ence prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him. to prove that there was malice in fact that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made.": The rule is, that if the occasion be such as repels the presumption of malice, the communication is privileged, and the plaintiff must then, if he can, give evidence of malice: if he gives no such evidence, it is the office of the judge to say that there is no question for the jury, and to direct a nonsuit or a verdict for the defendant." 2

All occasions upon which a publication of defamatory or injurious matter is made by a person bona fide in the discharge of a public or private, legal or moral duty, or in the conduct of his own affairs in matters where his interest is concerned, are privi

1 Per Parke, B., Wright v. Woodgate, 2 Cr. M. & R. 577. * Per Campbell, J., Taylor v. Hawkins, 16 Q. B. 321.

A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contain criminatory matter, which, without this privilege, would be slanderous and actionable; and this, though the duty be not a legal one, but only a moral or social duty of imperfect obligation. And the court was of opinion, though it was not necessary to decide so expressly in that case, that the same privilege would be accorded to a communication made to a person who had not in fact such a corresponding interest or duty as referred to, but who might reasonably be, and is, supposed by the party making the communication to have such interest or duty (Harrison v. Bush, 5 El. & B. 344. Vid. also Fairman v. Ives, 5 Barn. & A. 642; King v. Bayley, cited by Bayley, J., 5 Id. 647; Scarll v. Dixon, 4 F. & F. 250).

The cases in which the law of Scotland accords this qualified privilege are those of counsel, litigants, masters giving characters of servants, literary criticisms, and communications to persons having an interest in the matters made known (Shortt, p. 429).

leged occasions, and the publication so made, is a privileged publication. And so the communication of a church-member complaining of the character or conduct of the clergyman of his society, if not malicious, or of an agent to his principal within the province of his agency, are privileged. And as to where, in an action for slanderous words, the defendant justified, on the ground that he was the pastor of the church of which the plaintiff was a member; that by the rules and regulations of the church the ruling elders composed the session of the church, and the pastor was the moderator thereof; and that, if the words were spoken, they were used in the course of church discipline, to the session, in the progress of the investigation of certain rumors against the chastity of the plaintiff, see a very recent case. A lawyer's letter to his client, or a client's to his lawyer, are privileged." So, too, are charges preferred by one member of a lodge of Odd-Fellows against another, within the rules of the order, or a banker's communication to a firm who had sent him a customer's note for collection."

4

Where the New York College of Pharmacy appointed a committee to examine certain charges as to 'Toogood v. Spyring, 1 Cr. M. & R. 93.

2 O'Donohue v. McGovern, 23 Wend. 26.

* Wasburne v. Cooke, 3 Den. 110; Gilbert v. People, Id. II.

* Kleizer v. Aymmes, 40 Ind. 562. Held, that the paragraphs of the answer were good, and that the word "crimes," in the rules, was not confined to statutory crimes, but included a violation of the moral law or of duty as a member of the church. Written charges were not necessary to authorize the investigation. Pettit, Ch. J., dissented.

5 Warner v. Payne, 2 Sand. 195.

"Streety v. Wood, 15 Barb. 105. But see, however, Holmes v. Johnson, 11 Ired. 55.

252.

7

Lewis v. Chapman, 2 Smith, 369; reversing 19 Barb.

the importation of spurious drugs, and the committee having reported recommending that charges be forwarded to the secretary of the treasury against plaintiff, who was public inspector of drugs-the college sent such charges, it was held that such constituted a privileged communication."

But a letter addressed to a superior officer having a power of removal, charging his subordinate with fraud in office, or a memorial to the post-master-general in relation to the business of his department, where the plaintiff can show want of probable cause, or the publication of proceedings on an ex parte application to a magistrate for a criminal warrant, will not be privileged. The published representations of a mercantile agent or agency, confidentially reporting the business. character and standing of merchants and others, may be, however.

The keeping of a mercantile agency, whose business it is to obtain information respecting the credit and responsibility of persons in business, and to furnish the same to subscribers, is a lawful business; and a communication made, in good faith, to a subscriber to such agency, is one privileged, and sanction edby the usages of commercial communities. The privilege accorded to a mercantile agency, however, will not extend to the country correspondents of the agency, nor is a communication by the proprietor of a mercantile agency,

1

Van Wyck v. Aspinwall, 3 Smith, 90.

2 Howard v. Thompson, 21 Wend. 319.

3 Cook v. Hill, 3 Sand. 341.

4 Seld. 452; Billings v. Russel, 8 Boston Law Rep. N. S. 699; Getting v. Foss, 3 Car. & P. 160; Ormsby v. Douglass, 37 N. Y. 477; Sherwood v. Gilbert, 2 Albany Law Journal, 323; Beardsley v. Tappan, 5 Blatchf. 497; but see Taylor v. Church, 1 E. D. Smith, 279.

Sherwood v. Gilbert, 2 Albany Law Journal, 323.

through his clerks, to his customers and their clerks, privileged.1

2

The publication of a report of a coroner's inquest, by the coroner and a county physician, implicating the managers of the public poorhouse; or, generally, matters presented to any person or tribunal not having jurisdiction in the premises, are not privileged. But an abusive article in a newspaper, touching a candidate for an appointment for office, is not privileged, though such a remonstrance, addressed to the appointing power, would be."

True, it has been held that when a man becomes a candidate for public honors, he makes profert of himself for public investigation. No one has the right, indeed, to impute to him infamous crimes or misdemeanors; but talents and qualifications are mere matters of opinion, of which the electors are the only judges, and it has been held that imputing weakness of understanding to a candidate for Congress (for instance), was not actionable."

6

And to a like effect said Parsons, Ch. J.: "When a man shall consent to be a candidate for a public office, conferred by the electors of the people, he must be considered as putting his character in issue, so far as may respect his fitness and qualifications for office." But the better opinion will be that, as in every other case, the existence of malice in the publication will be the criterion. "Officers and candidates for office may

1

647.

Beardsley v. Tappan, 5 Blatchf. 497.

' Greene v. Telfair, 20 Barb. 11.

8

4

6

Hoseman v. Loveland, 19 Barb. 111.

Hunt v. Bennett, 19 N. Y. 173; affirmed, 4 S. D. Smith,

Mayrant v. Richardson, 1 Nolt. & McC. 327.

• Commonwealth v. Clapp, 4 Mass. 163; but see Aldrich v.

Press Print. Co., 9 Min. 133; Curtis v. Mussey, 6 Gray (Mass.), 261.

be canvassed, but not calumniated";1 and some of the cases went further, and held that malice would be implied if the charge were false. So in a recent case, where it was claimed to be justifiable for an elector, bona fide to communicate to the constituency, matter respecting a candidate which the elector believed to be true and material to the election, the principle was conceded by the court to be correct, but was held inapplicable, because the communication had not been confined to the constituency of the plaintiff, but had been published in a newspaper. Words which deter others from voting for him of whom they were spoken, at an election at which he is a candidate, are actionable.5

90. The presence or absence of actual malice is generally for the jury to determine. Whether or not the occasion is privileged, and so makes the publication privileged, is, nevertheless, a question of law for the court; so also the intention of malice is often a

1

8

1 Lewis v. Few, 5 Johns. 1; Harwood v. Astley, 4 Bos. & Pul. 47; I N. R. 47; Seely v. Blair, Wright, 358, 683. See Brewer v. Weakley, 2 Overt. 99; Root v. King, 7 Cow. 613; affirmed, 4 Wend. 113, note; 1 Stark. Slan. 301.

Lewis v. Few, 5 Johns. 1.

3 Law v. Scott, 5 Har. & J. 438.

And see Cowles v. Pott, 34 L. J. 247 Q. B; George v. Goddard, 2 F. & F. 689.

* Brewer v. Weakley, 2 Overt. 99.

Liddle v. Hodges, 2 Bosw. 544; Dolloway v. Turrell, 26 Wend. 369; Cooke on Defamation, ch. iv.

'Taylor v. Hawkins, 16 Q. B. 321; Cooke v. Wildes, 5 El. & Bl. 335; Dickson v. Earl of Wilton, 1 F. & F. 426; Hancock v. Case, 2 Id. 711; Whiteley v. Adams, 15 C. B. N. S. 392; 33 L. J, 89 C. P.

So strictly will the doctrine of malice be construed, that, it seems, though a member of congress is not responsible out of Congress for words spoken there, though libelous on individuals, yet, if he causes his speech to be published, he may be punished as for a libel, by action or indictment (1 Kent. Com.