missible; but that the judge should have called the attention of the jury to the vagueness of the defendant's remarks in the public-house, to the fact that they were uttered many months after the alleged slander and libel, and that therefore they were but very faint evidence that the defendant bore the plaintiff malice at the time of the publication of the alleged slander and libel. A new trial was ordered. Costs to abide the event.

Hemmings v. Gasson, E. B. & E. 346; 27 L. J. Q. B. 252; 4 Jur.

N. S. 834.

Defendant charged the plaintiff, his porter, with stealing his bed-ticks, and with plaintiff's permission subsequently searched his house, but found no stolen property. The jury found that defendant bonâ fide believed that a robbery had been committed by the plaintiff, and made the charge with a view to investigation; but added, "the defendant ought not to have said what he could not prove." Held, that this finding was immaterial, that the occasion was privileged, and that there was no evidence of malice. Judgment for the defendant. Howe v. Jones, 1 Times L. R. 19, 461.

Fowler and wife v. Homer, 3 Camp. 294.

II. Evidence of malice derived from the mode and extent of publication, the terms employed, &c.

The plaintiff is not restricted to extrinsic evidence of malice (Wright v. Woodgate, 2 C. M. & R. 573; 1 Tyr. & G. 12; 1 Gale, 329); he may rely on the words of the libel itself and the circumstances attending its publication; or in the case of slander upon the exaggerated language used, on the fact that third persons were present who were not concerned in the matter, &c. &c.

The fact that the defendant was mistaken in the information he gave is, as we have seen, no evidence of malice: ante, p. 272. The jury must look at the circumstances as they presented themselves to the mind of the defendant at the time of the publication; not at what are proved at the trial to have been the true facts of the case. It is a question of bona fides: Did the defendant honestly believe that he had a duty to perform in the matter, and act under a sense of that duty? That other men would not have so acted is immaterial. That shrewder men would have seen through the tangled web of facts, and have discovered that things were not as they seemed, is

absolutely immaterial. The question is, Did the actual defendant honestly believe what he said? not whether a reasonable man so placed would have believed it. (Per Brett, L. J., 3 Q. B. D. 248.) The defendant will not lose the privilege afforded by the occasion merely because his reasoning powers were defective. (Per Cotton, L. J., ib. 249.) " People believe unreasonable things bona fide," says O'Hagan, J., in Fitzgerald v. Campbell, 15 L. T. 75.

Similarly, the fact that he relied upon hearsay evidence without seeking primary evidence is no evidence of malice. (Per Lord Westbury in Lister v. Perryman, L. R. 4 H. L. 521; overruling (Exch. Ch.) L. R. 3 Exch. 197.) Men of business habitually act upon hearsay evidence in matters of the greatest importance. But this is supposing of course that the defendant is guilty of no laches, and does not wilfully shut his eyes to any source of information. If, indeed, there were means at hand for ascertaining the truth of the matter, of which the defendant neglects to avail himself, and chooses rather to remain in ignorance when he might have obtained full information, this will be evidence of such wilful blindness as may amount to malice.

But if defendant at the time of publication knew that what he said was false, this is clear evidence of malice. A man who knowingly makes a false charge against his neighbour cannot claim privilege. It can never be his duty to circulate lies. And if the statement was made wantonly, without the defendant's knowing or caring whether it was true or false, such recklessness is considered as malicious as deliberate falsehood. (Clark v. Molyneux, 3 Q. B. D. 247; 47 L. J. Q. B. 230; 26 W. R. 104; 37 L. T. 694.)

So if in writing or speaking on a privileged occasion the defendant breaks out into irrelevant charges against the plaintiff, wholly unconnected with the occasion whence the privilege is derived, such excess will be evidence of malice; or, speaking more accurately, such irrelevant charges are wholly unprivileged, and no question of actual malice arises

as to them; unless defendant proves them true the verdict must go against him. (Huntley v. Ward, 6 C. B. N. S. 514; 6 Jur. N. S. 18; Senior v. Medland, 4 Jur. N. S. 1039; Picton v. Jackman, 4 C. & P. 257; Simmonds v. Dunne, Ir. R. 5 C. L. 358.) One part of a letter may be privileged; other parts of the same letter unprivileged. (Warren v. Warren, 1 C. M. & R. 251; 4 Tyr. 850; Jacob v. Lawrence, 4 L. R. Ir. 579.)

And even though it is clear that the defendant believed in the truth of the communication he made, and was acting under a sense of duty on a privileged occasion, the plaintiff's counsel may still rely upon the words employed, and the manner and mode of publication, as evidence of malice. A man honestly indignant may often be led away into exaggerated or unwarrantable expressions; or he may forget where and in whose presence he is speaking, or how and to whom his writing may be published. Clearly this is but faint evidence of actual malice; the jury will generally pardon a slight excess of righteous zeal. But in some cases (which we will procced to examine) such excess has secured plaintiff the verdict.

(i.) Where the expressions employed are exaggerated and unwarrantable; but there is no other evidence of malice.

"It is sometimes difficult to determine when defamatory words in a letter may be considered as by themselves affording evidence of malice." (Per Bramwell, L. J., 3 Q. B. D. 245.) But the test appears to be this. Take the facts as they appeared to the defendant's mind at the time of publication; are the terms used such as the defendant might have honestly and bona fide employed under the circumstances? If so, the judge should stop the case. For if the defendant honestly believed the plaintiff's

conduct to be such as he described it, the mere fact that he used strong words in so describing it is no evidence of malice to go to the jury. (Spill v. Maule, Exch. Ch., L. R. 4 Exch. 232; 17 W. R. 805; 20 L. T. 675; 38 L. J. Ex. 138.)

But where the language used, though taken in connection with what was in defendant's mind at the time, is "much too violent for the occasion and circumstances to

which it is applied," or "utterly beyond and disproportionate to the facts," or where improper motives are unnecessarily imputed, there is evidence of malice to go to the jury. (Fryer v. Kinnersley, 15 C. B. N. S. 422; 33 L. J. C. P. 96; 12 W. R. 155; 9 L. T. 415; Gilpin v. Fowler, 9 Ex. 615; 23 L. J. Ex. 152; 18 Jur. 293.) For in such a case it may be inferred that the defendant bore plaintiff a grudge, or had some sinister motive in writing as he did.

a

Such an inference will be readily drawn in cases where rumour prejudicial to the plaintiff has reached the defendant, which he feels it his duty to report to those concerned, if in reporting it he does not state the rumour as it reached him, but gives an exaggerated or highly coloured version of it. "Inimici fumam non ita, ut nata est, ferunt." (Plaut. Persa II. i. 23.) But in other cases the tendency of the Courts is not to submit the language of privileged communications to too strict a scrutiny. "To hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications." (Per Sir Robert Collier, L. R. 4 P. C. 508.) "The particular expressions ought not to be too strictly scrutinized, provided the intention of the defendant was good." (Per Alderson, B., in Woodward v. Lander, 6 C. & P. 550. And see Taylor v. Hawkins, 16 Q. B. 308; Ruckley v. Kiernan, 7 Ir. C. L. R. 75; R. v. Perry, 15 Cox, C. C. 169.) That the expressions are angry is not enough; the jury must go

further, and see that they are malicious. (Per Tindal, C. J., in Shipley v. Todhunter, 7 C. & P. 690.)

Illustrations.

Defendant changed his printer, and on a privileged occasion stated in writing, as his reason for so doing, that to continue to pay the charges made by his former printer, the plaintiff, would be "to submit to what appears to have been an attempt to extort money by misrepresentation." Held, that these words, imputing improper motives to the plaintiff, were evidence of malice to go to the jury. Damages £50.

Cooke v. Wildes, 5 E. & B. 328; 24 L. J. Q. B. 367; 1 Jur. N. S. 610; 3 C. L. R. 1090.

O'Donoghue v. Hussey, Ir. R. 5 C. L. 124.

Plaintiff sued defendant on a bond; defendant in public, but on a privileged occasion, denounced the plaintiff for attempting to extort money from him. Held, that the words were in excess of the occasion.

Robertson v. M'Dougall, 4 Bing. 670; 1 M. & P. 692; 3 C. & P. 259.
See Tuson v. Evans, 12 A. & E. 733; ante, p. 231.

While the defendant was engaged in winding up the affairs of the plaintiff's firm, of which defendant was also a creditor, the plaintiff took from the cash-box a parcel of bills to the amount of £1,264. Thereupon the defendant wrote to another creditor of the firm that the conduct of the plaintiff "has been most disgraceful and dishonest; and the result has been to diminish materially the available assets of the estate." Held, that the occasion was privileged, and that though the words were strong, they were, when taken in connection with the facts, such as might have been used honestly and bona fide by the defendant; for the plaintiff's conduct was equivocal, and might well be supposed by the defendant to be such as he described it; and that the judge was right in directing a verdict to be entered for the defendant, there being no other evidence of actual malice.

Spill v. Maule (Exch. Ch.), L. R. 4 Ex. 232; 38 L. J. Ex. 138; 17
W. R. 805; 20 L. T. 675.

The defendant tendered to Brown at Crickhowell two £1 notes on the plaintiffs' bank, which Brown returned to him, saying there was a run upon that bank, and he would rather have gold. The defendant, the very next day, went into Brecon, and told two or three people confidentially that the plaintiffs' bank had stopped, and that nobody would take their bills. Held, that this exaggeration was some evidence of malice to go to the jury. Verdict for the defendant.

Bromage v. Prosser, 4 B. & Cr. 247; 6 D. & R. 296; 1 C. & P. 475.
And see Senior v. Medland, 4 Jur. N. S. 1039.

A gentleman told the second master of a school that he had seen one of the under-masters of the school on one occasion coming home at night "under the influence of drink," and desired him to acquaint the authorities with the fact. The second master subsequently stated to the governors that it was notorious that the under-master came home "almost habitually in a state of intoxication." There was no other evidence of malice. Held, that Cockburn, C. J., was right in not withdrawing the case from the jury.

Hume v. Marshall, Times for November 26th, 1877.