Thursdat, September 28th. bird v. thb national bank os1 nbvv ZEALAND.

Otago Witness, Issue 1297, 7 October 1876, Page 5

defendants were the agents of Miss Sproule, for the purpose of getting the cheque paid, and the letter appears clearly to have been written by them as agents to their principal in relation to the agency. There can be little doubt but that such a communication would be prinia facie privileged, and that if the declaration were traversed the plaintiff would have to prove malice in fact to entitle him to recover. The framer of the declaration must have contemplated that the question of malice in fact would be tried, because he shows a state of circumstances that would compel him to prove it. The defendants unfortunately made a slip in their pleadings, and omitted to raise the question of privileged communicatior, either by a general denial or by a special plea, but at the commencement of the trial, the defendant's counsel applied to make tha necessary amendment. I refused to make it at that stage, following the usual rule which appears from Rainy v. Bravo, L.R. 4, P.O. 287, that the proper time for an amendment to be applied for is at the close of the case of the party making the application. At the close of the defendants' case the counsel again applied, but was met with the objection — which appeared to me 9cogent ,one — that as by the pleading 3as they stood the plaintiff was not bound to piove ex- ' press malice, and as he had not proved it, it would be unfair at the close of the proceedings to place such a plea on the record. I think, however, that I should have allowed the amendment in the first instance. Amendments are to be made forthe purpose of determining the real question in controversy between the parties. In the view of the framer of the declaration the bona fides of the communication must have been an essential part of the question in controversy, and it seems to me that, in every action for libel the question as to whether the communication was privileged is part of the matter really in controversy, although one of the parties may have neglected to take the technical steps necessary to raise i the question. The broad question in each case is whether the plaintiff is entitled to recover damages for words written or spoken by the defendant. If, under certain circumstances, the plaintiff would not be entitled to recover, clearly the existence or the non-existence of these circumstances forms part of the matter in controversy between the parties. It is true that the Court will not, as a rule, review the decision of a Judge at nisi prius when he has exercised his discretion in granting or refusing amendments, but no precedent is necessary to show that, where there has been a manifest failure of justice in the refusal of an amendment, the Court has power to interfere, and will interfere. I think that is the case here, and that the defendants have been unreasonably precluded from raising a defence that the plaintiff in the first instance must have anticipated. For these reasons, there must be a new trial. As to the arrest of judgment, I think that a written statement that a person's cheque has been presented for payment and dishonoured is naturally calculated to expose him to contempt, and comes within tho definition of a libeL Nothing, therefore, need be oaid as to this branch of the rule, but the rule will be made absolute for a new trial, the costs of the first trial to abide the event, the coats of this rule to be costs in the cause, ;