butcher, sold meat to the defendant, and defendant afterwards called at plaintiff's shop, and, in the presence of several of his customers, said: "I intended to have dealt with you, but shall not do so, for you changed the lamb that I bought of you for a coarse piece of mutton." Held that if the statement was made in good faith, it was privileged. And where the defendant, a customer of the plaintiff, a corn-dealer, went to the place of business of the plaintiff, and using abusive language to plaintiff in a loud and angry tone of voice, said, among other things: I know all about you and your family, and you have robbed me ever since I have dealt with you. Held that the jury were to determine from the language used, and from the tone and manner in which it was used, whether the defendant was merely in good faith making a complaint concerning a supposed wrong done him, and if so, it was privileged; that making the complaint in a loud voice, and in abusive terms, outside of the plaintiff's shop or in the presence of third parties, were circumstances from which the jury might infer malice; and if the statement was made maliciously, it was not privileged.2

242. When once a confidential relation is established between two persons with regard to an inquiry of a private nature, whatever takes place between them relative to the same subject, though at a time and place different from those at which the confidential relation began, may be entitled to protection as well as what passed at the original interview; and it is a question for the jury whether any future communication on the same subject, though apparently casual and voluntary, did not take place under the influence of the confidential relation already established between the parties, and therefore entitled to the same protection.3

1 Crisp v. Gill, 29 Law Times, 82.

Oddy v. Paulet, 4 Fost. & F. 1009.

'Beatson v. Skene, 5 Hurl. & N. 838; see ante, note 4, p. 422.

§ 243. Where a publication would be privileged if made, and because made to some certain person, the privilege may be forfeited by the publication being made to some other person; as where C. was employed, for compensation, by certain merchants in New York, in obtaining information concerning the business character and standing of their customers, and others in other States, doing business in New York. He wrote for their use, from the residence of T. & Co., a letter unfavorably representing them, and on his return, had it and similar letters printed in a pamphlet, which he gave privately to his employers and others, some of whom had dealt with T. & Co. Held, that although the publication might have been privileged if made only to such of his employers as were interested in the pecuniary standing of T. & Co., the privilege was lost by the publication being made to other persons. And so held of a circular letter sent by the secretary of a society for the protection of trade to the members of such society. With regard to

1 A publication, otherwise privileged, loses its privilege by being sent by telegraph; it occasions a publication to the telegraph operators. (Williams v. Frere, Law Rep. 9 C. P. 393; and see Jeffras v. McKillop & Sprague Co. 9 Sup. Ct. Rep. [2 Hun], 351.)

341.

Taylor v. Church, 1 E. D. Smith, 279; 8 N. Y. 452; Cook v. Hill, 3 Sandf.

64

3 Getting v. Foss, 3 Car. & P. 160. Where the defendant kept a mercantile agency, whose business it was to obtain information respecting the credit and responsibility of persons in business, and to furnish the same to subscribers to his agency, it was held that a communication made in good faith to a subscriber to such agency was privileged. The business in which the defendant was engaged is sanctioned by the usages of commercial communities." (Ormsby v. Douglass, 37 N. Y. 477.) In Sherwood v. Gilbert (2 Albany Law Jour. 323), it was ruled at the circuit that the privilege accorded to a mercantile agency, as laid down in Ormsby v. Douglass, does not extend to the country correspondents of the agency. The circular of a mercantile agency, issued to their subscribers generally, is not privileged; although a publication by such an agency to persons having dealings with plaintiff would be privileged. (Commonwealth v. Stacey, 1 Leg. Gaz. Rep. [Pa.] 114; Sunderlin v. Bradstreet, 46 N. Y. 188.) In Beardsley v. Tappan (5 Blatch. C. C. 497), it was held that a communication by the proprietor of a mercantile agency, through his clerks, to his customers and their clerks, was not privileged. In that case the

the report by the officers of a corporation to the stockholders, of the result of their investigation into the conduct of their officers and agents, with their conclusions upon the evidence collected by them, it was held to be a privileged communication, but that the privilege extended only to making the report, and not to the preservation of it in the form of a book for distribution among the stockholders and in the community. And where the defendant published an advertisement calling a meeting of the creditors of the plaintiff, and in addition defamatory remarks concerning the plaintiff, the publication was held not to be privileged, because the meeting of creditors might have been called in a less public manner. Where the plaintiffs were contractors for the erection of a borough jail, and the defendants were members of the town council; the defendants, from their business, were competent judges of the work, and they published, in a local newspaper, a letter charging the plaintiff with omissions and deviations from their contract-in an action for libel, it was held that although the charges contained in the letter would have been privileged if made by the defendants to the town council, they were not privileged when published in a newspaper.3 And although a bank director may be privileged at a meeting of the board to

plaintiff had a verdict for $10,000. A motion for a new trial was made before Justice Nelson, and denied. The defendant appealed to the United States Supreme Court, where the judgment was, December, 1870, reversed on a collateral point.

In the defendant's brief in Tappan v. Beardsley, it was said that only thirteen suits and one prosecution against mercantile agencies for libel had been instituted up to that time, A. D. 1870, and of these, the prosecution and two suits were then pending, and the residue of the suits were either abandoned or had resulted in favor of the defendants. Billings v. Russell (8 Boston Law Rep. N. S. 699 [A. D. 1851]), was the first reported case for libel against a mercantile agency.

1 Phil. R. R. Co. v. Quigley, 21 How. U. S. Rep. 202; see Koenig v. Ritchie, 3 Fost. & F. 413.

2 Brown v. Croome, 2 Stark. Cas. 297.

'Simpson v. Downs, 16 Law Times, N. S. 391.

speak of the credit of a merchant or customer of his bank, he is not privileged so to speak, even to a codirector, in any other place or at any other time than at such meeting during its session.' The publication, by the directors of an incorporated society for promoting female medical education, in their annual report, of a "caution to the public" against trusting a person who had formerly been employed to obtain and collect subscriptions in their behalf, but had since been dismissed, was held to be justified so far only as it was made in good faith, and was required to protect the corporation. and the public against false representations of that person; and that the questions, whether the directors had acted in good faith, and had not exceeded their privilege, were for the jury. The plaintiff, having the defendant's bond, advertised it for sale; the defendant published a statement of the circumstances under which the bond had been given, with this conclusion: "His (plaintiff's) object is either to extract money from the pockets of an unwary purchaser, or, what is more likely, to extort money from me;" held not privileged.3 A. understand

1 Sewell v. Catlin, 3 Wend. 291. Plaintiff and one Taylor were codirectors of a joint stock company. Defendant stated to Taylor that plaintiff had been privy to the preparation and circulation of a false balance sheet of the affairs of the company. Defendant learned that he was the manager of, and a shareholder in said company, and having found the affairs of the company different from that represented in a balance sheet of the affairs of said company, published prior to his becoming manager, and that he refused to act further as manager unless furnished with means to carry on the business of the company; that the words were spoken believing them to be true, without malice, and in reference to the refusal of defendant to continue acting as manager, on demurrer the plea was held bad, as not showing a privileged occasion. Taylor was not shown to have any interest in the subject-matter, or duty in respect to it. (Waring v. M'Caldin, Ir. Rep. 7 Com. Law, 282.) The case was tried on the question of fact before the demurrer was argued, and on the trial it was shown the publication was to others besides Taylor, and that such others were in no wise interested; held, this did not divest the occasion of privilege. Plaintiff had a verdict for sixpence damages. Court refused to disturb it.

Gassett v. Gilbert, 6 Gray (Mass.) 94; see Hatch v. Lane, 105 Mass. 394; Holliday v. Ontario Farmers' Mut. Ins. Co. 33 Up. Can. Q. B. Rep. 558.

3 Robertson v. McDougall, 4 Bing. 670; 1 Mo. & P. 692; 3 Car. & P. 259.

ing that B. imputed to C., a relative of A.'s the passing to him of a piece of forged paper, told B., untruly, that he was authorized by C. to call upon him and investigate the matter, and B. thereupon repeatedly asserted C.'s guilt of the crime; held that these assertions were unnecessary and useless, and were not privileged, and it seems they would not have been privileged if A. had been C.'s agent to call upon B. for information.'

244. There are, however, some cases where the publication to others than those immediately interested or concerned does not forfeit the privilege; as where the plaintiff, a female, went to the store of the defendant to

2

Thorn v. Moser, I Denio, 488. The defendant had suspected, and declared his suspicion, that a person's wife had committed larceny; but, upon being inquired of by that person, whether his suspicions continued, replied that he was now satisfied that A. B. (a hired maid) stole it. Held that if the communication was privileged at all, the defamatory matter, going further than to satisfy the inquirer that there was reason for the suspicion to cease, went beyond the exigency of the occasion. (Robinett v. Ruby, 13 Md. 95.) A., on an occasion when no third person was present, accused B. of stealing; afterwards a friend of B.'s called on A. and asked him if he had made such an accusation? A. answered, "Yes, and I believe it to be true." Held not privileged. (Force v. Warren, 15 Com. B. N. S. 806; and see Smith v. Matthews, I Moo. & Rob. 151; Griffith v. Lewis, 7 Q. B. 61; 14 Law Jour. Q. B. 197.) Plaintiff's daughter had been in defendant's service as a domestic servant. After the girl left, defendant's wife went to where the girl was staying and claimed some articles as her property, and as having been carried away by the girl. The girl told this to her father (the plaintiff), and he, with other relatives, went to defendant saying he had come to inquire about the charge against his daughter. Defendant said she had been stealing all the time she had been at his house. Plaintiff then inquired, why did you keep her in your service? Defendant answered that plaintiff was a thief, and that his family were all thieves, and were all tarred with the same stick; held this was not privileged. (Miller v. Johnston, 23 Up. Can. C. P. Rep. 580.) Where the plaintiff, a carpenter, was employed by a builder, and defendant imputed that plaintiff had, while so employed at one Burton's house, carried away some quarterings, the builder afterwards went to defendant and asked him did he say so? to which defendant replied, "Yes, I saw the man employed by you, take from Burton's house two long pieces of quartering." Held proper to instruct the jury that the words were privileged unless spoken maliciously. (Kine v. Sewell, 3 M. & W. 297.) If one merely acknowledges to having made a statement concerning the plaintiff, such acknowledgment alone will not sustain an action, but it may be used as evidence of such former statement. (Id.; and see Burt v. McBain, 29 Mich. 260.)

* See Laughton v. The Bishop of Sodor & Man, Law Rep. 4 Pri. C. Cas. 495.