So much for the great question involved in this case. We pass on to the

second branch of this rule, which has reference to alleged misdirection

in respect of the second count of the declaration, which is founded on

the article in the “Times” commenting on the debate in the House of

Lords, and the conduct of the plaintiff in preferring the petition which

gave rise to it. We are of opinion that the direction given to the jury

was perfectly correct. The publication of the debate having been

justifiable, the jury were properly told the subject was, for the

reasons we have already adverted to, pre-eminently one of public

interest, and therefore one on which public comment and observation

might properly be made, and that consequently the occasion was

privileged in the absence of malice. As to the latter, the jury were

told that they must be satisfied that the article was an honest and fair

comment on the facts,—in other words, that, in the first place, they

must be satisfied that the comments had been made with an honest belief

in their justice, but that this was not enough, inasmuch as such belief

might originate in the blindness of party zeal, or in personal or

political aversion; that a person taking upon himself publicly to

criticise and to condemn the conduct or motives of another, must bring

to the task, not only an honest sense of justice, but also a reasonable

degree of judgment and moderation, so that the result may be what a jury

shall deem, under the circumstances of the case, a fair and legitimate

criticism on the conduct and motives of the party who is the object of

censure.

Considering the direction thus given to have been perfectly correct, we

are of opinion that in respect of the alleged misdirection as also on

the former point, the ruling at _nisi prius_ was right, and that

consequently this rule must be discharged.

_Rule discharged._[472]

PURCELL _v._ SOWLER

IN THE COURT OF APPEAL, FEBRUARY 3, 1877.

_Reported in 2 Common Pleas Division Reports, 215._

Action for libel.

The libel was contained in a report, published in a Manchester

newspaper, by the defendants, the proprietors, of the proceedings at a

meeting of the board of guardians for the Altrincham poor-law union, at

which _ex parte_ charges were made against the plaintiff, the medical

officer of the union workhouse at Knutsford, of neglect in not attending

the pauper patients when sent for.

At the trial it appeared that the charges were unfounded in fact, but it

was admitted that the report was accurate and _bona fide_. A verdict was

taken by consent for the plaintiff, with nominal damages and costs,

judgment to be entered accordingly, with leave to move to enter judgment

for the defendants, if the court should be of opinion that the

publication was privileged.

The Common Pleas Division refused the motion, ordering judgment to stand

for the plaintiff. 1 C. P. D. 781.

The libel, &c., are set out at length in the report in the court below.

The defendants appealed.

MELLISH, L. J.[473] I am of the same opinion. We are asked to extend the

law of privilege as to the report of proceedings of a public body to an

extent beyond what it has as yet been carried. In Lord Campbell’s time

it was supposed that the privilege only extended to the proceedings in a

court of law. A report of such proceedings has always been held

privileged, because all her Majesty’s subjects have a right to be

present, and there would, therefore, be nothing wrong in putting the

rest of the public in the position of those who were actually present.

The privilege has been extended to the publication of debates in

parliament, and properly extended, as they stand on the same principle

as the proceedings in courts of law. There is no doubt this distinction:

that as to courts of law the public have a right to be present, but they

are only admitted to the debates in either House of Parliament when the

House chooses to permit them to be present. The House has a discretion,

but when the debates are held in public, it is clear that a newspaper

ought not to be held to commit an offence by putting those who were not

present in the same position as those who were. It is argued that this

privilege ought to be extended as to a variety of other public bodies. I

express no decided opinion, and I desire, with the Lord Chief Justice,

to be understood as expressing no opinion; but at the same time I am

clearly of opinion that the privilege ought not to be extended to such a

case as the present. A board of guardians have a discretion whether or

not they will admit the public to their meetings; and whether they

choose to exclude or choose to admit, the public have no right to

complain. But I cannot think that the courts of law are to be bound by

the mode in which the guardians exercise their discretion in admitting

or excluding strangers. Although they admit the public on an occasion

when _ex parte_ charges are made against a public officer, which may

affect his character and injure his private rights, it is most material

that there should be no further publication; there is no reason why the

charges should be made public before the person charged has been told of

the charges, and has had an opportunity of meeting them; and I cannot

see any inconvenience in holding that the publication is not privileged;

in holding otherwise we should be depriving the individual of his rights

without any commensurate advantage. The law on the subject of privilege

is clearly defined by the authorities. Such a communication as the

present ought to be confined in the first instance to those whose duty

it is to investigate the charges. If one of the guardians had met a

person not a ratepayer or parishioner, and had told him the charge

against the plaintiff, surely he would have been liable to an action of

slander. I do not mean to say that the matter was not of such public

interest as that comments would not be privileged if the facts had been

ascertained. If the neglect charged against the plaintiff had been

proved, then fair comments on his conduct might have been justified. But

that is a very different thing from publishing _ex parte_ statements,

which not only are not proved, but turn out to be unfounded in fact. I

am, therefore, clearly of opinion that the occasion of the publication

was not privileged, and that the judgment for the plaintiff ought to be

affirmed.

_Judgment affirmed._[474]

BARROWS _v._ BELL

SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER, 1856.

_Reported in 7 Gray, 301._

SHAW, C. J.[475] The present is an action of tort, brought to recover

damage for a publication alleged to be a libel upon the plaintiff,

consisting of an article published in the Boston Medical and Surgical

Journal, under the direction of the defendant.

The article alleged to be libellous is headed, “The suits against the

Massachusetts Medical Society,” and it proceeds to give a brief account

of the proceedings of the medical society, which resulted in the

expulsion of the plaintiff from his membership, for misconduct.

Whatever may be the rule as adopted and practised on in England, we

think that a somewhat larger liberty may be claimed in this country and

in this Commonwealth, both for the proceedings before all public bodies,

and for the publication of those proceedings for the necessary

information of the people. So many municipal, parochial and other public

corporations, and so many large voluntary associations formed for almost

every lawful purpose of benevolence, business or interest, are

constantly holding meetings, in their nature public, and so usual is it

that their proceedings are published for general use and information,

that the law, to adapt itself to this necessary condition of society,

must of necessity admit of these public proceedings, and a just and

proper publication of them, as far as it can be done consistently with

private rights. This view of the law of libel in Massachusetts is

recognized, and to some extent sanctioned, by the case of Commonwealth

_v._ Clapp, 4 Mass. 163, and many other cases.

The Massachusetts Medical Society were not a private association; they

were a public corporation, chartered by one of the earliest Acts under

the Constitution, which was amended and their powers confirmed by

several subsequent Acts. Sts. 1781, c. 15; 1788, c. 49; 1802, c. 123;

1818, c. 113.

The charter invested the society, their members and licentiates, with

large powers and privileges, in regulating the important public interest

of the practice of medicine and surgery, enabled them to prescribe a

course of studies, to examine candidates in regard to their

qualifications for practice, and give letters testimonial to those who

might be found duly qualified. They were authorized to elect fellows,

and vested with power to suspend, expel or disfranchise any fellow or

member, and to make rules and by-laws for their government. No person

could be a member, but by his own act in accepting the appointment.

This society was regarded by these legislative Acts as a public

institution, by the action of which the public would be deeply affected

in one of its important public interests, the health of the people. The

plaintiff, by accepting his appointment as a fellow, voluntarily

submitted himself to the government and jurisdiction of the society in

his professional relations, so long as they acted within the scope of

their authority.

The _status_ or condition of being a member of this society was one of a

permanent character and recognized by law—one in which each member has a

valuable interest; and that it was so regarded by the plaintiff is

manifest from his effort to obtain a restoration to it by a judgment of

this court, by a writ of mandamus.

We think it obvious that the subject-matter of the

complaint—dishonorable conduct, a fraudulent transaction between the

plaintiff and another member of the profession and of the same

society—was within the scope of the authority conferred by law on the

society; and that the direction of the court, that their action was

conclusive upon the plaintiff, was correct. As to the legal proceedings

set forth in the supposed libel, it was admitted by the plaintiff’s

counsel that the account there given of those proceedings was

substantially true.

If then this charge of dishonorable or fraudulent conduct by the

plaintiff, in his dealings with Dr. Carpenter, was within the

jurisdiction of the medical society, and proceedings were instituted and

carried on to their final determination in the expulsion of the

plaintiff from his fellowship, then the proceedings might be rightly

characterized, as in the case of Farnsworth _v._ Storrs, as _quasi_

judicial; and then the only remaining question of fact was, whether the

publication was a true and correct narrative of such proceedings and

determination. This question the judge did leave, or proposed to leave,

to the jury; with the direction, that if they should find upon the

evidence that that part of the publication was true, the defendant would

be entitled to a verdict. We are of opinion that this direction was

right. As the verdict was for the defendant, we are to assume that it

was found by them; or, if the verdict was taken by consent, it would

have been found under the instruction that the publication did present a

true and correct narrative of the proceedings before the society, and

their determination thereon.

The fact, that these proceedings were considered closed and finished,

takes away from this publication the objection, that it would have a

tendency to prejudice the public mind and prevent the party affected

from having a fair trial.

_Judgment on the verdict for the defendant_.[476]

MILISSICH _v._ LLOYD’S

IN THE COURT OF APPEAL, FEBRUARY 10, 1877.

_Reported in 13 Cox, Criminal Cases, 575._

MELLISH, L. J.[477] In this case the defendants have appealed from a

decision of the Common Pleas Division, ordering a new trial on the

ground that the verdict given for the plaintiff was against the weight

of evidence. They are not satisfied with that order, but they come

before us to have judgment entered for themselves. The question for us

is an important one, as to the power of the court to enter judgment

under the Judicature Acts. Now, although the Judicature Acts do

undoubtedly give very general powers to the court as to entering of

judgment, it is clearly not intended by the Legislature that the court

should take advantage of that general rule to remove questions from the

consideration of the jury which are questions of fact properly for their

consideration. The action was brought by the plaintiff against Lloyd’s

for an alleged libel published by Lloyd’s in a pamphlet. At the trial,

no doubt, the defence of privileged communication was raised and Lord

Coleridge expressed an opinion that Lloyd’s would not have the same

privilege as an ordinary newspaper; and he also expressed an opinion

that, inasmuch as only the speech of the prosecuting counsel and the

summing up of the judge, and not the speech of the counsel for the

defence, at the criminal trial, was published, the report could not be a

fair one of the trial. I cannot agree with either of these doubts. I

cannot think there is any difference between the privilege attaching to

a report in a newspaper or in a pamphlet, unless some question of malice

is raised. Of course, if actual malice is alleged, the fact that the

libel was published in a pamphlet and not in a newspaper might be very

material, but when no such allegation is made I cannot conceive there is

any difference. I also cannot agree that the mere fact that the

publisher did not publish the evidence in full, but only the summing up

of the judge and the speech of the prosecuting counsel, made the report

of the trial an unfair one. I think that proposition implies that

proceedings at trials cannot be reported at all unless they are reported

in full. It must, therefore, be sufficient to publish a fair abstract of

the evidence. Now, I do not know how the reporter could do better than

take the judge’s summing up to get that fair abstract, although I do

not, of course, lay down as a matter of law that the summing up of a

judge is necessarily a correct summary for the report. I think this

report may be fair or it may be unfair; but then, is it a question of

fact or law whether the report is fair or unfair? I think that it is a

question of fact, and should be left to the jury to determine. Then the

argument is that the evidence is all one way and that it is useless

sending the case down to a new trial because no jury could reasonably

find the other way. In my opinion, the court must be very cautious not

to take upon itself the functions of a jury. Notwithstanding the great

powers given by the Judicature Acts, it is still, of course, the

province of the jury to determine between the credibility of witnesses

on either side. Here, however, the question is more what is the

inference to be drawn from the facts proved in evidence. The general

inference to be drawn from all the facts, as in Lewis _v._ Levy, E. B. &

E. 537, is for the jury. There the whole proceedings before the

magistrates were put in evidence, in order to judge of the fairness of

the report. Here a full shorthand note is produced, and, being placed in

the hands of the jury, they are to draw the inference, and not the

court. Now, although I think that persons might draw very unfair

inferences against a man who, like the plaintiff, did not appear at the

trial himself and could not defend himself from the charges which were

made against him on both sides, still, if the report is a fair one of

what took place the defendants will be privileged. The question for the

jury will be at the new trial—was the report a fair one, and would it

give a fair notion to people who were not there of what took place? That

question is one for the jury, and I think the case should, therefore, be

sent for a new trial.

_Judgment below affirmed._[478]

BARNES _v._ CAMPBELL

SUPREME COURT, NEW HAMPSHIRE, JUNE, 1879.

_Reported in 59 New Hampshire Reports, 128._

Case, for libel in accusing the plaintiff of crime. Plea, the general

issue, with a brief statement alleging that the defendants are

conductors and publishers of a newspaper published at, &c., and as such

it was part of their duty to give to their readers such items of news as

they might properly judge to be of interest and value to the community,

and that, as such conductors and publishers, they published the article

complained of, in good faith, without malice, believing and having good

reason to believe the same to be true.

Motion by the plaintiff to reject the brief statement.

SMITH, J. Matter in justification must be pleaded. But according to some

decisions, matter in excuse may be given in evidence under the general

issue, or be pleaded. State _v._ Burnham, 9 N. H. 34, 43, and

authorities cited; Carpenter _v._ Bailey, 53 N. H. 590. In this view of

the case, it is, perhaps, immaterial whether or not the brief statement

is defective. But, treating the brief statement and the motion to reject

it as intended to raise the question whether the brief statement sets

forth a defence, we are of opinion that it does not. The defendants

probably intended to set out the excuse of a lawful occasion, good

faith, proper purpose, and belief and probable cause to believe that the

publication was true. They laid stress upon their business of publishing

a newspaper. But professional publishers of news are not exempt, as a

privileged class, from the consequences of damage done by their false

news. Their communications are not privileged merely because made in a

public journal. They have the same right to give information that others

have, and no more. Smart _v._ Blanchard, 42 N. H. 137, 151; Palmer _v._

Concord, 48 N. H. 211, 216; Sheckell _v._ Jackson, 10 Cush. 25. The

occasion of the defendants’ publishing a false charge of crime against

the plaintiff was not lawful, if the end to be attained was not to give

useful information to the community of a fact of which the community had

a right to be and ought to be informed, in order that they might act

upon such information. State _v._ Burnham, 9 N. H. 34, 41, 42; Palmer

_v._ Concord, 48 N. H. 211, 217; Carpenter _v._ Bailey, 53 N. H. 590; S.

C. 56 N. H. 283. The defendants do not state facts that would constitute

a lawful occasion. They make a loose averment of their general duty to

give their readers such news as they (the defendants) might properly

judge to be of interest and value to the community. This should be

struck out of the record as insufficient and misleading. It is, in

effect, an intimation that they published the libel in the usual course

of their business, and is calculated to give the jury the erroneous

impression that the defendants’ judgment of the propriety of the

publication is evidence of the lawfulness of the occasion. The

defendants’ general business of publishing interesting and valuable news

was not, of itself, a lawful occasion for publishing this particular,

false, and criminal charge against the plaintiff. It will be for the

jury to say what weight the defendants’ business has as evidence on the

question of malice. But however high the defendants’ vocation, and

however interesting and valuable the truth which they undertake to give

their readers, their ordinary and habitual calling is no excuse for

assailing the plaintiff’s character with this false charge of crime.

They must show specific facts constituting a lawful occasion in this

particular instance, as if this false charge had been the only thing

they ever published. They allege nothing of that kind. They do not state

that the community had any interest which would have been protected or

promoted by the publication complained of if it had been true, or had a

right to be or ought to be informed of the subject-matter of it in order

that they might act upon correct information of it, or that the

information given would have been practically useful to anybody if it

had been true. This is the substance of a lawful occasion. The brief

statement contains no specification on this point.

_Motion granted._[479]

LAWLESS _v._ THE ANGLO-EGYPTIAN COTTON CO.

IN THE QUEEN’S BENCH, FEBRUARY 11, 1869.

_Reported in Law Reports, 4 Queen’s Bench, 262._

Libel. The declaration charged that the defendants falsely and

maliciously published of the plaintiff, their manager, in a certain

report of the affairs of the company, these words: “The shareholders

will observe that there is a charge of £1,306 1_s._ 7_d._ for deficiency

of stock, which the manager is responsible for; his accounts as such

manager in the company have been badly kept, and have been rendered to

us very irregularly.”

Plea: Not guilty. Issue thereon.[480]

It was objected on behalf of the defendants that there was no evidence

of a publication of the libel, and that it was a privileged

communication. The Chief Baron overruled the objections, but reserved

leave to the defendants to move to enter a nonsuit on both points. The

plaintiff having proved his special damage, the jury found a verdict for

£500.

A rule having been obtained to enter a nonsuit pursuant to the leave

reserved,

_Holker_, Q. C., and _Gorst_, showed cause.

_Manisty_, Q. C. (_R. C. Fisher_ with him), in support of the rule.

MELLOR, J. I am of opinion that the rule should be made absolute to

enter a nonsuit. Had I been able to perceive that any substantial

injustice might have been done by not leaving any question to the jury,

I should have been disposed to send the case down for a new trial. But I

think there was no evidence of express malice which ought to have been

left to the jury.

As I understand the facts of the case, the plaintiff was employed as the

agent of the defendants in Egypt, and his transactions were necessarily

brought under the notice of the auditors, who are appointed by Act of

Parliament, or at all events by the articles of association of the

company, and who are fit persons to investigate the accounts of the

company. The auditors considered that a deficiency in the stock of the

company was owing in some sense to the plaintiff’s default, and they

expressed that opinion in their report. It seems they did this after

having received such explanations as Mr. Bell could offer, but it must

be observed that those explanations were offered to the auditors and not

to the directors. What the directors did was this, in their report to a

meeting of the shareholders they appended the statement which had been

made to them by the auditors. There is nothing whatever to show that the

directors had any reason to doubt the truth of that statement, and there

was no evidence of any act on their part from which malice could be

inferred, and therefore I think the Chief Baron was right in not putting

the question of malice to the jury. As to the question of intrinsic or

extrinsic evidence, the report was one which the directors were fully

warranted in believing was correct; and there is nothing to show that

the directors acted otherwise than _bona fide_ in communicating it to

the shareholders. No doubt the directors are to make their report to a

meeting of the shareholders, to be called for that purpose, and it is

clear that those who are absent are bound by the acts of those who are

present, but the absent shareholders are interested in the prosperity or

adversity of the company, and in knowing all the circumstances upon

which the welfare of the company depends. It seems to me, therefore,

that to print the report was a necessary and reasonable mode of

communicating it to all the shareholders, who must be more or less

numerous.

This case does not fall within the rule in Cooke _v._ Wildes, 5 E. & B.

328; 24 L. J. Q. B. 367. There the question of malice was properly left

to the jury, because the letter contained defamatory expressions which

were unnecessary; the defendant was not content with stating the facts

that he had heard, but he made a calumnious observation of his own and

put a gloss on the plaintiff’s conduct which was libellous. There was

therefore intrinsic evidence of malice, and that the defendant had not

acted _bona fide_, and these questions were properly left to the jury. I

think we are bound by the cases of Somerville _v._ Hawkins and Taylor

_v._ Hawkins, 16 Q. B. 308; 20 L. J. Q. B. 313. The principle there laid

down is, that where there is no evidence of malice the judge ought not

to leave any question to the jury. Here I think the conduct of the

directors negatives malice on their part, and it is clear that they

acted _bona fide_. I think we should be going against what I may call

progress, if we were to hold that the delivery of the manuscript of the

report to the printer, for the purpose of having it printed, is a

publication which prevents the communication from being privileged. I

also think that it was the duty of the directors to communicate the

report not only to the shareholders present at the meeting, but to all

the shareholders, and that they had an interest in receiving it. I am

glad that Mr. Holker called our attention to the American authority, for

it supports the judgment of the court. In Philadelphia, Wilmington, and

Baltimore Railroad Company _v._ Quigley, 21 Howard (Rep. Sup. Court, U.

S.), 202, it was held that it was within the course of business and

employment of the president and directors for them to investigate the

conduct of their officers and agents, and to report the result to the

stockholders. It was also held, in the absence of malice and bad faith,

that the report to the shareholders was privileged; therefore, to this

extent, that case appears to me to be an express authority. But,

independently of any authority, I am quite prepared to hold that a

company, having a great number of shareholders all interested in knowing

how their officers conduct themselves, are justified in making a

communication in a printed report, relating to the conduct of their

officers, to all the shareholders, whether present or absent, if the

communication be made without malice and _bona fide_. The communication

in this case is _prima facie_ privileged, and there being no evidence

intrinsic or extrinsic of malice, that question was very properly not

left to the jury. I think the conclusion at which the Chief Baron

arrived at _nisi prius_ without hearing any argument erroneous, and with

great deference to that eminent and learned judge, I am of opinion this

rule to enter a nonsuit should be made absolute.

_Rule absolute._[481]

PADMORE _v._ LAWRENCE

IN THE QUEEN’S BENCH, JANUARY 18, 1840.

_Reported in 11 Adolphus & Ellis, 380._

Case for slander. The words charged to have been spoken by the

defendant imputed that the plaintiff had stolen a brooch belonging to

the defendant’s wife; and they were said to have been uttered in a

discourse, &c., and in the hearing of one Jane Cole and divers, &c.

Pleas. 1. Not guilty. 2. A traverse of part of the inducement not

material here.

On the trial before Parke, B., at the Hampshire summer assizes, 1838,

it appeared that the plaintiff had called at the defendant’s house,

and that soon afterwards the brooch was missed; that defendant then

went to an inn, where the plaintiff was, and stated to her his

suspicions, in the presence of a third person; and that the plaintiff,

with her own concurrence, was afterwards searched by Jane Cole and

another female, who were called in for the purpose and to whom the

defendant at the time repeated the charge. The brooch was not found on

the plaintiff, but was afterwards discovered to have been left by the

defendant’s wife at another place. The defendant’s counsel first

applied for a nonsuit, which the learned judge refused. The

defendant’s counsel then, in his address to the jury, contended that

the words were spoken without malice, under circumstances which

privileged them. The learned judge told the jury that the verdict must

be for the plaintiff, if they thought that the words imputed felony,

for that it was clear they were not privileged. Verdict for the

plaintiff.

In Michaelmas term, 1838, Erle obtained a rule for a new trial, on the

ground of misdirection.

_Crowder_ and _Butt_ now showed cause.

_Erle_ and _Barstow_, contra.[482]

LORD DENMAN, C. J. The question ought to have gone to the jury,

whether this charge was made _bona fide_. Unless Toogood _v._ Spyring

is to be overruled, it is clear that the judge was not warranted in

withdrawing that question from their consideration.

LITTLEDALE, J. The jury were to say whether the defendant believed

that the brooch was stolen by the plaintiff, and for that reason

charged her with having stolen it, and whether his language was

stronger than necessary, or whether the charge was made before more

persons than was necessary. The law has been laid down so over and

over again.

COLERIDGE, J. For the sake of public justice, charges and

communications, which would otherwise be slanderous, are protected if

_bona fide_ made in the prosecution of an inquiry into a suspected

crime. Then had not the defendant a right to make out that case? The

facts were for the jury. It is argued that the charge ought to be

true, or ought to be made only before an officer of justice. But the

exigencies of society could never permit such a restriction. If I stop

a party suspected, must not I say why I do so? Supposing it

unjustifiable to search a person against his will, here the plaintiff

agreed to be searched. The presence of other parties would not do away

with the privilege. When the two females were desired to make the

search, were they not to be told for what they were to look? The

question was clearly for the jury.

_Rule absolute._[483]

CHILD _v._ AFFLECK

IN THE KING’S BENCH, MAY 13, 1829.

_Reported in 9 Barnewall & Cresswell, 403._

Case for a libel. Plea, the general issue. At the trial before Lord

Tenterden, C. J., at the Westminster sittings after Hilary term, it

appeared in evidence that the plaintiff had been in the service of the

defendants, Mrs. Affleck having before she hired her made inquiries of

two persons, who gave her a good character. The plaintiff remained in

that service a few months, and was afterwards hired by another person,

who wrote to Mrs. Affleck for her character, and received the following

answer, which was the alleged libel: “Mrs. A.’s compliments to Mrs. S.,

and is sorry that in reply to her inquiries respecting E. Child, nothing

can be in justice said in her favor. She lived with Mrs. A. but for a

few weeks, in which short time she frequently conducted herself

disgracefully; and Mrs. A. is concerned to add she has, since her

dismissal, been credibly informed she has been and now is a prostitute

in Bury.” In consequence of this letter the plaintiff was dismissed from

her situation. It further appeared that after that letter was written,

Mrs. Affleck went to the persons who had recommended the plaintiff to

her, and made a similar statement to them. Upon this evidence it was

contended, for the defendants, that there was no proof of malice, and

that consequently the plaintiff must be nonsuited. On the other hand, it

was urged that Mrs. Affleck’s statement of what the plaintiff’s conduct

had been after she left her service was not privileged, and that, at all

events, that part of the letter and the statement that she voluntarily

made to other persons, and not in answer to any inquiries, were evidence

of malice. Lord Tenterden, C. J., was of opinion that the latter part of

the letter was privileged, and that the other communications being made

to persons who had recommended the plaintiff, were not evidence of

malice, and he directed a nonsuit.

_F. Kelly_ now moved for a rule _nisi_ for a new trial.[484]

PARKE, J. The rule laid down by Lord Mansfield, in Edmondson _v._

Stevenson, Bull. N. P. 8, has been followed ever since. It is, that in

an action for defamation in giving a character of a servant, “the gist

of it must be malice, which is not implied from the occasion of

speaking, but should be directly proved.” The question then is, whether

the plaintiff in this case adduced evidence, which, if laid before a

jury, could properly lead them to find express malice. That does not

appear upon the face of the letter. _Prima facie_ it is fair, and

undoubtedly a person asked as to the character of a servant may

communicate all that is stated in that letter. Independently of the

letter, there was no evidence except of the two persons that had

recommended the plaintiff. The communication to them, therefore, was not

officious, and Mrs. Affleck was justified in making it. In Rogers _v._

Clifton, 3 B. & P. 587, evidence of the good conduct of the servant was

given, and the communication also appeared to be officious. In Blackburn

_v._ Blackburn, 4 Bing. 395, the occasion of writing the alleged libel

did not distinctly appear, it was therefore properly left to the jury to

say, whether it was confidential and privileged or not, and they found

that it was not. Here the letter was undoubtedly _prima facie_

privileged, the plaintiff, therefore, was bound to prove express malice

in order to take away the privilege.

_Rule refused._[485]

COXHEAD _v._ RICHARDS

IN THE COMMON PLEAS, JANUARY 31, 1846.

_Reported in 2 Common Bench Reports, 569._

TINDAL, C. J.[486] This was an action upon the case for the publication

of a false and malicious libel, in the form of a letter written by one

John Cass, the first mate of a ship called The England, to the

defendant; the letter stating that the plaintiff, who was the captain of

the ship, and then in command of her, had been in a state of constant

drunkenness during part of the voyage, whereby the ship and crew had

been exposed to continual danger: and the publication by the defendant

was, the communication by him of this letter to the owner of the ship,

by reason whereof—which was the special damage alleged in the

declaration—the plaintiff was dismissed from the ship, and lost his

employment.

The defendant pleaded—first, not guilty; secondly, that the charges made

by the mate against the plaintiff in his letter were true; and, lastly,

that the shipowner did not dismiss the captain by reason, and in

consequence, of the communication of the letter to him.

Upon the last two issues a verdict was found for the plaintiff; but,

upon the first issue, for the defendant.

I told the jury at the trial, that the occasion and circumstances under

which the communication of this letter took place, were such, as, in my

opinion, to furnish a legal excuse for making the communication; and

that the inference of malice,—which the law _prima facie_ draws from the

bare act of publishing any statements false in fact, containing matter

to the reproach and prejudice of another,—was thereby rebutted; and that

the plaintiff, to entitle himself to a verdict, must show malice in

fact: concluding by telling them that they should find their verdict for

the defendant, if they thought the communication was strictly honest on

his part, and made solely in the execution of what he believed to be a

duty; but, for the plaintiff, if they thought the communication was made

from any indirect motive whatever, or from any malice against the

plaintiff. And the only question now before us, is, whether, upon the

evidence given at the trial, such direction was right.

There was no evidence whatever that the defendant was actuated by any

sinister motive in communicating the letter to Mr. Ward, the shipowner:

on the contrary, all the evidence went to prove that what he did he did

under the full belief that he was performing a duty, however mistaken he

might be as to the existence of such duty, or in his mode of performing

it. The writer of the letter was no stranger to the defendant: on the

contrary, both were proved to have been on terms of friendship with each

other for some years; and, from the tenor of the letter itself, it must

be inferred the defendant was a person upon whose judgment the writer of

the letter placed great reliance, the letter itself being written for

the professed purpose of obtaining his advice how to act, under a very

pressing difficulty. The letter was framed in very artful terms, such as

were calculated to induce the most wary and prudent man (knowing the

writer) to place reliance on the truth of its details: and there can be

no doubt but that the defendant did in fact thoroughly believe the

contents to be true, amongst other things, that the ship, of which Mr.

Ward was the owner, and the crew and cargo on board the same, had been

exposed to very imminent risk, by the continued intoxication of the

captain on the voyage from the French coast to Llanelly, where the ship

then was, and that the voyage to the Eastern Seas, for which the ship

was chartered, would be continually exposed to the same hazard, if the

vessel should continue under his command. In this state of facts, after

the letter had been a few days in his hands, the defendant considered it

to be his duty to communicate its contents to Mr. Ward, whose interests

were so nearly concerned in the information; not communicating it to the

public, but to Mr. Ward; and not accompanying such disclosure with any

directions or advice, but merely putting him in possession of the facts

stated in the letter, that he might be in a condition to investigate the

truth, and take such steps as prudence and justice to the parties

concerned required: in making which disclosure he did not act hastily or

unadvisedly, but consulted two persons well qualified to give good

advice on such an emergency—the one, an Elder Brother of the Trinity

House—the other, one of the most eminent shipowners in London: in

conformity with whose advice he gave up the letter to the owner of the

ship. At the same time, if the defendant took a course which was not

justifiable in point of law, although it proceeded from an error in

judgment only, not of intention, still it is undoubtedly he, and not the

plaintiff, who must suffer for such error.

The only question is, whether the case does or does not fall within the

principle, well recognized and established in the law, relating to

privileged or confidential communications; and, in determining this

question, two points may, as I conceive, be considered as settled—first,

that if the defendant had had any personal interest in the

subject-matter to which the letter related, as, if he had been a

part-owner of the ship, or an underwriter on the ship, or had had any

property on board, the communication of such a letter to Mr. Ward would

have fallen clearly within the rule relating to excusable

publications—and, secondly, that if the danger disclosed by the letter,

either to the ship or the cargo, or the ship’s company, had been so

immediate as that the disclosure to the shipowner was necessary to avert

such danger, then, upon the ground of social duty, by which every man is

bound to his neighbor, the defendant would have been not only justified

in making the disclosure, but would have been _bound_ to make it. A man

who received a letter informing him that his neighbor’s house would be

plundered or burnt on the night following by A. and B., and which he

himself believed, and had reason to believe, to be true, would be

justified in showing that letter to the owner of the house, though it

should turn out to be a false accusation of A. and B. The question

before us appears, therefore, to be narrowed to the consideration of the

facts which bear upon these two particular qualifications and

restrictions of the general principle.

As to the first, I do not find the rule of law is so narrowed and

restricted by any authority, that a person having information materially

affecting the interests of another, and honestly communicating it, in

the full belief, and with reasonable grounds for the belief, that it is

true, will not be excused, though he has no personal interest in the

subject-matter. Such a restriction would surely operate as a great

restraint upon the performance of the various social duties by which men

are bound to each other, and by which society is kept up. In Pattison

_v._ Jones, 8 B. & C. 578, the defendant, who had discharged the

plaintiff from his service, wrote a letter to the person who was about

to engage him, unsolicited; he was therefore a volunteer in the matter;

and might be considered as a stranger, having no interest in the

business; but, neither at the trial, nor on the motion before the court,

was it suggested that the letter was, on that account, an unprivileged

communication; but it was left to the jury to say whether the

communication was honest or malicious. Again, in Child _v._ Affleck and

Wife, the statement, by the former mistress, of the conduct of her

servant, not only during her service, but after she had left it, was

held to be privileged. The rule appears to have been correctly laid down

by the Court of Exchequer, that, “if fairly warranted by any reasonable

occasion or exigency, and honestly made, such communications are

protected, for the common convenience and welfare of society; and the

law has not restricted the right to make them, within any narrow

limits.” 1 C. M. & R. 181. In the present case, the defendant stood in a

different situation from any other person; he was the only person in the

world who had received the letter, or was acquainted with the

information contained in it. He cannot, therefore, properly be treated

as a complete stranger to the subject-matter of inquiry, even if the

rule excluded strangers from the privilege.

Upon the second ground of qualification—was the danger sufficiently

imminent to justify the communication—it is true, that the letter, which

came to the defendant’s hands about the 14th of December, contains

within it the information that the ship cannot get out of harbor before

the end of the month. It was urged that the defendant, instead of

communicating the letter to the owner, might have instituted some

inquiry himself. But it is to be observed that every day the ship

remained under the command of such a person as the plaintiff was

described to be, the ship and crew continued exposed to hazard, though

not so great hazard as when at sea; not to mention the immediate injury

to the shipowner which must necessarily follow from want of discipline

of the crew, and the bad example of such a master. And, after all, it

would be too much to say, that, even if the thing had been practicable,

any duty was cast upon _the defendant_, to lay out his time or money in

the investigation of the charge.

Upon the consideration of the case, I think it was the duty of the

defendant not to keep the knowledge he gained by this letter himself,

and thereby make himself responsible, in conscience, if his neglect of

the warnings of the letter brought destruction upon the ship or

crew—that a prudent and reasonable man would have done the same; that

the disclosure was made, not publicly, but privately to the owner, that

is, to the person who of all the world was the best qualified, both from

his interest in the subject-matter, and his knowledge of his own

officers, to form the most just conclusion as to its truth, and to adopt

the most proper and effective measures to avert the danger; after which

disclosure, not the defendant, but the owner, became liable to the

plaintiff, if the owner took steps which were not justifiable; as, by

unjustly dismissing him from his employment, if the letter was untrue.

And, as all this was done with entire honesty of purpose, and in the

full belief of the truth of the information,—and that, a reasonable

belief,—I am still of the same opinion which I entertained at the trial,

that this case ranges itself within the pale of privileged

communication, and that the action is not maintainable.

I therefore think the rule for setting aside the verdict and for a new

trial, should be discharged.

CRESWELL, J. I cannot, without much regret, express an opinion in this

case at variance with that which is entertained by my lord and one of my

learned brothers. But, having given full consideration to the arguments

urged at the bar, and the cases cited, and not being able to shake off

the impression which they made in favor of the plaintiff, I am bound to

act upon the opinion that I have formed. I will not repeat the facts of

the case, which have been already stated, but proceed shortly to explain

the grounds upon which my opinion rests.

There is no doubt that the letter published by the defendant of the

plaintiff was defamatory; and the truth of its contents could not be

proved. The plaintiff was, therefore, entitled to maintain an action

against the publisher of that letter, unless the occasion on which it

was published made the publication of such letter a lawful act, as far

as the plaintiff was concerned, if done in good faith, and without

actual malice. To sustain an action for a libel or slander, the

plaintiff must show that it was malicious; but every unauthorized

publication of defamatory matter is, in point of law, to be considered

as malicious. The law, however, on a principle of policy and

convenience, authorizes many communications, although they affect the

characters of individuals; and I take it to be a question of law,

whether the communication is authorized or not. If it be authorized, the

legal presumption of malice arising from the unauthorized publication of

defamatory matter, fails, and the plaintiff, to sustain his action, must

prove actual malice, or, as it is usually expressed, malice in fact. In

the present case, the existence of malice in fact was negatived by the

jury; and if my lord was right in telling them, that, in the absence of

malice in fact, the publication of the letter was privileged, this rule

should be discharged. It therefore becomes necessary to inquire within

what limits and boundaries the law authorizes the publication of

defamatory matter. Perhaps the best description of those limits and

boundaries that can be given in few words, is to be found in the

judgment of Parke, B., in Toogood _v._ Spyring: “The law considers such

publication as malicious, unless it is fairly made by a person in the

discharge of some public or private duty, whether legal or moral, or in

the conduct of his own affairs in matters where his interest is

concerned.” It was not contended in this case that any _legal_ duty

bound the defendant to communicate to the shipowner the contents of the

letter he had received, nor was the communication made in the conduct of

his own affairs, nor was his interest concerned: the authority for the

publication, if any, must therefore be derived from some _moral_ duty,

public or private, which it was incumbent upon him to discharge. I think

it impossible to say that the defendant was called upon by any _public

duty_ to make the communication; neither his own situation nor that of

any of the parties concerned, nor the interests at stake were such as to

affect the public weal. Was there then any _private_ duty? There was no

relation of principal and agent between the shipowner and the defendant,

nor was any trust or confidence reposed by the former in the latter;

there was no relationship or intimacy between them; no inquiries had

been made; they were, until the time in question, strangers: the duty,

if it existed at all as between them, must, therefore, have arisen from

the mere circumstance of their being fellow-subjects of the realm. But

the same relation existed between the defendant and the plaintiff. If

the property of the shipowner on the one hand was at stake, the

character of the captain was at stake on the other; and I cannot but

think that the moral duty not to publish of the latter defamatory matter

which he did not _know_ to be true, was quite as strong as the duty to

communicate to the shipowner that which he _believed_ to be true. Was,

then, the defendant bound by any moral duty towards the writer of the

letter, to make the communication? Surely not. If the captain had

misconducted himself, the mate was capable of observing it, and was as

capable of communicating it to the owner as to the defendant. The crew

were, in like manner, capable of observing and acting for themselves.

The mate (if he really believed that which he wrote to be true) might,

indeed, be under a moral duty to communicate it to his owner: but the

defendant had no right to take that vicarious duty upon himself: he was

not requested by the mate to do so, but was, on the contrary, enjoined

_not_ to make the communication.

I will not attempt to comment upon the very numerous cases that were

quoted at the bar on the one side and on the other, but will advert to

one or two which tend to explain the term “moral duty,” and see whether

it has ever been held to authorize the publication of defamatory matter

under circumstances similar to those which exist in the present case. In

Bromage _v._ Prosser, Bayley, J., in his very elaborate judgment, speaks

of slander as “_prima facie_ excusable on account of the cause of

speaking or writing it, in the case of servants’ characters,

confidential advice, or communications to those who ask it or have a

right to expect it.” With regard to the characters of servants and

agents, it is so manifestly for the advantage of society that those who

are about to employ them should be enabled to learn what their previous

conduct has been, that it may be well deemed the moral duty of former

employers to answer inquiries to the best of their belief. But,

according to the opinion of the same learned judge, intimated in

Pattison _v._ Jones, 8 B. & C. 578, it is necessary that _inquiry_

should be made, in order to render lawful the communication of

defamatory matter, although he was also of opinion that such inquiry may

be invited by the former master. And in Rogers _v._ Clifton, Chambre,

J., quoted a similar opinion of Lord Mansfield’s, expressed in Lowry

_v._ Aikenhead, Mich. 8 G. 3, 3 B. & P. 594.

It was contended during the argument of this case, that the protection

given to masters when speaking of the conduct of servants, was more

extensive, and applied also to communications made to former employers;

and Child _v._ Affleck was mentioned as an instance. But the

communication to the former master was not made a ground of action in

that case, and was introduced only as evidence that the statement made

in answer to the inquiry of the new master was malicious. The same

observation applies to Rogers _v._ Clifton; and it may be collected from

that report that Chambre, J., was of opinion, that, where statements are

made which are not in answer to inquiries, the defendant must plead, and

prove, a justification.

Again, where a party asks advice or information upon a subject on which

he is interested; or where the relative position of two parties is such

that the one has a right to expect confidential information and advice

from the other; it may be a moral duty to answer such inquiries and give

such information and advice; and the statements made may be rendered

lawful by the occasion, although defamatory of some third person, as in

Dunman _v._ Bigg, 1 Campb. 269, and Todd _v._ Hawkins, 2 M. & Rob. 20, 8

C. & P. 88.

Two cases—Herver _v._ Dowson, Bull. N. P. 8, and Cleaver _v._ Sarraude,

reported in M’Dougall _v._ Claridge, 1 Campb. 268—were quoted as

authorities for giving a more extended meaning to the term “moral duty,”

and making it include all cases where one man had information, which, if

true, it would be important for another to know. But the notes of those

cases are very short: in the former the precise circumstances under

which the statement was made—see King _v._ Watts, 8 C. & P. 614, that

such a statement made _without inquiry_ is not lawful—and in the latter,

the position of the defendant with reference to the Bishop of Durham, to

whom it was made, are left unexplained. I cannot, therefore, consider

them as satisfactory authorities for the position to establish which

they were quoted: and, in the absence of any clear and precise authority

in favor of it, I cannot persuade myself that it is correct, as, if

established at all, it must be at the expense of another moral duty,

viz., not to publish defamatory matter unless you _know_ it to be true.

For these reasons, I am of opinion, that the rule for a new trial should

be made absolute.

The court being thus divided in opinion, the rule for a new trial fell

to the ground, and the defendant retained his verdict.[487]

JOANNES _v._ BENNETT

SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER, 1862.

_Reported in 5 Allen, 169._

Tort brought on the 12th of June, 1860, in the name of “The Count

Joannes (born ‘George Jones’)”[488] for two libels upon him contained in

letters to a woman to whom he was then a suitor, and was afterwards

married, endeavoring to dissuade her from entering into the marriage.

At the trial in this court, before Merrick, J., it appeared that the

defendant had for several years held the relation of pastor to the

parents of the woman, as members of his church, and to the daughter, as

a member of his choir; and there was evidence tending to show that he

was on the most intimate terms of friendship with the parents, and that,

on the 18th of May, 1860, being on a visit from his present residence in

Lockport, New York, he called upon the father at his place of business

in Boston, and was urged by him to accompany him to his residence in

South Boston, the father stating that both he and his wife were in great

distress of mind and anxiety about their daughter, and that they feared

she would engage herself in marriage to the plaintiff. On their way to

South Boston, the father stated to the defendant what he and his wife

had heard and apprehended about the plaintiff, and their views with

regard to his being an unsuitable match for their daughter, who, with a

young child by a former husband, was living with them. On reaching the

house, it was found that the daughter had gone out; and it was then

arranged that the defendant should write a letter, and materials for

that purpose were furnished, and the letter set forth in the first

count[489] was written, addressed to the daughter, and left open and

unsealed with the mother, after the principal portion of it had been

read aloud at the tea-table in the presence of the parents and a

confidential friend of the family. On leaving, the defendant was further

requested to do what he thought best to induce the daughter to break up

the match.

The judge ruled that the letter was not a privileged communication; and

a verdict was returned for the plaintiff. The defendant alleged

exceptions.

BIGELOW, C. J. The doctrine, that the cause or occasion of a publication

of defamatory matter may afford a sufficient justification in an action

for damages, has been stated in the form of a legal rule or canon, which

has been sanctioned by high judicial authority. The statement is this: A

communication made _bona fide_ upon any subject-matter in which the

party communicating has an interest, or in reference to which he has a

duty to perform, is privileged, if made to a person having a

corresponding interest or duty, although it contains defamatory matter,

which without such privilege would be libellous and actionable. It would

be difficult to state the result of judicial decisions on this subject,

and of the principles on which they rest, in a more concise, accurate

and intelligible form. Harrison _v._ Bush, 5 E. & B. 344; Gassett _v._

Gilbert, 6 Gray, 94, and cases cited. It seems to us very clear that the

defendant in the present case fails to show any facts or circumstances

in his own relation to the parties, or in the motives or inducements by

which he was led to write the letter set out in the first count of the

declaration, which bring the publication within the first branch of this

rule. He certainly had no interest of his own to serve or protect in

making a communication concerning the character, occupation and conduct

of the plaintiff, containing defamatory or libellous matter. It does not

appear that the proposed marriage which the letter written by the

defendant was intended to discountenance and prevent, could in any way

interfere with or disturb his personal or social relations. It did not

even involve any sacrifice of his feelings or injury to his affections.

The person to whom the letter was addressed was not connected with him

by the ties of consanguinity or kindred. It is not shown that he had any

peculiar interest in her welfare. Under such circumstances, without

indicating the state of facts which might afford a justification for the

use of defamatory words, it is plain that the defendant held no such

relation towards the parties as to give him any interest in the

subject-matter to which his communication concerning the plaintiff

related. Todd _v._ Hawkins, 2 M. & Rob. 20; S. C. 8 C. & P. 88. No

doubt, he acted from laudable motives in writing it. But these do not of

themselves afford a legal justification for holding up the character of

a person to contempt and ridicule. Good intentions do not furnish a

valid excuse for violating another’s rights, or give impunity to those

who cast unjust imputations on private character.

It is equally clear that the defendant did not write and publish the

alleged libellous communications in the exercise of any legal or moral

duty. He stood in no such relation towards the parties as to confer on

him a right or impose on him an obligation to write a letter containing

calumnious statements concerning the plaintiff’s character. Whatever may

be the rule which would have been applicable under similar circumstances

while he retained his relation of religious teacher and pastor towards

the person to whom this letter in question was addressed, and towards

her parents, he certainly had no duty resting upon him after that

relation had terminated. He then stood in no other attitude towards the

parties than as a friend. His duty to render them a service was no

greater or more obligatory than was his duty to refrain from uttering

and publishing slanderous or libellous statements concerning another. It

is obvious that if such communications could be protected merely on the

ground that the party making them held friendly relations with those to

whom they were written or spoken, a wide door would be left open by

which indiscriminate aspersion of private character could escape with

impunity. Indeed, it would rarely be difficult for a party to shelter

himself from the consequences of uttering or publishing a slander or

libel under a privilege which could be readily made to embrace almost

every species of communication. The law does not tolerate any such

license of speech or pen. The duty of avoiding the use of defamatory

words cannot be set aside except when it is essential to the protection

of some substantial private interest, or to the discharge of some other

paramount and urgent duty. It seems to us, therefore, that on the

question of justification set up by the defendant under a supposed

privilege which authorized him to write the letter set out in the first

count, the instructions of the court were correct.[490]

BEALS _v._ THOMPSON

SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 20, 1889.

_Reported in 149 Massachusetts Reports, 405._

Tort for a libel contained in letters written by the defendant to the

plaintiff’s husband, and charging her with having been guilty of

dishonorable conduct, deception, and ingratitude and dishonesty towards

the defendant, whereby she lost the comfort and society of her husband,

who refused to live longer with her.[491]

The jury returned a verdict for the plaintiff in the sum of $30,000; and

the defendant alleged exceptions.

FIELD, J. The exceptions also state, that the court refused “to instruct

the jury that each of the letters mentioned in plaintiff’s declaration

was a privileged communication, and that this action could not therefore

be maintained,” and “instructed the jury that no privilege was shown.”

No facts are recited in the bill of exceptions which tend to show that

the occasion was privileged, except such as may be inferred from the

relation of the parties to each other, and from the contents of the

letters. Taking the case most favorably for the defendant, it is that

the plaintiff owed a debt to the defendant for money lent to her before

her marriage, which, after her marriage with a rich man, she refused to

pay, under circumstances which showed ingratitude on her part, and that

the defendant wrote a letter to the husband defamatory of the plaintiff,

for the purpose of compelling him or her to pay the debt. This is not a

lawful method of collecting a debt, or of compelling another person than

the debtor to pay it. The defendant owed no duty to the husband to

inform him of the bad conduct of his wife before her marriage, and the

husband was under no obligation to pay the debts of his wife contracted

before her marriage. There is no evidence that the defendant in sending

the letter to the husband was acting in the discharge of any duty,

social, moral, or legal. The ruling was right. Gassett _v._ Gilbert, 6

Gray, 94; Krebs _v._ Oliver, 12 Gray, 239; Joannes _v._ Bennett, 5 All.

169; Shurtleff _v._ Parker, 130 Mass. 293; White _v._ Nicholls, 3 How.

266.

_Exceptions overruled._[492]

TOOGOOD _v._ SPYRING

IN THE EXCHEQUER, TRINITY TERM, 1834.

_Reported in 1 Crompton, Meeson & Roscoe, 181._

The judgment of the court was delivered by

PARKE, B.[493] In this case, which was argued before my Brothers

BOLLAND, ALDERSON, GURNEY, and myself, a motion was made for a nonsuit,

or a new trial, on the ground of misdirection. It was an action of

slander, for words alleged to be spoken of the plaintiff as a journeyman

carpenter, on three different occasions. It appeared that the defendant,

who was a tenant of the Earl of Devon, required some work to be done on

the premises occupied by him under the earl, and the plaintiff, who was

generally employed by Brinsdon, the earl’s agent, as a journeyman, was

sent by him to do the work. He did it, but in a negligent manner; and,

during the progress of the work, got drunk; and some circumstances

occurred which induced the defendant to believe that he had broken open

the cellar door, and so obtained access to his cider. The defendant a

day or two afterwards met the plaintiff in the presence of a person

named Taylor, and charged him with having broken open his cellar door

with a chisel, and also with having got drunk. The plaintiff denied the

charges. The defendant then said he would have it cleared up, and went

to look for Brinsdon; he afterwards returned and spoke to Taylor, in the

absence of the plaintiff; and, in answer to a question of Taylor’s, said

he was confident that the plaintiff had broken open the door. On the

same day the defendant saw Brinsdon, and complained to him that the

plaintiff had been negligent in his work, had got drunk, and he thought

he had broken open the door, and requested him to go with him in order

to examine it. Upon the trial it was objected, that these were what are

usually termed “privileged communications.” The learned judge thought

that the statement to Brinsdon might be so, but not the charge made in

the presence of Taylor; and in respect of that charge, and of what was

afterwards said to Taylor, both which statements formed the subject of

the action, the plaintiff had a verdict. We agree in his opinion, that

the communication to Brinsdon was protected, and that the statement,

upon the second meeting, to Taylor, in the plaintiff’s absence, was not;

but we think, upon consideration, that the statement made to the

plaintiff, though in the presence of Taylor, falls within the class of

communications ordinarily called privileged; that is, cases where the

occasion of the publication affords a defence in the absence of express

malice. In general, an action lies for the malicious publication of

statements which are false in fact, and injurious to the character of

another (within the well-known limits as to verbal slander), and the law

considers such publication as malicious, unless it is fairly made by a

person in the discharge of some public or private duty, whether legal or

moral, or in the conduct of his own affairs, in matters where his

interest is concerned. In such cases, the occasion prevents the

inference of malice, which the law draws from unauthorized

communications, and affords a qualified defence depending upon the

absence of actual malice. If _fairly_ warranted by any reasonable

occasion or exigency, and honestly made, such communications are

protected for the common convenience and welfare of society; and the law

has not restricted the right to make them within any narrow limits.

Among the many cases which have been reported on this subject, one

precisely in point has not, I believe, occurred; but one of the most

ordinary and common instances in which the principle has been applied in

practice is that of a former master giving the character of a discharged

servant; and I am not aware that it was ever deemed essential to the

protection of such a communication that it should be made to some person

interested in the inquiry, _alone_, and not in the presence of a third

person. If made with honesty of purpose to a party who has any interest

in the inquiry (and that has been very liberally construed, Child _v._

Affleck, 4 Man. & Ryl. 590; 9 B. & C. 403), the simple fact that there

has been some casual bystander cannot alter the nature of the

transaction. The business of life could not be well carried on if such

restraints were imposed upon this and similar communications, and if, on

every occasion in which they were made, they were not protected unless

strictly private. In this class of communications is, no doubt,

comprehended the right of a master _bona fide_ to charge his servant for

any supposed misconduct in his service, and to give him admonition and

blame; and we think that the simple circumstance of the master

exercising that right in the presence of another, does by no means of

_necessity_ take away from it the protection which the law would

otherwise afford. Where, indeed, an opportunity is _sought_ for making

such a charge before third persons, which might have been made in

private, it would afford strong evidence of a malicious intention, and

thus deprive it of that immunity which the law allows to such a

statement, when made with honesty of purpose; but the mere fact of a

third person being present does not render the communication absolutely

unauthorized, though it may be a circumstance to be left with others,

including the style and character of the language used, to the

consideration of the jury, who are to determine whether the defendant

has acted _bona fide_ in making the charge, or been influenced by

malicious motives.[494] In the present case, the defendant stood in such

a relation with respect to the plaintiff, though not strictly that of

master, as to authorize him to impute blame to him, provided it was done

fairly and honestly, for any supposed misconduct in the course of his

employment; and we think that the fact, that the imputation was made in

Taylor’s presence, does not, _of itself_, render the communication

unwarranted and officious, but at most is a circumstance to be left to

the consideration of the jury. We agree with the learned judge, that the

statement to Taylor, in the plaintiff’s absence, was unauthorized and

officious, and therefore not protected, although made in the belief of

its truth, if it were, in point of fact, false; but, inasmuch as no

damages have been separately given upon this part of the charge alone,

to which the fourth count is adapted, we cannot support a general

verdict, if the learned judge was wrong in his opinion as to the

statement to the plaintiff in Taylor’s presence; and, as we think that

at all events it should have been left to the jury whether the defendant

acted maliciously or not on that occasion, there must be a new trial.

_Rule absolute for a new trial._[495]

WILLIAMSON _v._ FREER

IN THE COMMON PLEAS, APRIL 20, 1874.

_Reported in Law Reports, 9 Common Pleas, 393._

This was an action for a libel, tried before Brett, J., at the last

assizes for Leicester. The facts were as follows: The plaintiff was

employed as assistant in the shop of the defendant, a shoemaker, at

Leicester. The defendant having accused the plaintiff of robbing him of

money, sent two post-office telegrams to her father, who resided in

London, to inform him of his suspicions. The first telegram was to this

effect: “Come at once to Leicester, if you wish to save your child from

appearing before a magistrate.” The second was as follows: “Your child

will be given in charge of the police unless you reply and come to-day.

She has taken money out of the till.”

The charge was persisted in down to the trial; but there was no evidence

to support it. It did not appear that, beyond the officials of the

post-office, through whose hands the telegrams passed, they had come to

the knowledge of any other persons than the father, mother, and brother

of the plaintiff.

The learned judge left it to the jury to say whether the statements were

libellous, and whether it was reasonable to transmit them by telegraph

rather than by post.

The jury found that the statements were libellous, and that it was not

reasonable to send them by telegraph, and they returned a verdict for

the plaintiff, damages £100.

_O’Malley, Q. C._ (with him _Merewether_), pursuant to leave, moved to

enter a verdict for the defendant.[496]

BRETT, J. I reserved the point because I thought it was a very important

one. It is whether, where a communication is to be made to a relative of

a person against whom a charge is preferred, which communication would

be privileged if sent by letter in the ordinary way the privilege is not

lost by sending it in the form of a telegram,—whether a communication in

that form can be said to be made to one person, when in point of fact it

passes through several hands before it reaches its ultimate destination.

Privilege is not wanted unless the publication is libellous. The

question then is whether the character of an innocent person is to be

destroyed because the libeller thinks fit to send the libel in this

shape rather than in a sealed letter. I do not mean to say that there

was malice in fact here. But I agree with my Lord that sending the

messages by telegraph when they might have been sent by letter was

evidence of malice. I desire, however, to put this higher. I think that

a communication which would be privileged if made by letter becomes

unprivileged if sent through the telegraph office, because it is

necessarily communicated to all the clerks through whose hands it

passes. It is like the case of a libel contained on the back of a post

card.[497] It was never meant by the Legislature that these facilities

for postal and telegraphic communication should be used for the purpose

of more easily disseminating libels. Where there is such a publication,

it avoids the privilege, because it is communicated through unprivileged

persons. As to the damages, I am not at all disposed to think them

excessive. The charge against the plaintiff was of a very grave

character. It was made with considerable severity, and it was insisted

upon even down to the trial.

_Rule refused._[498]

MARKS _v._ BAKER

SUPREME COURT, MINNESOTA, JULY 25, 1881.

_Reported in 28 Minnesota Reports, 162._

BERRY, J. This is an action for libel. The plaintiff was, at the times

hereinafter mentioned, treasurer of the city of Mankato, and, as such,

custodian of the moneys, and from April 1 to 6, 1880, a candidate for

re-election to the same office, at an election fixed for the latter day.

The defendants were residents and tax-payers of the city, and publishers

thereat of the Mankato Free Press, a weekly newspaper, and as such they

published therein, on April 2, 1880, the article complained of, in

which, as the plaintiff claims in his complaint, they charged and

intended to charge the defendant as treasurer with embezzling city

funds. It is alleged in the complaint that the matter charged as

libellous was of and concerning the plaintiff in his office—that it was

false and defamatory, and that the publication was malicious. The answer

denies malice, all intent to injure or defame plaintiff, any intention

on defendants’ part to charge him with embezzlement, and alleges that

defendants published the article complained of, as a communication,

solely for the purpose of calling the attention of the public to the

matter therein referred to, viz., to a discrepancy in certain official

reports tending to show that the plaintiff had failed to charge himself

with the full amount of city funds which he had received from the county

treasury, and with the view of obtaining an inquiry as to the cause of

such discrepancy. The answer further alleges that “the publication was

made in good faith; ... that defendants believed that there was

reasonable cause for the publication;” and “that they were then and

there discharging a sacred and moral obligation as ... editors and

publishers.” The reply puts these allegations of the answer in issue.

Upon the trial it was admitted that, notwithstanding the discrepancy,

(which in fact, existed) the plaintiff had accounted for the full sum

received by him as city treasurer from the county treasurer, so that the

defendants’ charge or insinuation to the contrary was false.

Defendant, Baker, having been called for the defence, was asked the

questions following, to which he made answers as follows, all against

the objection and exception of the plaintiff:

(1) “Did you believe the report of the city recorder to be true?

_Answer._ I did believe it to be true. (This report was that from which,

as defendants in the alleged libel charged or insinuated, it appeared

that plaintiff had failed to account for all the money received by him

from the county treasurer.)

(2) “What was your object in publishing the article? _Answer._ I

published it for the general public interest.

(3) “Did you have any other object in publishing the article? _Answer._

I did not.

(4) “You have stated that you had no other purpose than doing a public

duty in publishing the article. I want to know what your object was,—to

charge somebody with a crime, or whether you had some other object?

_Answer._ To draw attention to the discrepancy of the two reports. I had

seen what purported to be the official report of the county auditor, and

I had seen the city recorder’s; and the county auditor’s showed that

Marks, as city treasurer, had received from the county, during the

fiscal year, $115.02 more than the city recorder’s report showed that he

had received from the county for the same time. (These are the two

reports between which the discrepancy was charged to exist.)

(5) “Did you, by publishing the article, intend to charge the plaintiff

with embezzling any sum whatever?” _Answer._ “I did not.”

The defence set up in the answer is, in effect, that the publication

complained of is a privileged communication.

The rule is that a communication made in good faith upon any

subject-matter in which the party communicating has an interest, or in

reference to which he has a duty, public or private, either legal,

moral, or social, if made to a person having a corresponding interest or

duty, is privileged; that in such case the inference of malice which the

law draws from defamatory words is rebutted, and the _onus_ of proving

actual malice is cast upon the person claiming to have been defamed.

Toogood _v._ Spyring, 1 Cr. M. & R. 181; 2 Addison on Torts, § 1091;

Harrison _v._ Bush, 5 E. & B. 544; Moak’s Underhill on Torts, 146; Quinn

_v._ Scott, 22 Minn. 456. That the subject-matter of the communication

is one of public interest in the community of which the parties to the

communication are members, is sufficient, as respects interest, to

confer the privilege. Purcell _v._ Sowler, 2 C. P. D. 215; Palmer _v._

City of Concord, 48 N. H. 211; Cooley on Torts, 217. The subject-matter

of the communication in the case at bar was one of public interest in

the city of Mankato, where the publication was made, and one in which

the defendants had an interest as residents and tax-payers of the city.

It was, therefore, a privileged communication, within the rule

mentioned, if made in good faith.[499]

_Judgment affirmed._[500]

CARTER _v._ PAPINEAU

SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 27, 1916.

_Reported in 222 Massachusetts Reports, 464._

BRALEY, J.[501] The evidence would have amply warranted the jury in

finding that the defendant Papineau as priest in charge declined to

administer to the plaintiff the rite of “Holy Communion” or to permit

her to partake thereof, and that by his authority and order she had been

refused admission on the Lord’s Day to the building in which religious

services were being held. It is contended that for these acts he and the

defendant Lawrence, bishop of the diocese, are responsible in damages,

and that the verdicts in their favor were ordered wrongly.

The record shows that the Protestant Episcopal Church of America, of

which the parties are members, has a body of canons or ecclesiastical

law of its own, by which the plaintiff upon baptism and confirmation

agreed to be bound, and under which her rights of worship must be

determined. Fitzgerald _v._ Robinson, 112 Mass. 371. Grosvenor _v._

United Society of Believers, 118 Mass. 78. By the “Rubric in the Order

for the Administration of the Lord’s Supper, or Holy Communion” the

“minister” is given authority to refuse the rite to any one whom he

knows “to be an open and notorious evil liver, or to have done any wrong

to his neighbors by word or deed.” By “Canon 40. Of Regulations

Respecting the Laity,” Section II, “When a person to whom the Sacraments

of the Church have been refused, or who has been repelled from the Holy

Communion under the Rubrics, shall lodge a complaint with the Bishop, it

shall be the duty of the Bishop, unless he see fit to require the person

to be admitted or restored because of the insufficiency of the cause

assigned by the Minister, to institute such an inquiry as may be

directed by the Canons of the Diocese or Missionary District, and should

no such Canon exist, the Bishop shall proceed according to such

principles of law and equity as will insure an impartial decision, but

no Minister of this Church shall be required to admit to the Sacraments

a person so refused or repelled, without the written direction of the

Bishop.”

The plaintiff has not availed herself of this right of appeal to the

only personage having the requisite ecclesiastical authority to review

her standing as a member and communicant or to pass upon her ceremonial

rights in accordance with the principles of “law and equity.” Grosvenor

_v._ United Society of Believers, 118 Mass. 78, 91. The letter of her

counsel to the bishop, to which no reply appears to have been made,

cannot be considered as an appeal which had been denied. It contains

only recitals of all her grievances, for the rectification of which his

friendly intercession is requested.

But if an appeal had been taken properly and the decision had been

adverse, the plaintiff would have been remediless, for in this

Commonwealth her religious rights as a communicant are not enforceable

in the civil courts. Fitzgerald _v._ Robinson, 112 Mass. 371, 379.

Canadian Religious Association _v._ Parmenter, 180 Mass. 415, 420, 421.

For the same reason it is unnecessary to decide whether at common law,

as the plaintiff contends, a member of the Church of England could sue

if unjustifiably denied participation in the communion. See Rex _v._

Dibdin, [1910] P. D. 57; Thompson _v._ Dibdin, [1912] A. C. 533.

Nor can the action be maintained for defamation. Undoubtedly she

suffered mental distress, and the omission was in the presence of the

other communicants. The plaintiff, however, was not publicly declared to

be “an open and notorious evil liver,” or to be a person who had done

wrong to her neighbors by word or deed. The act of “passing her by”

without comment was within the discipline or ecclesiastical polity of

the church and does not constitute actionable defamation of character.

Farnsworth _v._ Storrs, 5 Cush. 412, 415. Fitzgerald _v._ Robinson, 112

Mass. 371. Morasse _v._ Brochu, 151 Mass. 567. See R. L. c. 36, §§ 2, 3.

The action for exclusion from the church building also must fail. It

appears that upon being informed by the constable employed for the

purpose that she could not enter the plaintiff made no attempt to pass,

but acquiesced and obeyed the order. The elements of an assault are

absent. No intimidation was used, or unjustifiable coercion exercised.

By Canon 16, to which the plaintiff subjected herself, control of the

worship and spiritual jurisdiction of the mission, including the use of

the building for religious services, was in Papineau as the minister in

charge, “subject to the authority of the Bishop.”[502]

PULLMAN _v._ WALTER HILL & COMPANY

IN THE COURT OF APPEAL, DECEMBER 19, 1890.

_Reported in [1891] 1 Queen’s Bench, 524._

Motion by the plaintiffs for a new trial.

At the trial before Day, J., with a jury, it appeared that the

plaintiffs were members of a partnership firm of R. & J. Pullman, in

which there were three other partners. The place of business of the firm

was No. 17, Greek Street, Soho. The plaintiffs were the owners of some

property in the Borough Road, which they had contracted in 1887 to sell

to Messrs. Day & Martin. The plaintiffs remained in possession of the

property for some time, and agreed to let a hoarding, which was erected

upon the property, at a rent to the defendants, who were advertising

agents, for the display of advertisements. In 1889 a dispute arose

between the plaintiffs and Day & Martin, who were building upon the

land, as to which of the two were entitled to the rent of the hoarding;

and on September 14, 1889, the defendants, after some prior

correspondence, wrote the following letter:—

“Messrs. Pullman & Co., 17, Greek Street, Soho.

“_Re_ Boro’ Road.

“Dear Sirs,—We must call your serious attention to this matter. The

builders state distinctly that you had no right to this money

whatever; consequently it has been obtained from us under false

pretences. We await your reply by return of post.

“Yours faithfully,

“(Signed) Walter Hill & Co., Limited.”

This letter was dictated by the defendants’ managing director to a

shorthand clerk, who transcribed it by a type-writing machine. This

type-written letter was then signed by the managing director, and,

having been press-copied by an office-boy, was sent by post in an

envelope addressed to Messrs. Pullman & Co., 17, Greek Street, Soho. The

defendants did not know that there were any other partners in the firm

besides the plaintiffs. The letter was opened by a clerk of the firm in

the ordinary course of business, and was read by two other clerks. The

plaintiffs brought this action for libel. The defendants contended that

there was no publication, and that, if there were, the occasion was

privileged. The learned judge held that there was no publication, that

the occasion was privileged, and that there was no evidence of malice.

He therefore nonsuited the plaintiffs.[503]

LORD ESHER, M. R. Two points were decided by the learned judge: (1) that

there had been no publication of the letter which is alleged to be a

libel; (2) that, if there had been publication, the occasion was

privileged. The question whether the letter is or is not a libel is for

the jury, if it is capable of being considered an imputation on the

character of the plaintiffs. If there is a new trial, it will be open to

the jury to consider whether there is a libel, and what the damages are.

The learned judge withdrew the case from the jury.

The first question is, whether, assuming the letter to contain

defamatory matter, there has been a publication of it. What is the

meaning of “publication”? The making known the defamatory matter after

it has been written to some person other than the person of whom it is

written. If the statement is sent straight to the person of whom it is

written, there is no publication of it; for you cannot publish a libel

of a man to himself. If there was no publication, the question whether

the occasion was privileged does not arise. If a letter is not

communicated to any one but the person to whom it is written, there is

no publication of it. And, if the writer of a letter locks it up in his

own desk, and a thief comes and breaks open the desk and takes away the

letter and makes its contents known, I should say that would not be a

publication. If the writer of a letter shows it to his own clerk in

order that the clerk may copy it for him, is that a publication of the

letter? Certainly it is showing it to a third person; the writer cannot

say to the person to whom the letter is addressed, “I have shown it to

you and to no one else.” I cannot, therefore, feel any doubt that, if

the writer of a letter shows it to any person other than the person to

whom it is written, he publishes it. If he wishes not to publish it, he

must, so far as he possibly can, keep it to himself, or he must send it

himself straight to the person to whom it is written. There was,

therefore, in this case a publication to the type-writer.

Then arises the question of privilege, and that is, whether the occasion

on which the letter was published was a privileged occasion. An occasion

is privileged when the person who makes the communication has a moral

duty to make it to the person to whom he does make it, and the person

who receives it has an interest in hearing it. Both these conditions

must exist in order that the occasion may be privileged. An ordinary

instance of a privileged occasion is in the giving a character of a

servant. It is not the legal duty of the master to give a character to

the servant, but it is his moral duty to do so; and the person who

receives the character has an interest in having it. Therefore, the

occasion is privileged, because the one person has a duty and the other

has an interest. The privilege exists as against the person who is

libelled; it is not a question of privilege as between the person who

makes and the person who receives the communication; the privilege is as

against the person who is libelled. Can the communication of the libel

by the defendants in the present case to the type-writer be brought

within the rule of privilege as against the plaintiffs—the persons

libelled? What interest had the type-writer in hearing or seeing the

communication? Clearly, she had none. Therefore, the case does not fall

within the rule.

Then again, as to the publication at the other end—I mean when the

letter was delivered. The letter was not directed to the plaintiffs in

their individual capacity; it was directed to a firm of which they were

members. The senders of the letter no doubt believed that it would go to

the plaintiffs; but it was directed to a firm. When the letter arrived

it was opened by a clerk in the employment of the plaintiffs’ firm, and

was seen by three of the clerks in their office. If the letter had been

directed to the plaintiffs in their private capacity, in all probability

it would not have been opened by a clerk. But mercantile firms and large

tradesmen generally depute some clerk to open business letters addressed

to them. The sender of the letter had put it out of his own control, and

he had directed it in such a manner that it might possibly be opened by

a clerk of the firm to which it was addressed. I agree that under such

circumstances there was a publication of the letter by the sender of it,

and in this case also the occasion was not privileged for the same

reasons as in the former case. There were, therefore, two publications

of the letter, and neither of them was privileged. And, there being no

privilege, no evidence of express malice was required; the publication

of itself implied malice. I think the learned judge was misled. I do not

think that the necessities or the luxuries of business can alter the law

of England. If a merchant wishes to write a letter containing defamatory

matter, and to keep a copy of the letter, he had better make the copy

himself. If a company have deputed a person to write a letter containing

libellous matter on their behalf, they will be liable for his acts. He

ought to write such a letter himself, and to copy it himself, and, if he

copies it into a book, he ought to keep the book in his own

custody.[504]

I think there ought to be a new trial.

_Order for new trial._

STEVENS _v._ SAMPSON

IN THE COURT OF APPEAL, NOVEMBER 15, 1879.

_Reported in 5 Exchequer Division Reports, 53._

Claim for falsely and maliciously printing and publishing of the

plaintiff certain words in certain newspapers. The libel set out in the

claim was a report, published by the defendant, of certain proceedings

in a plaint of Nettlefold _v._ Fulcher, tried at the Marylebone county

court, and brought to recover damages and costs sustained by Nettlefold

in setting aside certain proceedings instituted by Fulcher against

Nettlefold to recover the possession of certain premises. It alleged

that at the county court the defendant in the present action appeared

for Nettlefold, and made statements regarding the conduct of the

plaintiff in the present action, who was a debt collector and employed

by Fulcher as agent to recover possession of the premises.

Statement of defence: That the words alleged to have been published were

a true and correct account and report of a certain trial in a court of

justice having jurisdiction in that behalf, and of certain words spoken

during the sitting of the court in the course of the trial, and

published for the public benefit, and without malice. Issue thereon.

At the trial before Cockburn, C. J., at the Hilary Sittings, 1879, at

Westminster, it was proved that the defendant, who was a solicitor, had

sent the report set out in the claim of the trial of Nettlefold _v._

Fulcher, before the Judge of the Marylebone county court, to the local

newspapers. Cockburn, C. J., left two questions to the jury: 1. Was the

report a fair one? 2. Was it sent honestly, or with a desire to injure

the plaintiff? The jury answered these questions: 1. That it was in

substance a fair report; 2. That it was sent with a certain amount of

malice; and found a verdict for the plaintiff with 40_s._ damages.

Cockburn, C. J., directed judgment to be entered for the plaintiff for

that amount.

The defendant appealed on the ground that the judgment entered upon the

findings of the jury was wrong.