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SUPREME- COURT-CIVIL

SITTINGS.    

' ' {Before Mr. Justice Stone.)'

---            

WEDNESDAY, AUGUST 13.    

The Court sat at 10.30 a.m.

PEARSON V. REYNOLDS.

The hearing of this case-an action to recover damages for alleged libel - was   resumed, when Mr. Parker, Q.C., proposed to recall the plaintiff in order to rebut certain evidence upon which he had not been interrogated.

Mr. Moorhead said he should object if   this were in any way intended to disprove the plea of justification, as the learned counsel had already had an opportunity of examining the plaintiff, and could not divide his proof.

His Honour said certain statements had   been made, upon which the plaintiff had not been examined. Mr. Parker might question him upon those statements, but could not go beyond them.

George Pearson, recalled, said he was at the defendant's house 3½ days. He painted a waggon. One day was occupied in cleaning it, two in giving it two coats, and half a day in painting the name on it. That could not be done under the time. He also painted doors, chairs, and garden gates. He charged £2 19s.,and obtained judgment for it.

His Honour thought this was opening up   fresh matter.

Witness continuing, said he knew a girl named Elizabeth Peacock. She was at his private school, but never at the Government school. She left the school, because he " dis- charged " her for being a liar. He told her " never to come no more, and she didn't." She was always " kicking up a row with the children, and fighting."

Mr. Parker was about to ask the witness

regarding his alleged misconduct towards the girl, when

Mr. Moorhead said the plaintiff had already denied justification, and could not divide his proof.  

His Honour said the defendant had gone beyond his plea of justification in the evidence adduced, and he thought the ques- tion might be put.

Witness said it was untrue he had met   Elizabeth Peacock on the road, and behaved in the manner described. It was the most damnable lie ever created. He only set her proper copies on the slate ; he did not write on it that she was to meet him at Cook's fence. "It is only her lies," said the witness : " You don't know her. I know her." He never threatened to thrash her, if she told her mother. He went to Reynolds' house on Easter Monday, April 22. He slept on the premises Monday, Tuesday, and Wednesday nights, and went home on Thursday midday. On the night of the 23rd the boys might have been sitting with him. He "was setting on 'em sums, and hearing them reading." It   was untrue that Eliza Railston and he were in the position described by Mrs. Reynolds. It was only her lies. Every night he went to bed at nine o'clock, Reynolds giving him a glass of grog, but he did not know whether it was brandy or what it was. Reynolds said he gave it to him to entice him there. He left the house on good terms with Mrs. Reynolds.

Mr. Parker : Elisa Margaret Railston says you used to meet her on the road to school, and take her into the bush.  

Witness : I meet her on the road ? No, I didn't, sir. It's all lies.  

Mr. Parker: Did you ever meet her in the  

bush?

Witness : No further than meeting on her,   and passing on her on the road.

Mr. Parker : She says you did bad things  

to her.

Witness : It is untrue. Me ? I never did such a thing to her.

Mr. Parker then repeated a portion of the   girl's' evidence, regarding the alleged criminal offence committed upon her.  

Witness : She said so. I say it is a lie. Never was such a thing done or thought of. (Witness here gave vent to a derisive laugh).

Mr. Parker : Is it true ?     Witness : It is not.

Mr. Parker:' Now, just answer yes or no, without entering upon any dissertation. She says you gave her a shilling when you took her into the bush.  

Witness: I did not. I once gave her six- pence for bringing a parrot to my house.

Mr. Parker. She says you used to do bad things to her.

Witness : No sir, I didn't.    

Witness, continuing, said the younger girl, Elizabeth Reynolds, was at the school every day from the 1st to the 14th of April. He used to mark the attendances twice a day- after the reading in the morning, and at one   o'clock.                    

Mr. Parker : Did you ever, in any way,

behave in an indecent manner towards this

Maud Reynolds?          

Mr. Moorhead : I object to that; your Honour.        

Witness : No, I did not.

His Honour : I shall not take that.

To His Honour : I left on friendly terms. The children never came back to the school

after. I never went to the house afterwards. I had been there two or three times before. I never inquired why they had been removed.

Mr. Moorhead, at the request of His   Honour, addressed himself to the question of privilege and malice, and said the matter all came down to a question of the credibility of the witnesses. In other words, whether it was a conspiracy between the defendant and his

witnesses.        

His Honour said the mere fact of it turn- ing out to be untrue would not take it out of privilege. The plaintiff must show that it was untrue, to the knowledge of the defen- dant, when he wrote it.          

Mr. Moorhead cited the case of Clarke v. Molyneux, 3 Q.B.D , 237, and said the dictum there laid down was the defendants made

the statements believing them at the time to be true, although there was no reasonable ground for that belief. At the time this woman came into the room, did she see the hand of her child in such a position as to lead her to believe there was this improper

conduct?

His Honour : Supported by the statements the girl made to her that he was doing the same thing at school.

Mr. Moorhead said this strengthened the defendant's case very much. The question   then arose, was it her duty and interest as a mother to make the report she made subse- quently to the Board. There could be no question that it was. His Honour having already ruled that it was a privileged occa- sion, she had an interest and a duty. The learned counsel then proceeded to re- view the evidence.

Mr. Parker having replied for the plaintiff, His Honour, in delivering his decision, pointed out that the statement of defence, if it had been intended to deny the writing and publication of the letter, had not been pro- perly stated, and said It appeared to have been held in a case cited by Mr. Parker (Bird v. Nunn, L. R., 5 Ch. D.) that where a

defendant did not in his defence specifically deny the statements he might be taken to admit them, and it went so far as to say judgment might be given against the defendant as though he had admitted the plaintiff's claim. He had been very anxious that the case should not have gone off on the plea raised by the defendant namely, that was a privileged oocasion, that the publication set out in the third para- graph of the statement of claim was privi- leged, and made bona fide and without malice, because the questions involved in the plea of justification were very grave and serious ones, which gave him a good deal of anxiety,

and which he should never have consented to

determine had he known that they would be left to his decision, but should unhesitatingly have required that the case should be sub-

mitted to a jury, because in these questions   of fact it was very hard to throw the respons-   sibility of deciding them on one man alone.

Whatever decision he might come to with re- gard to the issue of justification, he must de- cide against one or the other of the parties. He must either decide that the plaintiff ought to stand in the dock charged with a criminal offence, or that the defendant and his family had been guilty of the very gravest conspiracy, and that the little child was as bad a child as it was possible to bring before

a Court of justice. With regard to the ques-   tion of privilege, he had already decided that the occasion was a privileged occasion, because there was a duty as well as an interest upon the defendant in writing the letter he did. His child was a pupil attending the school conducted by the plain- tiff, and certain immoralities were said to have been seen by the defendant, and he alleged his child told him the same were prac- tised in the school. He therefore, not only had an interest with regard to the protection of his child, but he also had a duty to society to bring under the notice of the proper authorities, such charges as these he made in the letter. Therefore, the occasion of the letter was privileged, and the plaintiff, the   occasion being privileged, had to prove that the defendant had maliciously written this letter, that he had not written it bona fide, with the intention of performing a duty to society, or in the interests of his child or family, but that he had written it from spite and ill will towards the plaintiff. The fact, as he,(His Honour) had already said, that the statement made had been proved to be untrue did not necessarily take the case out of the privilege, unless the defendant knew at the time he made the statement that it was untrue, or had means of knowing it was so. He need not go into the question of the defendant's means of knowing, but only into the question of whether he knew it was untrue. Mr. Parker had, he thought, rightly confined him to the pleadings as they stood and were admitted. By those pleadings it appeared that the defendant wrote and published a letter ad- dressed to the secretary of the York District Board, in these words (His Honour, here read the letter which has already been pub- lished). He did not attach much importance to the assertion that all the children had been taken from the school because the sub- stantial part of the libel for it, undoubtedly, was a libel - was the accusation against the plaintiff concerning the position of the child's hands and of having made the child do the same thing in the school. The defendant had   himself acknowledged that he knew nothing   at all about this, except what he was told by his wife. He, therefore, clearly did not know, of his own accord, anything at all   about it. What he wrote in this letter, that he saw this man with his own eyes, was, there- fore, untrue. It was untrue that the child told him the plaintiff did the same thing in the school. These statements being, according to his own account, untrue, he (His Honour) must come to the conclusion upon the case, as it stood before him, at present-that the case was taken out of the privilege, and that the defendant most rely for his defence upon the plea of justification.

Mr. Parker said if His Honour found the     statements were untrue, there could be no justification. If they were false, the justifi- cation fell.  

His Honour : Yes, that is so, Mr. Parker.  

Mr. Moorhead said it had turned out that the plaintiff's statement of claim was untrue, and framed upon lines the plaintiff was responsible for.  

His Honour said it was unfortunate the pleadings came before him as they did, be- cause they should have been taken against the husband and wife. He thought there was a good deal in what Mr. Parker said that, having held the defendant published this statement, and knew it was false at the time he made it, the defendant was precluded from going into the plea of justification.

His Honour then said : I have the evidence before me, and am not going to say further than this, and the parties will be able to judge from my decision what my opinion is. My verdict is for the plaintiff, for a farthing, and I give no costs.

Mr. Moorhead: Thank you, your Honour.

His Honour : The case, so far as the little child is concerned, is one of the most lament- able we have heard in this civil Court, be- cause, whether her statement is true or false, I have no doubt from the answers she made to me, that she is a child of grossly immoral char- acter, and even if the plaintiff was not guilty of the charges she has laid against him, she could not know what she does know unless some man had been guilty of the misconduct to which she speaks. Therefore, I say it is very painful, indeed, to find a child of these

tender years being brought up in the way   she has been, and I must blame those having the charge of the child for her position.

ARMSTRONG V. DUFFIELD.

This was an action brought by Adam William Armstrong against Joseph William Duffield to recover the sum of £24 16s lOd,

on a promissory order. Mr. E. G. S. Hare   was for the plaintiff, and Mr. R. B. Burnside

for the defendant.

It appeared from the evidence that between the plaintiff and his brother, F. G. Arm- strong, there had been a current account for money lent, and other services, and that in December, 1887, the latter gave him a bill of sale over his furniture for £125. The account continued to run on, and in Decem- ber, 1888, F. G. Armstrong gave his brother an order on the Oddfellows' Lodge, Perth, directing them to pay to him all moneys coming to him from the lodge, which had then, and for some time past, contem- plated a sale of certain property belonging to it in Perth, with a view to distributing the proceeds of the sale amongst the members, of whom F. G. Armstrong was one. Subse- quently, judgment was recovered in the

Supreme Court by the defendant against F. G. Armstrong for £24 odd. The Oddfellows sold their property, and, as, therefore, they had moneys in their possession belonging to F. G. Armstrong, the judgment-debtor at- tached the moneys. Before the attachment, F. G. Armstrong's order had been handed by the plaintiff to the Secretory of the lodge who handed it on to the trustees, who dis- tributed the proceeds of the sale of the lodge's property. After the money was   attached, the plaintiff who had a claim of upwards of £121 against his brother, inter- pleaded, and the summons came on for hear-   ing before Mr. Acting Justice Leake in Chambers. His Hononr referred to the Court

at Nisi. Prius, for decision, the following issues raised :-1. Whether the judgment, debtor was, at the date of giving the order, indebted to the claimant, and if so, what sum. 2. Whether the judgment-debtor had by the order, assigned to the claimant the moneys due to him by the Oddfellows' Lodge. 3. Whether the assignment was valid in law. 4. Whether notice of the assignment had been given, and if so, had it been given prior to the 8th of November, Which was the date of the garnishee order.

After hearing the évidence of the plaintiffs and his witnesses, and the arguments of counsel,  

His Honour found that £101 3s. 7d. were due to the claimant from the judgment-debtor, and answered the rest of the questions in the

affirmative.  

No order was made, but it was stated that the answers would be referred to the Judge in Chambers.

The Court adjourned till the 26th inst., when the case of Bateson and Crossland is

fixed to come on.

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