SUPREME COURT.

Wanganui Chronicle, Volume L, Issue 12186, 30 March 1909, Page 5

SUPREME COURT.

(Before His Honoxir Mr Justice Sim.)

ALLEGED LIBELS

PEARCE v. SYMES

And

SYMES v. PEARCE

AN ECHO OF THE GENERAL ELEC-

TION

Mr Justice Sim was engaged yesterday afternon in hearing two actions for alleged libel.

Tho first case was that in which George Vater Pearce, farmer and member for Patea, sued Bert Symes, farmer, for alleged libel and claiming £50 damages . A counter claim was preferred by Symes against Pearce, claiming £250 damages for alleged libel. Mr Barnicoat conducted the case for Pearce, and Mr Cohen for Symes. At the suggestion of Mr Barnicoat the evidence for both cases was taken together.

Mr Barnicoat said that the parties owned adjoining properties. The nature of the ground prohibited proper fencing, with the result that their cattle mixed. Peareo met Symes driving a mob of cattle, and thought one of them was his. There was no charge of any de scription made against Symes, and it was arranged that Mr Pearce's manager .should examine the cattle. The examination by Pearce's manager proving futile, he dropped the matter. This was on the 10th November of last year. On tho 13th. November Symes inserted a challenge in the daily papers, stating that Pearce had accused him of being wrongfully in posession of one of his bullocks. In this advt. Symes offered to donate £10 to a local charity if Pearce could prove the "accusation," if Pearce would give a similar donation in the ov'ent of his being unsuccessful. On the evo of the election another advt. appeared demanding that Pearce should justify the "accusation." Pearce denied having made any accusation against Symes . Pearce did not ask for heavy damages, but simply wished to put matters straight and prevent a recurrence.

With regard to tlie counter claim., Mr Barnicoat said that no doubt Pearce was very much annoyed at the advts., especially coming on the eve of the election. Pearce wrote to the "Patea County Press," making use of words which were meant to simply convey the idea that Symes was of such a hasty temperament that he did not know at times what he was doing. He did not mean this to convey that Mr Symes was either mentally weak or addicted to drink. Counsel submitted that it was a privileged statement and a justifiable retort, and contended that it was in self-defence, and that the words'had no damaging effect.

George Vater Pearce said, he had a farm at Waitotara, separated from Symes' farm by a stretch of sand, and' neither party had ever attempted to fence it. The cattle of both parties used to run together, and on 30tli October witness missed a bullock. Witness's manager notified Symes, who promised to have a look when he mustered to see if the missing bullock was in his herd. One day soon afterwards witness was riding to catch the mail train, and met Symes, who was driving about 30 cattle. Witness had 30 years' experience with cattle. The missing steer was 31 years old, and as Avitness rode through he kept a look-out to see if the animal was there. Witness saw a beast with an ear-mark similar to his own, and said to Symes, "Have you got my bullock there?" thinking he had brought it with his. Symes said, " No, the bullocks are mine." Witness replied, "There is a bullock there with an earmark like mine," and asked Symes to come and inspect. Symes, who was leading- his horse, declined. Witness rode j back later on with his manager, and | saw that the bullock was the only one with a punch-hole in its ear. Witness rode back and demanded from Symes to have the bullock put in the yard, so as to have a closer inspection. Symes agreed to this course, and as Symes was to pass witness's yard he agreed to put it there. As witness had to catch j the train he left his manager to act for him. Witness also said it was strang that the Tmllock should be the only one with this particular earmark, and Symes said that the hole might have been- bored inadvertently. Witness did not think for a moment that Symes would steal cattle, and never accused him of doing so. Only he thought it strange that Symes would not get on his horse to come and inspect when asked by witness. On Thursday, 13th instant, as witness was coming out of the hall at Waverley, Symes offered to bet witness £10 that the earmark on the bullock in question had been his earmark and not witness. Witness asked if his man had examined the animal, and if he claimed the earmark was witness's. Symes simply replied "I will bet you £10," speaking in a very loud manner. Witness replied that betting was no argiiment, except to a stable boy. This seemed to irritate Symes, so witness Avent into the hotel and up to his roomand left Symes talking loudly. About I a week later, witness heard that the bullock had not his earmark. Saw the paper on the Saturday and decided to take no notice as there .was no time to get a reply printed and distributed before the election. Had known Symes from a boy and knew him to be a reputable man, his only fault being that he was rather excitable. Considered the advertisements injured him both politically and personally. Was elected on thp oppsition ticket, but the previous election, though a Government man had been elected for the district, the Waverley polling gave the Opposition man a majority of 21. The previous election to that, the Opposition candidate had a majority of over 100 at Waverley. This election, witness had obtained a majority of only 7 at Waverley, but had a majority of 250 for the whole electorate. After the election witness wrote p. letter to the Editor of the Patea paper, but the was charged as an advertisement. In the letter, Avitness stated that Syme3 was at times not Avholly responsible for Avhat he did. He did not mean this to slioav othenvise than that Synies vvas of an excitable disposition. Did not mean that Symes Avas a man of mental Aveakness and consequently irresponsible. To the contrary, ho kneAV Symes to be a hard business man, but had ahA'ays been excitable. Several times Symes had lost his temper during discssion with Avitness. To Mr Cohen: His man, Riemanshneider, had always been on good terms Avith Symes. Witness did not knoAv that Symes had on occasions put the cattle in Avitness's yard for inspection. Remembered tAvo occasions on Avhich Symes had shoAvn lack of control. Considered that Symes' first letter affected the election. Attributed reduction in Opposition majority at Waverley to this source. Beat Mr Major in the Havvera voting, but Mr Major reduced the Op- . position majority at Waverley. On 30th November saAv Mr Barnicoat and ho sent a letter to Symes asking him to AA'ithdraAV the remarks and apologise. Did not reply to Symes' letter re salo of bullocks as he had left the matter to his man. Did not claim the beast, but simply Avished it to be yarded for closer inspection. His reply to the Patea County Press was sent to the paper the same day as lie consulted Mr Barnicoat. The letter was Avritten before he saAv Mr Barnicoat. Some of I tho people of the district may have j be^n guided by Symes' advertisements. To Mr Barnicoat: Symes had pre-

viously threatened to impound witness's cattle and had once actually done so. Knew that by the time witness's letter appeared in the paper the matter would bo in the hands of his solicitor.

! Gilbert" Pearce, brother of G. V. Pearce, knew Symes, who was a connection by marriage. Remembered being asked by Symes to inspect a. bullock which witness understood from Symes was the subject of a dispute between him and witness's brother. Understood that witness's decision was. to be final, so consented to go and look at the beast. Symes pointed out the beast, which witness inspected, ai.d then witness asked Syrf'es what the other earmark on the beast w-is. Symes said that that was his earmark, and witness then said, "M this matter is left to me to decide 1 will say it is yours. Before I do so, however, did my brother claim the beast through recognising it, as were it branded from head to foot I would give it to 3am, as he has a thorough knowledge of bullocks." Symes said he would not yard the bullock, although the yard was only a hundred and fifty yards away. Witness could not get witliin considerable distance of the bullock, so could not say for certain if the punch brand was in tho ear. Read his brother's letter in the paper only last Friday, nor had he seen Symes' advts. till that date. Symes was not wanting in shrewdness, and witness regarded him as one of the most enterprising, hard-working men in the district. Would say that Symes was straightforward and honest, but was excitable, and when excited might let his tongue run away with him. To Mr Cohen: Symes was more excitable than witness's brother. Witness's brother was not an excitable man. Would not say plaintiff was brusque and abrupt, nor yet could he say lie was suave. Had known his brother to be sarcastic. Did not know that his brother and Symes had not been on conversational terms. From his boyhood Symes was known to be excitable. He' was hot-headed, and was known to be so.

At this stage the Court adjourned till 10 a.m. this morning.