SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5450, 14 September 1878, Page 3

SUPREME COURT—IN BANCO.

Fill DAY, SePTEMDEI! 13. (Before their Honors the Chief Justice ami Mr. Justice Richmond.) AUIIOW V. HABIJIXC. The Court gave judgment in this case follows : This is an action of libel. The plaintiff is returning officer for the Comity of Waipawa under the Regulation of Local Elections Act, 187 S, and as such conducted aa election for the riding of Waipnkurau held in July, 1877. The candidates were Mr. Sydney. Johnston and Mr. H. It. Russell, There were 119 votes polled for Mr. Johnston, and 103 for Mr. Russell. Mr. Harding, the defendant, voted at the election. He was entitled to five votes, and it appoars’that he.give them to Mr. Johnston. Soon after the election the plaintiff went into the shop of Mr. Harwood, a bookseller and stationer at Waipawa, and a witness for the defendant. Mr. Davidson, who was called as a witness for the plaintiff, vras also present. There was some conversation about the result of the election, fn the course of the conversation the plaintiff said “ that if Mr. Harding (the defendant) had voted for Mr. Russell, as he promised, or said he would, Mr. Johnston would only have had a majority of ‘one.” This-is the. account of the matter given by Harwood and Davidson. The plaintiff himself made a different and much vaguer statement of what occurred. It is unnecessary to rehearse his evidence at length, Amopgst other things he said : “ The general supposition expressed' was that Mr. John Harding did vote for Mr. Johnston. There was no doubt about it. As a matter of opinion I joined in mysolf.” The alleged libel consists of a letter dated October 1, 1877, addressed by the defendant to the Chairman of the County Council, in which, after referring to the election, ha writes thus ; “Your returning officer did unlawfully tell sunrlry persons at Waipawa how I voted on that occasion. It was my intention to have laid an information against him, but have been advised to lay the case before the Council instead. I enclose statements of parties on the subject, which please return to me.” The enclosures referred to are two letters—one from Davidson and one from Harwood, each of which reports the words used by the plaintiff in Harwood’s shop to the effect I-have above stated. On the trial I ruled that the defendant’s letter to the chairman was written on a privileged occasion. I cannot say that ! have overbad any doubt npon that point. The County Council have the power to appoint and remove the re- , turning officer for local election?, and are without question the proper authority to whom cbmlaints as to the conduct of those functionaries . should be addressed. It is nothing to the purpose to say that there are penalties imposed by the Act for improper conduct on the part of returning officers, and .specially for the particular misconduct imputed to the plaintiff. Such penalties do not afford as complete a remedy os the removal of the offender; and an aggrieved elector is not bound to prosecute. ■But whilst this ruling in favor of the defendant, I thought it prudeat to allow the case to go to the jury on the question whether or not there was actual malice on the part of the defendant, reserving leave to move to enter a nonsuit if the-Court in banco should be of opinion that there was no evidence of actual malice to go to tho jury. The jury fouad a verdict for the 'plaintiff, with £ISS 15s. damages. The question now is whether that verdict cau stand; because if there was no evidence of actual malice it was my duty to have withdrawn the case from the jury. In bis letter to tho Chairman the defendant makes a direct accusation .that the plaintiff ha? committed an offence under the Act, He says. Your returning officer did unlawfully toll.” Now it will bo seen that, save and except the word “ unlawfully,” the defendant was justified ,by bis information, and in my own opinion, by the facts of the case, in making this statement What tho plaintiff told Harwood and Davidson, did necessarily imply that the defendant's five votes had been given to Johnston. To say that if the defendant had voted differently Johnston’s majority would have been reduced was to intimate that the defendant had actually voted for Johnston. Five votes subtracted from Johnston and given to Hassell would (os the plaintiff, is reported to have said) have reduced the difference between the candidates by ten votes, and Mr. Johnston would have been elected by a majority of one only. Therefore,'if Harwood and Davidson wore to bo believed, tho plaintiff did tell them by necessary implication how the defendant voted. It does not, however, follow that tho plaintiff bad committed an offence under the Act. Ho called the scrutineers of the two candidates to prove .that everything had been regulaidy conducted in the polling booth, and that the prescribed regulations for maintaining secrecy bad been observed. The plaintiff himself protested that he had no official knowledge of the fact, and represented himself as merely joining with others in expressing tho general opinion of the neighborhood. I with to give him credit for the truth of these assertions. It may well he that ha was only joining in the • tittletattle of the village, and was not revealing something which, as returning officer, he had accidentally or otherwise discovered. Still, the onus of ; proof being on tho plaintiff to show actual malice, I have to ask whether the defendant was not justified in a contrary belief. .The plaintiff gave no evidence to show that the vote of the defendant could have become known except by conjecluro, or by his

1 own improper revelation of knowledge officially obtained. As this is a nonsuit point Xdo not. resort, as against the . plaintiff, to the defendant’s own evidence, from which it appeared that ho had told no ono how he voted; hub looking at tho. evidence as it stood at the close of tin plaintiffs c»«e, there was nothing to show that a belief on the part of the defendant‘that his vote had been improperly disclosed was not a reasonable belief. And here I must observe, that a returning officer who conducts himself in so indiscreet a fashion as the plaintiff’s own evidence shows_ him to have doue, cannot coraplaiu if his actions are mis-, construed by those whom they affect. It was most improper in Mr, Arrow to take part in the gossip about tho election. It is'easy to see that tho absolute preservation of secrecy in tho polling booth must be difficult, especially when [the voter polls an unusual number of votes, tho juxtaposition of the papers, or some other slight circumstance, may easily, I should say, enable those who have to count the votes to identify the voter. People who hear a returning officer utter statements implying a knowledge of tho way in which a particular elector has cast his vote*, are naturally led to suppose that he may have had some extraordinary means of -information, due to his official position. Iu ‘cases of this class, credit for a bond tide belief iu the statement made is prima facie to be given to the defendant. Whether tho belief were correct or not is not the question. EoiuA fide belief justifies tho statement, the occasion being privileged. There is no doubt about the law applicable to the question. The cases cited by Mr. Uornford, of Somerville v. Hawkins, 20 L.J., C.P. 131, and Spill v. Monlo, L.R. X Exch. 232, arc quite in point. Possibly I did not succeed in making the jury understand that they were not to consider whether the accusation was true, but whether it was reasonably believed to be true by the defendant. I am now satisfied on a careful review of the evidence that, there being none tendered of actual malice save the terms of Mr. Harding’s letter, those terms in themselves will nob justify the inference of actual malice, and that a nonsuit must be entered. Rule absolute to enter a nonsuit, with costs of the rule. NICHOLSON v. MACLKAN. This case now came before tho Court in the shape of a demurrer b> tho declaration. Mr. OlHvier and Mr.. EUzlierberfe appeared in support of the demurrer, and Mr. Travers and Mr. Quick against it. The plaintiff in the action claimed that defendant should be restrained from using the name of Nicholson and Co., from collecting moneys purporting to be due to the firm, aud from advertising that he was entitled to act on behalf of the plaintiff or of the firm of Nicholson and Co. The Court having heard the arguments of the learned counsel, tho demurrer was overruled, but leave was given to plaintiff to plead without payment of costs. . Their Honors both expressed an opinion that the declaration was loosely drawn, Mr. Justice Richmond observing that in this and inmy obhei; cases that came before tho Court there was a want of the matter in issue being stated in good plain English. In this instance there was just enough in the declaration to keep it on its feet and enable it to stagger along.