tions invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility; if the latter is found to be the fact, he is liable to an action.R

In the case of privileged communications of a confidential kind, the failure to use ordinary means of insuring privacy

as if the matter is sent on a post-card instead of in a sealed letter, or telegraphed without evident necssity will destroy the privilege; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one."

8

Where the existence of a privileged occasion is established, the plaintiff must give affirmative proof of malice, that is, a dishonest personal ill-will, in order to succeed. It is not for the defendant to prove that his belief was founded on reasonable grounds. To constitute malice there must be something more than the absence of reasonable ground for belief in the matter communicated. That may be evidence of reckless disregard of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous; or it may be proper for him to communicate reports or suspicions which he himself does not believe. In either case he is within the protection of the rule.

6. "Professional publishers of news are not exempt, as a privileged class, from the consequences of damage done by false news. Their communications are not privileged merely because made in public journals." Burdick on Torts (3d Ed.), 374. Consult the

local statutes for modifications of this rule.

7. Williamson v. Freer, L. R. 9 C. P. 393.

8. As to the meaning of malice, see Burdick on Torts (3d Ed.), 86.

public position for the purpose of giving them information to be used for the redress of grievances, the punishment of crime, or the security of public morals, are in like manner privileged, provided the subject-matter is at least reasonably believed to be within the competence of the person addressed.3

Fair reports (as distinguished from comment) are a distinct class of publications enjoying the protection of "qualified privilege" to the extent to be mentioned. The fact that imputations have been made on a privileged occasion will, of course, not exempt from liability a person who repeats them on an occasion not privileged. Even if the original statement be made with circumstances of publicity, and be of the kind known as "absolutely privileged,' it cannot be stated as a general rule that republication is justifiable. Certain specific immunities have been ordained by modern decisions and statutes. They rest on particular grounds, and are not to be extended. Matter not coming under any of them must stand on its own merits, if it can, as a fair comment on a subject of public interest.*

Fair reports of parliamentary and public judicial proceedings are treated as privileged communications. In the case of judicial proceedings it is immaterial whether they are preliminary or final, and, according to the prevailing modern opinion, whether contested or ex parte, and also whether the court actually has jurisdiction or not, provided that it is acting in an apparently regular manner. The report need not be a report of the whole proceedings. The rule does not extend to justify the reproduction of matter in itself obscene, or otherwise unfit for general publication, or of proceedings of which the publication is forbidden by the court in which they took place.

An ordinary newspaper report furnished by a regular reporter is all but conclusively presumed, if in fact fair and substantially correct, to have been published in good faith; but an outsider who sends to a public print even a fair report of judicial proceedings containing personal imputa

3. Harrison v. Bush, 5 E. & B. 344.

4. Burdick on Torts, 372.
5. See stat. 3 & 4 Vict., c. 9.

tions invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility; if the latter is found to be the fact, he is liable to an action."

In the case of privileged communications of a confidential kind, the failure to use ordinary means of insuring privacy as if the matter is sent on a post-card instead of in a sealed letter, or telegraphed without evident necssity will destroy the privilege; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one."

Where the existence of a privileged occasion is established, the plaintiff must give affirmative proof of malice, that is, a dishonest personal ill-will, in order to succeed.8 It is not for the defendant to prove that his belief was founded on reasonable grounds. To constitute malice there must be something more than the absence of reasonable ground for belief in the matter communicated. That may be evidence of reckless disregard of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous; or it may be proper for him to communicate reports or suspicions which he himself does not believe. In either case he is within the protection of the rule.

6. "Professional publishers of news are not exempt, as a privileged class, from the consequences of damage done by false news. Their communications are not privileged merely because made in public journals." Burdick on Torts (3d Ed.), 374. Consult the

local statutes for modifications of this rule.

7. Williamson v. Freer, L. R. 9 C. P. 393.

8. As to the meaning of malice, see Burdick on Torts (3d Ed.), 86.

CHAPTER VIII.

WRONGS OF FRAUD AND MALICE.

1. Deceit.

The wrong called Deceit consists in leading a man into damage by wilfully or recklessly causing him to believe and act on a falsehood. It is a cause of action by the common law (the action being an action on the case founded on the ancient writ of deceit), and it has likewise been dealt with by courts of equity under the general jurisdiction of the Chancery in matters of fraud. The principles worked out in the two jurisdictions are believed to be identical, though there may be a theoretical difference as to the character of the remedy, which in the Court of Chancery did not purport to be damages but restitution.

To create a right of action for deceit there must be a statement made by the defendant, or for which he is answerable as principal, and with regard to that statement all the following conditions must concur:

(a) It is untrue in fact.

(b) The person making the statement, or the person responsible for it, either knows it to be untrue, or is

culpably ignorant (that is, reckless or careless) whether it be true or not.

(c) It is made to the intent that the plaintiff shall act upon it, or in a manner apparently fitted to induce him to act upon it.

(d) The plaintiff does act in reliance on the statement in the manner contemplated or manifestly probable, and thereby suffer damage.1

There is no cause of action without actual both fraud and actual damage, or the damage is the gist of the action.2

1. Burdick on Torts (3d Ed.), 418, 419, citing Sir Frederick Pollock's draft of a civil wrongs bill for India, sec. 40; Taylor v. Com. Bank, 174 N. Y. 181, 185.

2. Derry v. Peek, 14 App. Cas. 374; Smith v. Chadwick, 9 App. Cas. 196, per Lord Blackburn,

And according to the general principles of civil liability, the damage must be the natural and probable consequence of the plaintiff's action on the faith of the defendant's statement.

(e) The statement must be in writing and signed, in one class of cases, namely, where it amounts to a guaranty;3 but this requirement is statutory, and did not apply to the Court of Chancery.

Of these heads in order.

(a) A statement can be untrue in fact only if it purports to state matter of fact. A promise is distinct from a statement of fact, and breach of contract, whether from want of power or of will to perform one's promise, is a different thing from deceit. Again, a mere statement of opinion or inference, the facts on which it purports to be founded being notorious or equally known to both parties, is different from a statement importing that certain matters of fact are within the particular knowledge of the speaker.5 In particular cases, however, it may be hard to draw the line between a mere expression and an assertion of specific fact. And a man's intention or purpose at a given time is in itself a matter of fact, and capable (though the proof be seldom easy) of being found as a fact. The vendor of goods can rescind the contract on the ground of fraud if he discovers within due time that the buyer intended not to pay the price.

When a prospectus is issued to shareholders in a company or the like to invite subscriptions to a loan, a statement of the purposes for which the money is wanted is a material statement of fact, and if untrue may be ground for an action of deceit."

A representation concerning a man's private rights though it may involve matters of law, is as a whole deemed to be a statement of fact. A statement about the existence or actual text of a public Act of Parliament, or a reported

3. See statute of frauds, ante, Contracts.

4. See Burdick on Torts, 419, 427.

5. Id., 421.

6. Edginton v. Fitzmaurice, 29 Ch. Div. 459.