1860. BEATSON v. SKEXE. vented its admission in evidence. In Anderson v. Hamilton (a), Lord Ellenborough refused to admit in evidence the contents of a letter written by an agent of Government in one of the Colonies to the Secretary of State for the Colonial Department. In Wyatt v. Gore (b), Gibbs, C. J., ruled that communications which take place between the Governor of a distant province and his Attorney General are confidential; and if a witness is interrogated as to their substance in a Court of justice, he is not bound to answer any questions respecting them. The letters called for in this case were communications of an equally confidential character. Dickson v. The Earl of Wilton (c) is relied on by the plaintiff. There Lord Campbell ordered a cleik from the War Office to produce a letter in the possession of the Secretary at War; but it does not appear from the report that the production of the letter was objected to on the ground that the disclosure of its contents would be prejudicial to the public service. Secondly, there was no misdirection. It was properly left to the jury to say whether the defendant made the communication bonâ fide, for if so it was privileged. The defendant having knowledge of this irregular conduct of the plaintiff, was bound to disclose it to his superior officer. In Coxhead v. Richards (d), Tindal, C. J., said :— "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 (a) 2 Brod. & B. 156, note. (b) Holt. N. P. 299. men are bound to each other, and by which society is kept up." In Harrison v. Bush (a) the Court of Queen's Bench recognised and adopted this rule of law, that "a communication made bonâ fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege, would be slanderous and actionable." Reliance is placed on the fact that the communication was not made in the form of a report, but that is immaterial; for looking at the instructions which General Shirley and the defendant had received from General Vivian, it was the duty of the defendant to inform General Shirley of the irregular conduct of the plaintiff. The circumstances rebut any reference of malice. The communication having been made bonà fide, it was incumbent on the plaintiff to prove express malice.— They also argued that the verdict was not against the evidence. Edwin James and Gray, in support of the rule (May 1 and May 24). First, the learned Judge ought to have compelled the production of the letters and minutes of the Court of Inquiry, which the Secretary for War was subpœnaed to produce. The letters were not confidential communications, but were written by the plaintiff in explanation of his conduct, and for the purpose of shewing the motives by which he was actuated. There is no authority that under such circumstances the Secretary for War was entitled to withhold them. The case is totally different from that of a confidential report made by a military officer to the Secretary for War, which it is conceded would be privileged. The learned Judge ought also to have compelled (a) 5 E. & B. 344. 1860. BEATSON v. SKENE. 1860. BEATSON v. SKENE. the production of the minutes of the Court of Inquiry. The document required was not the report of a person appointed to investigate the conduct of a military officer charged with a breach of discipline, but the minutes of evidence adduced in the Court of Inquiry. [Martin, B.-How are those minutes evidence for the plaintiff? Must it not first be established that they are evidence, otherwise the consequence would be that any person might get at the contents of documents in the possession of another, and which the latter might wish to keep secret?] A witness cannot object to produce a document merely because its production would be of no avail to the party requiring it. Dickson v. The Earl of Wilton (a) is an authority that the learned Judge ought to have compelled the production of these documents. Secondly, the communication was not privileged. There was no duty, nor any relation subsisting between General Shirley and the defendant, which compelled the latter to make this communication. The learned Judge in effect misdirected the jury in leaving the question to them as he did. The question whether a communication is privileged is for the Court, though the jury must find the facts on which the Court is to pronounce its opinion. In Corhead v. Richards (b), the mate of a ship sent to the defendant a letter charging the plaintiff, the captain, with gross misconduct. The defendant shewed this letter to the owner. The Court of Common Pleas were divided in opinion as to whether the words were privileged or not. Tindal, C. J., who tried the cause, told the jury that if they thought the communication was strictly honest on the part of the defendant, and made solely in the execution of what he believed to be a duty, the communication was privileged. Here, no doubt, whether the communication made to General Shirley was (b) 2 C. B. 569. (a) 1 F. & F. 419. bonâ fide or not, whether the defendant acted in pursuance of his instructions, whether he believed the matter was one into which it was the province of General Shirley to inquire, and whether the defendant acted without malice, were questions of fact for the jury. But when these facts were found, the learned Judge should have pronounced whether or not the speaking of the words was justified. If the direction cannot be complained of, because all the facts were left to the jury, then the verdict is unsatisfactory. The statement of the defendant to General Shirley was false in point of fact. It was the duty of General Shirley to give every information to General Vivian as to the then state of the force so as to insure its efficiency; but there were no instructions that any inquiry into the conduct of General Beatson should be nade. The defendant's duty was to render assistance to General Shirley. It was not until there was a report that General Beatson intended to bring the matter before Parliament that this charge was brought forward as one which might afford the means of meeting the inquiry in Parliament. General Shirley did not treat it as within the scope of his inquiry. Before the Court of Inquiry the defendant stated that he did not consider the communication "official," and that he looked upon it "as a subject passed by, but which was still talked of." The statement was volunteered. It does not appear that it had reference to General Shirley's visit of inspection; it was no more than mere talk. In Wenman v. Ash (a), the defendant wrote a letter containing charges of dishonesty against the plaintiff and sent it to the plaintiff's wife. Williams, J., ruled that the communication was not privileged, and the Court held that the plaintiff was entitled to recover though the jury negatived malice. [Pollock, C. B.-The jury found that the letter was a libel, which implies an evil intention. But suppose the jury had found that there was absolutely no evil intention on the (a) 13 C. B. 836. 1860. BEATSON v. SKENE. 1860. BEATSON v. SKENE. part of the defendant. To constitute a libel the imputation must be malicious. If the jury negative malice, can the Court find it? Wilde, B.-Suppose the law presumes malice, can that presumption be rebutted? Slanderous words, if spoken on an occasion not privileged, are deemed necessarily malicious. The language complained of in this case, viz., a charge against a general officer of inciting troops to mutiny, imputes to him an offence of a most heinous character, and is admitted to be slanderous. The only question then is, whether the communication was privileged.] Whether the communication was privileged or not does not depend upon whether the defendant believed himself to be acting within the scope of his duty. [Bramwell, B.-Suppose the defendant told General Shirley "I think it my duty to tell you all I know,” and then made this charge, would that not have been privileged?] It is submitted that it would not. [Wilde, B.— Must the defendant's right to state what he believed to be the fact depend on whether a Court might think the statement relevant to the inquiry.] If a defendant volunteers a statement he must take care that it is true. [Pollock, C. B.-Suppose a person goes to inquire the character of a servant, and gets it, and the parties afterwards meet, when the person of whom the inquiry was made says "I did not tell you a particular circumstance to which I ought to call your attention." Surely, if made bonâ fide, that communication is privileged.] Cur, adv. vult. The judgment of the Court was now delivered by POLLOCK, C. B.-This was an action of slander, tried before my brother Bramwell during last Hilary Term. The alleged slander was the speaking of certain words by the defendant to Colonel (now General) Shirley, in February, 1856. The plaintiff had been the general commanding an |