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SUPREME COURT-CIVIL

SITTINGS.

(Before Mr. Justice Stone.) TUESDAY, AUGUST 12. The Court sat at 10.30 a.m.

In re THE WILL OF W. R. BUNBURY AND

in re SETTLED ESTATES ACT.

This was a motion for liberty for the trustees under the will of the late William Richardson Bunbury to grant leases of stations. Mr. S. H. Parker, Q.C., instructed by Messrs. Parker & Parker, appeared for the petitioners.

Under the Will of the testator the income of the estates goes to the widow, Mrs. A. G. R. Bunbury for life or until her widowhood ceases, with remainder to her three sons ; but under the will, the power of leasing was limited to the minority of the sons. Con- sequently, although the widow was entitled to the rents and profits, there was no power of leasing, and the parties came to the Court and asked for that power. Mrs Richardson and her sons had signed a consent to the prayer of.the petition.

Mr, Justice Stone made an order in the terms of the prayer of the petition, with leave to apply to His Honour, in Chambers

for further relief.

PEARSON v. REYNOLDS.

This was an action brought by George Pearson against Thomas Reynolds, claiming £500 damages for the following alleged libel contained in a letter addressed to the Secre- tary of the York District Board of Education : " It is with great regret that I have to report " to you the conduct of Mr. Pearson, the

Quellington schoolmaster, towards my little " girl Eliza Hailstor (sic) that was born in " Albany. I see him with my eyes-(the " letter here describes the alleged improper

" conduct). Therefore, I would not let my " children go any more, and I am quite sure

it is not fit or proper sehool for anyone to " send their children to, which all the neigh- " bours have taken their children from " it, which you will find it out if you " inquire into the matter." Mr. S. H. Parker, with whom Mr. P. J. Harvey, in- structed by Mr. E. Sholl (agent for Mr. H. E. Spry) was for the plaintiff, and Mr. F. W.   Moorhead, instructed by Mr. J. Horgan, for

the defendant.

Mr. Harvey read the pleadings, which set forth that the plaintiff was a schoolmaster at Quellington, and the defendant a farmer, and that the latter wrote to the Secretary of the York School Board, on the 17th of October last, accusing the plaintiff of indecent familiarity with his (Reynolds') little daughter at the dinner table. Reynolds informed the Board that he should re- move his children from the school. The innuendo alleged in the statement of claim was that the plaintiff had been guilty of indecently assaulting the child, which was denied. The allegations were denied by the defendant, but the falsity and malice of the writing were not specifically denied, and justification and privilege were pleaded.

After a technical question on the pleadings had been settled, Mr. Moorhead addressed himself to the question of privilege, and to prove it was a privileged occasion, called the plaintiff

George Pearson, who deposed : I am the master of the Quellington Government School in the York district. Mr. Williams is the Secretary of the school-board.

Mr. Moorehead contended that the letter was written to the Secretary of the Board who exercised supervision over the school where the defendant's children attended, and was therefore privileged, it coming   within that definition of qualified privi-   lege laid down in Odgers, namely, that it was the duty and to the interest of

the defendant to make such a commu- nication. The learned counsel cited cases in support of his contention, and urged that it lay in the plaintiff to show express malice.

Mr. Parker, in reply, said the defendant must satisfy His Honour before claiming this privilege, that he made it believing it was

true.

Mr. Justice Stone held that the occasion was a privileged occasion, and that the issue would lie upon the plaintiff to show the defendant was actuated by malice.

Mr. Parker said he was instructed that at the time the letter was written, on the 17th of October, and for six months previously the defendant had no children attending the school. They had attended it in April, 1889. He was also instructed that in or about April 1889, during the Easter holidays, the plaintiff was staying at the defend-   ant's house, and doing some painting for him. He remained there three days, and then left, the best of friends with them, and never visited the house after

(Continued on Page 4).

Continued from Page 3.)

wards. The defendant refused to pay him the cost of the painting, and the plaintiff was obliged to sue him in the York Local Court. After he obtained judgment against Reynolds, the latter's wife used strong language about him. and said they would get rid of him. The school went on as before, and the plaintiff would tell His Honour that he was never at Reynolds' house except on this occasion, and that this story of the defendant's was untrue and without any foundation. He would also state there was no truth in the     statement that he tried to induce the child to do the same thing in the school, and that such an allegation as was con- tained in this libellous letter they com- plained of, " all the neighbours have taken their children from it," was absolutely un- true. In support of his contention that the libel was malicious, the plaintiff would give evidence that the defendant had asked him to take his children back, quite recently. If the defendant believed this story when he wrote it, he could not have been so degraded as to have asked that. Not only had he done so, but had offered him some money to drop

the action.

George Pearson said he had kept the Go-   vernment school at Quellington since the 1st of April, 1889. Previous to that he had kept a private school there for five or six months. Reynolds' two children-girls-attended the

Government school from the 1st to the 14th of April, when the school broke up for the Easter vacation. During the holidays, he did some painting at Reynolds' house, and stayed there, three days and a half. He slept there, and had his meals with the family. Reynolds was at home the whole time. Witness parted on first-rate terms with them. He had not been at Reynolds' house since. Reynolds gave him a glass of brandy when he left. He was not guilty of the indecent familiarity with Eliza Railston, at Reynolds' table, alleged in the letter. Reynolds and all the family sat at the table with him. Reynolds never spoke of it to him. The first he heard about it, was from Mr. Williams, the Secretary to the Board, about six months later. He never committed or attempted to commit a similar action with the girl in the school. There were 14 children in the school on the 1st of April, and the number afterwards increased to 16. 'The size of the school was about 24 by 12. Eliza Railston was then 9½ years of age. It would be impossible to take indecent liberties with her in school, without the other children seeing it. He did not know why the Rey- nolds' children left. He sent in a bill for the painting-£2 19s. Roynolds sent the bill back with a note by his (defendant's) son, saying he would "lag " him. He summoned him for the debt after he heard from Mr.

Williams of the charge preferred against him. After writing the letter to Mr. Wil- liams, and after witness put the matter in Mr. Spry's hands, Reynolds came to him and said " Let us be friends, and I will send my children back to you." Witness said   he would write to Mr. Spry, and did write a letter, but Reynolds who was to have called for it, did not do so. About tbree weeks ago, Reynolds came to witness and said: " We might be good friends again ; what will you take to settle it ?" Witness refused to have anything to do with the matter, and referred him to his solicitor. This conversation took place at the school gate. The neighbours did take the children away from his own school, but not owing to the cause Reynolds stated in his letter, but because witness " got boozy in York." They sent them the next week, how- ever. It was not true that all the neighbours had taken the children away on the 17th of October. The school commenced with an attendance of 14, and in October the average was 13. Three inquiries were held by the Board, into witness's conduct ; Reynolds,was present at the last. Witness was still school- master at Quellington.

Cross-examined : He never had the letter in his hands : he did not know whose writing it was, but took it to be that of another schoolmaster, who was Reynolds' clerk;, and who they were trying to get in as school-

master. He did not know who wrote the letter, but Mrs. Reynolds said before the Bench in York, that Mrs. Cook wrote it, and she signed it. The hand-writing "Maud Reynolds" on the book " Bible Narratives," produced, was witness's. He had 16 or 17

children at his school when he was in the " boozy stage." Two of the Cooks were at the Government school-but only two or three weeks, immediately after the opening of the school. When the boy Reynolds came for his slate and books, he said he did not know why they were not returning to school. Maud Reynolds never told him. He did not know what became of the note. He slept in the school-his bed was there,-and he had his meals in the lean-to. ' On behalf of the defendant, Mr. Moorhead;   called :  

Eliza Reynolds, who deposed that she was the wife of the defendant, and had four chil-, dren. Two of them (girls)-Eliza Railston and Elizabeth-attended the Quellington school. The plaintiff was at her house on April 23rd to do some painting. He had only three meals there, and slept, in a little room ad- joining the house, one night. He sat with   her two sons and Eliza that evening, at the

table, on a large stool. Reynolds sat oppo-

site, summing-witness on 'her chair sewing. Pearson was teaching the children. Witness had occasion to go to her bedroom, and as she came out she could see the backs of Pearson

and her daughter as they sat at the table. She could see the position of her daughter's hand. (Witness-here-described what 'she' saw.) She nudged her daughter's elbow and the girl got up, and the next morning witness chastised her for it. She also spoke to Rey- nolds, that morning, about it. Lately, the girl had told her a good deal about Pearson, and said he had been guilty of improprieties with ber. Witness had spoken to Mrs. Cook about Pearson. Mrs. Cook had children at the school, but took them away a long time-six

months' ago. Witness had not allowed her

children to attend the school since the 23rd of April in consequence of the occurrence on that day. Her husband had been summoned for the debt on the painting. It was after the writ in this action was issued. She had never spoken to Pearson since the 23rd of April. Pearson left her house on the 24th of April. Her husband gave him no drink when he left; there was no brandy in the house.      

Cross-examined, Mrs-Reynolds said it was she, and not her husband, who saw what took place. She knew of her own knowledge that the neighbours took the children away when this complaint of hers was made to Mr. Williams at the meeting. She did not know that the school was open, after the 23rd of April and up to October 17th. Her, letter was written to Mr. Gardiner, the In- spector. The names of the neighbours who removed their children in October were Mrs. Cook, Mrs. Keen, and Mrs. Peacock. Pear- son had no dinner at her house on the 24th of April.' Pearson was painting the name on the waggon when she told her husband; Witness, did not speak to Pearson on the evening of the 23rd, about what he had done (Witness was here minutely cross-examined on the alleged occurrence, but adhered to her statement ) She sent the girl off to bed, and       Pearson and the boys went to their room about ten minutes' afterwards. She remained

with her busband for about half-an hour, but did not tell him then,

as he was hasty-tempered, and she feared he might lay hands on Pearson and beat the girl ; but she felt it hard to restrain herself. Pearson had breakfast with them all the next morning. The girl sat by her. When she took the girl away the night before, Pearson sat looking at the boys' sums. When she saw Pearson and the girl, as she (witness) left the room to go to her bedroom, the two were sitting as close together as possible. The girl had her hand by her side on the table, and Pearson gave her knuckles a rap and made her move her hand down by  

her side. Witness did not then think it was because the girl did not do as he wanted her to do. There was a lamp burning on the table and it cast a shadow downwards, but the shadow did not extend to the end of the table where the two were sitting. At that time Pearson was instructing the girl out of the book, "Bible Narratives," which had been produced in Court. She questioned ber daughter fully the next morning. It was before this occurrence that, according to her daughter, Pearson had been intimate with her.    

Re-examined, witness said Mrs. Cook wrote     the letter of the 17th of October. Neither witness nor her husband could write. Her husband knew the letter was going to be written. The mark attached to the name, "Mrs. Reynolds," was hers.

Margaret Eliza , Railston, an intelligent little girl, deposed that she would be ten years of age next Christmas, and was called Mandie Reynolds,"but that,'-said the witness, " is only a nick-name.", She was attending Pearson's school in April, 1889. When she was going to school he used to meet her on the road, and take her into the bush. He met her twice that way. [The witness here de- scribed, in very realistic language, what took place on the first occasion, when she alleged the plaintiff was criminally intimate with her. He gave her a shilling.] He was familiar with her in the school the same day. None of the school children saw what was going on, as their backs were turned to her and Pearson, who were in the corner. Pearson again met her the next day on the way to school and gave her sixpence. (Wit- ness here alleged a repetition of the first act. She also swore that he had committed the same actions towards her in a room where be had his bed). On the evening Pearson was at their house, witness and he were sitting at the table side by side. Her brothers sat by her side, her father opposite, doing sums which , Pearson had set him. Her mother left the room, and when she came back, touched witness on the shoulder, and then sat down sewing. (Witness described the alleged action which formed the subject of the letter). The next morning,   her mother hammered her, after which witness told her everything that Pearson had done, but it was not until a good while after. His (her?) mother used to talk to her and try to coax it out of her. She did not tell her mother about the bed, because she did not like to : but she told her, the next afternoon, about the bush. He used to take improper liberties with her all the   time she was at school, but she did not know whether, he treated the other girls in the

same way.

Cross-examined, witness said Pearson often told her she was not to tell her father and mother. She told her mother about   meeting her in the bush, but did not tell her what he did, either there or on the bed. Her little sister, whom she told, told her mother. Her sister was about eight years of age. The word she had used, was what Pearson used to say to her. (Witness was cross-examined at considerable length upon the occurrence of the evening, but maintained that what she had said was true and that her brother Samuel had heard Pearson ask her, at the table, to do what she had done.) After her mother touched her, they all went to bed. Pearson went a couple of minutes after she got up, and she went with her father and mother. Her mother said nothing to her all that night. She knew that Pearson had brought an action against her father, saying this was all untrue, and that she had to prove it was true She told her sister about what Pearson did to her in   the bush and on the bed, shortly after they left the school.      

To His Honour: When I told my sister   about Pearson, she laughed. When he took me into the bush, my sister was at home minding the baby. He used to call me into the school at dinner time. When I took my lessons up to him he used to write on the bottom of the slate where he would meet me. I first heard that word used by Pearson. I did not know what it meant before he took me into the bush. We have been in York some time. I was a baby when we lived in Albany. I never went to any school before I went to Pearson's school. We live seven miles from Tipperary. The nearest neighbour is Mrs. Wilkin - she lives a quarter of a mile away. There are no men working on our farm. We live 14 miles from York. I have never been in York.    

Elizabeth Peacock, a young girl about   sixteen years of age, deposed that she was a pupil at Pearson's school in January, last year. Pearson met her on the road, one day, and made what she regarded as improper overtures to her, which she resisted, and ran away. Her mother did not let her go to school after that, except with Cook's children, but that was only for a few days, after which, as she could not catch them, her mother took her away altogether. During the time she was at school, Pearson wrote on a slate that he would meet her by the fence below Cook's. She complained to Mrs. Cook, who accompanied her to the fence. There was a large box in the corner of the school on which Pearson used to write. The children could sit behind it without those in front observing what they did.

Cross-examined, she said she never saw   any children sitting down there by the mas- ter's side. She never saw any of Reynolds' children with him there. After what Pearson said to her when he came out from behind a tree on the road, she never went alone. There was no man at the fence when she and Mrs. Cook went there. Pearson did tell her that if she told her mother he would thrash her when she went to school again. He did not chase her. She stood quietly while he said, " Come to me."

Thomas Reynolds deposed that he was the defendant, and gave evidence confirming some of the previous witnesses' statements. After Pearson had left his house about half- an-hour, on the morning of the 24th of April

witness's wife told him of Pearson's conduct. He complained to Mr. Williams, the secretary of the Board," about a fortnight afterwards. Mr. William's ' would not listen to his com-

plaint. On the 4th of June, he again   made his complaint to Mr. Williams,

who asked witness to try Pearson  

once more, and he would send him a letter. Witness took it to mean that Mr. Williams wanted him to send the children again. Witness did not send them. After this, Mr. Gardiner, the inspector of schools, came to York, and Mrs. Reynolds complained to him in witness's presence. Mr. Gardiner

advised his wife to write a letter to the Board, and promised to see into the matter. Witness did not remember the date, but believed it was about a month later, that Mrs. Cook

wrote the letter for his wife. A Board in-  

quiry was heard, but witness and his wife were too ill to attend. It was not true that when Pearson left his house witness gave him a glass of brandy. Witness had no brandy in the house, and neither kept it nor drank it. He never drank spirituous liquors of any kind. He could not say   whether Pearson summoned him before or after the writ in this action was served. 'It was in consequence of instruc- tions contained in a letter received from Mr.  

Horgan that he endeavoured to make friends with Pearson. Pearson and he were both poor men. Pearson had no money, and witness thonght he would be unable to get his expenses if the action were dismissed. Owing to this he made overtures of peace. He never threatened Pearson. He paid Pearson for the painting the same morning he went away, and it was for the same painting that Pearson afterwards summoned him. Pearson made no application for the money, but the solicitor did. Witness did not write anything in reply. He did not, that he was aware of, threaten to "lag" him. Pearson had previous to this action, claimed £50 for defamation of

character.

Cross examined,witness said he never knew Pearson to be guilty of misconduct with his daughter or any other scholar. He did not know the number of scholars in the school in April or October, but he knew they had fallen off. Witness was examined with regard to the occurrences in the kitchen on the evening of the 23rd, and so far as it went his evidence corroborated that of previous witnesses. Witness did not notice his wife go out to her bedroom, nor did he notice Pearson much. The latter had set him a very difficult subtraction sum which occupied all his attention. Pearson obtained judgment against him in the Local Court for the debt for the painting. He did not, when Pearson sent in his account, either write or send a message that he would " lag " him. When witness made overtures of peace to Pearson he never offered him (plaintiff) money to drop the case, nor asked him to take the children back to school.

Re-examined : The night Pearson and his daughter sat side by side, anyone standing or passing at the back of them could see the position of the girl's hands and what she was doing with them. He never bore any malice or ill-will against Pearson.

To His Honour : Eliza Railston is my step child, she has been with me from a baby, and has been a good little girl. I have never seen anything wrong in her. She never told me anything about Pearson. I only know what she told her mother, and I was quite surprised to hear about it. When my wife told me on the morning of the 24th, I asked her why she did not tell me, the pre- vious evening, and she said because she did not want to have any words in the house, and what she told me quite surprised me.

At this stage the Court adjourned till 10.30 a.m., the following day.

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