There, a petition addressed by a creditor of an officer in the army to the secretary at war, bonâ fide, and with a view of obtaining, through his interference, the payment of a debt due, and containing a statement of facts which, though derogatory to the officer's character, the creditor believed to be true, was held not to be a malicious libel for which an action was maintainable. And Holroyd, J., said: "The defendant, having a just claim against the plaintiff, an officer in the army, and who therefore in some measure is subject to the control of the secretary at war, applies by petition to the latter, in order to obtain through his interference the payment of his debt. This, therefore, was a communication, not for the purpose of slandering, but for the purpose of obtaining redress for an injury, and made to a public officer, who it was supposed had the means of giving such redress. I am of opinion, that, the letter having been published for the purpose of obtaining redress, and not for the purpose of slander, the plaintiff is not entitled to recover." So, here, the communication was evidently made for the purpose of obtaining redress, and not for the purpose of slandering the plaintiff. In Toogood v. Spyring, 1 C. M. & R. 181, 4 Tyrwh. 582, the law is broadly and well laid down by Parke, B. "In general," he says, "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 unauthorised communications, and affords the qualified defence, depending upon the absence of actual malice. If fairly warranted by any reasonable 1853. WENMAN v. ASH. 1853. WENMAN v. ASH. occasion or exigency, and honestly made, such communications are protected, for the convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." [Maule, J. The only question here is, whether the circumstance of this defendant having resided in the plaintiff's house, created such a relation between him and the plaintiff's wife, as, supposing him to have bonâ fide believed that the plaintiff had committed a felony, would justify him in speaking or writing to the wife about it.] The defendant might reasonably suppose he would attain his object through the influence of the party to whom he addressed himself. JERVIS, C. J. I am of opinion that this rule must be discharged. It was sufficiently pointed out in the course of the discussion that it must necessarily be injurious to a man to have a communication like that in question addressed to his wife. Notwithstanding the ingenious argument of my Brother Byles, it is enough to say that I think there was a publication, and that of a matter calculated to operate injuriously to the plaintiff, and sufficient to maintain this action. As to the second point, I am clearly of opinion that the occasion did not justify the communication of the defendant's suspicions to the plaintiff's wife. He could not really and bonâ fide believe that that was the proper quarter to address himself to for the purpose of obtaining redress for his supposed grievance. MAULE, J. I am of the same opinion. In the eye of the law, no doubt, man and wife are for many purposes one but that is a strong figurative expression, and cannot be so dealt with as that all the consequences must follow which would result from its being literally true. For many purposes, they are essentially distinct and different persons,-and, amongst others, for the purpose of having the honor and the feelings of the husband assailed and injured by acts done or communications made to the wife. Whether the circumstances under which a communication is made, constitute it a privileged communication or not, is a question which the court has assumed the jurisdiction of deciding: but it is more a question of fact in each particular case, than a question of law. The court is to consider whether the occasion is such as to make the communication one of a privileged character. That being so, it by no means follows that one can derive much aid in one case from another the circumstances of which are not exactly the same. Fairman v. Ives has been pressed upon us as a case which bears a strong analogy to the present. I agree with the court there, that, inasmuch as the defendant might reasonably enough conceive that the public officer to whom he addressed himself, the secretary at war, had power to assist him in obtaining payment of a just debt, the occasion justified the communication, however mistaken the defendant might be as to the extent of the jurisdiction of the person to whom he was addressing himself. The circumstance of the jury having negatived malice here, does not make the communication privileged. But we have to consider whether the fact of the defendant's having lodged in the plaintiff's house, and possibly lost something while there, gave him a privilege to address such a communication as that complained of to the plaintiff's wife. I think it did not. No reasonable person could think the course the defendant took was one which he was justified in taking to enforce his own interest. There was nothing to warrant the jury in inferring that the defendant was acting bonâ fide in writing this letter. There being no evidence to support the affirmative of that, the negative must be assumed; and that may be done, I think, without impeaching the 1853. WENMAN v. ASH. 1853. WENMAN v. ASH. finding of the jury negativing malice. Where the circumstances under which the communication is made are such as to make it consistent with either the presence or the absence of malice, the plaintiff must prove malice to entitle him to maintain the action. But, where the circumstances do not present any justifiable occasion for speaking or writing the defamatory matter, or shew it done either in pursuance of some duty or for the purpose of endeavouring to enforce a right, the communication is not privileged. I think the circumstances under which this letter was addressed to the plaintiff's wife, are such as to compel us to come to the conclusion that it was not a privileged communication, and consequently that the defendant was liable in this action. CRESSWELL, J. I am entirely of the same opinion. Upon the first point, I feel no difficulty at all: addressing the libel to the plaintiff's wife was clearly a publication. The second point, however, does present some little difficulty, as it is not easy very precisely to define what is and what is not a privileged communication. I entirely concur in my Brother Maule's distinction between this case and Fairman v. Ives. The defendant there might reasonably enough have thought that the secretary at war, to whom he addressed himself, was invested with authority to aid him in compelling his debtor to do him justice. But I think it is impossible to conceive that the defendant in this case could suppose that the plaintiff's wife had any authority to redress that which he fancied to be a grievance. He might as well have addressed himself to any indifferent third person. TALFOURD, J., concurred. Rule discharged. 1853. FUSSELL, Public Office of THE NORTH WILTS BANKING- pro THIS was an action brought by the plaintiff as public officer of the North Wilts Banking-Company, a company carrying on business as bankers pursuant to the visions of the 7 G. 4, c. 46, to recover from the defendant, as one of the shareholders of The Vale of Neath and South Wales Brewery Company, the sum of 20,2477. 19s. 6d., and interest thereon from the 2nd of April, 1852. The action was commenced on the 13th of November, 1852, and a declaration delivered on the 13th of May, 1853, accompanied by particulars of demand, as follows:-"This action is brought to recover the sum of 20,4271. 198. 6d., with interest thereon at the rate of 57. per cent. per annum, from the 2nd day of April, 1852, until payment; being the balance due after allowing all payments and set-off upon the banking-account of The Vale of Neath and South Wales Brewery Company with the above bank, full particulars of which cannot be comprised in three folios." The affairs of the Vale of Neath and South Wales Brewery Company were brought under the winding-up acts, 1848 and 1849,-11 & 12 Vict. c. 45, and 12 & 13 Vict. c. 108,-and, by an order made on the 17th of July, 1850, by the master to whom the petition under the acts had been referred, the defendant was declared a contributory in respect of twenty-seven shares in the company. On the 18th of May, 1853, the defendant took out a summons to shew cause why the plaintiff should not June 13. In ordering further and better particulars, the court will not com pel the plaintiff to give particulars of payments made by the defendant. |