DISTRICT COURT.

Nelson Evening Mail, Volume XXIX, Issue 114, 16 May 1895, Page 2

DISTRICT COURT.

(.Beforo His* Hpnour Judge Robinson.]

ALLIiUISD SLANDEII.

PLAINTIFF .-ON-SUITED.

The healing of tbe action for slander, in which ltobsrt McGavin Thomson sued Harrison Evans for £100 damages, was continued after wo went to press yesterday afternoon. In continuation of evidence

William Quinney, farmer, Motupiko, n resident there for about 30 years, said ho had been a member of the School Committee for about *2-5 years. Witness remembered the meeting of the Committee on the Kith February, and that charge No. (> (alleging that Mr Evans kept money in stamps in the school to tho detriment of discipline) was read over. When the charge had been read Mr Evans said that Thomson had tempted and encouraged tho boy. Tho chairman said to Mr Evans, " Do you mean that Mr Thomson tempted tho children ?" and Mr Kvans replied " Yes." Mr Gib'is and Mr Coleman spoke about tho same time, Gibbs asking Mr Evans* "Do you mean me '?" to which Mr Evans answered' " No, Mr Thorn- 1 son."

Cross-examined : Witness was brother-in-law to Mr Breworton, but Mr Thomson was no relative to Mr Browerton. Witness could not say how many times ho had discussed the words used by Mr Evans with tho plainti IT. Witness denied that ho bad any differonce with tho defendant about the erection of a church for which the defendant was treasurer. Witness denied that ho had wanted his son to have the contract for building this church without tenders being called for the work. Witness could not remember whether Mr Evans had had a chance of replying to each chargo ns it was read over He remembered the sixth 'charge being read out aud the remarks mado _y Mr Evans 'thereon. Witness had seen ibe note taken hy plaintiff of tho words used by Mr Evans. Witness did not notice Mr Evans pointing his hand to plaintiff. Witness did not remember Jfr Evans making a statement to tlie effect that th. Ipy had been led on and encouraged by other people, and that it was a dj-graco to stir up the matter eg lin. He heard and remembered the words i" tempted " and "encouragod" being used by Mr Evans at ths meeting.

Mr Pitt said that before closing his case he would ask permission to amend th> statement of the language complained of He would ask permission to have the words amended in accordance with the evidence of Hie plaintiff and Mr Brewerton, namely, that instead of the words " You are tlie cause of the money being stolen" the words " caused, tempted, and encouraged the hoy to take the money," ho inserted aud proceeded upon. Mr Pitt submitted that the charge would remain practically the same, Mr Maginnity would have an opportunity to amend his defence if lie was prejudiced by the amendment. Mr Maeinnity said that this amendment would affect the whole foundation of the charge. He objected to the amendment which would alter the whole of the I proceedings

Mr Pitt cited authorities in support of his application, the meaning of the words to be substituted being identical with those in the original plaint.

After consulting authorities His Honor said he would be justified in a'lowing the amendment asked for.

This closed the plaintiffs case. Mr Maginnity .submitted several nonsuit points, hut mainly relied on the contention tlmt the words complained of if used at all were used at a meeting of the School Committee at which no strangers were present, where the interest of all were identical and on that account the words were privileged. He further submitted that tbe words did not necessarily impute the commission of a crime or a misdemeanour on the part of tlie plaintiff and therefore were not actionable. Counsel cited numerous cases in support of his contention that the words were privileged, supposing they had been used, and assuming that the defendant had attended the meeting at the call of the School Committee to there answer certain charges. Mr Pitt took the authorities cited by Mr Maginnity to be on th*. whole in his own favour rather than otherwise. He submitted too, that the words complained of were actionable The authorities cited by Mr Maginnity did not meet the present case inasmuch as statements had been I mado by the defendant which wercijnitc foreign to the matter in hand— hence the contention of privilege conld nob stand. At the School Committee meeting Mr Thomson's conduct was nit in question at ( al 1 , yet the defendant had gone out oi his I way to make a slanderous statement concerning him. Mr Maginnity said that Mr Thomson had really been the prosecutor as far as defendant's duty to the School Committee was concerned. Mr Evans had been charged with keeping money in the school to the detriment of discipline. He submitted that there was an express community of interests in the meeting, which had called upon defendant, as its subordinate otiiccr to attend. Supposing the words had been used there was, as appeared in evidence, sonic justification. At this stage the Court adjourned until 11 o'clock next day. This Da v. On resuming to-day His Honour said he had reserved his decision on the two points submitted by Mr Maginnity. His Honour said he must rule that tlie words complained of as amended to read " he is not a decent man" and "Thomson tempted, caused, and encouraged the boy to steal the money " were actionable, as imputing that plaintiff had encouraged the boy to steal. Regarding the question of privilege His Honour bad had more difficulty, hut lie hud looked into the authorities and cases which had been cited by counsel and had arrived at a conclusion. Certainly that action which had led up to the use of the words of the alleged slander had not been ono sought by the defendant. Defendant was the person upon his defence; he bad been called to the meeting of tho School Committee in question to answer certain chargos, and his accuser being there, he had, it is alleged, used the words complained of. His Honour remarked that he had only heard the evidence of complainant, and it was presumed that the words had boon used. Assuming, however, that tbey had been used defendant liad only believed what ho said, aud ho (defendant) had an iutorost in the matter. This was very evident, because his means of living were attacked. His Honour thought defendant's interest in the firoc.cding.at the meeting was clearly cstabished, and that there was a community of intcrost between defendant and the committee ami the person who had endeavoured to dlsplaco him. Aa to whether defendant in using tho words attributed to him went so far as to exceed what lie was privileged to say, he ( His Honour) found that in such cases the tendency of the Courts was to allow rather more latitude than less to a person in such a position — who was defending himself as defendant had done. His Honour referred to a number of authorities on this head, all of ; which went to show that latitude was allowed. Defendant had been put upon his defence by the plaintiff, and the matter (of the words attributed to him) were germane to the subject of the defenco, as counsel had contended. His Honour thought he was ' justified in considering that the word germane— used in the sense it had been — meant a connection, and in this question there was a connection with the matter, because the sixth of the charges, (preferred by plaintiff and others against defendant) was in reference to the nviUoi' of stealing njoney. on an occasion which had been identified as the only occasion ; and that the defendant, whether he was prudent in using such words or not, was justified, if he believed thoro was any connection between tho stealing and the person in respect of whom he mado the slAtuUii'oua imputation. His Honour held that defendant was justified by tho connection, though ho had imprudently expressed himself, and his decision was that the occasion on which the words were used waa one of qualified privilogo, to tho extent that defendant holiovod what ho had said to bo true, and had not been actuated hy malice in faut. Tho position therefore was that the Court had 110 evidence of mallco in fact, and it remained for plaintiff, If ho so desired, to offer evidence of actual malice.

Mr Maginnity said that the poiut of privilege had been pleaded by the defendant, and plaintiff had had every opportunity to meet thK He submitted that it would be unfair, now that the plnlntifl's case was closed, to ask tho defendant to meet a contention that there had been malice iv fact.

His Honour said he thought there was nothing for him hut to record a uou suit, and this was cnteied up.

Costs woro allowed as follows : Defondants Court fee xl 3s, six witnesses from Motupiko £7 is (id, Counsels fee £5, Total ei:)7sfld.

Mr Pitt said he would have lo consider whether he would appeal against the doci-don, and it was requisite that he should give notice of his intention before the rfcing of the Court. He would ask His Honour to stay execution for 10 days iv order that ho might, if he thought lit, give notice of his intention. His Honour granted the request This was all the business and the Court rose.

It is only fair to the plaintiff in this action to state that the boy referred to as liaving stolen certain money, and in connection with which a charge was preferred against the present defendant, was not his (plaintilfs) son.