courts is to narrow rather than enlarge them. They rest upon the ground that it is advantageous to the public interests that persons on such such occasions should not be fettered in their statements.

of absolute privilege fall under three heads: 1. Legislative proceedings.

2. Judicial proceedings.

3. Naval and military affairs.

The cases

§ 323. Legislative proceedings.-No member of either house of congress, or of either house of the state legislature, is in any way responsible in a court for anything he may say in such house. This rests upon the provisions common to the constitutions of the United States and several states that, "for any speech or debate in either house, they shall not be questioned in any other place." The privilege, however, is confined to the walls of the house, which includes its committee-rooms. If the member publish the speech to the world, he is liable as any other individual would be. The absolute privilege does not extend to inferior legislative bodies.

§ 324. Judicial proceedings.-Everything that a judge says on the bench, or a witness on the stand, or counsel in trying and arguing a cause, is absolutely privileged, so long as it is pertinent to the inquiry.

A judge of a court of general jurisdiction is free to say anything concerning a case, while the case is being tried, no matter what his knowledge or motive is, and whether the statement is relevant or not. But a judge of limited jurisdiction is not privileged, unless the statement be relevant to the matter in hand. A witness on the stand is not liable for

any statement he may make, whatever may be his knowledge or motive, provided such statement is drawn out by questions, or, if volunteered, is rele vant or believed to be relevant to the case. For any irrelevant matter, if volunteered from a malicious. motive, he may be held liable, and he may be held liable for any statements made while not on the stand, whether in or outside the court room.

Counsel in a cause may speak any words, however defamatory and false, and whatever may be their knowledge or motive, provided only that they are acting within their instructions and their remarks are pertinent to the case. They may draw any inference they wish from the evidence. But they may not recklessly assert anything of which they can give no evidence.

All pleadings, affidavits and papers in a cause are absolutely privileged. Even if matter be introduced that is irrelevant and scandalous, so that it is struck out by the court on motion, no action lies.

§ 325. Naval and military matters.-All reports by a naval or military officer to his superior, and all testimony or argument in a court-martial, are absolutely privileged. In all cases of absolute privilege, the question is only whether the defendant has brought himself within it. If he has not, he is liable as any other person would be; if he has, then the question of his malice is wholly immaterial.

§ 326. Qualified privilege.-It is an essential element of all qualified privileges, that the communication under it be made in good faith. No person is allowed to take advantage of qualified privilege to vent his malice.

Whenever it is shown that the language complained of was uttered upon a privileged occasion, the law ceases to presume the existence of malice, and requires proof that there was actual malice. As it is expressed, the privileged occasion rebuts implied malice. It then becomes incumbent upon the plaintiff to prove that the defendant was actuated by express malice-malice in fact; and unless in such case the plaintiff does establish the existence of malice in fact his action fails. Whether a privilege exists is always a question of law for the court; whether the defendant was actuated by the proper motive is left to the jury.

In all cases of qualified privilege it is conclusive evidence of actual malice to prove that the defendant knew the charge to be false. For it is inconceivable that a man can have an innocent motive in uttering a defamatory charge that he knows to be false.

Cases of qualified privilege may be grouped under three heads:

1. Communications made in matters of public interest and general concern.

2. Communications made to persons to whom the defendant owes a duty to make communication.

3. Communications made in self-defense.

§ 327. Matters of public interest and concern.Anything that is of general concern to the inhabitants of a town, city or community is what is intended. Though the matter be of only a local interest the rule applies, so long as the matter is not merely of private concern. All public institutions and their management, all public entertainments, published books,

pictures publicly exhibited, the architecture of public buildings may be freely criticised. All appeals to the public are subject to honest criticism and the critic will not be liable for false statements made. Whoever seeks notoriety or invites public attention challenges public criticism and must bear the burden of honestly made statements, even though they may be erroneous. All public officials, and candidates. for office, may be freely criticised, provided the criticism be made in good faith.

But whenever matters of general concern are commented upon, the speaker or writer is bound to confine himself to what is of public nature. If this limit is transcended and private matters or private character touched upon, no privilege can be claimed therefor. For instance, though the official acts of an officer may in good faith be commented upon, by reason or by ridicule, even though the statements be in fact false and injurious, yet if the critic should go beyond the public matter, and falsely accuse the officer of a crime, it would affect him privately, and no protection would be given.

Reports of judicial proceedings are upon matters of public interest. Every fair and accurate report of judicial proceedings is privileged, though false defamatory matter be contained in it. The privilege does not attach, however, where the publication is prohibited by the court, or where the matter is obscene; for in such case the publisher is guilty of wrong in the very fact of publishing, and will not be permitted to avail himself of a legal protection for such wrong. The report to be privileged must be substantially a fair account of what actually took

place in court. The reporter may not, however, select damaging parts and omit the beneficial parts; and he has no privilege to comment on the evidence and give his opinion of it. Indeed, if he mixes up comment with what would otherwise be a fair report, the privilege is lost for the whole article.

Fair and accurate reports of proceedings of the legislature stand upon the same footing, and are subject to the same limitations, as in case of judicial proceedings. No other reports are privileged. No privilege can be claimed for reports of the doings of municipal legislatures, public meetings, political meetings, or stockholders' meetings.

§ 328. Communications made under duty.-There is no liability for honest mistakes, where an employer is asked to give a statement regarding the character of a servant. But there is no protection given, if the false statement be made from an improper motive, or if made recklessly and wantonly. There is no privilege for officious intermeddling, as where no inquiry has been made, or where there is no duty to speak.

Answers made in good faith to inquiries about persons with whom business dealings are contemplated are protected even though they turn out to be false. Hence, reports of mercantile agencies to their customers are privileged, if made in good faith.

So, inquiries by and answers to one interested in discovering a wrong-doer, are privileged. Any relation of confidence is sufficient to raise a duty to make communications, and if they are made in good faith they are privileged. The following relations have been held to be of the privileged character: