SUPREME COURT.

Poverty Bay Herald, Volume XLV, Issue 14637, 21 June 1918, Page 4

SUPREME COURT.

time to assist you to get in full all moneys flue to you as per agreement. You can make out the balance-sheet right up to thvv 3ist December, and I will bo only too pleased to pay you what is duo to you, but you cannot help yourself to my money without my sanction, and I distinctly, wired you some considerable time a^ro that you must not draw any money for yourself until all arrears of debts contracted by you on my behalf are got in, and. wrote you that you must prepare a balance-sheet to square matters up. but. I sec that after receiving those instructions, you continually took large- sums of money. In fact; you kept on taking: it with a. vengeance. There is nothing to stay any bank manager to do the same, and say that he thought lie would deduct it afterwards from any commission that may become due. That would be a very nice business. I cannot a( present go into the matter of the various moneys you have taken. I am only dealing with the amount of the £25 loan asked by you in your letter of November 24th. I certainly thought you would appreciate tho favor, and make out a proper bill of sale, including the previous loan of £39 2s flrt, which was duo on June 28th, and again interest' £8 15s on Sept. 28th. and again £8 15s on December 28th. As far as these amounts are concerned, you can make out bill of sale over your furniture, and add interest at quarter the usual rate. I will > do that much for you, but it is not because you are working for me that you can take my money, and after you take it send, a P.N. for it. Your P.N. is no more, than anyone else's. I only lend money on security. Originally I took your P.N. never thinking that you would dishonor same, when it was due. but as you kept it on <tn long and asked for n further loan of £25, you must give me .security. You have now exactly the same business as you ever had, and mine makes extra. If you could not from the start allow your • future commission, whatever it. .might come 10, to .iccunuilat© to pay off the original amount, then it must be very bad. However, you can make out the bill 6f sale for three months, including interest on the first loan, and also on the £25, the bill of sale to read fifty-six pounds twelve shillings and sixpence (£56 12s Cd) due and o\v! December 2Sth; total £81 12s 6fl, the total with £10 as interest to become due the 10th day of March, 1918. Return the bill of sale forthwith. You must also prepare . and let me have the balance-sheet at once. This should bo quite simple. You must replace all moneys you took without my leave and license at once, and as soon as I receive the balanceshoot and find it correct, T will pay all that is due to you, but you must not help yourself to my money. With reference to your enquiry re. my agent at Masterton. that you have someone at Mastorton, let me h'ave full particulars, the name, occupation, address, etc., and a copy of account in full, also let me have a full copy of Lyman's. We have written for it. previously, but you did not take any notice. I enclose a specimen of balance-sheet required. —Yours faithfully* (Sgd.) L. w. Balkind. per J.ll. On the said Bth day of March, 1917, the. defendant, at Gisborne interviewed the plaintiff at the offices occupied by thV plaintiff and (inter alia) the subject of the plaintiff's unauthorised action in drawing 1 £45 instead of £35 was under discussion. The words complained of in paragraph 2 of the statement of claim. jif usod at all by the defendant, which {tho defendant, denies, were spoken by him with reference to the matters hereinbefore set f^rth or Incidental thereto. Tlie defendant denies that the plaintiff iim; by reason of the matters and things alleged by the plaintiff in paragraphs 1 and 2 of the statement of claim, suffered any damage." As to the plaintiffs cause Of action, Ihe defendant says:—"He admits that by ,811 agreement dated the 10th day of I March, 1917, the plaintiff was appointed •to manage the money-lending, business of iihp. defendant at Gisborne upon tho terms ;jan«l conditions therein set out. The'dc ! fondant admits that the plaintiff acted as such: manager during the period stat>rl in paragraph 6 of the statement of claim. • The defendant denies each and every the other allegations contained In paragraph 6 of the statement of claim The defendant says that the provisions of clauses f),' 10, li, 12, and 18 of the agreement between the'parties dated the 10th day of March, 1917,,. and mentioned ,ln paragraph 5 of the statement of claim are referable to the computation of the profits of the said business and to the assessment of the plaintiffs commission, an;l the defendant says that neither under the said agreement jiot otherwise hinvsopver is the plaintiff entitled to flic sum of £117 17s flrt claimed by the plaintiff or to any other sum in respect of tho matters alleged in paragraphs 5 .■uid 1? of the statement of claim. The defendant craves leave to refer to the said . clauses tof the said agreement." Mi. Burnard, in opening, said they proposed to refer only the first question to the jury; the second would be reJuiced to the Registrar. His Honor: We simply try an action for ajander? « .Mr. Burnard: Yes. Counsel, proceeding, said the plaintiff wa» employed as manager of defendant's money-lending business. The drawings were in an indefinite way, and were not nearly to the extent arranged. Mr. Balkind's visit, as usual, was not announced. He arrived in' the morning, and they proceeded .to discuss the debts. The discussion continued on these lines, when defendant flew off at a, tangent and called plaintiff a th'iefi The matter came uk a great surprise to one of Mr. Hill's temperament, and he made some cryptic reference to the polioe. The allegation, to one of Mr. Hill's position, was a serious one. Plaintiff was registrar of births, deaths, 'and marriages, besides holding other positions, and the discussion was . interrupted by people from time to time , coming in. However, when lunch time . arrived he asked plaintiff round to lunch with him-at..the Gisborne hotel. Mr. Balkind conducted a money-lending busineßs from Punedin to Auckland, and counsel went on to refer p the ayetein of keeping the accounts. The discussion continued during the afternoon, when . defendant called in from time to time. Jt was arranged that they were to meet ■ again in the evening, when Mr. Henderson, plaintiff's clerk, waß working in the adjoining room. They continued amiably [^Forking together, ticking off the acj founts, when Mr. Balkind declared, "I (jay. you stole my money." Mr, Hill asked defendant if he meant that, and defendant replied, "I say that absolutely." Plaintiff asked Mr. Henderson if 'he 'i heard the.statement, and Mr. Henderson said he did. Plaintiff thereupon rang up his solicitor. After that defendant became more subdued, and they % continued the checking. Next day plaintiff wrote tp defendant resigning' his position in consequence, and that letter had never been replied to. V[q apology had ever been tend'ered. .

His Honor 1 Has any been requested ? Mr. Burnard, proceeding, gaid : that tlie letter had never been replied to, nnd further than i^hat defendant has re : pea ted the statement to another. Counsel said > the defence of privilege had boen raised, but it Was for defendant to show justification. It would Toe established that defendant made use of the » nrds, not because he believed they were true, for there was no justificatidii for that, but for the purpose of bounping plaintiff out of hia privilege, and malice would thereby be established. They would also show that at a later date defendant repeated the assertion to MrKidson. ' ' ,

Mr. Lusk took exception to the relevancv of this point, as it was n6t alleged in the statement of claim.

His Honor submitted that it • , was either a separate slander published on a separate occasion, or that it was merely evidence of corroboration.

I Burnard said he would submit piithorittes on the subject later. Refepring to the question of damages, here,*tita'kod thnt the natural effect of n plnnderous- statement. wfts its immediate • circulation, and therein it did not tend to diminish, but rftther.to increase. He ■ cilled George Henderson. \lr. Luplc questioned the procedure of cnlling this witness before plaintiff himself. . 1 His Honor said he could not interfere, but it was_ a matter on which counsel could comment, on the point if he chose. 1 Mr. Burnard pnid ho was calling Hendpt'son because this witness took a noto (if the remarks.

George F. Henderson, clerk, partiv in plaintiffs employ? said he was working at the office on the Pridav evening in question. He lighted the eras, and starter! working about 7.20. before anyone plsp arrived. Mr. Balkind then arrived, nnd witnesß conducted him into Mr. HiWs room. There was a. passage between that room and the room witness was working in. Plaintiff arrived about 7.45. He coxild hear them talking from

where lie was sitting, and about 8.15 he heard Balkind ?ay, "I sar you stole my money." Mr. Hill replied, "What! You say I stole your money?" Mr. Balkind replied, "You did ; I say so absolutely." Plaintiff called out, "Henderson, did you hear what he said?" Witness replied, , "Yes." His Honor : Was this in a louder tone than they had been speaking in? — Yes, it was that which called my attention to it. After that Mr Hill went to the telephone and; ranjr up Mr Burnard. Witness produced his note book with his record of the words spoken. To Mr. Lusk : Ho had known Mr. Hill ever since he had been here, and had a high opinion of his integrity. And you did not believe it? — No*; certainly not. And as far as your opinion of Mr. Hill's character was concerned it made no impression on you at all ? — I wondered why he kept his temper. Mr. Lusk repeated the question. Witness : It was a terrible thing to say. Did it lower your opinion of Mr. Hill ? — T didn't believe it. It was an attempt to lower my opinion. Did it lower your opinion? — Well, I will say it did not, because I had such a high opinion of him. Well, having such a high opinion of your employer you would be the last one to repeat it? — I should think I would repeat it ; it was such a thing to do. And having such an opinion of Mr. Hill, do you think it was right to repeat it? — I did not repeat it. Mr. Lusk : You would be the last one to do so, of course. Witness, in reply to further questions in cross-examination, said the offices were situated in the Union Bank buildings, a solid concrete building. One turned in the archway and off that into a passage} witness's room being on one side of that passage and Mr. Hill's room on the other side. Mr. Balkind knew witness was an employee of plaintiff. Defendant had been interviewing plain- J tiff. several times during the day. Wit-, ness's duties were to help plaintiff with ] the registering of births, deaths and marriages, and helped him with Mangapapa Town Board work. At that time he was on the licensing committee election work. TTe h'ad also helped'with Mr. Balkind's work, and had been out trying to collect some money. Did you know there was to be an interview between Mr. Balkind and Mr. Hill that night?— No. ' And what were you doing that night? —Fixing up the supplementary rolls. Pressing business? — Yes, I had not been home to tea. You knew that it was confidential business between Mr. Hill and Mr.v Balkind?—Yes. ' . .' And you kept open the door between ymir room and Mr. Hill's? — It always is open. Knowing they were having a -private conversation, why did you not shut your Hoot? — They could close thoir-'doo'r if thov wanted^to- ' ' ~Sn\v. Iwl put it plain. Did you not keep that dooi' open to hear what they wore saying? — No; -no such thing. Did Mr. Hill not tell you to keep the door open for that pnrposte ?— "No (indiirnantlv); I did not want to hear what wno said. Wi.tne'Fs sairi that when ho. heard th^ statement and Mr. Hill called out to him. lie made a note of it. Why did you do thnt? — Tt was such a monstrous thin? to say.' Witness produced his* note made attho time. , ' . Mr. Liusk said be had not read it all. TTo was stopped by some one when he wilt; reading it. ■ Asked why he had torn off the bot- ! torn • .witness' said ft -was to fit into his pocket. Mr. Lusk proceeded to read the note produced, as follows : — . "8/3/18.— 1t. W.8. : I say you have stolen my money. Hill . / You say I stole your money. L\ W.B. : You did I say so absolutely Hill : Henderson, did you hear what he said? Y<?9. Hill then rang UT> Mr. Burnard. Afterwards I. heard. Hill say it is impossible to deal with 'you, Vr. Balkind. Further loud conversation took place of which I took no notice, being busy on electoral work. Balkind and Hill at it up to 10 p.m., when Balkind left." Witness affirmed that he made the at the time. , -j Mr. Lusk : You have had a long' exjipHence in law work? — I. haye done some. \ You were a. long time in my father-in-Inw's office and had experience of slander and libel actions? — I was mostly on engrossing. To Mr. Burnard : Tt was the practice to have the door open when Mr. Hill w-»s there working. 'Henry ( Ewart Hill, plaintiff, deposed tli.-ifc he was registrar of births, deaths, nml marriages, clerk to >langapapa Town Board, and also carried on bus'n"fss as a lan/1 and estate agent. On V-rch 10, 1917, ho started to act for He fondant, and was to be remunerated bv 25 per cent, of this profits. Mr. Lusk : The agreement is here (produced). Mr. Burnard : It shows you were to be remunerated by 25 per cent, share of profits. You charged no rent? — No, he would not pay it. ; . To his Honor; He was a part-time officer, not a civil servant. * Mr. Burnard : You made drawings from the, premises from time to time on account of profits?— That is so. And you had hacl'no squaring tip with the defendant on March 8?-— No. Witness, proceeding, said on the morning of March 8 defendant arrived without any notice. He started fo talk , in a general way about his business. They Had been talking about ten minutes when he suddenly made a statement to witness, you know you have stolen my money ? You have" thieved .it. Are you aware that. I could have you arre'ste<ir' %He (plaintiff)' said, "What are you talking about? I am' not used to being talked about like that. You are mistaken. You do not know what you are talking about." After that defendant calmed down . a bit. Just about that t ; me a knock came to the, door, and witness sang out, "All right. I will be there in a moment." He.- agreed td see Balkind again in half din hour or an hour's time, as his services' were wanted. Defendant cam^ 1 back several times during tho morning. Defendant had his books, and they were checking various Horns and discussed several clients, and ns to what was being done. It got on to dinner time, and witness said he must V>o going, home. Defendant asked him to 'go .and have lunch wjth him. Previously, however, defendant said, "If you sipn a security over ;your furniture <t will he all right." (Laughter.) Witness piid, "I am not doing any silly thing liko, that." After lunch they were retin'hing from the Gisborne "hotel, and they went in to s&e Mr. Miller about a certain transaction. They both talkeH to Mr. Miller and returned to the office. Defendant oame to 'and fro during .^the .afternoon, and certain customers they had to do business with came in, and" he and defendant dealt with tliom. After that thjey continued, checking and going through the 'accounts a?ain. Just before goinp defendant run de pome reference again to signing 1 t.lvs security over his (plaintiff's) household furniture. They made an appointment to meet again at 7.30. He (plaint'ff) was a little late, arid when he got thore found the office lighted up. Some question arose as to the doors, nnd it was agreed that the jury should Inter inspect;. the promises.

Plaintiff, continuing, said he found Mr Balkind there. They started checking thr, accounts, and presently 4 defendant said, "What about my money?" Witness said, "What money!" " Defendant said. "That money you stole." He (plaintiff) said, "Yon say T stole your monev?" Defendant replied, "Yes, I shy that absolutely." He (plaintiff) sud-' denly thought .was Henderson there, and called out to him. He asked Henderson if he heard what this man said. Henderson said he had, and he (plaintiff) directed him to take a note of it. He told defendant he had finished trith him, and went and rang up his solicitor. On returning defendant made a request for the ledger,, but ha (plaintiff) said he was not giving him any jUBt then. Not much was said then by either of them, but defendant put in a blank look every now and then. They continued checking the accounts, and. defepdant left

about 10.30. Mr Burnard : Have you stolen any of TJalkind's money '—Certainly not; nothing was further from my mind. Plaintiff added that money was due to him, and he was suing for the amount. Mr Lusk : And defendant is defending th.it claim. Mr Lusk: You have been registrar of births, deaths, and marriages for how long? — For twelve years. And land and commission agent for;.' how long? — The same period. ■• And I think prior to that you were a clerk in the offices of Ootterill and Humphreys, Napier, and deLautour, Barker and Co.? — Yes, for thirteen years. And I suppose you got a rough knowledge of law? — I could manage a law business. Mr Lusk : There are none open just now. Witness : I have an idea of the rights between a, principal and his agent. Questioned regarding the agreement plaintiff said defendant brought in an agreement pencilled in up to a point, and he (plaintiff) made it read rightly. Mr Lusk proceeded further on the point as to the preparation of the agreement. Plaintiff: Your Honor, there is a point in this under the Law Practitioners' Act. (Laughter.) Mr Lusk : Nothing of the sort. You did not. charge for your services. Plaintiff said he signed the agreement and was to get 25 per cent, of the profits. He was bound tinder the agreement to keep all proper books and accounts and .to supply a half-yearly balance to defendant. Mr Lusk read the clause in the agreemmt. . ' j Plaintiff : Yes, and an absolute catch agreement to a novice. (Laughter.) But you tell us you aro capable of managing a law business. However, you signed it? Witness: Yes. and I pity others -in. the rest; - of the Dominion who signed it. Mr Ltisk : We don't want a dissertation on that. Plaintiff (further questioned) said he had been pressed for a half-yearly balance, but it had not been prepared, nnd defendant knew it could not be done. He had bene .given permission to draw up to £3 a week, provided it did not exceed half the gross commission for the week. • Prior to taking this agency you-.bor-rowed from Mr Balkind? — No, I never did. Plaintiff said he took a bill signed bv Pioseveare 1 and endorsed by him (plaintiff) to Mr Piesse.^ Mr Balkind wn«s there and he negotiated that bill, and received £26' Questioned at length on the point, witness said he did- not take that as? ft loan, The money was for himself. The bill had been renewed from time 1 to time. vri+H interest added, but he (plaintiff) had worked it off. His commission bad wined it out and more than that. He repeated that it was impossible to work out a balance-sheet. Mr Lusk said he had «a halance-sheet prpoared bv a Christchurch firm. Mr. Lusk-: In face of that will you swear that in November, December, or January, 1918, there was anything owing to you? — Yes, as I . worked it out. ' ' .Under - that agreement have you discarded the- clause respecting, bad debts? — I cannot quite say whether I included or excluded them. Mr. Lusk referred to the letter of November 24. Mr.' Lusk : What would you say of a man who asked for a loan of £25, to be repaid out of £33 coming to him the following month, and was given n&rmission. to do so, but took another £45 ? - — I know you, are referring to me. I say I had money coming to me as commission. What would 1 yon say if he was given permission to take £25 and took £45 : would it be dishonest? Plaintiff said if he hai not permission ib 'would be dishonest. His Honor : The is not called upon to give an opinion on ethics. Mr. Lusk quoted the correspondence (referred to in the statement of defence). Plaintiff, continuing, said he was authorised to borrow £25 arid to give a bill. Ho later drew a cheque for £45. and entered on the "butt" that it was drawn as authorised by the letter from his principal. Mr. Lusk asked where he had authority to draw that. £4s? " . Plaintiff said he wap entitled to do bo because of the confidence as between principal and agent. He thought he was entitled to it. ■ Will you point out any authority to do so .under ■ the -letter of November. 24? — I say I had; it is ji general right. Then you did not do so in. accord^ ance with the letter? — I did ' nothing wrong. ,- Mr. Lusk : That is a matter for the jury. Mr. Lusk asked witness what right he had to make the entry in the butt of the cheque book?— T took it that I had a right hva general way. Do you a&nit you can find, nothing in the letter giving you authority to draw more than £25? — J took it that I could, take whatever I thought fair. I could take the £25 *nd make the promissory note for whatever I thought fair. I took it Mr. Balkind trusted me. His Honor: Do~you say you thought t-he letter authorised you to take moVe than £25?— 1 thought so. Pressed! furthei*, plaintiff said, tlhe letter meant he could take the £25 and make the interest what he thought fair. Mr. Lusk: Well, what right had you to take the £45? Plaintiff replied that he took it that ,he could do so because of the letter,! and because of the trust reposed in him as agent. Mr. Burnard. . interrupting, compTiained that, counsel was confusing the fitness.. /■■■•. ' .■■ ■■... •,. ■ ■ . His Honor suggested that the effect of the witness's evidence was that he saw now the letter did«not warrant' him in drawing the amount, but he thought at the time it did -warrant him in drawing in excess* of the. £2s. Plaintiff: Well, I suppose that is the only* way out of it. Mr. • IJusk proceeded to quote further from the correspondence on the subjeefc. Plaintiff acknowledged receipt of Jthe letter. • • Mr." Lusk : That letter says you took the money, and says you must return it to tihe' bank?— -"That is what he saysi Did you reply to that letters—No. ■■ Did you repay the money to the bank? — I say there, was more owing, tome, Did you give security on the previous amount? — No; because I considered I had worked it off. - ' Asked why he had not replied to the letter, plaintiff .said he could not say. Mr. Lusk said defendant had wired urgently asking for a reply. Plaintiff afterwards' wired offering defendant some business, and to this defendant replied declining business on, live stock, and repeating that he was a.waiting a renly urgent to his letter of December Bth. Mr. Lusk asked why plaintiff had not replied? Plaintiff said he could not answer, why. Mr. Lusk: That was the position when Mr. Balkind arrived. Would it surprise you that this balance-sheet, made out by a repntable firm at Christchurohi shows that you are indebted to him? .Plaintiff: Oh, of course, but there are two sidqs to it. Plaintiff added that the letters were too cleverly written for him to reply to. Mr, Lusk : But there is nothing clever in asking for the return of his money. When Mr. Balkind referred! to this stealing did you not! know he was referring to this £45?— 1 thought he might be referring to this money of Roseveare's. ' ■ , Mr. Lusk: How could that be?— Oh, well, there has been a mixture. Mr. Lusk : I will leave it at that j there is a mixturW. Plaintiff denied having asked Henderson to return to the office on the night in question. The doors were not closed ; the doors were often ' open, even many times when doing business. Defendant did not refer to the £45. He did not mention any sum of money. His Honor 5 He did not speoify any sum? " Plaintiff : N.o j he was always talking <about M my money." (Laughter.) Mr. Lusk: Which you got? — 0h ; no;

he owes me a lot of money. Was this letter referred to? — No. Could he have referred to any other money but that £45? — Apparently that is what he referred to, bub I dad not know it at the time. Anyway, my conscience is clear, and very few have got that. Never mind about your conscience. Do you say you did not know ho wa referring to the £45? — I thought! he was referring to the difference between what I had overdrawn, and what he had given me permission to draw. Docs that not come back to the same thing? Why did you deny that before? — Well, you put questions in such an awkward way. Plaintiff repeated that when they talked about the money defendant did not* refer to the £45. Mr. Lusk: When you asked him,. "What money?" you knew what he wa« talking about?— Well, I thought it was the difference. There may have been an error of judgment. Cross-examined respecting the conversation, between plaintiff and Henderson, plaintiff said he requested Henderson to make a note of Balkind's remarks. ■■ .. ' \ Mr. Lusk:' Mr. Balkind was laliorr ing under the impression that Iks had been badly treated?— The man that would please him would come from' heaven. (Laughter.) Mr. Lusk repeated his -.question. Plaintiff : Probably so. But you could tell from his remarks that ho considered you had taken £20, you were not entitled 1 to?— Yes. And there was no doubt- that h& bona fide thought you had stolen £20 of his money?— He may have thought anything. To show you how genuine I. was 1 gave him notice next morning. Plaintiff said that defendant had not asked) for an. explanatoin, but whilst they were checking the accounts def en dant broke out in this way. And after those words were'i spoken you remained there working for some time?— Yes. ,-. . And when ho left you shook hands and remarked, "Oh. well; there's nothing more to be said about it?"— That is absolutely a lie. Did you shake hands when he left?— No • he is a most extraordinary man. Mr. Lusk: I was going to say that about someone else. (Laughter.) Is it not a fact that after the letter •of resignation you had arranged to continue the agency?— -No. Do you remember being at an interview respecting the payment of £8, when you said you would not have paid £108 of Balkind's you had in, hand into the bank if you had understood' you were to give up the agency. — No (indignantly); I was jolly glad fco get ri« it and I'm sorry I ever touched it. Will you repeat that question? Mr. Lusk: No; you understand that, lou show it by your excitement. r,7,Z M r ' Burn^d: He claimed that £117 17s 6d was still due to him by defendant. There were no sums referred to in the conversation, just the statement made. Defendant did not, on- the occasion of making these eielamations, lead up to them by any reference to any. sum of money to indicate what he mearit. That was what he (plaintiff) complained of. "He just clouted me fair on the head — tang!" Mr. Burnard explained that after drawing the £45 defendant did not continue drawing the £3 a week, his total drawings for the year being £160. That was all he had had. Mr. Burnard called plaintiff's attention to an interview between plaintiff and defendant in June, 1917. Plaintiff said that , this was three months after taking over the agency. Defendant at that time made an estimate showing that his (plaintiff's) share of the profits would work out* at up to £500 a year at that rate Mr. Lusk: If everyone paid up. Plaintiff ; saads h© was sorry, he. had lost that paper. > (Proceeding.)

SLANDER*.- V''.' A CLAIM FOR £1000 DAMAGES. 'W (Before Iris Honor Mr. Justice Hosking.J The Supfeiwe tfJourt resumed at 10 a. ijn.'- to-day, -the first case*- baited being that', of Henry EWrt, Hill/'land and . estate/agent, Gisborne^.v. Lazarus Wolfe ' Balkind,. money-lender, v Otoistchnrch; claim for<£looo .alleged slander and £xT? 17s 1 6d share of -profits. ' '\ : '. V 'Mr. L. T. Burnard appeared for plain- v tift> whilst Mr..H.iß. Lusk^.and Mr.' T. \ Alston Colemans represented \ defendant. " The ; following* jury was empanelled r ■ , ■ Messrs'. W. Stuckey, G. Wildish,S A. L. , • Warrington, A. T. Warren, E. W. Shir- * gess, P. J Kennedy, T. Ellety, F. G. ' Henderson, W. R. McMurray, K. Me- '■ Leod, Rees Maddock,< and* V. J. Fen- '-" wick (foreman). , . \' ' ■■ Plaintiff, in his statement of claim, sets out that on or about March 8. last f defendant falsely and maliciously spoke •;' and published of the plaintiff to George fienderson the following words addressed to the plaintiff: "I say you have stolen my money," and in repjy io.the plaintiff's question, "You say Vj *sve5 ve stolen your money, " the following fartherwords addressed to the plaintiff: "I say so absolutely." By reason of the premises plaintiff Has suffered damagtf?; and claims £1000. The statement of . claim further sets but that fcjr an agree- c ment in writing on May 10, 1917, de-;. f ertdant appointed " plaintiff to manage '■'* the money-lending business of defendant ..< at Plaintiff acted as mandffwr *. of the business for twelve months. ' total profits of the business for Hth> period! amounted to. £1268 Is sd,:<J^ , which plaintiff was entitled to jonV fourth, £317. Plaintiff had drawn. £199 2s 6d.on account of his share as unde»? .\: . Weekly drawings on account March :-10 to October '31, 1917, £95 j S. J. Roseveare's promissory note discounted- by* •'! defendant, £39 2s 6d; amount drawn on November 15^ 1917, £20, and December . . v 8, 1917,, £45; total £199 2s 6d j leaving £117 17s 6d. still due and owing. • „\|L - Defendant's statement, of defence id.4f as follows:-^; ' ..; , ' :'■ .■* v ''He (Jenies that he spoke, andv publish- ; * ed the words t complaiiiea of as all€gea In paragraph r 1 of 'the stktelhent of claim-, h He says that if in pointof fact he did x speak and publish! the words complain- ■ ed of the statements were invited by the plaintiff and were! brought about by the> ; contrivance of the plaintiff, He furthe? says that the' words complained of, if*{spoken -and published by the defendant ~. at all, were spoken on a. privileged oc- ■ casion, and the, defendant honestly, be- - lieved them to be true, and spoke and : published them bona fide and without malice. The occasion was one when the plaintiff and the defendant had a com*.; mpn interest, and were discussing their, business relationship, and the George. H,ehdei'sbn,;reliecl oriiby the plaintiff as • the ? perspni to whom the words- complain-. jed^of vwelJe spoken and published! was,in "waiting- -and within hearing as th^; , agent of the, plaintiff for the purpose; as such .agent*. of listteniiig to the diSr,--cussi6ri^'sTle circumstances were as fol- 1 ,, , ■ lows: By an agreement in writing b(?ar»; ■ . ing date the 10th day of March, 1917, ■ the defendant appointed the plaintiff tomanage the money-tending business ofvo the defendant- at qdsborne upon the>. terms 'and conditions set but in the said • agreement, to which agreement the de-. ' fendant craves leave to "refer. The / plaintiff acted and continued \o act as th,e defendant's inianager as aforesaid at Glsbome from 'the 40th dam of March. 1917; up to and > including the Bth day

pi March, lplg. .In terms |of the saia agreement the plaintiff was authorised to operate on the sank account of the defendant at Gisborne by signing cheflues for the purpose of the said business, tin the 24tir, day of November, 1917. the plaintiff wrote the defendant at Christchurch a letter, of which the following is a copy:—Gisborne, 24th Nov., 1917.—L. W. Balkind, Esq., Christchurch.—Deary Sir,—l beg to report that on the, 15th Inst. T drewa cheque forV£S!O, being four weeks' allowance as agreed..for Noyera* ber, 1917, £12 and £8 la pay my rates. tii all £20. I understood no harm qould b& done In .-■ Hi is matter, as there ''is ifl.> v. certain give and take, as after, allowing ; Avhat you agreed io pay. ijie per tyeelt < during our business tpsretlier, and- the - amount by'P.N. I am indebted to you* .. there remains to date a, fair, amount t<*/N my credit when you check, . same.,/--Jjfiv made Ihe cheque--out in niy name, i.e.* payable to me on account.'.,Trusting you . will confirm my actions, >vhich finder ( the circumstances is quite regular* arid < as you mentioned to me, personally \yhen ■■<• in Gisborne, that so long as I was ntit _ overstepping^ what would cpjne to/me, 1 :; ha,ye- aJjput £33 coming tt> mte in . Jaii- • uary, 1918, from other sources,' and" see- ,' ing • that it is coming near Christinas^ time will you permit of %my advancing f seif'sfy £25 about the middle of Decehi- f ber, or say 20th December, 1917, against ,- samite and paying you fpr it. Thanking . you in anticipation. One wants cash, at, j Christmas • time. Awaiting your esteemed \ reply.—Yours faithfully, (Sgd.) H. E. , Hill,, the last-mentioned letter •• the } defendant, on or,?about the 29th day of t November, 1917,. replied by ' letteT,- of ■ j which the following is a co,py:^Boulcot^." Chambers, Wellington, 29th N0y.., vi, 1917.7—* v Mr. H. E, Hill, Union Bank. Buildings,:, Gisborne. I—Deawl —Deaw Sir,—l , am in receipt of.. , an Extract of- letter^ from Christchurcßi. Re..advance t,o self.,.You xah do so^and make the P;N;''t6v::' whatever you thirik would be fair for a certain period and foxward v.receipts and P.N, in the usual . way. You should how try and get all ' arrears in, and get out a balance-sheet, ' so that we' can ,s«uare everything up. Please doii't. give any money^to anyone, '■.■ unless it. is on a registered security, with at. least a, thirds margin after a forced auction l, sale. Never on live stock "and implements. \Alvvay9 include all furniture with implements; stock, etc., etc., flaUy.-^nsuredv When you conduct" the bustness methodicaliy and strictly arid never depart from my; instructions vypir. - , are boiind to succeed,;■' otherwise! it/will never/no 'any good, and t&ere will and must, be-trouble and worry for all concerned 2 .Therefore; I trust that' you .Will work it so that there will always be the' best feelings between us^. and that it will be of benefit to all concerned. — Yours faithfully; (Sgd.).L, W. Balk.ind. • Tho plaintiff* instead of drawing* a cheque on \ the., defendant's. banking account at Ol^'o'i'rift .for tlife; amount of J885,---agreed to'be'lentf to him by the defendant, did, ort or aboutythe Bth. day 10$^ December, 1917,. draw ai*'cneque on the, • said bankin'g account for an amount, qt £45 without the sanction authority-oty. i knowie(Jge of the defendant." Th%p|aiifej: A tiff, on. or about the said Bth day'eff "T December, 1917, ..wrote to. the defendant*. f fi. letter, of .wftich' the following .is 9Ppy:—Gisborne,, Bth Decemberj,) J9i7.r-L,{ :. <W.. Balkirid,' Esq. 4 . Christchttrclx.^-Dear?l: , Sir,~l Deg to acknowledge the receipt of*'. y9xir letter or 28th* i^ovemhei\,4ol7^^lo your consent to draw by P.N. on AvihW, will be corning, to me during we have 'done business. ■A- thank you 'lor*; your permission, and have not, of course,, added" interest, because it is our matter between usr-commissions." .1 have m^ny little^ obligations to . meet i)fear Christmas,, and tlie deductions can be made as jyou state when.thet,balance-«heet-is made out. As requested I am doing my very utmos.fto get ;allj,arrears. J»."-lf you ar«. a... little patfent, I will objt^{n them all riglit with the aid of the bailiff. I am now acting cautiously,..and. I;quite unaerstand the nature of your business, which I. am endeavoring make a payable i I proposition, and: I, hope, you niay in the 1 Xiear future be well satlsfled. I am trying 'nVy (Very best\ vto \yoj)k this mopey. business with satisfaction to you. and hope there ,will always be a good feel-"' ingVbetween us. Thanking, you for your helj>:r-I remain^ yours faithfUliy, (Sgd.H. E, Hijl. .Tot thfe^letter the defendant, on or about the sth day of January, l 1918. replied by letter, of which the following is a copy:—January sth, 1918.— Mr. H Ei Hill,, Unioiv^Bank Buildings. • , Gisbowe.^-Dear Sir,-r-Hav^ng^>i>etumed-to the. Ghrisjchurch offlcfi,, i; certainly ex- ■ Jpected to find that my instructions with ! refewonce to the loan •' .which you' ask^d:. * - fpi^ \yould ? haye,,,b^en i dongas per my' Uetter of ,Noye^beid ??th; n pjn the 24th November, •you,wrpte'askfhg for a'lQan of £25, -repayable/iabbtifc;- Jatouai'y, ■,■ when were, to; recejye- som^ #?3- You a]teo '- toUl me.tfiat you .had ( talten XSO already. I you took it fli-st and asliced my per-nai^sipna,ftex->v4ras,! I.\W>ta,you on Nov. «mber- 29th that,you,,can\Sfve the ad- J vance by making out"th^^ioan in the § usual way the amount of ( whatever you '•/ wpujd- ccmsider to he fair, but to my ••'. j surprise I fliiH you have taken £45 an \ top of the £2ff. gave you permis- 1 sion ,to do that? Anfl. yp^^,returned I a' -r P.N. for £-45 only; >6U must forthwith ' replacevthe £45 in the^ bank, if you have any money to come to you from me, there is a proper and only one? way qf ascertaining tho amount. That is at the end of every six months you r must prepare a proper and correct' balance-sheet, a sample of which I herewith •'iehclose. I » \Vill oven cdnccde the alteration of thft-. 1