SUPREME COURT, WELLINGTON.

Lyttelton Times, Volume VI, Issue 400, 3 September 1856, Page 5

SUPREME COURT, WELLINGTON.

Before Mr. Justick Wakefielb. CAMPBELL v FITZ GERALD. Mr. Kino shewed cause against a rule obtained by the defendant why the verdid in this action should not he set aside and judgment entered for the defendant as in a ease of a nonsuit, or a new trial "ranted. The (Lsi ground was a variance sated to exi-t bit wean the declaration and the letter produced. In answer to this I say that the defendant's solicitor admitted the copy of the letter. In England tliv whole would lie set om, and here it must he held that the same thing is done, the third pica admits the writing of iho letter and is inconsistent with the first plea. If what is alleged as a variance In: one, the defend mt ought lo 1 at't; dcimnred to it. If it he a defect it is aided by verdict, see Stennell v. ILij;^, 1 S.umdeis 228 n. 1 " jeof.i.ils/ But tliere is n> variance. Lmk at the last paragraph. " linpressed" vScc, this u'eans that the. defendant a-ke<( th ; ; Governor to remove the plaintiil'as " wholly unlit," then the sta etiieut in the declaration is n<*t at vavianco witli the libel produced. The defendant instead of demurring- takes a chance of a verdict in his favotrv 3 and 0 Win. 4th, s. 28, sjivus

power to Judge to amend the pleadings. This application ought not tv be granted inasmuch as the defendant did not demur, hut chose tv mii the chance of a verdict of "not guilty,'' which raised the whole question of privileged communication or not, and hitting filed no affidavit of having he.;ii surprised, it is too late for him to make the present application. The jury having found that the letter was a libel, that it was not a bund fide puoiieaiion and nut privileged, the Court will take that into consideration in considering the variance, if variance there be, and if it conies within the operation of the :>4tli's. Notice dated 28th July, 1854, requires plaintiffs solicitor to inspect and admit certain documents, several affidavits . tiled subsequently shew that defendant was not misled by the supposed variance. The rule cinnot be ma.ie absolute because the defendant Iras not shewn by ;iffi iavit or otherwise that he was taken by surpr:s.s or misled by variance. The next ques iun is, was the cjinimuncatiorr privileged. The learned Counsel he:e «aye v. long, careful, and minute history of the plaintiff's different appointment?, xs evidence of malice on the part of the defendant, who gave the plaintifF no opportunity of rebutting tire charges contained in the resolution of the Council. As to the new case,Harrison v. Bush, respecting privileged communication, it appears to contain nothing new. The learned Counsel cited a vast number of eitses in support of his argument, which we can only just name for want af space, viz., Blagg v. Sinn, 10 A and E, 905 ; Taylor v. Hawkins, Jurist 15 p, 740 ; Somerviile v. Hawkins, Jurist 15 ; Merryweathet ;->'Turner, 28 1-aw Jaurnal p. 10; Coxhead v. Richards, 2 C. B. reports 569 ; Blackham v. Pugli, 2 C B. reports p. Gil ; Fainnan v- Ives, 5, B and Ap. 662. As to no evidence having been offjred to the circumstances of the parties', the only cases in which such matters are discussed are in cases for breach of promise of marriage. The 1-Ja.rtfed Counsel concluded a long address, of which we have presented on Ivan abridgment, by maintaining that tlie plaintiff had fully proved his c.ise, and that ihe verdict ought not to be disturbed.

Mr. Grissson for defendant,-touched on the difficulty caused from the Court not sitting in banco, and requested his Honor to divest himself, of ali bias on the subject; to look on the ca-e as if it had been tried by another juajje ;. he took r.vo grounds on which to make the mle absolute: fir.^t, that of variance ; secondly, thic of privilege. The deciaraiiou charge's the •pbimiiftwitli being wholly unfit to be trusted luith any public office whatever; the actual libel is, I request the removal of an officer tvh<t has been condemned by the wailed voice of the pub. lie «s wholly unfit to be entrusted with am/ public office whatever. The libel in the declaration is an assertion, by the defendant, of the plaintiff's unfkness ; the actual libel is a declaration o:' the Plaintiff's unfitness in the estimation of the public. The assertion in the declaration is il matter of opinion which could not be justified :. but we could have justified what we aciuaily tiki say ; we were narrowed in our defence by the variance, (Jhitty's Precedents in Pl-adinir, i>v IT. Phearsou, p. 5(i4. If it is a rule fov actions for defamation,.the libel or verbai slander must be set out in hcec verba ; the very words must bo stated in order that the court may see that the charge be actionable as a libel or slander. The learned counsel ciied cases to show that the court must s;'e the very words, Guisole v. Mathors, !, M. & \V, p. 49j ; Rosc-e, p. 3-10 ;. Staikie, vol. 2, p. 255. There is t;:en .-< very important variance. The defendant could uke have amended. See 3& 4, \V, c. 42, &. 23, Jelf v. Oriel, 4C. P., p. 22, llnvycr v. Nix-<", 2 Cirringt.m and Ourwi'P, p. 372. Koscie m\ evidence, p. 7(>. In tl-.i-s case Mr. King amended ;hs dt'cianni.iu vwo days befuie tie trial, an J I infer that the mis<uiieuient. wus wilful ; unfit to hod, ort-jin;<!!v, alterod t^> w lolly unfit to bj epJruslei Ku'lh. Aiuentimenls \v>ui;:i not h:ive been a!l>wvd .iftt'r wrdior. I say this was a f\:::i v;!ji.!\,f.'f. no iutieinio c mid hay« helped ihis. Mr. Ki'.t.L,'says the loiter \v:js i!!uor,i->!Uie;: :.i iii-.- >i, cl.ir i;i.>u. Wo hive bee.i embarrassed by thi-; m V.ho !" >t,.ti:nivni. If iho letter wus il:e s.iui:; as (".so docla■•iitioM, w,iy am.'nd ti>>' \'u viinMiion. Mr. Kiuiy s-.iii if ilnro \\:s3 a vari.ii.tr>.- il wa> c iic:i by voidici, but it nja-: b.-onu d -iMn: rii-!-.'. \\\i c mid not have ultMipwiv,!, f,.r tiiat wwoid i:;;ve admitted the libel. Tin: court ou-ht to have non.suited for waul of nrooi of lise statewienE, ia tlio dcnhiiutiiiu. As to iha piivDeuv. c;t:i \i bc> doubled i'or a m uncut (so-.- Law '2't'iws)^.

that the Superintendent had v duty to perform in communicating to the Governor what was ullcged Jio he the utifitness of an officer? The question of privilege is for the Judge, not the Jury. Taylov v. Hawkins, 15 Jurist, 746. Stinienille v. Hawkins, 15 Jurist, p. 450. Plaintiff brought no evidence of malice. In privileged .communications the presumption is a-'uins't malice. Coxhead v. Richards, 2 0. B, ot)i). The presumption is that a person in authority his no malice in making; his communication*. This may be rebutted at the trial, but the preemption is that he has pot no malice. Ou the u rounds he had stated he moved that the rule be made absolute.

August 16. His Honor gave judgment. This is a rule to show cau«e why the verdict should iu>t he *et aside and judgment entered for the defendant as in case of a nun.suit, on account of a variance between the declaration and the leltsr produced at the trial, and because the alleged libel was a | ri.-ileged Communication, and no malice on tli^pirt of the defendant toiards the plaintiff was proved. The learned counsi 1 for the defendant dwelt w'uh great force on the importance of the variance in the pleadings. He said that there w.is a great difference i c ween stating anything as one's own opinion, and stating the same thing as the opinion of others. Iv the present case the declaration charg. s the plainiiff with being "wholly unfit to be entrusted with any public office whatever." The alleged libel is as iolluws: —"/ request the removal of an efficer who has been condemned t by the united voice of thepublic as wholly ttnjit lo be entrusted with any public office whatever." 'i he difference between a person ,-t<ting that he believes another to be unfit for anything, and that the public believes a person to he unfit for anything is immense, ■ because to ths matter as stated in the former way, a justification cannot be pleaded, whereas, as stated in the latter way, that is, in the words of the alleged libel, it cannot be met by such a plea. Then there would be an issue to"be tried. This shows the vital importance of the variance. Besides, the declaration infringes upon an inflexible rule of law, viz., that a libel must be set out in hmeverba. The very identical words must be stated, which is not done in this declaration. As to the question of privileged communication, it seems, " that all statements made bona fide in ths perfoiraance of a duty, or with a fair and reasonable purpose of protecting the interest of the person making them are privileged, and it lies on the plaintiff to prove malice in iaet, iv order to emklehiin to have she question of malice left to the jury •. he need not show iiremittances necesharily leading to the conclu>\mi that malice exi-te i, or such as are inconsistent with" its lion-exi-teiice, hut they must be such as raise a piobabili y of malice, and be more consistent, with ins existence than with its iiou-existence."— Somerville v. Hawkins, Jurist Iso. 15, p. 45). In the present case the communication was privileged, and no malice was proved. On these grounds the rule must be made absolute to .*et a^ide the verdict, and enter juilgmeui for ihe deiendiait, as iv a. case of Jiou-suh, with costs.