CIVIL SITTINGS. Wednesday, June 15.

Otago Witness, Issue 2623, 22 June 1904, Page 27

CIVIL SITTINGS. Wednesday, June 15.

KNLA.T V. SPENCEE. Cairn £501 for alleged malicious libel. Ir W. A. Sim, with him Mr A. C. Hanloa ' ,s'nicted by Mr C. J. Payne), appeared for c plaintiff, Eobert IMillar Finlay, of Dunedin, = t eman ; and Mr W. C. MacGregor, -with -i Mr R. Gilkison, for the defendant, George s ;cer, of Alexandra, dredgeowner. 'i'he statement of claim set out that the plainiifC and defeadant -were shaiehfild^ers ia. the

Perseverance Gold Dredging Company, the defendant being also chaiiman of directors. On or about the Ist March iast the- defendant, in a letter addressed to the shareholders published "the following words concerning the piamt.ff : "By the courtesy of a shareholder your directors hive been put in possession of a circular dated January 14, 1904, and signed "H. W. Reid, interim secretary.' It would appear from this circular that on this occasion Mr Finlay is trying to shelter himself behind a committee. What this committee is doing, or whether such a committee exiists, your directors have no means of knowing ; but your directors can scarcely believe that any committee of gentlemen would simply believe Mr Fmlay's ex parte statements without the shadow of proof, and thereby aid and abet him in the underhand" manner in wbich he has conducted this business from first to last. That the company's business has been honestly and efficiently conducted no one knows better than Mr Finlay, and it is only by falsehood and ruisrepiesenfation that he can attain the object he at present has in viiew. There is another matter which might be mentioned : that is the privata commission — ' blackmail ' — levied by fiose in charge of dredging companies in Dunedin. Ycur d rectors are assured that Dunedin is ' rotten' with this system of secret robbery. The Perseverance Company having two diedges working all the year round no doubt gets through a large quantity of material from merchants, manufacturers, and others, and would thereby offer excellent opportunities for the extraction of 'palm oil' were the directois located in the midst of such dishonest practice." The defendant meant by t'ae foregoing statements that the plaintiff's woid _wa3 not to be believed, and that he had been guilty of underhand practices and of levying b'ackmail, and also that he had been, or would be, guilty of falsehood and misrepresentation ; and the said publication was false and malicious, wherefore the plaintiff prayed judgment for £501.

The defendant, in his defence, denied that he ever published the words complained of, and said that if it ware proved that he published the words he did not publish them with any defamatory or actionable sense or meaning. He further said that if the words were published at all (which was denied) they were contained in a circular sent by defendant at tbe request of the board of diiectors of the company, and the circular was sent on'y to the shaxeholdeis, and contained the bona fide opinion and report of the directors on a question that was vital to the well-being of the company — namely, the question of removing tbe office of the company from Alexandra to Dunedin, and was written and sent for the benefit of all the shareholders, and not maliciously, nor with intent to injure the plaintiff, and the occasion was therefore privileged. Sending the circular under these circumstances was not a libel. Inasmuch as the circular-letter was a communication made by the directors in self-defence, and was provoked by previous words and acts of the plaintiff, it was a privileged communication. For some time previous to the Ist March last the plaintiff conducted an attack against the directors of the company at Alexandra, and particularly against the defenSant as chairman by sending out circulars and letters to some of the shareholders without notifying the directors. At the meetings convened by these circulars the plaintiff unfairly attacked the directors and their management and all connected with working the dredge without giving those attacked an opportunity of replying to plaintiff's secret charges. The defendant therefore stated that the portion of the circular-letter stating that the plaintiff had conducted the business from first to last in -an underhand manner was true in substance and in. fact.

Mr Sim, in opening the case for the plaintiff, referred fully to the facts of tLe case. All he proposed to prove at the present stage, lie said, was the publication of the circular by the defendant, which was plainly a libel, and he would ther leave it to the defendant to justify his conduct, if he could. At a later stage he might call the plaintiff and any other witnesses necessary to rebut anything the defendant had said. The plaintiff did not bring the action for the purpose of making a profit out of it. All he asked the jury to do was to fix such a sum as would show the defendant tLat he must not make reckless charges of this nature. The defendant would not apologise, and therefore the plaintiff brought the action to clear himself of the aspersions cast upon him.

Charles J. Payne, solicitor, said he was a shareholder in the company. He received through the post a circular issued by the defendant. It was dated 14th January, 1904, and was signed by Mr Beid. The defendant called at witness's office, and in the course of conversation admitted he had issued the circular.

Mr Gilkison, for the defence, laid before the jury a number of facts leading up to the issue bf the circular by the defendant. If some hard things had been said on both sides it was the plaintiff's fault, as he had brought it on himself. The plaintiff had led an attack on the directors, who retaliated on him. The defendant, in the circular complained of, had simply drawn the attention of shareholders to certain practices which he believed obtained, and had not impugned the plaintiff's honesty in any way. No one wished to say that the plaintiff was dishonest. All that was said was that instead of openly discussing the charges brought against the directors the r>laintiff took other means of bringing them before shareholders.

George Spencer, the defendant, in the course of his evidence, said the statements in the paragraph, referring to " palm oil " and " blackmail/ were not intended to apply to the plaintiff. Witness had no reason to believe that the plaintiff did anything of the kind. He had known the plaintiff all his life, and had no reason to think he would be guilty of such a thing. He was told by a traveller and also by a, gentleman in Dunedin that these dishonest practices were carried on in the city. The manager of the Otago Central Foundry had told him the facts of one case of the kind.

Samuel James Luke, dredgemaster, residing at Alexandra, and a director of the company ; Thomas Black, manager of the New Zealand Hardware Company, and a shareholder in the company; and David George Davidson, sharebroker and commission agent, Dunedin. and a shareholder in the company, also gav»e evidence.

This closed the case for the defence.

Mr Sim intimated that he did not consider there was any necessity for him to call rebutting evidence. The couit adjourned until half-past 10 o clock this morning, when counsel will address the jury.