The notification sheet containing the false statement respecting the acts of Pollasky Bros. was not alone sent to those who were dealing with them and extending them credit, but to between six and seven hundred subscribers in Michigan, and others residing out of the State, from some of whom they might wish to purchase goods upon credit, and this without any request being made to be informed of the standing or credit of Pollasky Bros.; and others of whom, and by far the greater number, were engaged in different lines of business, and were in no manner interested in knowing their standing or financial ability or business integrity. To all such the communication was not privileged. It cannot be said that a blacksmith, a saw-mill and lumber dealer, a furniture manufacturer, a dealer in hardware, a chemist, mineral water bottlers, butchers, book agents, physicians, or druggists, or those in other business mentioned in the notification sheets who are not engaged in the wholesale or retail dealing in dry goods, clothing, or boots and shoes, are at all interested in the business standing of a dealer in dry goods, clothing, and boots and shoes. No Court has gone so far as to hold that all communications made by a mercantile agency to its subscribers, if made in good faith, but made generally, without request, or to those not inquiring concerning or interested in knowing the condition and financial standing of a person, are privileged. On the contrary, Courts have uniformly held that privilege does not extend to false publications made to patrons who have no such interest in the subject-matter. Goldstein v. Foss, 2 Car. & P. 252 (12 E. C. L. 556); Com. v. Stacey, 8 Phila. 617; Taylor v. Church, 8 N. Y. 452; Ormsby v. Douglass, 37 Id. 477; Sunderlin v. Bradstreet, 46 Id. 188; King v. Patterson, 49 N. J. Law, 417; Bradstreet Co. v. Gill, 72 Tex. 115; Johnson v. Bradstreet Co., 77 Ga. 172; Erber v. Dun & Co., 12 Fed. Rep. 526; and see 26 Amer. Law Reg. (N. s.) 681, and 28 Id.

259.

It was strongly urged upon us at the hearing that we should adopt the able opinion of VAN SYCKEL, J., in which he dissents from the majority of the Court in King v. Patterson [infra, No. 919], in which he goes the whole extent of giving immunity to commercial agencies for all publications made in good faith to their subscribers, whether true or false. In his desire to keep abreast of the progressive state of society and the new and varying conditions that may arise in the progress of the age, he has entirely overlooked the rights of the individual, forgetting that "society is organized and courts established for the protection of the rights of individuals." It is all very well to advance the interests of the wholesale dealers as a class, and afford them information which will reasonably protect them from loss. But there is no principle of justice or of law which requires this to be done at the expense of the individual. It would be a harsh and tyrannical rule that would protect one person from loss at the pecuniary ruin of another. The welfare of society does not require that a few great whole

sale dealers shall thrive by the sacrifice of chasers. . . .

many or of any small pur

The judgment must be reversed, and a new trial granted. The other justices concurred.

919. KING . PATTERSON. (1887. 49 N. J. L. 417, 438.) VAN SYCKEL, J. (dissenting). . . . The underlying principle of the many cases cited, in my judgment, condemns Sunderlin v. Bradstreet, 46 N. Y. 188, and Erber v. Dun, 12 Fed. 526, and extends the rule of privilege to all communications, spoken or written, bona fide, in the performance of what may reasonably be considered a duty to the public or to an individual, and also to communications required by a common interest, or by the relation in which the persons between whom the communication is made stand to each other. . . . Where inquiry is made of the master by one person at the solicitation of another, and where a tradesman inquires as to the responsibility of persons he may hope will some time offer to deal with him, although he has no direct present interest in them, communications in reply seem to be clearly within the principle of the protecting rule. . . . Every man who has merchandise to sell is to some extent interested in knowing how every man in the country stands in credit. Though one is not a customer to-day, he may be to-morrow. Orders are given by letter, by telegram, by telephone, or in person, requiring immediate response. It involves the use of the mercantile agency sheets, the loss of the customer, or the risk of selling blindly. The subscribers to the commercial agency in effect say to it: "We have an interest in knowing the financial condition of all business men whose standing you report; we assure you of our good faith by being willing to pay you for that information, and we pledge ourselves to receive it as a confidential communication." These circumstances, repellent of the presumption of malice, constitute the substance and essence of privileged communications. How, under these conditions, can the obligation be imposed upon the agency to make sure that the subscriber has a present interest in the persons reported, without narrowing the privilege which has operated as a shield in the many cases referred to? Business methods have changed; every department of human activity is marked by progress. There must be a correct apprehension of legal principles as they apply to a progressive state of society, if we would keep pace with the march of events, and render the common law as true and unerring a guide in jurisprudence to-day as it has been in the past. It is the pride of the common law that it is sufficiently broad and elastic to adapt itself to the exigencies of the times, and to adjust itself to the new and ever-varying conditions that may arise in the progress of the age. The rule that a business man may inquire of his friend or his neighbor as to the responsibility of one who has applied for credit answered well enough fifty years ago, but it is altogether inadequate to the present requirements of trade and commerce. The law of Sunderlin v. Bradstreet would even suppress the prevalent practice in business circles of employing a credit clerk to ascertain and report the standing of business men in the district which he canvasses. No man could safely answer his inquiries, and the clerk could not report to his employer without being liable to prosecution. The old adjudications, relied upon to support the more narrow rule are the declarations of judges whose vision did not take in the widely different conditions which prevail in the affairs of men of to-day. This doctrine utterly disables the agency to become capable of imparting even the in

formation which, it is conceded, may lawfully be given. If the agency may furnish only to one having a direct interest, how would any one dare to give the information to the agency, for, until some one having such interest has applied to the agency, the communication is within the prohibited class? 1

1 [PROBLEMS:

1

The plaintiff worked in the defendant's shop, and was suspected and accused by the defendant of having robbed' the till. The defendant then sent two telegrams to the plaintiff's father. The second read: "Your child will be given in charge unless you reply and come to-day. She has taken money out of the till." Was this prima facie privileged? And, if so, was the privilege exceeded by using a telegram instead of a letter? (1874, Williamson v. Freer, L. R. 9 C. P. 393.)

The plaintiff had sent his stock of goods to be sold by auction. At the time the plaintiff was owing a sum to the defendant, on a credit not yet fallen due. The defendant sent a notice to the auctioneer, warning him not to sell, as the plaintiff had committed an act of bankruptcy and the sale would be voidable. Such a notice would be necessary to prevent a bona fide purchaser from getting a title. In fact, the plaintiff had not committed an act of bankruptcy. Was the defendant privileged? (1836, Blackham v. Pugh, 2 C. B. 611.)

The plaintiff was a telegraph operator. On being discharged from employment by the defendant and on asking for the usual "service card," he was given one. It bore the record: "Dismissed; insolent and abusive to company's patrons." Was this privileged, as to its circulation among employees in the process of compilation? (1899, Hebner v. R. Co., 78 Minn. 289, 80 N. W. 1128).

The defendant, rector of S., was told by an intimate friend that the plaintiff, a curate of A., about to preach Lenten sermons at N., near by, was guilty of cheating and other immorality; and the friend requested him to warn the rector of N. against him. The defendant warned the rector of N., and also the rector of A. (the plaintiff's superior) and that rector's solicitor. The assertions were not founded on fact. Were they privileged? (1877, Clark v. Molyneux, 47 L. J. C. L. 230.)

The defendant was pastor of a church in which M. and his wife were members, and their daughter sang in the choir. The plaintiff was a suitor for the daughter's hand, and was on the point of being accepted by her, and did in fact afterwards marry her. The parents came to the defendant, with whom they had long been intimate, stated that the plaintiff was a most unsuitable match for the daughter, and begged him to use his influence with her. He did so, in a letter, and for this libel the plaintiff now sues. Was it privileged? (1862, Count Joannes v. Bennett, 5 All. 169.)

The defendant was a parishioner of the plaintiff pastor in a church at the town of B. The plaintiff was leaving B. to accept a pastorate at H. The defendant wrote to the church elders at H., warning them against the plaintiff, and bona fide making certain defamatory charges. Was this privileged? (1905, Konkle v. Haven, 140 Mich. 472, 103 N. W. 850.)

The defendant was superintendent of schools in C. County. The plaintiff had been teaching in that county. The plaintiff applied for a State certificate to the State superintendent of public instruction, and passed the examination. But the defendant wrote a letter to the State superintendent, asserting that the plaintiff was "not of a good moral character." Was this letter privileged? (1910, Tanner v. Stevenson, - Ky., 128 S. W. 878.)

The plaintiff was courting the defendant's daughter. The defendant, believing the plaintiff to be of negro blood, told the plaintiff's friends that he for that reason must not come courting the daughter. The plaintiff in fact had

SUB-TOPIC C. PROTECTION OF PUBLIC INTEREST

921. EDMUND BURKE. Speech on the Powers of Juries in Prosecutions for Libel. (1771. Hansard's Parl. Hist., XVII, 48.) ... Undoubtedly the good fame of every man ought to be under the protection of the laws, as well as his life and liberty and property. Good fame is an out-work, that defends them all, and renders them all valuable. The law forbids you to revenge; when it ties up the hands of some, it ought to restrain the tongues of others. The good fame of government is the same; it ought not to be traduced. This is necessary in all government; and, if opinion be support, what takes away this destroys that support.

But the liberty of the press is necessary to this government. . . . An inquiry is wished, as the most effectual way of putting an end to the clamors and libels which are the disorder and disgrace of the times. . . . I am not of the opinion

no negro blood. Was this privileged? (1897, Baysset v. Hire, 49 La. An. 204, 22 So. 44.)

The defendant and C. conversed about a sale of goods by C. to the plaintiff. C. told the defendant that the sale was half on credit. Whereon the defendant remarked, "If you draw it down to Bennett's yard, you'll lose it, for he owes me about £25, and I am going to arrest him next week for my money, and your timber will help pay my debt." C. then broke off the sale to the plaintiff. Was this privileged? (1846, Bennett v. Deacon, 2 C. B. 628.)

The plaintiff was captain of a ship. The first mate was an old friend of the defendant, and wrote to him that the captain's constant drunkenness had endangered the ship during its voyage. The defendant sent the letter to the owner of the ship. The statements in the letter were not true. Was the defendant privileged? (1846, Coxhead v. Richards, 2 C. B. 569.)

The

The defendants, directors of a corporation, made a report to the stockholders of the affairs of the business, based on information from the auditors. report called attention to a deficit "which the manager is responsible for; his accounts as such manager have been badly kept"; this referred to the plaintiff. Was the statement privileged? (1869, Lawless v. Anglo-Egyptian Cotton Co., L. R. 4 Q. B. 262.)

ESSAYS:

W. M. Lile, "Privileged Communications" (Va. L. J., V, 1).

Van Vechten Veeder, "The History of the Law of Defamation" (Select Essays in Anglo-American Legal History, III, 446).

R. S. Guernsey, "When a Libel is not a Libel" (Y. L. J., XX, 36).

Clarke B. Whittier, "Mistake in the Law of Torts" (H. L. R., XV, 335).

NOTES:

"Is a Communication by a Commercial Agency Privileged?" LVII, 178).

(A. L. Reg.,

"Malice in Conditionally Privileged Communications" (A. L. Reg., LVII, 243).

"Libel-Qualified Privilege-Effect of Subsequent Publication in Newspapers" (C. L. R., XI, 183).

'Honest Belief in Interest or Duty of Recipient" (H. L. R., VIII, 235).

"Abuse of Privilege: Intermediate Agencies" (H. L. R., XIII, 403).

"Failure to use Due Care: whether Privilege thereby forfeited" (H. L. R., XVI, 71).

"Malice as Rebutting Privilege" (H. L. R., XVI, 147).

"Privileged Communications: Information supplied by a Commercial Agency at Subscriber's Request" (H. L. R., XXII, 62, 455).]

of those gentlemen who are against disturbing the public repose; I like a clamor where there is an abuse. The fire-bell at midnight disturbs your sleep, but it keeps you from being burned in your bed. The hue and cry alarms the county, but it preserves all the property of the province. All these clamors aim at redress. But a clamor made merely for the purpose of rendering the people discontented with their situation, without an endeavor to give them a practical remedy, is indeed one of the worst acts of sedition. . . . My Lord Coke says it was an aphorism continually in the mouth of a great sage of the law, "Blessed be not the complaining tongue, but, blessed be the amending hand."

922. HENRY, Lord BROUGHAM. Essay on Erskine. (1811. Works, Edinburgh ed., 1872, Vol. VII, p. 216.) The speech which we are inclined to rank the next in importance, but the first in oratorical talent, and happily the most accurately reported and revised, is the celebrated defense of Stockdale, whose trial may be termed the case of Libels; for in it we have clearly laid down, and most powerfully enforced, the doctrine which now enters into every such question,—viz., that if, taking all the parts of a composition together, it shall not be found to exceed the bounds of a free and fair discussion,—so far as a regard to good order, the peace of society, and the security of the government requires, but so free as the nature of our happy constitution, and the unalienable right of Englishmen to canvass public affairs, allows;-if, in short, the discussion be, upon the whole, sufficiently decent in its language, and peaceable in its import, although marked with great freedom of opinion, and couched in terms as animated as a free man can use on a subject that interests him deeply;—although even a great share of heat should be found in the expression, and such invective as, surpassing the bounds of candor and of charity, can only be excused by the violence of honest feelings;-nay, although detached passages may be pitched upon, in their nature and separate capacity amounting to libels:yet these shall also be overlooked, and the defendant acquitted, on the ground that he has only used the grand right of political discussion with uncommon vehemence. This great doctrine, now on the whole generally received, was first fully expounded in the defense of Stockdale; and it forms obviously the foundation of whatever is more than a mere name in the liberty of the pressthe first and proudest preeminence of this country over all the rest of Europe. While the trial of Mr. Hastings was going on, Mr. Stockdale, a bookseller in London, published a pamphlet, written by the late Mr. Logan, one of the ministers of Leith, and a gentleman of very distinguished genius. It was a defense of Mr. [Warren] Hastings; and in the course of it the author was led into several reflections upon the conduct of the managers, which the House of Commons deemed highly contemptuous and libelous. The language of certain passages was indeed rather free and offensive. The charges against Mr. Hastings were said to "originate from misrepresentation and falsehood." .. This pamphlet made a considerable impression on the public mind. Mr. Stockdale, the publisher, was accordingly tried on an information filed by the Attorney-General ex officio. The passages, of which we have just given a summary, were set forth, and stated as libelous. The fact of publication was admitted; and Mr. Erskine then delivered the finest of all his orations. . . . It is justly regarded, by all English lawyers as a consummate specimen of the art of addressing a jury;-as a standard, a sort of precedent for treating cases of libel, by keeping which in his eye a man may hope to succeed in special pleading his client's case within its principle, who is destitute of the talent

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