written in answer to one received from Mrs. Hurry after she had had *414] a conversation with the plaintiff on the subject, and may *almost be said to have been written on his invitation. ERLE, C. J.—I am of opinion that this rule should be made absolute. The action is brought to recover damages for two separate libels, the first count being on a letter addressed by the defendant to a clergyman named Cleaver, the second on a letter addressed by the defendant to a lady named Hurry. Each of these letters contains matter which is clearly defamatory of the plaintiff, and forms the foundation of an action unless the circumstances under which it was written bring it within the protection afforded by the law to what are called privileged communications. I take it to be clear that the foundation of an action for defamation is malice. But defamation. pure and simple affords presumptive evidence of malice. That presumption may be rebutted by showing that the circumstances under which the libel was written or the words uttered were such as to render it justifiable. The rule has been laid down in the Court of Exchequer, and again lately in the Court of Queen's Bench, that, if the circumstances bring the judge to the opinion that the communication was made in the discharge of some social or moral duty, or on the ground of an interest in the party making or receiving it, then, if the words pass in the honest belief on the part of the person writing or uttering them, he is bound to hold that the action fails. In the present case the jury found that the letters were written by the defendant bonâ fide and in the honest belief that what he wrote was true and that it was his duty to make the communications he did. Do the circumstances show that the letters were written in the discharge of some social or moral duty, or that the writer or the person to whom they were addressed had an interest in making or *receiving the communications? Taking the two letters *415] separately, I feel bound to answer that question in the affirma tive. They were confidential, in the sense that they need not and ought not to have passed beyond the persons to whom they were respectively addressed. The plaintiff, it appears, had been held in great estimation by the members of the congregation of St. Barnabas. The Rev. Mr. Cleaver was one of the assistant-curates of that church: and Mrs. Hurry and her two daughters were persons who took a deep interest in the spiritual welfare of the congregation. In the spring of 1860, Mrs. Hurry and one of her daughters went to make a short stay at Stockcross, of which parish the defendant was rector. The plaintiff visited them there, and became acquainted with the defendant, who introduced him to one of his parishioners, named Fowler; and the result of the acquaintance so commenced, was, that the plaintiff and certain members of his family made frequent visits to Fowler's house, boarding and lodging with Fowler's family. Ultimately, however, circumstances occurred to disturb the harmony between these parties, and disputes arose as to Fowler's right to pecuniary compensation for his hospitality, and also as to a transaction about an alleged sale of a horse, and other matters; and an action was brought by Fowler against the plaintiff. Mr. Cleaver being informed of what was going on, and being desirous of putting an end to the litigation in a friendly manner, wrote to the defendant, as Fowler's clergyman, to ask his aid

in the matter, by acting as arbitrator with himself. The defendant answered this letter by declining the invitation,-telling Mr. Cleaver, in substance, that, if he or any of the other clergymen of St. Barnabas would go down to Stockcross, he would give them such information as would satisfy them that he had good grounds for his refusal. Then came the letter from Mr. Cleaver which provoked [*416 the first alleged libel. Mr. Cleaver's second letter adjured the defend. ant as a matter of christian duty to recall his decision. It was the letter of one clergyman of strong religious opinions writing to a brother clergyman whose notions coincided with his own, exhorting him as he valued his sacred calling to lend his aid in averting a pub. lic scandal from a marked member of his congregation. In answer to the appeal so made, the defendant in effect says,-I cannot consent to do as you wish; and I will tell you why I cannot and he goes on to give his reasons, in order to convince the person he was addressing that it was not his duty to interfere as requested. It seems to me, that, under all the circumstances, it was the social and moral duty of the defendant as a clergyman towards Mr. Cleaver as another clergyman to give him true and correct information on the subject upon which he was writing. I say emphatically that I think he was dis charging a social and moral duty: and I also think it was his interest, if he wished to stand well with those whose religious opinions coincided with his own, to satisfy them that he was not shrinking from the performance of his duty as a clergyman, in declining to act the part of a peacemaker.

Then, as to the letter which constituted the alleged libel in the second count, the difficulty of the defendant seems to me to be infinitely greater than with regard to the first letter. It did not appear that there had been any request to Mrs. Hurry to interfere in the matter. The plaintiff probably knew that Mrs. Hurry had written to the defendant, for he went, it seems, to her house to receive his answer. But the defendant himself was the party who initiated the movement of that lady. He called upon her and made certain *statements to her respecting the plaintiff. It may be said that this was done in the fair exercise of an interest, in this sense,[*417 Mr. Cleaver had deluded him into the belief that he might write to him in confidence; and when he received his letter he handed it to the plaintiff. Smarting under this dishonourable treatment, the defendant calls on Mrs. Hurry (who had been the means of introducing the plaintiff into his parish), and tells her that an action has been brought against him, and talks very freely to her of the circumstances which had led to it. She endeavoured to persuade him that the opinion he had formed of the plaintiff was an erroneous one, and told him she would see that gentleman and communicate to him the result of the interview. Mrs. Hurry afterwards did see the plaintiff, and wrote to the defendant in a very kindly spirit, telling him that the plaintiff denied all the charges that had been made against him, and expressing a hope that all would be amicably and satisfactorily arranged. In what position would the defendant have placed himself if he had left that letter unanswered? He assures Mrs. Hurry that the imputations are well-founded: and he adds," If he" (meaning the plaintiff) "states on oath in the witness-box what he has C. B. N. 8., VOL. XV.-17

stated to you, especially as to the charge of assault, he will be most certainly prosecuted for perjury; for, there is not a shadow of doubt but that the complaint of the servant girl is correct.' If that was what the defendant really believed to be true, I think Mrs. Hurry's letter, which showed she entertained a high opinion of the moral and religious character and conduct of the plaintiff, written under the cir cumstances under which it was written, fully warranted it. I think the defendant was only discharging a social and moral duty in writing to the lady, "Madam, your confidence is misplaced." I also think, the plaintiff's first action being *then pending, that the de*418] fendant had a direct interest not to allow Mrs. Hurry's letter to pass as if he acquiesced in the opinion therein expressed. Not only, therefore, was the defendant in my judgment discharging a social and moral duty, but he was also acting with a just view to his own interest in writing that letter. Judges who have had from time to time to deal with questions as to whether the occasion justified the speaking or the writing of defamatory matter, have all felt great difficulty in defining what kind of social or moral duty or what amount of interest will afford a justification: but all are clear that it is a question for the judge to decide; and I am clear that the letters in question, seeing the circumstances under which they were written, do not show what in law amounts to malice. I fully concur in the doctrine referred to in Starkie on Slander, that it is important to get at the true character of persons you are obliged to be in communication with and to treat with confidence. The law as to privileged communications was for merly much more restricted than it is at the present day. The case of Peacock v. Sir George Reynal, 2 Brownl. & G. 151, is an early and a very strong example. The rule has since become gradually more extended, upon the principle that it is to the general interest of society that correct information should be obtained as to the character of persons in whom others have an interest. If every word which is uttered to the discredit of another is to be made the ground of an action, cautious persons will take care that all their words are words of praise only, and will cease to obey the dictates of truth. The privilege of criticizing and discussing the words and acts of public men has in modern times been very widely extended; and so also has the rule as to giving information concerning private individuals, when given bonâ fide, and to a person having an interest in making the inquiry, and, in my judgment, with very good reason. WILLIAMS, J.-I am of the same opinion. After the finding of the jury that the defendant acted bonâ fide, this argument must proceed upon the assumption that the defendant believed that the imputations he was making were well founded. That being so, he finds Mr. Cleaver and Mrs. Hurry to be under what he had a right to suppose a delusion with regard to the plaintiff, and that they erroneously believed him to be a good and pious man. For the reasons given by my Lord, I think that Mr. Cleaver and Mrs. Hurry stood in such a relation to the defendant that it was his moral and social duty to undeceive them as to the true character of a person whom they set such a mistaken value upon. I do not mean to say that it would be the duty of the defendant to proclaim the plaintiff's delinquencies in public: but I think he was justified in making them known to per

*419]

sons whom it was his duty to undeceive. Applying the rule adopted in Harrison v. Bush, 5 Ellis & B. 344 (E. C. L. R. vol. 85), I am clearly of opinion that the occasions privileged these communications, and prevented them from being actionable.

BYLES, J.-I am of the same opinion. I conceive the rule upon this subject to be clear ever since the case of Toogood v. Spyring. The law considers the publication of defamatory matter to be 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." The more that case is examined, the more carefully and accurately the rule will be found to be expressed. Its application to particular cases has always been attended with the greatest difficulty: the combinations [*420 of circumstances are so infinitely various. As to the first portion of the first letter of the defendant in this case, I think it was excusable on the ground that it was written by him "in the conduct of his own affairs in a matter where his interest was concerned." He was asked to consent to be arbitrator in a dispute between the plaintiff and one of his own parishioners to whom he himself had introduced the plaintiff. He declined the office. He was pressed by his brother clergyman in terms which left him no alternative but to give his reasons for persisting in his refusal. His interest was concerned. He had a right to give his reasons. He certainly goes on to say, "Inasmuch as he (the plaintiff) said a great deal to my parishioners about his intimacy with the clergy of St. Barnabas, I think it my duty to unmask him to you; and I should be very thankful to be enabled to tell some of my neighbours that his position at St. Barnabas is not quite what he led them to suppose it to be, and especially that his official connection with the English Church Union had ceased." He however says he thinks it his duty to make this communication: and the jury have found that he did bonâ fide think so. The letter, it must be remembered, was written by one clergyman to another, both zealous and conscientious men,-the one urging the other by his duty as a christian minister to aid in the removal of a great scandal from the congregation of which the plaintiff was a member; and the other replying in terms whlch showed that he evidently thought it his duty to make the communication he did. It seems to me that both parts of that letter were privileged. As to the second letter, I am disposed to think it was privileged on the ground of interest. At the time it was written an action had been brought against Mr. Adams, a groundless action, as he conceived,-for having written the first *letter. He knew that Mrs. Hurry was in communi- [*421 cation with the plaintiff, and had reason to believe that the letter would be shown to him; and there is good ground for saying that it was sent in order that it might reach the hands of the plaintiff. I therefore think, though with some doubt, that the second letter was privileged on the second ground put by Parke, B., in Toogood v. Spyring.

KEATING, J.-I am of the same opinion. There is no difference as to the rule of what constitutes a privileged communication. It is clearly and accurately laid down in Toogood v. Spyring, 1 C. M. & R. 181, 4 Tyrwh. 582, and also in Harrison v. Bush, 5 Ellis & B. 344

(E. C. L. R. vol. 85). The only difficulty is as to its application to the facts and circumstances of this case. That is a difficulty which must often arise from the infinitely various combinations of circumstances. After the very full judgments given by the other members of the court, I only think it necessary to say that I concur.

(a) See the next case.

Rule absolute. (a)

*422]

*FRYER v. KINNERSLEY. (a) Nov. 24.

On the recommendation of one E. (who was superintendent of the Horticultural Society's gardens, and in the habit of recommending gardeners to its members), K. hired F. in that capacity. Being dissatisfied with him after some months, he gave him notice to leave his service, and called upon E. to recommend him another gardener in his place. Shortly afterwards K. wrote to E. a letter, complaining of F.'s conduct; in which letter, amongst other things, he said,— "On Saturday I had another scene with F. in my garden. He was extremely violent, came towards me several times with an open clasp-knife in his hand, and eyes starting from the sockets with rage, a perfect raving madman. I was, fortunately, accompanied by my upper servant. He accused me of having opened a letter of his, &c. I think it right that you should be informed of F.'s violent conduct, as you might unwittingly recommend him, without being aware of his temper and faults." In consequence of this letter, E. refused to employ F. in the society's gardens, as he before had done, and but for the letter would have done again :

Held, that, assuming that the relation between K. and E. was such as to warrant a communication on the subject of F.'s conduct, the above letter was excluded from the privilege, by reason of excess.

THIS was an action for a libel. Plea, the general issue.

The cause was tried before Keating, J., at the sittings in Westminster after last Trinity Term. The facts which appeared in evidence were as follows:-The plaintiff had been employed as a gar dener under Mr. Eyles, the superintendent of the Royal Horticultural Gardens, of which society the defendant was a member. The defendant having applied to Mr. Eyles to recommend him a gardener, that gentleman, who was in the habit of recommending gardeners to members, though it was no part of his duty as superintendent to do so, sent the plaintiff to him, and the defendant engaged him in January, 1862. In January, 1863, being dissatisfied with the plaintiff's conduct, the defendant gave him notice to quit his service on the 30th of April following, and applied to Mr. Eyles to recommend him another in his place, and had some conversation with him on the subject, in the course of which he told him the grounds of his dissatisfaction; and he on the 20th of April wrote and sent the following letter (which was the libel complained of) to Mr. Eyles:

"Binfield Manor, Berks. 20th April, 1863.

"Dear Sir,-On Saturday I had another scene with *Fryer

*423] in my garden. He was extremely violent, came towards me

several times with an open clasp-knife in his hand, and eyes starting from the sockets with rage, a perfect raving madman. I was, fortunately, accompanied by my upper servant. He accused me of having opened a letter of his, and said he had written to the General Post Office about it, and would take proceedings, as it was an indictable offence. I have found in my post-bag, since nry notice to him to (a) See the preceding case.