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Les cartes, planches, tableaux, etc.. peuvent dtre film6s d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6. il est filmd d partir de I'angle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'Images n6cessaire. Les diagrammes suivants illustrent la mithode. 1 2 3 32 X 1 2 3 4 5 6 /^?74l^* s UPEU ion coL'irr No. A21 MONTREAL, CANADA. JAMES JOHNSTON, PLAlNTIFr. JAMES S. HUNTER, Dkiendaxt. PLAINTIFFS FACTUM. 3IAC/MA8T10U .\: BA(iCJ, r/aintijjt's A/tiinirj/s. Montreal, Muic/i, 1874. 'J J ^ ^<'f^f>*>"'"-<'*^^^MinHiHqp|ipiiiiHnpip|pi^^ L: ^ tr^aaiaisit/vm ,„^ " "'• ' "' «i-««Ji- ^^^^^^^9 'J^^^^K^^M u 1 Hj ■ 1 1 1 ^^^B ij^^l ■ ■; ''"^^i^H ^H I ^^^^H ^^H 1 !■ ■ ^^^^^ B 1 ^^H ^F w -'■ ■ K "■■* ■TTP" M|jl SUPERIOK CoCBT, | Montreal. j JAMES JOHNSTON, Plaintif. V8. JOHN S. HUNTER, Defendant. Piaiiitill'sues Delendaiit I'or Jibel and slander. The declaration alleges that on the evening of the 4th, November 1872, at a public meeting held in St. Andrew's Church, Montreal, the Defendant, in the presence and hear- ing ot the whole congregation, maliciously and without provocation falsely uttered and published the follovvinn- words of and concerning the Plaintiff. •' I am sorry that some ot the Congregation did not " witness the scene that the Session had witnessed yester- "day, when the minister was called a liar, after our most " solemn services. Mr. Johnston called his minister a liar." The Declaration further alleges that immediately after the making of said charge by Defendant the meeting became greatly incensed and showed signs of dis-approbation, against Plaintiff. That Plaintiff denied the truth of the charge, and called upon the Rev. Gavin Lang who presided at said meeting, and upon another Elder then present to testify to its falsity without avail. That the defendant neither withdrew nor explained said defamatory statement during the subsequent part of the meeting, and that Plaintiff became the victim of an erroneous impression resulting in the passing of a resolu- 121258 lion calling' upon hitn to rcsijru iroin tho eldership ; that the report that the Plaintiff had called his minister a liar had in consequence of Defendant's said statement acquired currency among the members of the congregation of St. Andrew's Church, Plaintiffs friends, the clergy of the I'resbyterian Church of Canada in connection with the Church of Scotland, and the public generally, whereby Plaintiff suffered damage in his reputation, fame and stand- ing as a gentleman and as an Elder of the church, and was greatly wounded in feeling. Plaintiff further alleges the receipt of the following document from the Secretary of the Trustees of St. Andrews' Church. " Montreal, 7th Dec, 1872. "Extracts from the minutes of meeting of the Trustees " of St. Andrew "s Church held ia the vestry on Saturday " the 7th of December instant. " It wab resolved : " That in order to sustain the action of the congregation " taken in regard to Mr. James Johnston (Plaintiff) at its ♦' meeting on the erening of the 4th of November last the " Trustees do now dechne to let a pew to Mr. James John- '♦ston for tho ensuing yoar.-Carried. Mr. A. Buntin dis- senting." That on the receipt of said letter, a correspondence ensued between Plaintiff and Defendant of which the fol- lowing letters are copies : Montreal, 19th December, 1872. "Dear Sir.— One of the young men of my family has •' informed me that Clements, caretaker of St. Andrew's «' Church is instructed not to let me the pew .in Church " which myself and family at present occupy. " The statement made by you in St. Andrew's Church on " the evening of the 4th, November last, that I had called " Mr. Lang a liar in the Vestry on the previous day, seems "to me to have something to do with this action of the " Trustees, and it may help to put the matter right if you " would give me a letter withdrawing that statement, makin<' " ample apology and theu I would use it to inform the " Trustees and any one else who feel interested in me, that •• it was not a fact that I called the minister a liar. " It is only just that the apology should be as extensive "as the charge and I hope you will consent to my acquaintinn* " the Congregation of your withdrawal of the charge, and " that your statement was untrue. I fully expected a letter " on this matter from you, but if nothing comes to hand to- " morrow before I leave my warehouse at 5 p.m. I will take '• it for granted that you give no reply." I am respectfully yours, (Signed) JAMES JOHNSTON. James Hunter, Esq,. DEFENDANT'S ANSWER. Montreal, 20th December, 1872. Sill,— The statement made by you on the evening of the 4th November last, in St. Andrew's Church in the face of the Congregation then and there assembled, " that the truth was not to be found in me and two other members of the Session whom you then named, demands both explanation and apology, and it may help to put the matter rigb' if you would give me a letter withdrawing that statemeii; and make ample apology, and then 1 could use it to inform the Congregation and any one else who feels interested in me, that you have withdrawn such statement. I think it only just that the apology should be as extensive as the charge, and hope you will consent to acquainting the Congregation on Christmas day of your withdrawal of the charge, and that your statement was untrue. 1 fully expected a letter on this matter from you before this, but if nothing comes to hand to-day before I leave my office at 5 p.m. I will take it lor granted that you give no rtply. Respectfully yours, (Signed) J. S. HUNTER. James Juhnston, Esq , I'LAINTIFF'S ANfcJVVEU Montreal, '20th Dec, 1872. Deau Sir.— In answer to your note of the 20th irstant relating to mine of yesterday I would say, if I made any statement at the meeting in 8t. Andrew s Church on the evening of the 4th November last, rellecting on your veracity it was in answer to your grave and unjust charge that I had called the minister a liar. Had I done you any injustice I would bo willing to repair it and apologize, but 1 conceive I have done you no injuslice, and regret that you should not have shown a better spirit in wishing to repair the injury and injustice you have done to me I am ro.spectliilly yours, JAME.S JOUNjSTON, James Huntku, \'lsul(l not he accoptod by tlm I'rosbylory, that the Froiich MiHsioiiSchomowiis not vvouud up, that ho had good reason to believe; that it wouhl be (•(•ntinued, and thereupon in support of his ariruiniMit read an editorial article from page 2()0 of the Novombor number lor 1H7!2, ol' the " IVf fibyterian" a religious magazine and the olUcial organ ol' the said I'resbyterian ('hurch, commencing: " We beg to notify our readers that the French Mission ' Scheme of our church is to b3 continued, &c," riaintilf further remarked : " It was strange said number 'of the "Tresbyterian" had not been distributed in the pews "on the Sunday previous in accordance with the usual 'custom. Mr. 1 ang said that the "rresbyterian" had not been " received in time for distribution on the Sabbath precedin<>-. " Mr. Johnston asked Mr. Lang, if ho was perfectly sure " that he was not misinformed. Mr. Lang, was positive " that the Presbyterian had not come in time for distribu- " tion ; besides it was Communion Sabbath and Mr. Lan^^ "did not think that a lit time to distribute them. Mr. "Johnston (the Plaintifl) said he thought if the minister " vyould take the trouble to inquire particularly, ho would "find that he had been misinformed. Mr. Lang com- " plained of his statement being called in question and " objected to be interrogated in this way ; he was perfectly " sure he was not misinformed." Mr. Lang then proceeded to discuss the article referred to by Mr. Johnston in the Presbyterian, and complained of Mr. Johnston's general mis- conduct. Mr. Johnston persisted in saying that the French Mission Committee was still in existence, proceeded to give some statistics with regard to the church, and deckred that he had everything in black and white, thereupon Mr. Lang complained of Mr. Johnston's conduct. The Defendant (Hunter) then stood up and made the statement complained of by the present action [page 3]. Mr. Johnston said it was a " downright fabrication" and appealed to Mr. Lang to state then publicly if this state- ment was true or false, but Mr. Lang made no answer. Mt: Johnston then referred to one of the elders and asked the Froiicli good reason icrcupon in from page rffibyteriun" ol" the Siiid tch Mission aid number in the pews tlio usual lad not been precedin'^. fectly sure as positive >r distribu- Mr. Lanjr them. Mr. le minister , ho would Lang com- estion and 8 poriectly proceeded ton in the aneral mis- he French led to give . declared ["hereupon • nd made 1 [page 3]. ition" and liiis statu- o answer, md asked urn U, say whether Mr. Huntor't statement was true or not but iiD answor was given. Mr. Morris, the Dclendanfs ottornoy then proceeded to discuss the question of acquisition of St. John's church and was followed by Dr. Campbell Walter Macfarlan and Mr. Kinloch, the discussion resulting in the passmgot a resolution favorable to 'he acquisition ol St. John.s church as a mission church, which was disallowed the next day by the Presbytery, as the riaintiir anticipated. Mr. Lang towards the close of the meeting congratulated the congregation on the pass- mg of the resolution. "Ho (Mr. Lang) thought that the " congregation should not go away with the idea that the •• church officer was to blame or that what he had stated to " him was not substantially correct, he was bound to be " protected in his duty. Mr. Clements (the caretaker) now '• states distinctly that he did not receive the rresbyterian " til this Monday, (4th Nov.) forenoon. Mr. Johnston the •'Plaintifr said that to satisfy himself he had that mormn^ "gone to the Publisher Mr. Lovell. and he told him that ho " had sent the Presbyterian to the Express office on "Saturday, and on going to the Express office they "told him that thoy had forwarded the paper to the " church and had given it into the care of Mr. Clements "Mr. Clements said the Presbyterian had not been " received till that forenoon." The Rev. Mr. Lang next incited the congregation against the Plaintiff in these words: "He was very sorry to bring this matter up « but he did think the time had come for the congregation "to give some expression of opinion m regard to the '• position they occupied in regard to the conduct of their " brother Mr. Johnston," and concluded by saying that "he, Mr. Lang, would ask them in vieio of what the?/ had " heard and seen that night if this state of things was to ".continue." Mr. Johnston again pressed Mr. Lan to disbelieve nade did it lade by one ir to cause rsou against iield in the prominent [presses the fs : " It is a was utterly ' the offence uit becomes le would be notiva; but IS not true )rovocation. emblance of No man is tion, to steal [t is not nee- elementary meeting of oved to be It will be observed that the Plaintift* is charged with having called his minister a liar immediately after a solemn service of the communion. And as if it were not sufficient that the word liar should be once used, it is twice repeated. After said communion service a meeting of the elders took place in the vestry room. Mr. Brodie one of the said elders examined as a witness for Plaintiff*, did not hear the Plaintiff* make any charge against the Rev. Mr. Lang's truthfulness. We have also the advantage of the Defendant's own testimony. He has to admH that he never heard Plaintiff call De- fendant a liar in words, but persists in stating that Plaintiff called in question the truthfulness of the Rev. Gavin Lang at the meeting of the elders. It is in evidence that the only subject of difference that came up at that meeting was with regard to the counting of the tokens or small metallic pieces which had been handed in to the elders on duty, and which were used to prevent imposture, and are an indication of the number who communicate at the Holy Table. It would appear from Mr. Lang's own testimony as well as from that of Mr. Mungo Ramsay, an elder present at said meeting after the communion service, that he and Mr. Johnston, commenced counting the tokens in the vestry room. Mr. Lang, to use his own words, " in the mildest possible way" tried to prevent them from accomplishing this end. Mr. Mungo Ramsay be- came indignant at the clergyman's interference, left the room and never returned, considering Mr. Lang's conduct an insult. A dispute arose between the Plaintiff* and the Incumbent regarding the number of tokens actually given in, on that day, and it is in connection with this dispute that Mr. Hunter contends 14 that the Plaintiff" called in question the truthfulness of the Rev. Mr. Laing. The Plaintiff submits for consideration the following ex- tracts from the evidence of the Defendant [Hunter], the Rev. Mr. Lang, and of James Mitchell, Defendant's principal witness. The trio are hostile to Plaintiff, but the truth peers out of their united testimony to Plaintiff''s complete vindication. James Mitchell, for Defendant. ** The question as to the number of tokens was the only " subject of difference at that meeting of the elders, between " Plaintiff and the Rev- Mr. Lang, and the members, as far • as I can remember." Mr. Lang'a Evidence : Mr. Hunter's eridence : Mr. Lang sajg: " Nat having counted Qubstior— Did the Plaintiff at HI i '' the meeting of the Vestry on Sundaj the 3rd November, say that Mr. Lang's statement was untrue, or what did he Bay f ^NSwiB— It was in reference to the number of tokens. Mr. JoluBton, the Plaintif, had counted a part of them, and Mr. Lang another part. Mr, Lang said there were a certain number that he had counted vihen Mr. Johnston contradicted him^ stating that what he had said was not true, and that there was no better man in the Session than he, Mr. Johnston, and addressed Mr. Lang t» insulting language. . . . QuBaTioM— Wa« it the corrntness of the statement made by Mr. Lang that Mr, Johnston s remarks put in issue ? Answer — It was respecting the number of tokens counted by Mr. Lang which he stated was so many and which Mr. Johnston denied and contradicted him to the best of my recollection. What charming consistency— what a wonderful concur- rence in recollection of events— truly the Plaintiff" is a terrible man. He is accused by Defendant of that of which hia clergyman exonerates him. But must the Defend, uit and his Rv^verend adviser so effectually contribute to his \- indication. Alas how the Doctors differ ! What a discrepancy is here ! the number of tokens then, I made no calculation of the number, and of course Mr. Johnston could not have made any insinuation against the correctness of my calculatior, . . . QoMSTiOH— la it true that you counted a part of the toltens on the occasion in question, and that when you an- nounced the number you counted, Mr. Johnston contradicted you and said that your statement and number 80 counted by you was not correct ? Amswhr — / did not count the tokens, I simply put a few bunches of tens or {■"itlves together, J think tens ; I never atinotinced any number, and const- i/ultfUly could not have been contra- dieted on this point by Mr, Johnston ilness of the allowing ex- iunter], the t's principal t the truth f's complete as the only rs, between ibers, as far laintiff at the oa Sunday the lat Mr. Lang'a », or what did 'ercnce to the Mr. Johnston, mted a part of another part. were a certain ■ a direct contradiction between the Defendant and the Rev. Gavin Lang, being a wit- ness well disposed towards him, as to the cause and manner of Mr. Lang's truthfulness being called in question. The Defendant states that Plaintiff called Mr. Lang h truthfulness in question by contradicting the announce- ment, that Mr. Lang made of the number of tokens counted by him. Mr. Lang states that he did not count the tokens, that he made no announcement of the number, and that consequently he could not have been contradicted by Mr. Johnston. Mr. Mitchell Defendants principal witness, says that this was the only subject of difference. The inferrence is plain the Defendant and the Rev. Mr. Lang in their anxiety to make out some foundation for the wanton charge made against Plaintiff, have given contradictory tes- timonies which telescope and annihilate each other. The fact is, and it appears from the testimony of the Rev. Gavin Lang himself, that instead of the Plaintiff calling in question Mr. Lang's truthfulness, the latter rather called in question the truthfulness of the Plaintiff as may be seen from his answers to the following questions. Question.— Did you yourself call in (question the correctness of Mr. Johnston's calculation of the number of tokens. Answer.— 1 remember making a remark to the 16 effect that as a large number of the tokens had not been counted, Mr. Johnston or any other man could not say how many there were who communicated. It was to Mr. Johnston that I made the remark. . . . " He [plaintiff] insisted against all my remonatrances that his calculation was the correct one and rudely called in question my word and the words of the elders who remonstrated with him." Question. — Was it by insisting that 200 was the correct number of communicants, that Johnston called your truthfulness in question on the" gathering of the elders. Answer. — Partly. Question. — In what other respect did he call your truthfulness in question on the said occasion, ANSWER.—Chiefly in connection with his persistence in giving incorrect and purposely damaging statements during the course of certain previous proceedings which took place at times before the Srd. November last past regarding the nimher of communicants in St. Andreiu's Church. It will be seen that this answer does not refer to the occasion in question, namely the 3rd November, and even this statement is contradicted by a subse- quent part of the Rev. gentleman's own testimony, viz : Question. — Did these statements (the statements referred to in last answer) call your truthfulness in question. Answer.— TAcy covHd not inastuuch as to the best of my recollection I never condescended in any cases or occasions such as those specified upon any definite number of communicants in connection with St. An- drew's Church. (( ms had nut ' man could micated. It lark. . . . ^monstrances and rudely ords of the [)0 was the iston called ring of the 18 call your n. persistence ; statements dings which \er last jpast i. Andreiv's lot refer to November, 3y a subse- imony, viz : statements hfulness in to the best a any cases ny definite ith St. An- 17 So that the Rev. Gentleman actually admits that his truthfulness was not called in question by these statements with regard to the number of communi- cants, and it turns out that these Statements were made long previously and not at the meeting of the 3rd November; which reduces the question of how his truthfulness was doubted to the single issue pre- sented in the question to which he had answered " partly." ' Seeing too that though asked he cannot give any other matter in connection with the 3rd of November in which his truthfulness was called in question he might have answered to question *' wholly," instead of "partly." ' Now to any sane mind it is plain that instead of Mr. Johnston calling in question Mr. Lang's statement, Mr. Lang was actually calling in question Mr. John- ston's statement. Mr. Lang himself tells us, Mr. John- ston had counted the tokens— consequently he should know what the number was— and Mr. Lang tells us " he the Plaintiff insisted against all my remmstrances that his calculation was the correct one." Who is here calling in question the statement of the other ? will any one hesitate to say that it was Mr. Lang who was questioning (reflecting on the truthfulness) of Mr Johnston's statement ? But some men are particularly sensitive in point of truthfulness, and addicted to fiincymgj that either contradiction or difference of opinion is a reflection upon their veracity. Indeed the conduct of the Rev. Gentleman with regard to what occurred at the meeting of the third of Novvember affords us a good index of the grounds of his complaint against Mr. Johnston's conduct at 18 i:' the meeting of the 4th November, where the Plaintiffs language was simply of rai interrogatory character with regard to the delivery of the " Pres- byterian " but which was construed by the Rev. gentleman into a contradiction of his word and a re- flection on his truthfulniss ! ! Fortunately we have an additional index in the 'Roy. Mr. Lang's own deposi- tion of this peculiar sensitiveness. After having narrated in his own words and in general language the circumstances that occurred at the meeting of the elders on the 3rd November he is asked the following question. Question. — Do your previous answers give a correct idea of the conversation between yourself and the Plaintiff, and do you give the Plaintiff's part of that conversation in his own word,i as far as you can remember ? Answer. — Yes ; so far is recollection can serve any man, and T gave the Plaintiff's part of the conversa- tion as nearly as I can remember in substance. Question. — Did you not say immediately after the last preceding question had been read to you, " that question reflects on my truthfulness " or other words to that effect ? Answer. — Certainly not. In any ordinary case further interrogation would have been desisted from particularly where the witness was a clergyman, and an appearance of frankness would have thwarted the attempt to elucidate what becomes an important index of the value of testimony. The witness was then asked the following. Question. — "What then did you say immediately after said question was read to you. ^here the erpogatory he "Pres- the Rev. I and a re- ^e have an ^n deposi- Is and in iccurred at nber he is e a correct f and the Lrt of that I you can serve any conversa* ce. ' after the ou, " that her words Ion would he witness acss would it becomes mediately 19 Answer. — 1 tusked in [)ii.sfsinl6>*nd attacked by Plaintiff— or he also would liave bee would excited indignant, or agitated. • id that The foregoing considerations are more valuabljf® °^^k than direct testimony — of a dozen of witnesses speakin of the order of events twelve or eighteen months afte the meeting. In fact for any witness to speak j90«iVm?i 'g of lentar}! The c ■ a mos of the order or priority of said f v«nts, is only to sho^ an amount of foolhardiness sufficient to discredit hi testimony. illingn irt W( ited aga If the Plaintiff had made said charge before Defen ^^w a p dant spoke up to which time the meeting was orderlj the Mr. Hutchison would have heard it, whereas it i quite probable that the charge of want of truthfulnea on the part of the Defendant was made during th remarks of the Plaintiff which followed Defendant' statements. During these remarks the Plaintiffs wit ness, Mr. Hutchison states that Plaintiff styled defen dant's charge a "downright fabrication" an accusa tion very near akin to that of want of truthfulness- Mt. Hutchison also remembers the Plaintiff makinj '^ ^® ^^ what he terms a mere incidental reference to th( ^^^' T manner in which Defendant kept his minutes and sayi *^® ^^ that such reference does not appear in his short han notes because it was incidentally made, but wouldB^^^^^S have appeared therein had a direct charge been made* *^® ^ However, it is common in ordinary and even in parlia-f®^^^ ^^ "lam witness yesterd our mo miniate The E scusatio ■ he mei ith cal 80 Ir. Mitchell an lentary language to state that mere minutea or lid make himf^i ^co^ds may not be correct or correctly kept, and such id did make De ells us that whe fF he Defendaii 3ctly cool." )uld liave bee more messes speakin m months afte ,atements do not imply or insiimate malice, but that le party keeping such records has kept them ineor rcct- In any case even supposing Plaintiflf had made the large before Defendant's statement, which is improb- had not beei >le, and disproved by the mass of evidence in the record, would seem that it was not without considerable truth id that in point of fact the circumstances justified valuabL ^^ making of such charge. The charge of Defendant on the other hand, was * a most serious nature, deeply affecting the sUndi' speak 2>o«i^'vc7i »g of the Plaintiff and which owing to the un- is only to shoD ng was orderlj t, whereas it i of truthfulnes ide during thi ed Defendant'i Plaintiffs wit ff styled defen m" an accusa f truthfulness illingness of those who should have acted a better to discredit hi '-^^ ^^nt uncontradicted to a meeting exaspe- ited against him. The very words of the accusation before Defen ^^^ ^ premeditation on part of Defendant, " I am sorry that some of the Congregation did not witness the scene that the Session had witnessed yesterday, when the minister was called a liar, after our most solemn services. Mr. Johnston called his minister a liar." The Defendant uses the word " liar " twice in his sensation. His sentences a^e finished and complete. ' he meant as he says he did to charge the Plaintiff ith calling the minister a liar *'in effect," why laintiff makini '^ ^® ^^^ supplement %hQ first word "liar" as he de- ference to th( '^®^- The true intention is shown by the repetition nutes and say ' *^® ^ord « liar." The alleged offence is magnified his short han(W adding the words " after our most solemn service " de, but woul 'ge been made [J' eaning the Communion Service the chief sacrament the Presbyterian Church. The resolution too even in parlia#^s®^ ^7 *^® meeting "That in view of the fact that Mr. 36 Johnston cannot work liarmoniouely with the minister and his brother elders, he be requested to resign hia office as Elder," shows that the charge is the motive of the resolution. In connection with the whole cir- cumsiances of this case, it is quite obvious that there was a disposition on the part of the Defendant, the Rev. Mr. Lang and some others to completely crush out the Plaintiff. The worst construction was put upon his conduct in enquiring why the 'Presbyterian' had not been delivered. But it is to to be remembered that there was a proposition that night submitted to the congregation against which the Plaintiff had pre- viously dissented when it came up in session, that he had the greatest interest in maintaining his views against the acquisition of said St. John's Church, and that it was natural that ho should look upon the absence of the the " Presbyterian " in the pews as a suspicious circumstance. He maintained the posi- tion he took with warmth and in plain language, being a man of business and unacquainted with the rhetorical refinement in controversy that we would expect from a professional man like Defendant. We must not therefore judge Plaintiff's language by too severe a standard. There is no doubt that Plaintiff became excited after Defendant's charge and after he could get no retraction of it or exculpation from his brothers. He would not have been human if he had not become excited and indignant at their ignoble silence, when the feeling of the meeting was running high against him. He had taken precautions to ascertain whether or no the * Presbyterian ' had been sent to the ^'^urch, iij.r. Lang's rciison that he did not consider com- munion Sunday a proper day to distribute the Presby^ 87 tarian-would seem an unnecessary one if they had not actually been received. During the lost part of the meeting 4th November, the caretaker of the Church came forward and explained that the said * Presbyterian' had not been received until Monday. Whereupon the Plaintiff explained to the meeting that he had gone to the Publisher wlu, informed him that it had been sent to the Express Office on Saturday and that he subsequently went Uy the Express Office, and was here informed that it had been sent with a carter to the Church on Saturday. It is somewhat worthy of note that the Defendant at the trial resisted proof that the "Presbyterian" had aaually been sent to the Church on Saturday It IS further noticeable that the Presbytery of Montreal, which met on the following day, refused to accede to the terms oi he resolution passed at the meeting of 4th November favorable to the acquisition of St Johns Church and sustained the views which the Plaintiff had advocated. Regarding the damage sustained by Plaintiff, there can be no doubt; several of his friends testified to the currency of the rumor originated by Defendant's remark and that Plaintiff was deeply wounded in feeling thereat, a^ any man of ordinary sensitiveness would have been. Dr. Murray tells us that the remark was calculated to cause indignation against the Plaintiff As to the amount of actual damage sustained, it is for the Court to determine. The claim for compensation cannot be sustained- the injury, if mdeed there was any injury sustained 38 by the Defendant, is not comparable to that sustained by Plaintiff. There is nothing to disprove the accusation made by Plaintiff against Defendant's truthfulness in fact the proof of record goes to show that Defendant was per- fectly justified in the statement. There is no proof that any one believed it. It acquired no currency and could do Defendant no injury, whereas the remark made by Defendant against Plaintifl was a matter of " gossip " in social circles, on the street, ' among business men, and members of other churches. There is no proof that it was believed by any one or that it caused or was calculated to cause the slightest pang of pain to Defendant's feelings. Defendant did not even notice the remark of Plaintiff. He sat quiet and appropriated it as a well-merited rebuke for his slanderous statement, never deeming it of any value until his solicitors in their modesty estimated his injury at the mere tride of $20,000. The witness, James Mitchell, for Defendant, states that the Plaintiff made the general remark that the truth was not to be found in him [witness], nor in the Defendant, nor in Mr. Moi ris, Attorney for Defendant. If Mr. Mitchell's feelings can be regarded as any index of the amount of suffering that would be endured by such a remark, his deposition affords some index of the amount of those sufferings. Mr. Mitchell says : " I have not suffered anything in wounded feelings " since the meeting of the 4th November by reason of " the expressions made by the Plaintiff towards me at "that meeting." The same witness also gives the following testimony : Question.— Did any remarks made at said meeting sustained made by fact the was per- no proof ency and 3 remark natter of , among ly one or slightest iant did sat quiet e for his ly value ited his it, states that the )r in the fendant. ly index ured by ndex of 11 says : feelings eason of Is me at ves the nee ting 89 i)f4tli November by Plaintiff concerning the Defendant. lessen your respect for or good opinion of Defendant. Answes.— If I believed the remark was true it would lesson my good opinion and respect for the Defendant, Question— Did you beliove that Plaintiffs remark;-! (concerning Def^^ndant were true. Answi:r.~I did not. QuESTiox.— Seeing then you believe these remarks were not true do they Iess?n your good opinion or res- pect for Defendant Anfwer. — I cannot say whether they do or not. Here then we have a w^itness declaring in the first instance that his own feelings have not been Avounded by areniark which he alleges was made to him exactly the same in terms as that applied to Defendant, and further stating that he cannot say that the remarks applied to the Defendant lessened his good opinion of the latter. At the same time while holding these views the said witness (Mitchell) gives the following extraordinary testimony when examined in chief for Defendant. Question.— Would you consider $10,000 too much to be given to Defendant in consideration of such charge made against him by Plaintiff Answer.' -I would not consider that double that sum would compensate him for the charge. In fact if I was on a jury I would not hesitate to award the sum of $20,000 to Defendant as damages. We have here a witness who declares he cannot say whether or no his good opinion of the Defendant is the same time he declares that if he were on a jury he would .award him $20,000 damages. No remark is necessiiry to characterize such evidence as it deserves. But Mr. Mitchell's extreme liberality is somewhat ■'Striking. However $20,000 may be a small sum to Mr. Mitchell. He is a man of peculiar opinions, one of which is « that a rich man can get along without a '•haructcr," a somewhat extraordinary doctrine for an elder in the Church to promulgate. Perhaps the best solution of this exti-aordinary answer may be found in Hnother portion of Mr. Mitchcll'.s evidence, couched in these modest terms. "I am a man who am pretty positive in my opinions," to which the Court will have no difficulty in assenting, gauging them at the same time by another measure. It is very important to learn that from sucli a witness notwithstanding that he was present at tlH) meetings, of the 3rd and 4th November, he never heard Mr. Johnston use the word 'iiar,' and that he never heard the Plaintiff apply such a term to any person or to any collection of per- sons though he has ' a friend ' who was aware that Mr. Johnston did apply such term to some parties unknown. He objects however to declare the friends name, notwithstanding that his testimony might be important to Defendant in the suit. *The friend' was not willed as a witness ; probably he hr/i an en- gagement. Mr Mitchell being a man of very positive opinions, ^^aB asked the following question. Question— What was the most outrageous thing you ever saw the Plaintiff do at any meeting of Session ? Answer— The most outrageous thing I ever saw the Plaintiff do was trying to take the minute book out oi the Defendant' hands and attempting to drac itoutof his hands. ^ 41 Here too perhap., Mr. Mitchell invokes the aid of the ngure which his clergyman did when he discover- ed Mr Johnston "reaching" for the plate of tokenn with the eye" « if not with the hand " Further, Mr. Mitchell is asked what was the most outnigeou.s piece of conduct on the part of the Plaintifl" at the meetnig of the 4th Novemher 1872 Ansvver-.ln standing up and asking Mr. Lang why he . Presbyterian' was not delivered in the pews the day previous, and on Mr. Lang saying that they had no been received. Mr. Johnston pointing his finger at him and asking him Mr. Lang if he was sure that he was stating what was correct as regards the dehveiy of the paper as he knew for a fact that the paper had been delivered on the previous Saturday and that the non-delivery in the pews was for a purpose that he had it in proof in his pocket in black and white that the paper had been delivered on Saturday. This is a considerably modified statement ot the occurrences as narrated by Defendant and Mr Dennistoun. It shews that the discussion was of an interrogatory charaxjter and when discounted to make allowances for the disposition of the witness to magnify the Plaintiff's offending is a strong confirmation of the short hand notes of Mr. Hutchison which after all must be the great guide to the court in this matter. Most of the Defendants witnesses if not all have ad- mitted that they had forgotten the order of events at the meeting of the 4th November. Mr. Hutchison wrote out his notes immediately after that meeting. He IS an evnnrionn/^^ C4- i . „ ° r ♦»,• n «— ^« ^«>ciiugii4peer, nas oeen an officer ot this Court, and one of the official Stenographers on Koyal Commission which recently sat at Ottawa. His 42, notes and liisovvn testimony go couciusivt'ly to show, and they are supported by a mas8 of other testuiiony; that the attack in this case was coninienoed hv the Defendant. Plaintiff has not had the advantnui' Uiat he L:;av'e Defendant of telling his own story as a witiieas in the case. The Defendant . That said charge was utterly false as shown by t!ie Testimony of Defendant himself and his own friends. 4. That Defendant never withdrew, explained, or apologised for said statement, thougli ample oppor- tunity was afforded. 6. That any counter charges made by Plaintiff against Defendant were in answer to said charge and were justified by the circumstances. 6. That Defendant has suffered no damage by reason of said counter charges— whereas the Plaintiff ha» been brought into much scandal, with his friends and the clergymen and members of the Presbyterian churcb and the public generally and has been deeply wounded in feeling. 7. That Plaintiff has established all the material allegations of his declaration. The Plaintill submits his case with confidence in th