iv order i;o increase the damages, might show that the defendant received the article from a person 'notoriously inimical to the person against whom. that article was directed. The leading case upon ■ that point was Pearson v. Le Afaitre, 5, M. and S., 700. The next point was misdirection by the learned Judge. Upon that ground Mr Smith had Gontended there could not be a new trial, becatise His Honour was not asked to direct the Jury at the time. That was -a misapprehension, as he (Mr Haggitt), after the Jury retired, called His Honour's attention to some matters now taken as points of misdirection. Coming to the last ground—the remarks made by defendant's counsel as to costs—he maintained that there was more in ifc than his learned friends seemed to credit. He contended that tlie case Poole v. Whitcombe, 12, C. 8., N.S., 770, was a distinct authority for the proposition that a new trial might be granted hy the Court if a Jury were improperly influenced on the question of costs by the remarks of counsel. There was no doubt that the Jury in this case were influenced by a dread that if they gave a verdict for one shilling, His Honour might -.certify that the article, was malicious, and eutitlp -the plaintiff to his costs-a state of things which •the Jury were expressly cautioned against by • counsel for defendant. In so warning the Jury his learned friend was distinctly wrong in point of law, as it was not in His Honour's power to • certify that the article "was malicious, and give the plaintiff liis costs. It was for the Jury to speak as to malice. No doubt his learned friend, in making the statement "he did to the -iury, did so on the spur of the moment, without thinking of what he was doing, as he (Mr Haggitt) was certain he would do nothing so grossly improper •:ds"to deliberately attempt to influence the verdict by such considerations.

Mr Stewart followed on the same side. His Honour reserved judgment; and the Court adjourned till the following day.