Chapter VI: Defamation (6)

This was an action for a libel, tried before Brett, J., at the last assizes for Leicester. The facts were as follows: The plaintiff was employed as assistant in the shop of the defendant, a shoemaker, at Leicester. The defendant having accused the plaintiff of robbing him of money, sent two post-office telegrams to her father, who resided in London, to inform him of his suspicions. The first telegram was to this effect: “Come at once to Leicester, if you wish to save your child from appearing before a magistrate.” The second was as follows: “Your child will be given in charge of the police unless you reply and come to-day. She has taken money out of the till.”

The charge was persisted in down to the trial; but there was no evidence to support it. It did not appear that, beyond the officials of the post-office, through whose hands the telegrams passed, they had come to the knowledge of any other persons than the father, mother, and brother of the plaintiff.

The learned judge left it to the jury to say whether the statements were libellous, and whether it was reasonable to transmit them by telegraph rather than by post.

The jury found that the statements were libellous, and that it was not reasonable to send them by telegraph, and they returned a verdict for the plaintiff, damages £100.

_O’Malley, Q. C._ (with him _Merewether_), pursuant to leave, moved to enter a verdict for the defendant.[496]

BRETT, J. I reserved the point because I thought it was a very important one. It is whether, where a communication is to be made to a relative of a person against whom a charge is preferred, which communication would be privileged if sent by letter in the ordinary way the privilege is not lost by sending it in the form of a telegram,—whether a communication in that form can be said to be made to one person, when in point of fact it passes through several hands before it reaches its ultimate destination. Privilege is not wanted unless the publication is libellous. The question then is whether the character of an innocent person is to be destroyed because the libeller thinks fit to send the libel in this shape rather than in a sealed letter. I do not mean to say that there was malice in fact here. But I agree with my Lord that sending the messages by telegraph when they might have been sent by letter was evidence of malice. I desire, however, to put this higher. I think that a communication which would be privileged if made by letter becomes unprivileged if sent through the telegraph office, because it is necessarily communicated to all the clerks through whose hands it passes. It is like the case of a libel contained on the back of a post card.[497] It was never meant by the Legislature that these facilities for postal and telegraphic communication should be used for the purpose of more easily disseminating libels. Where there is such a publication, it avoids the privilege, because it is communicated through unprivileged persons. As to the damages, I am not at all disposed to think them excessive. The charge against the plaintiff was of a very grave character. It was made with considerable severity, and it was insisted upon even down to the trial.

_Rule refused._[498]

MARKS _v._ BAKER
SUPREME COURT, MINNESOTA, JULY 25, 1881.
_Reported in 28 Minnesota Reports, 162._

BERRY, J. This is an action for libel. The plaintiff was, at the times hereinafter mentioned, treasurer of the city of Mankato, and, as such, custodian of the moneys, and from April 1 to 6, 1880, a candidate for re-election to the same office, at an election fixed for the latter day. The defendants were residents and tax-payers of the city, and publishers thereat of the Mankato Free Press, a weekly newspaper, and as such they published therein, on April 2, 1880, the article complained of, in which, as the plaintiff claims in his complaint, they charged and intended to charge the defendant as treasurer with embezzling city funds. It is alleged in the complaint that the matter charged as libellous was of and concerning the plaintiff in his office—that it was false and defamatory, and that the publication was malicious. The answer denies malice, all intent to injure or defame plaintiff, any intention on defendants’ part to charge him with embezzlement, and alleges that defendants published the article complained of, as a communication, solely for the purpose of calling the attention of the public to the matter therein referred to, viz., to a discrepancy in certain official reports tending to show that the plaintiff had failed to charge himself with the full amount of city funds which he had received from the county treasury, and with the view of obtaining an inquiry as to the cause of such discrepancy. The answer further alleges that “the publication was made in good faith; ... that defendants believed that there was reasonable cause for the publication;” and “that they were then and there discharging a sacred and moral obligation as ... editors and publishers.” The reply puts these allegations of the answer in issue. Upon the trial it was admitted that, notwithstanding the discrepancy, (which in fact, existed) the plaintiff had accounted for the full sum received by him as city treasurer from the county treasurer, so that the defendants’ charge or insinuation to the contrary was false.

Defendant, Baker, having been called for the defence, was asked the questions following, to which he made answers as follows, all against the objection and exception of the plaintiff:

(1) “Did you believe the report of the city recorder to be true? _Answer._ I did believe it to be true. (This report was that from which, as defendants in the alleged libel charged or insinuated, it appeared that plaintiff had failed to account for all the money received by him from the county treasurer.)

(2) “What was your object in publishing the article? _Answer._ I published it for the general public interest.

(3) “Did you have any other object in publishing the article? _Answer._ I did not.

(4) “You have stated that you had no other purpose than doing a public duty in publishing the article. I want to know what your object was,—to charge somebody with a crime, or whether you had some other object? _Answer._ To draw attention to the discrepancy of the two reports. I had seen what purported to be the official report of the county auditor, and I had seen the city recorder’s; and the county auditor’s showed that Marks, as city treasurer, had received from the county, during the fiscal year, $115.02 more than the city recorder’s report showed that he had received from the county for the same time. (These are the two reports between which the discrepancy was charged to exist.)

(5) “Did you, by publishing the article, intend to charge the plaintiff with embezzling any sum whatever?” _Answer._ “I did not.”

The defence set up in the answer is, in effect, that the publication complained of is a privileged communication.

The rule is that a communication made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty, is privileged; that in such case the inference of malice which the law draws from defamatory words is rebutted, and the _onus_ of proving actual malice is cast upon the person claiming to have been defamed. Toogood _v._ Spyring, 1 Cr. M. & R. 181; 2 Addison on Torts, § 1091; Harrison _v._ Bush, 5 E. & B. 544; Moak’s Underhill on Torts, 146; Quinn _v._ Scott, 22 Minn. 456. That the subject-matter of the communication is one of public interest in the community of which the parties to the communication are members, is sufficient, as respects interest, to confer the privilege. Purcell _v._ Sowler, 2 C. P. D. 215; Palmer _v._ City of Concord, 48 N. H. 211; Cooley on Torts, 217. The subject-matter of the communication in the case at bar was one of public interest in the city of Mankato, where the publication was made, and one in which the defendants had an interest as residents and tax-payers of the city. It was, therefore, a privileged communication, within the rule mentioned, if made in good faith.[499]

_Judgment affirmed._[500]

CARTER _v._ PAPINEAU
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 27, 1916.
_Reported in 222 Massachusetts Reports, 464._

BRALEY, J.[501] The evidence would have amply warranted the jury in finding that the defendant Papineau as priest in charge declined to administer to the plaintiff the rite of “Holy Communion” or to permit her to partake thereof, and that by his authority and order she had been refused admission on the Lord’s Day to the building in which religious services were being held. It is contended that for these acts he and the defendant Lawrence, bishop of the diocese, are responsible in damages, and that the verdicts in their favor were ordered wrongly.

The record shows that the Protestant Episcopal Church of America, of which the parties are members, has a body of canons or ecclesiastical law of its own, by which the plaintiff upon baptism and confirmation agreed to be bound, and under which her rights of worship must be determined. Fitzgerald _v._ Robinson, 112 Mass. 371. Grosvenor _v._ United Society of Believers, 118 Mass. 78. By the “Rubric in the Order for the Administration of the Lord’s Supper, or Holy Communion” the “minister” is given authority to refuse the rite to any one whom he knows “to be an open and notorious evil liver, or to have done any wrong to his neighbors by word or deed.” By “Canon 40. Of Regulations Respecting the Laity,” Section II, “When a person to whom the Sacraments of the Church have been refused, or who has been repelled from the Holy Communion under the Rubrics, shall lodge a complaint with the Bishop, it shall be the duty of the Bishop, unless he see fit to require the person to be admitted or restored because of the insufficiency of the cause assigned by the Minister, to institute such an inquiry as may be directed by the Canons of the Diocese or Missionary District, and should no such Canon exist, the Bishop shall proceed according to such principles of law and equity as will insure an impartial decision, but no Minister of this Church shall be required to admit to the Sacraments a person so refused or repelled, without the written direction of the Bishop.”

The plaintiff has not availed herself of this right of appeal to the only personage having the requisite ecclesiastical authority to review her standing as a member and communicant or to pass upon her ceremonial rights in accordance with the principles of “law and equity.” Grosvenor _v._ United Society of Believers, 118 Mass. 78, 91. The letter of her counsel to the bishop, to which no reply appears to have been made, cannot be considered as an appeal which had been denied. It contains only recitals of all her grievances, for the rectification of which his friendly intercession is requested.

But if an appeal had been taken properly and the decision had been adverse, the plaintiff would have been remediless, for in this Commonwealth her religious rights as a communicant are not enforceable in the civil courts. Fitzgerald _v._ Robinson, 112 Mass. 371, 379. Canadian Religious Association _v._ Parmenter, 180 Mass. 415, 420, 421. For the same reason it is unnecessary to decide whether at common law, as the plaintiff contends, a member of the Church of England could sue if unjustifiably denied participation in the communion. See Rex _v._ Dibdin, [1910] P. D. 57; Thompson _v._ Dibdin, [1912] A. C. 533.

Nor can the action be maintained for defamation. Undoubtedly she suffered mental distress, and the omission was in the presence of the other communicants. The plaintiff, however, was not publicly declared to be “an open and notorious evil liver,” or to be a person who had done wrong to her neighbors by word or deed. The act of “passing her by” without comment was within the discipline or ecclesiastical polity of the church and does not constitute actionable defamation of character. Farnsworth _v._ Storrs, 5 Cush. 412, 415. Fitzgerald _v._ Robinson, 112 Mass. 371. Morasse _v._ Brochu, 151 Mass. 567. See R. L. c. 36, §§ 2, 3.

The action for exclusion from the church building also must fail. It appears that upon being informed by the constable employed for the purpose that she could not enter the plaintiff made no attempt to pass, but acquiesced and obeyed the order. The elements of an assault are absent. No intimidation was used, or unjustifiable coercion exercised. By Canon 16, to which the plaintiff subjected herself, control of the worship and spiritual jurisdiction of the mission, including the use of the building for religious services, was in Papineau as the minister in charge, “subject to the authority of the Bishop.”[502]

PULLMAN _v._ WALTER HILL & COMPANY
IN THE COURT OF APPEAL, DECEMBER 19, 1890.
_Reported in [1891] 1 Queen’s Bench, 524._

Motion by the plaintiffs for a new trial.

At the trial before Day, J., with a jury, it appeared that the plaintiffs were members of a partnership firm of R. & J. Pullman, in which there were three other partners. The place of business of the firm was No. 17, Greek Street, Soho. The plaintiffs were the owners of some property in the Borough Road, which they had contracted in 1887 to sell to Messrs. Day & Martin. The plaintiffs remained in possession of the property for some time, and agreed to let a hoarding, which was erected upon the property, at a rent to the defendants, who were advertising agents, for the display of advertisements. In 1889 a dispute arose between the plaintiffs and Day & Martin, who were building upon the land, as to which of the two were entitled to the rent of the hoarding; and on September 14, 1889, the defendants, after some prior correspondence, wrote the following letter:—

“Messrs. Pullman & Co., 17, Greek Street, Soho.
“_Re_ Boro’ Road.

“Dear Sirs,—We must call your serious attention to this matter. The
builders state distinctly that you had no right to this money
whatever; consequently it has been obtained from us under false
pretences. We await your reply by return of post.

“Yours faithfully,
“(Signed) Walter Hill & Co., Limited.”

This letter was dictated by the defendants’ managing director to a shorthand clerk, who transcribed it by a type-writing machine. This type-written letter was then signed by the managing director, and, having been press-copied by an office-boy, was sent by post in an envelope addressed to Messrs. Pullman & Co., 17, Greek Street, Soho. The defendants did not know that there were any other partners in the firm besides the plaintiffs. The letter was opened by a clerk of the firm in the ordinary course of business, and was read by two other clerks. The plaintiffs brought this action for libel. The defendants contended that there was no publication, and that, if there were, the occasion was privileged. The learned judge held that there was no publication, that the occasion was privileged, and that there was no evidence of malice. He therefore nonsuited the plaintiffs.[503]

LORD ESHER, M. R. Two points were decided by the learned judge: (1) that there had been no publication of the letter which is alleged to be a libel; (2) that, if there had been publication, the occasion was privileged. The question whether the letter is or is not a libel is for the jury, if it is capable of being considered an imputation on the character of the plaintiffs. If there is a new trial, it will be open to the jury to consider whether there is a libel, and what the damages are. The learned judge withdrew the case from the jury.

The first question is, whether, assuming the letter to contain defamatory matter, there has been a publication of it. What is the meaning of “publication”? The making known the defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication of it; for you cannot publish a libel of a man to himself. If there was no publication, the question whether the occasion was privileged does not arise. If a letter is not communicated to any one but the person to whom it is written, there is no publication of it. And, if the writer of a letter locks it up in his own desk, and a thief comes and breaks open the desk and takes away the letter and makes its contents known, I should say that would not be a publication. If the writer of a letter shows it to his own clerk in order that the clerk may copy it for him, is that a publication of the letter? Certainly it is showing it to a third person; the writer cannot say to the person to whom the letter is addressed, “I have shown it to you and to no one else.” I cannot, therefore, feel any doubt that, if the writer of a letter shows it to any person other than the person to whom it is written, he publishes it. If he wishes not to publish it, he must, so far as he possibly can, keep it to himself, or he must send it himself straight to the person to whom it is written. There was, therefore, in this case a publication to the type-writer.

Then arises the question of privilege, and that is, whether the occasion on which the letter was published was a privileged occasion. An occasion is privileged when the person who makes the communication has a moral duty to make it to the person to whom he does make it, and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged. An ordinary instance of a privileged occasion is in the giving a character of a servant. It is not the legal duty of the master to give a character to the servant, but it is his moral duty to do so; and the person who receives the character has an interest in having it. Therefore, the occasion is privileged, because the one person has a duty and the other has an interest. The privilege exists as against the person who is libelled; it is not a question of privilege as between the person who makes and the person who receives the communication; the privilege is as against the person who is libelled. Can the communication of the libel by the defendants in the present case to the type-writer be brought within the rule of privilege as against the plaintiffs—the persons libelled? What interest had the type-writer in hearing or seeing the communication? Clearly, she had none. Therefore, the case does not fall within the rule.

Then again, as to the publication at the other end—I mean when the letter was delivered. The letter was not directed to the plaintiffs in their individual capacity; it was directed to a firm of which they were members. The senders of the letter no doubt believed that it would go to the plaintiffs; but it was directed to a firm. When the letter arrived it was opened by a clerk in the employment of the plaintiffs’ firm, and was seen by three of the clerks in their office. If the letter had been directed to the plaintiffs in their private capacity, in all probability it would not have been opened by a clerk. But mercantile firms and large tradesmen generally depute some clerk to open business letters addressed to them. The sender of the letter had put it out of his own control, and he had directed it in such a manner that it might possibly be opened by a clerk of the firm to which it was addressed. I agree that under such circumstances there was a publication of the letter by the sender of it, and in this case also the occasion was not privileged for the same reasons as in the former case. There were, therefore, two publications of the letter, and neither of them was privileged. And, there being no privilege, no evidence of express malice was required; the publication of itself implied malice. I think the learned judge was misled. I do not think that the necessities or the luxuries of business can alter the law of England. If a merchant wishes to write a letter containing defamatory matter, and to keep a copy of the letter, he had better make the copy himself. If a company have deputed a person to write a letter containing libellous matter on their behalf, they will be liable for his acts. He ought to write such a letter himself, and to copy it himself, and, if he copies it into a book, he ought to keep the book in his own custody.[504]

I think there ought to be a new trial.

_Order for new trial._

STEVENS _v._ SAMPSON
IN THE COURT OF APPEAL, NOVEMBER 15, 1879.
_Reported in 5 Exchequer Division Reports, 53._

Claim for falsely and maliciously printing and publishing of the plaintiff certain words in certain newspapers. The libel set out in the claim was a report, published by the defendant, of certain proceedings in a plaint of Nettlefold _v._ Fulcher, tried at the Marylebone county court, and brought to recover damages and costs sustained by Nettlefold in setting aside certain proceedings instituted by Fulcher against Nettlefold to recover the possession of certain premises. It alleged that at the county court the defendant in the present action appeared for Nettlefold, and made statements regarding the conduct of the plaintiff in the present action, who was a debt collector and employed by Fulcher as agent to recover possession of the premises.

Statement of defence: That the words alleged to have been published were a true and correct account and report of a certain trial in a court of justice having jurisdiction in that behalf, and of certain words spoken during the sitting of the court in the course of the trial, and published for the public benefit, and without malice. Issue thereon.

At the trial before Cockburn, C. J., at the Hilary Sittings, 1879, at Westminster, it was proved that the defendant, who was a solicitor, had sent the report set out in the claim of the trial of Nettlefold _v._ Fulcher, before the Judge of the Marylebone county court, to the local newspapers. Cockburn, C. J., left two questions to the jury: 1. Was the report a fair one? 2. Was it sent honestly, or with a desire to injure the plaintiff? The jury answered these questions: 1. That it was in substance a fair report; 2. That it was sent with a certain amount of malice; and found a verdict for the plaintiff with 40_s._ damages. Cockburn, C. J., directed judgment to be entered for the plaintiff for that amount.

The defendant appealed on the ground that the judgment entered upon the findings of the jury was wrong.

LORD COLERIDGE, C. J.[505] The question before us is whether, on the findings of the jury, the entry of the judgment for the plaintiff is right. I am of opinion that it was rightly entered for the plaintiff. The principle which governs this case is plain. It is like that which governs most other cases of privilege. In order, in cases of libel, to establish that the communication is privileged, two elements must exist: not only must the occasion create the privilege, but the occasion must be made use of _bona fide_ and without malice; if either of these is absent, the privilege does not attach; here the second element is absent, for _bona fides_ is wanting, and malice exists. There are certain cases in which the privilege is absolute. Words spoken in the course of a legal proceeding by a witness or by counsel, and words used in an affidavit in the course of a legal proceeding, are absolutely privileged. It is considered advantageous for the public interests that such persons should not in any way be fettered in their statements. This is the first time that a report of proceedings in a court of justice has been sought to be brought within this same class of privilege. I am not disposed to extend the bounds of privilege beyond the principles already laid down, and I find no authority for its extension.

_Judgment affirmed._[506]

CLARK _v._ MOLYNEUX
IN THE COURT OF APPEAL, DECEMBER 4, 1877.
_Reported in 47 Law Journal Reports, Common Law, 230._[507]

The action was for slander and libel. The plaintiff, a clergyman of the Church of England, had been formerly in the army, but left it in the year 1863; and, after taking his degree at Cambridge, was ordained by the Bishop of Exeter, and subsequently became curate at Assington, to the Rev. H. L. Maud.

In March, 1876, the defendant, the Rev. Canon Molyneux, the Rector of Sudbury, which is in the neighborhood of Assington, when calling on a Mr. G. Bevan, a banker, with whom he had been intimate for twenty-four years, was informed by Mr. Bevan that the plaintiff was going to preach one of a course of Lenten sermons at Newton Church, in the neighborhood, and that he was sure that if Mr. Charles Smith, the rector, knew what sort of a person the plaintiff was, he would never permit him to preach in his church. Mr. Bevan then desired the defendant, as an old friend of Mr. Smith’s, to let him know what the plaintiff’s character was. In answer to the defendant’s inquiry as to what was the nature of the charges against the plaintiff, Mr. Bevan said that he had been obliged to leave the army through cheating with cards, had lived an irregular life at Cambridge, had been guilty of gross immorality when curate at Horringer, and had boasted of it. The defendant, placing implicit reliance on Mr. Bevan, and thinking that it was his duty to acquaint Mr. Charles Smith with the matter, at once rode to his house, and, finding that he was ill in bed, communicated his information to the Rev. H. Smith, his son, who was in the house.

At the end of the same month the defendant consulted the Rev. J. C. Martyn, his rural dean, as to whether he should not speak to Mr. Maud, the plaintiff’s rector. Mr. Martyn said he thought the defendant ought to do so. As Mr. Maud was abroad, the defendant spoke to his solicitor on the subject; and on Mr. Maud’s return he received a letter from him, asking for information. The defendant wrote an answer detailing the facts substantially as communicated to him by Mr. Bevan; but some of the expressions in the letter were stronger than those used by Mr. Bevan. “Profligate” was used instead of “irregular,” and “expelled the army,” instead of “obliged to leave the army.”

The defendant also consulted Mr. Green, his curate, who was announced to preach one of the same course of sermons as the plaintiff. Mr. Green had been with the plaintiff for twenty years, and was consulted by him on every ecclesiastical matter that came before him.

The communications made to Mr. Green, Mr. H. Smith and Mr. Martyn were the slanders complained of, and the letter to Mr. Maud was the libel.

The defendant relied solely on the privilege of the occasions and the _bona fides_ of his statements.

The action was tried before Baron Huddleston and a special jury at Bury St. Edmunds, at the Summer Assizes, 1876.

The learned judge ruled that all the occasions were privileged, and the case went to the jury on the question of express malice.

In the course of his summing up the learned judge said: “Now in law if a man says what is not true, or writes what is libellous, or says what is slanderous of another, it is presumed that it is malicious. But where the occasion is privileged, then you require something more, and you require what the law calls express malice. I must tell you what express malice means.”

And again, at the close of the summing up:—

“What you have to consider, then, is really and substantially this—assuming that these occasions were privileged, do you think that the defendant made those statements and wrote that letter _bona fide_, and in the honest belief that they were true—not merely that he believed them himself, but honestly believed them, which means that he had good grounds for believing them to be true. I do not mean to say pig-headedly, pertinaciously and obstinately perhaps persuaded himself of the matter for which he had no reasonable grounds, and of which you twelve gentlemen would say they were perfectly unjustified. If you think that under these circumstances Mr. Molyneux has taken himself out of the privilege in consequence of the statements not being made _bona fide_ and in the honest belief they were true, and that therefore there is what in law is called malice in fact, which I have explained to you, then your verdict will be for the plaintiff.”[508]

The jury found a verdict for the plaintiff, with £200 damages.

These passages and the general tenor of the summing up, which was to the same effect, constituted the misdirection complained of.

The defendant moved for a new trial in the Queen’s Bench Division, on the ground of misdirection, and that the verdict was against evidence; but the court refused the rule. The defendant appealed.

BRETT, L. J. I am of the same opinion; I think that there was, what amounts in law to a misdirection; that the verdict was against the evidence; and, further, that there was no evidence to go to the jury.

With regard to the alleged misdirection, I do not think that we differ from the Queen’s Bench Division in our view of the law, but I think that, whatever the idea Baron Huddleston intended to convey to the jury in his careful, elaborate, and, if I may say so, able summing up, really was, it may have materially misled them, and if it may, that is in law a misdirection.

The summing up is founded on the assumption that the occasions of the alleged slanders and libel were privileged, and that the defendant was therefore excused in that which would otherwise have been actionable, if he used the occasions fairly. Now it is right before criticising the summing up of the learned judge to state, as clearly as one can, what the law relating to excuse by reason of privilege in cases of libel and slander really is. It is, I apprehend, this: When a defendant claims that the occasion of a libel or slander is privileged, and when it is held by the judge, whose duty it is to decide the matter, that the occasion is privileged, the question arises,—under what conditions can the defendant take advantage of the privilege? If the occasion is privileged, it is so for some reason, and the defendant is entitled to the protection of the privilege if he uses the occasion for that reason, but not otherwise. If he uses the occasion for an indirect reason or motive, he uses it, not for the reason which makes it privileged, but for another. One, but by no means the only, indirect motive which can be alleged, is the gratification of some anger or malice of his own. By malice here I mean, not a pleading expression, but actual malice, or what is termed malice in fact, _i. e._, a wrong feeling in the defendant’s mind. If this malice be the indirect and wrong motive suggested in a particular case, there are certain tests by which its existence may be investigated. Two such tests are these: If a man is proved to have stated what he knew to be false, no one inquires further, everybody assumes thenceforth that he was malicious, that he did so wrong a thing from some wrong motive. Again, if it be proved that out of anger or from some other wrong motive the defendant has stated something as a truth or as true, without knowing or inquiring whether it was true or not, therefore reckless, by reason of his anger or other motive, whether it is true or not, the jury may infer, and generally will infer, that he used the occasion for the gratification of his anger or malice, or other indirect motive, and not for the reason or motive which occasions or justifies the privilege.

These tests have been suggested before, and they were approved by the whole Court of Common Pleas in a case tried before me at Leeds, and I apprehend they are correct.

That being so, I think that Baron Huddleston did not follow these rules and tests, but others. Take his summing up as a whole, as I think we ought, he left the case as if the burden of proving there was no malice lay on the defendant, but if the occasion be privileged, the _onus_ of showing malice is at once thrown on the plaintiff. Further, in order to guide the jury as to what malice was, he read the passage in Bromage _v._ Prosser; what he read there is not a definition of malice in fact, at all, but of that malice which is a technical term in certain pleadings, where it simply means “wilfully.” It has been held, that in such pleadings the absence of the word maliciously is immaterial if the word wilfully is present—because they are in such pleadings synonymous terms. Then, I think the passage at the end of the summing up is really a recapitulation of the sense of the whole summing up, and might lead the jury to believe that, although they were of opinion that the defendant did believe what he stated, he would not be protected unless his belief was a reasonable one, as distinguished from a pig-headed, obstinate, and insensible one. But the real question, as I have stated, is, whether the defendant did, in fact, believe his statement,[509] or whether being angry or moved by some other indirect motive, did not know, and did not care, whether his statement was true or false. Questions of pig-headedness and obstinacy may be tests as to whether a man really did honestly believe or not, but Baron Huddleston left them as if they were of the essence of the definition of malice.

The direction was therefore wrong if the occasions were privileged. That they were I have a very strong opinion. The only occasion disputed is that of the communication to Mr. Green the curate. I am clearly of opinion that that was privileged. I think that where a clergyman consults his curate as to his conduct in an ecclesiastical matter, the occasion is a privileged one.

As to the other points, I think that at least the verdict was against the evidence. But I think more, I think there was no evidence fit to be submitted to a jury, and, therefore, if on a new trial the facts remain the same, the judge’s duty will be to direct the jury that there is no case. In this matter, therefore, there has been a miscarriage. But I think that the case is not one in which to apply Order XL., rule 10, and enter the verdict for the defendant, as it does not follow that on a new trial further evidence may not be forthcoming.

_Appeal allowed._

CARPENTER _v._ BAILEY
SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1873.
_Reported in 53 New Hampshire Reports, 590._

This is an action on the case for a libel, by J. N. Carpenter against J. H. Bailey, the writ bearing date September 21, 1869.[510] The declaration alleges, that, on April 20, 1869, the plaintiff was a paymaster in the navy, stationed as purchasing agent at Portsmouth; that, by the rules of the navy department, he was entitled to remain on that station three years; and that the defendant, contriving, &c., published of him the following libel: “To the Honorable the Senators and Members of the House of Representatives in Congress from New Hampshire: The undersigned, after much patience has been exhausted, beg to remonstrate against the further continuance at this station of Paymaster J. N. Carpenter as purchasing agent. In all our struggles, Paymaster Carpenter has always voted against us, carrying the straight Democratic ticket, throwing his patronage adversely to the friends of General Grant, and always filling the requirements of a tool sent here by ex-Secretary Welles to carry out the interests of Andrew Johnson. May we hope for relief from such a burden? Let the rebel sympathizer be exchanged for a man who will have office hours of a convenient kind, and will be found there _at least once a day_ to attend to those having business there, and officers and citizens will alike be grateful. Portsmouth, N. H., April 20, 1869. E. G. Peirce, Jr., Chas. Robinson, Aaron Young, Daniel J. Vaughan, E. A. Stevens, W. H. Hackett, John H. Bailey, Paine Durkee.”

The defendant pleaded in substance that he was informed and believed that the plaintiff had done the things charged in the petition and that he believed that “the public good, and the welfare of said administration of General Grant, required that the said plaintiff should be removed from said office at said station, and that a suitable officer should be put there in his stead, and that the senators and members of the House of Representatives in Congress from the State of New Hampshire were the proper persons and officers to be petitioned in order to procure the removal of the said plaintiff from said office at said naval station, the defendant, in good faith, and without malice or ill-will to the said plaintiff, but in order to procure the removal of the plaintiff for the causes aforesaid from the said office, signed said petition to said senators and representatives containing said supposed libellous words in the plaintiff’s declaration mentioned, as he lawfully might have done, for the cause aforesaid, and this he is ready to verify.” Wherefore, &c.

To this plea the plaintiff demurred generally.

SARGENT, C. J. If the defendant cannot justify by showing the truth of the matter charged, he may excuse the publication by showing that it was made upon a lawful occasion, upon probable cause, and from good motives.

It is also said that matter in excuse in a prosecution for libel is where the defendant, upon a lawful occasion, proceeded with good motives upon probable grounds,—that is, upon reasons that were apparently good, but upon a supposition which turns out to be unfounded. This is a very different thing from showing the actual truth of the allegations: where that is proved with a proper occasion, it is a justification without regard to motives; but where the statements made prove false, the defendant needs to show not only a proper occasion, but a good motive also,—for, if the matter be untrue and the motive bad, how could the end be justified or even excused? But when the occasion is proper, one may be excused for stating what proves to be untrue, if he had probable cause to believe it true, and spoke it from good motives; see authorities, 9 N. H. 45.

So, in Palmer _v._ Concord, 48 N. H. 217, it is said, by Smith, J., that most of what are called “privileged communications” are conditionally, not absolutely, privileged. The question is one of good faith, or motive, and can be settled only by a jury. A court cannot rule that a communication is privileged, without assuming the conditions on which it is held to be privileged, namely, that it was made in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds, of its truth;—and see cases cited.

In the case before us, the occasion would be a lawful one, provided the motive was good, and there was probable cause. And the question is, whether the mere fact, that the defendant had been informed and believed that a fact was so, is equivalent to having probable cause to believe it to be so. And we think it could not be assumed that it was so. A person might be informed of a fact by one in whom he might, for some special reason, have confidence, but to whom no one else would give the slightest credence; and a jury would readily find that a belief in that case was founded upon information which would not amount to probable cause for the belief of any man of ordinary capacity. The question for the jury would be, not whether the defendant believed it, but had he probable cause to believe it? There might be belief without probable cause for it; and hence it would not be sufficient to allege merely information and belief, because that might not, in a given case, amount to probable cause. The fourth plea is substantially correct in form, and goes as far as the rule thus laid down will warrant; and we think this third plea is insufficient.

_Demurrer sustained._[511]

CAMPBELL _v._ SPOTTISWOODE
IN THE QUEEN’S BENCH, APRIL 18, 1863.
_Reported in 3 Best & Smith, 769._

COCKBURN, C. J.[512] I am of opinion that there ought to be no rule. The article on which this action is brought is undoubtedly libellous. It imputes to the plaintiff that, in putting forth to the public the sacred cause of the dissemination of religious truth among the heathen, he was acting as an impostor, and that his purpose was to put money into his own pocket by obtaining contributions to his newspaper. The article also charges that, in furtherance of that base and sordid purpose, he published in his newspaper the name of a fictitious person as the authority for his statements, and still further that, with a view to induce persons to contribute towards his professed cause, he published a fictitious subscription list. These are serious imputations upon the plaintiff’s moral as well as public character.

It is said, on behalf of the defendant, that, as the plaintiff addressed himself to the public in a matter, not only of public, but of universal interest, his conduct in that matter was open to public criticism, and I entirely concur in that proposition. If the proposed scheme were defective, or utterly disproportionate to the result aimed at, it might be assailed with hostile criticism. But then a line must be drawn between criticism upon public conduct and the imputation of motives by which that conduct may be supposed to be actuated; one man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid, and wicked motives, unless there is so much ground for the imputation that a jury shall find, not only that he had an honest belief in the truth of his statements, but that his belief was not without foundation.

In the present case, the charges made against the plaintiff were unquestionably without foundation. It may be that, in addition to the motive of religious zeal, the plaintiff was not wholly insensible to the collateral object of promoting the circulation of his newspaper, but there was no evidence that he had resorted to false devices to induce persons to contribute to his scheme. That being so, Mr. Bovill is obliged to say that, because the writer of this article had a _bona fide_ belief that the statements he made were true, he was privileged. I cannot assent to that doctrine. It was competent to the writer to have attacked the plaintiff’s scheme; and perhaps he might have suggested, that the effect of the subscriptions which the plaintiff was asking the public to contribute would be only to put money into his pocket. But to say that he was actuated only by the desire of putting money into his pocket, and that he resorted to fraudulent expedients for that purpose, is charging him with dishonesty: and that is going further than the law allows.

It is said that it is for the interests of society that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honor with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honor and character, and made without any foundation. I think the fair position in which the law may be settled is this: that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall say that the criticism was not only honest, but also well founded, an action is not maintainable.[513] But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest.[514]

The cases cited do not warrant us in going that length. In Paris _v._ Levy, 2 F. & F. 71, there may have been an honest and well-founded belief that the man who published the handbill which was commented upon could only have had a bad motive in publishing it, and if the jury were of that opinion, the writer who attacked him in the public press would be protected. We cannot go farther than that.

CROMPTON, J. I am of the same opinion.... The first question is, whether the article on which this action is brought is a libel or no libel,—not whether it is privileged or not. It is no libel, if it is within the range of fair comment, that is, if a person might fairly and _bona fide_ write the article; otherwise it is. It is said that there is a privilege, not to writers in newspapers only but to the public in general, to comment on the public acts of public men, provided the writer believes that what he writes is true; in other words, that this belongs to the class of privileged communications, in which the malice of the writer becomes a question for the jury; that is, where, from the particular circumstances or position in which a person is placed, there is a legal or social duty in the nature of a private or peculiar right, as opposed to the rights possessed by the community at large, to assert what he believes. In these cases of privilege there is an exemption from legal liability in the absence of malice; and it is necessary to prove actual malice. But there is no such privilege here. It is the right of all the Queen’s subjects to discuss public matters; but no person can have a right on that ground to publish what is defamatory merely because he believes it to be true. If this were so, a public man might have base motives imputed to him without having an opportunity of righting himself. Therefore it is necessary to confine privilege, as the law has always confined it, to cases of real necessity or duty, as that of a master giving a servant a character, or of a person who had been robbed charging another with robbing him. Though the word “privilege” is used loosely in some of the cases as applied to the right which every person has to comment on public matters, I think that in all the cases cited the real question was whether the alleged libel was a fair comment such as every person might make upon a public matter, and if not, there was no privilege.

BLACKBURN, J. I also think that the law governing this case is so clearly settled that we ought not to grant a rule. It is important to bear in mind that the question is, not whether the publication is privileged, but whether it is a libel. The word “privilege” is often used loosely, and in a popular sense, when applied to matters which are not, properly speaking, privileged. But, for the present purpose, the meaning of the word is that a person stands in such a relation to the facts of the case that he is justified in saying or writing what would be slanderous or libellous in any one else. For instance, a master giving a character of a servant stands in a privileged relation; and the cases of a memorial to the Lord Chancellor or the Home Secretary on the conduct of a justice of the peace, Harrison _v._ Bush, and of a statement to a public functionary, reflecting upon some public officer, Beatson _v._ Skene, 5 H. & N. 538, rank themselves under that class. In these cases no action lies unless there is proof of express malice. If it could be shown that the editor or publisher of a newspaper stands in a privileged position, it would be necessary to prove actual malice. But no authority has been cited for that proposition;[515] and I take it to be certain that he has only the general right which belongs to the public to comment upon public matters, for example, the acts of a minister of state; or, according to modern authorities somewhat extending the doctrine, where a person has done or published anything which may fairly be said to invite comment, as in the case of a handbill or advertisement; Paris _v._ Levy, 2 F. & F. 71. In such cases every one has a right to make fair and proper comment; and, so long as it is within that limit, it is no libel.

The question of libel or no libel, at least since Fox’s Act (32 G. 3, c. 60), is for the jury; and in the present case, as the article published by the defendant obviously imputed base and sordid motives to the plaintiff, that question depended upon another,—whether the article exceeded the limits of a fair and proper comment on the plaintiff’s prospectus; and this last question was therefore rightly left to the jury. Then Mr. Bovill asked that a further question should be left to them, viz., whether the writer of the article honestly believed that it was true; and the jury have found that he did. We have to say whether that prevents an action being maintained. I think not. _Bona fide_ belief in the truth of what is written is no defence to an action; it may mitigate the amount, but it cannot disentitle the plaintiff to damages.

_Rule refused._[516]

CARR _v._ HOOD
BEFORE LORD ELLENBOROUGH, C. J., LONDON SITTINGS AFTER TRINITY TERM,
1808.
_Reported in 1 Campbell, 355, n._