by the production of the certificate of title of the allotment. It was suggested on behalf of William Bennet that parol evidence could be admitted to show what the testator meant by the words he used, and several cases were cited in support of the contention. 66 In Ricketts v. Turquand(1) a testator devised "my estate "called Ashford Hall." In Webb v. Byng(2) a testator devised "all my Quendon Hall estates." In Harrison v. Hyde (3) a testator devised "all that piece of land called Tip Close.'' In each of these cases parol evidence was admitted to show what the meaning of the testator was. But, as was said by Lord Cottenham in Ricketts v. Turquand(1). If a testator "devise lands in a particular parish or in a particular locality you cannot go into evidence to show that he meant by the general appellation to include something out of it. You "cannot do that without contradicting the terms used." In none of these cases had the terms of the devise any strict and primary sense unless extrinsic evidence of the meaning and intention of the testator was adduced to explain them. Where, however, as in Doe d. Chichester v. Oxenden(4), a testator devised his "estate of Ashton," and the testator had an estate which he used to call by the name of his "Ashton Estate,' but part only of the estate was locally situated at Ashton, parol evidence of intention to devise the whole estate was rejected. The Court was of opinion that the words "estate "of Ashton,” strictly interpreted, were descriptive of an estate locally situated at Ashton, and the evidence was rejected, on the ground that there was an estate locally situated there. The same principle is recognised in Stone v. Greening(5). In the present case, where a testator has devised a piece of land, describing it as an allotment of a particular number, and as being in a particular block of a specified township, it would be a contradiction of the terms used by the testator to admit evidence to show that it was his intention to devise either more or less than the allotment specified. The only ground on which it occurred to me that such evidence might possibly have been admissible is that it appears that the boundary-line of the two allotments passes through a part of an addition to the dwelling-house on one of them. The second proposition of Sir James Wigram lays down that parol evidence is not admissible where the words of the testator in their (1) 1 H.L.C. 472. (2) 1K. & J. 580. (3) 4 H. & N. 805. (4) 3 Taunt. 147; 4 Dow. 65. S.C. 1901. In re BENNET, HENDERSON v. BENNET S.C. 1901. In re BENNET, HENDERSON บ. BENNET. strict and primary sense are sensible with reference to extrinsic circumstances. If it could be said that the position of the boundary-line made the words of the bequest insensible with reference to extrinsic circumstances, then under Sir James Wigram's third proposition parol evidence would be admissible. But the word "insensible" as used by Sir James Wigram does not mean creating a difficulty or an absurdity, or producing a result which a sensible person would not anticipate. As pointed out by Sir James Wigram at page 76, the word" insensible," as he uses it, is a word of art. It applies to cases where the words used by the testator, if interpreted in their strict and primary sense, would, with reference to extrinsic circumstances, be really without meaning. I think, therefore, that each devisee takes the allotment devised to him as described on the plan of the township and in the certificate of title. I do not think that costs should be allowed. Solicitors for William Bennet: Mondy, Sim, & Stephens (Dunedin). Solicitors for Daisy Bennet: Kenyon & Hosking (Dunedin). S.C. IN BANCO. DUNEDIN. 1902. February 3; WILLIAMS, J. COUGHTREY v. THE EVENING STAR COMPANY (LIMITED).. Libel-New Trial-Verdict against the Weight of the Evidence-Functions of the Court and Jury-Untrue Statement-Defamation. The mere fact that an untrue statement has been made about a person does not give him a right of action if the statement is not defamatory. Whether the statement is defamatory is a question for the jury, and their verdict will not be disturbed unless it is either perverse or so unreasonable as to lead to the conclusion that they have not honestly considered the facts. MOTION OTION for a new trial. The plaintiff sued the defendant for an alleged libel contained in a leading article of the defendant's paper criticizing the plaintiff's conduct. The portion of the article complained of is as follows: There are, however, persons who are never satisfied, and, in regard to affairs public and private, illustrate the sardonic maxim of Rochefoucauld, "There is nothing so difficult to believe in as the existence of goodness in "other people." Dr. Coughtrey has made himself somewhat conspicuous within the last few months in the role of a caviller, and apparently delights in picking holes in any and every scheme which may be devised by the city authorities or public-spirited citizens for the benefit of the community. His eye and his mind are microscopic in discerning blots, and he has been reckless in inferentially imputing motives in regard to action which did not meet his approval. Presumably, there is really hardly any other explanation. Dr. Coughtrey attended the meeting of the company with the set purpose of having a fling at the directors, and making mischief by throwing upon them the odium of treating the tram employees unjustly. He could easily have ascertained the actual facts, and certainly was bound to have done so before fathering the statement-originating, possibly, with the "man in "the street" that since the affairs of the company were in an improved financial position "the employees had received much lower wages and had "worked longer hours." He surely must have felt somewhat humiliated when he received from the chairman a straight-out denial. There was no truth in the statement, Mr. Fenwick said, but "the contrary was the case, "for the employees had been placed in a better position." Shortly after the appointment of the present manager the gross sum of £600 a year, he said, had been added to the wages of the employees, their hours had been reduced, and their position improved very materially in every respect. The defendant pleaded-1, the truth of the words complained of; 2, that they were not defamatory; 3, fair criticism. The case was tried on the 17th of May, 1901. At the trial numerous letters were put in which the plaintiff had written to the newspapers criticizing the conduct of others. The jury found a verdict for the defendant. The grounds of the motion were 1. The said verdict, so far as it related to the passage in the article as set out in the statement of claim commencing Dr. Coughtrey attended the meeting of the company with the set purpose," &c., was against the weight of evidence, and perverse. 2. The said passage was libellous, and, as no attempt was made by the defendant to prove that any of the statements contained in it were true, the only question for the consideration of the jury was the amount of damages the plaintiff was entitled to recover. Sim, for the plaintiff : The statement in the article that "Dr. Coughtrey attended "the meeting," &c., raised a question of fact. The statements were proved not to be true, and it was the duty of the jury to find for the plaintiff. The jury treated the whole matter as a question of fair criticism, and the plaintiff is entitled to a new trial. If the jury find that what is a libel is no libel, the Court will grant a new trial: Odgers on Libel and Slander(1); (1) 3rd ed. 21, 613-14. S.C. 1902. COUGHTREY v. EVENING STAR COMPANY. S.C. 1902. บ. EVENING STAR COMPANY. Levi v. Milne(1); Hakewell v. Ingram (2); Parmiter v. Coupland(3). In Broome v. Gosden(4), though a new trial was reCOUGHTREY fused, the rule was recognised. Libel or no libel is peculiarly a question for the jury; but there are many cases in which the Court has set aside findings of libel where there was no libel, and it will also set aside a finding of no-libel where there has been a libel: The Australian Newspaper Company (Limited) v. Bennett (5). Here there is no question that the article refers to Dr. Coughtrey, and there is no need of an innuendo: Nevill v. Fine Arts and General Insurance Company (Limited)(6). The words complained of were a libel according to the accepted definition: Odgers on Libel and Slander(7); Clement v. Chivis (8); Cox v. Lee(9). In O'Brien v. The Marquis of Salisbury (10), Field, J., clearly points out the distinction between comment and statement of fact. F. R. Chapman, for the defendant: : If the plaintiff's argument is sound it would be useless to refer any case to a jury. In The Australian Newspaper Company (Limited) v. Bennett (11) the jury were asked to determine the question of libel. The plaintiff now picks out portions of the article, but the jury probably looked at the article as a whole and considered whether it was calculated to injure the plaintiff. The functions of a jury are wider than alleged by counsel for the plaintiff. The question of libel or no libel is essentially one for the jury, and it is only in exceptional cases that their verdict will be set aside. There are many authorities showing the limit and where the limit is: Nixon v. Harvey(12); Baylis v. Lawrence (13). Levi v. Milne(1), which decided that Fox's Act brings criminal law into line with civil cases, shows the latitude left to a jury in determining the question of libel or no libel. There is nothing in the words complained of imputing dishonourable conduct, and it was the province of the jury to determine this: Parmiter v. Coupland(3). The plaintiff says that the Judge should have told the jury that the words were libellous. It might have been put to the jury that there was evidence to justify the words complained of: Teacy v. McKenna (14). The jury were en(1) 4 Bing. 195. (2) 2 C.L.R. 1397. (3) 6 M. & W. 105. (4) 1 C.B. 728. (5) [1894] A.C. 284; 12 N.S.W. L.R, (L.) 141. (6) [1895] 2 Q.B. 156; [1897] A.C. 18. (8) 9 B. & C. 172. titled to take Dr. Coughtrey as he stood, and the article must be taken as a whole and not dissected. The argument as to dissection would apply to all articles, and would lead to ridiculous results. It is admitted that if the charge were of dishonest or corrupt conduct the Court would grant a new trial: why not if words are merely defamatory? Baylis v. Lawrence (1) decides only that the Judge need not direct the jury on the question of libel: it is no authority on the question of a perverse finding. WILLIAMS, J. :— Cur, adv. vult. The This is a motion for a new trial in an action for libel. jury found that the publication complained of was not a libel; and the plaintiff now moves for a new trial on the ground that the verdict was against the weight of evidence. It was contended by Mr. Sim that, as undoubtedly the Court would interfere to set aside a verdict for a plaintiff where in the opinion of the Court the publication was not a libel, so, on the same principle, it would interfere to set aside a verdict for defendant where in the opinion of the Court the publication was a libel. The question of the respective functions of the Court and jury in proceedings for libel is discussed in the judgment of Lord Blackburn in the House of Lords in The Capital and Counties Bank v. Henty(2). He cites the opinion of Willes, J., in The Dean of St. Asaph's case(3), decided before Fox's Libel Act, that a verdict of acquittal by a jury on a criminal charge, though contrary to the Judge's direction, cannot be set aside. by the Court by a new trial, or by any other means whatsoever. Lord Blackburn goes on to say that, whether that was or was not the law before 1792, when Fox's Libel Act was passed, it has been the law since. Before Fox's Act, however, the Court, if it considered the publication not to be a libel, gave judgment in favour of the defendant, notwithstanding the verdict of the jury. Lord Blackburn says, further, that the Legislature, in passing an enactment in favour of defendants. had no intention to put them in a worse position than before, and to make the verdict of a jury conclusive against the defendants. The 4th section of the Act expressly enables a defendant found guilty by a jury to take the opinion of the Court on the question of law by moving in arrest of judgment, (3)Doug. 73, at pp. 164. 165. (1) 11 A. & E. 920. |