to protect the interests of another, that which he writes under such circumstances is a privileged communication." That learned judge never could have meant to convey that the communication of defamatory matter, like this, would be a moral duty. The defendant owed a clear moral duty to the plaintiff to refrain from repeating the slander. In Martin v. Strong, 5 A. & E. 535, 1 N. & P. 29, it was held that communications made by one member of a charitable association to another, reflecting on the conduct of the medical attendant of the establishment, were not privileged; though, it seems, it would have been otherwise, if the communications had taken place at a meeting of the association held for the consideration of the medical man's conduct. The present case, however, clearly does not fall within any of the classes of privileged communications allowed by law. There is a total absence of interest on the part of the defendant, as well as of that sort of relation between the writer of the letter and the ship-owner, which could justify the exhibition of the letter to him. There was nothing to give rise to a semblance of duty, either legal or moral.

The court took time to consider their judgment: but, there being a difference of opinion amongst the judges who heard the case argued, and ERSKINE, J.,(a) having retired from the bench, a second argument was directed. The second argument took place in Easter term, 1845, before TINDAL, C. J., and COLTMAN, CRESSWELL, and ERLE, JS.

*

*584] *Talfourd and Channell, Serjts., for the defendant. The question is, whether, in point of law, the communication complained of necessarily imported malice. The law primâ facie implies malice in the publisher of defamatory matter to the injury of another; but this presumption is liable to be rebutted by the circumstances of each particular case. That is shown by this, that the defence is admissible under not guilty, and need not be specially pleaded; which, though the court pronounced no opinion on the point in Smith v. Thomas, 2 N. C. 372, 2 Scott, 546, 4 Dowl. P. C. 333,(b) is now clear law. To sustain his action, the plaintiff must show that the publication was wrongful, and not justified by the occasion: Lay v. Lawson, 4 A. & E. 795, Hearne v. Stowell, 12 A. & E. 719. Formerly a greater latitude was allowed than can now be contended for: Brooke v. Montague, Cro. Jac. 90; Delany v. Jones, 4 Esp. N. P. C. 191. [CRESSWELL, J. Is not the rule this-whether the occasion is such as to rebut the inference of malice, if the publication is bonâ fide, is a question of law for the judge; whether the bona fides existed, is a question of fact for the jury?] Such undoubtedly is the rule.(c) [TINDAL, C. J. The mode of publishing goes to the latter point; as where the publication is in a newspaper.] Here, the defendant, who had been for some years on terms of intimacy with Cass, receives a letter from him, containing matters of a very alarming description relative to the conduct of the captain, which, though directly involving the safety of the ship, the

(a) The opinion of that learned judge is understood to have been in favour of the defendant. (b) And see Popham, 69. (c) See Hooper v. Truscott, 2 N. C. 457, 2 Scott, 672.

cargo, and the crew, he is strictly enjoined not to communicate to Ward, the owner. Having no knowledge of the plaintiff, or of Ward, the defendant adopts the only course that an honest and discreet person, [*585 under such circumstances, could pursue: he consults with one of the Elder Brethren of the Trinity House, and with an eminent ship-owner; under whose advice, he, without any comment, shows the letter to Ward. What, then, was the owner's duty? Certainly not to dismiss the captain, without investigating the charges made against him. The dismissal was not the fair and legitimate consequence of the defendant's act. (a) The information was of the utmost importance to the owner: the only doubt arises from their being no relation of any kind between him and the defendant, and no application by him for information. The definition of a privileged communication given by PARKE, B., in Wright v. Woodgate, is perhaps as accurate as any that can be found. That the rule is founded on a consideration of the importance of the information to the party to whom it is given, is evident from the cases. In Herver v. Dowson, words of a tradesman that he would soon be a bankrupt," spoken in confidence, and friendship, as a caution, were held not to be actionable. [CRESSWELL, J. How does that agree with Bromage v. Prosser ?] Rogers v. Clifton, Pattison v. Jones, and Child v. Afleck, were cases of servants' characters. In McDougall v. Claridge, it was held that a letter written confidentially to persons who employed A. as their solicitor, conveying charges injurious to his professional character in the management of certain concerns which they had intrusted to him, and in which B., the writer of the letter, was likewise interested, was not actionable. In *Padmore v. Law[*586 rence, 11 A. & E. 380, 3 P. & D. 209, the defendant, in the presence of a third person, not an officer of justice, charged the plaintiff with having stolen his property, and afterwards repeated the charge to another person, also not an officer of justice, who was called in to search the plaintiff, with the consent of the latter and it was held that the statement was privileged, if the defendant believed in its truth, acted bonâ fide, and did not make the charge before more persons, or in stronger language, than was necessary; (b) and that it was a question for the jury, and not for the judge, whether the facts brought the case within this rule. In Blake v. Pilfold, 1 M. & Rob. 198, it was held that a letter written by a private individual to a public officer, complaining of the misconduct of a person under him, if made bonâ fide, and without malice, is not the subject of an action, though some of the charges may not be true. TAUNTON, J., there says: "Generally, where one man publishes libellous matter of another,

(a) Taking Ward to have been under contract to employ, he would appear to be alone responsible for the wrongful dismissal, notwithstanding legal, or even actual malice in the defendant; Morris v. Langdale, 2 B. & P. 284; Vicars v. Wilcocks, 8 East, 1, 2 Smith's Leading Cases, 300. If there was no contract, Ward-whose interests might be endangered by delay, and who had incurred no responsibility as the propagator of an injurious report,-would be under no legal obligation to investigate the truth of the charges made by Cass.

(b) Quare, of this restriction.

ant.

the law will presume malice in the writer, and the plaintiff will be enabled to recover, without giving any proof of a malicious motive in the defendBut there are certain cases in which communications are (what the law terms) privileged, and where the occasion on which the communication is made, rebuts the inference of malice. In such a case, a plaintiff cannot support an action for the publication of the matters so communicated, without giving evidence from which a jury may come to the conclusion that the defendant was actuated by malicious motives. I allude to the occasions where a man, on being applied to, gives a character of a servant, or where he gives confidential advice, or where the occasion of the communication is such as primâ facie affords an excuse for making it. In all these cases a plaintiff must give evidence of express *malice."

*587] The rule laid down by PARKE, B., in Toogood v. Spyring, clearly embraces the present case. "In general," says that learned judge, “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." The like doctrine is held in Cockayne v. Hodgkisson, Warr v. Jolly, 6 C. & P. 497, Woodward v. Lander, Shipley v. Todhunter, and Todd v. Hawkins. Here, the communication made by the defendant to Mr. Ward, was made in the honest and bona fide discharge of a moral duty towards that gentleman.(a) If the defendant had had any interest in the matter, or was in any way connected with Mr. Ward, there could be no doubt that the legal inference of malice would be rebutted by the occasion: but the question is, whether the rule is to be so limited, and whether the defendant was not morally bound to communicate to Mr. Ward the information he had received from Cass. [COLTMAN, J. Your argument would extend to the protection of *5881 a communication founded on mere *idle gossip.] The communication would not be protected unless there were just grounds for believing the information to be true. [CRESSWELL, J. You would make the moral duty of communicating defamatory matter to one interested in the subject, to depend upon the source whence it comes, and upon whether the circumstances under which the communicating party received the information, made it reasonable for him to believe it to be true?] Precisely so.

(a) The jury must be taken to have negatived the apparent motive of the defendant, viz., a wish to obtain promotion for his friend Cass, the mate, at the expense of Coxhead, the master.

[CRESSWELL, J. That would lead to a very wide and inconvenient field. of inquiry. ERIE, J. Suppose a conversation to take place in a public house between very disreputable people, from which it appears that A. intends to commit a felony in the house of B.; would not C., overhearing the conversation, be justified in communicating it to B.? The more disreputable the source of the information, the more ground for giving credence to it.] The characters of the parties would certainly be one test. Here, the character and situation of the writer of the letter, as well as of the captain, were known to Mr. Ward. If the defendant was bound to disregard the communication, so was the owner. (a) The letter clearly did not justify the captain's dismissal, and would have afforded no defence to an action for depriving him of the command.(b)

or excuse.

Sir T. Wilde, Serjt., and Bramwell, (c) for the plaintiff. The general point is of great importance, and the public are indebted to the court for giving it further consideration. Every man is responsible for an intentional injury done to another, unless the circumstances are such as to justify or to excuse it. In the present case, to entitle the plaintiff to maintain the action, he was not bound to show actual malice: it was [*589 enough if the publication of the libel took place under circumstances that deprived it of the protection which the law affords to communications of a class to which the term "privileged" is usually applied. The kind of malice necessary to be shown here, is that which is defined by BAYLEY, J., in Bromage v. Prosser. "Malice," says that learned judge, “in common acceptation, means ill-will against a person, but in its legal sense it means a wrongful act done intentionally, without just cause If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or If I maim cattle, without knowing whose they are, if I poison a fishery, without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am attainted of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional, and without just cause or excuse.(d) And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not; and, if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? And I apprehend the law recognises the distinction between these two descriptions of malice, malice in fact and malice in law,-in actions of slander. In an ordinary action for words, it is sufficient to charge that the defendant spoke them falsely; it is not necessary to state that they were spoken

excuse.

(a) So, e converso.

(b) Whether such action would lie, would depend upon the existence, or non-existence, of a prospectively binding contract to employ, suprà, 585.

(c) Having been in the cause before the end of H. T. 1840. (d) 1 Russell on Crimes, 614 (i), 1st ed.; 3d ed. 483 (i).

maliciously. This is so laid down in Style's Reports, 392, and was adjudged, upon error, in Mercer v. Sparks, Owen 51, Noy, 35. The objection *there was, that the words were not charged to have been *590] spoken maliciously; but the court answered, that the words were themselves malicious and slanderous, and therefore the judgment was affirmed. But, in actions for such slander as is primâ facie excusable on account of the cause of speaking or writing it, as in the case of servants' characters, confidential advice or communications to persons who ask it or have a right to expect it, malice in fact must be proved by the plaintiff'; and in Edmondson v. Stevenson, Bull. N. P. 8, Lord MANSFIELD takes the distinction between those and ordinary actions of slander." It may be conceded, that, if the defendant here was under any moral obligation to communicate the letter in question to Mr. Ward, the action cannot be sustained. But, if he was under the pressure of no moral duty, what is there to distinguish this defendant from the rest of the world? There are expressions in some of the cases, and especially those at nisi prius, tending in a great degree to obscure the rule of law. But, on all occasions where the courts have given deliberate judgments, the law will be found to be uniformly stated in conformity with Bromage v. Prosser. Where a man is speaking on a lawful occasion, there is no presumption of law against him, and express malice must be proved. But, where the act is not justified by the occasion, the honesty of the party's intention, and his belief in the truth of the statement he makes, are wholly immaterial. It has been suggested that any one who hears a statement to the prejudice of another, is justified in repeating the slander to a party interested in the well-doing of the person slandered; or, in other words, in repeating it in a quarter in which the repetition will have the most injurious effect. (a) That *591]

surely cannot be law. What becomes of the old statute *against eaves-dropping,(b) commented upon in the second Institute, 226? It never can be that any supposed moral duty will justify the repetition of all the idle gossip a man hears to the prejudice of his neighbour. See the consequences of holding this defendant not to be responsible for this communication. Cass would only be responsible for an injury that naturally and legally resulted from his act. So far from this defendant being authorized by Cass to communicate the slander to Mr. Ward, he was expressly and earnestly enjoined to refrain from so doing. He was forewarned of the ruin which such a course must inevitably entail, and which in the result has been entailed, upon the plaintiff. The convenience of trade and commerce requires considerable freedom of communication respecting the credit and responsibility of a trader: and yet a distinction is taken between one who answers inquiries, and one who volunteers information:

(a) Vide suprà, 587 (b).

(b) The statute usually referred to in connection with eaves-dropping, is Westm. 1, c. 33, in which, however, eaves-dropping is not expressly mentioned. As to eaves-droppers, see Kitch. Courts, 20, 1 Hawk. P. C. book 1, c. 61, § 4, 2 Hawk. P. C. book 2, c. 10, § 59, 4 Bla. Comm. 169.