peated exactly what had been told him by another, whose name the defendant gave, or had copied exactly in his newspaper a statement originating elsewhere, or had published it in good faith as an advertisement.21

Whether disbelief in the truth of the statement is a defense. The fact also that the defamatory statement was not believed to be true by the person who published it, and that he declared his disbelief in it, does not excuse his publication.22 So when D, in good faith, repeated to S, a slanderous statement concerning P, and at the same time expressed a disbelief in its truth, and a wish to obtain advice as to the propriety of informing P of the charge, it was held that D was liable in slander, in the absence of any showing that the occasion was privileged.23 "The injury to the reputation of the slandered person," said the court, "is not repaired by the fact that the words were uttered for the purpose of taking counsel."' 24

21. Privilege as a defense. In a rather wide class of cases the law, out of regard for the public interest, permits a privilege of defamation. This privilege is sometimes absolute; if pleaded and proven by the defendant, the plaintiff has no chance to overcome it. More frequently the privilege is only conditional or qualified-the plaintiff can over

21 Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1, 13 L. R. A. 97; Peck v. Tribune Co., 214 U. S. 185; Cooley, Torts (Student's ed.), p. 246.

22 Bishop v. Journal Newspaper Co., 47 N. E. 119 (Mass.).

23 Branstetter v. Dorrough, 81 Ind. 527.

24 Per Elliott, J., Branstetter v. Dorrough, 81 Ind. 527, 531.

come it if he can show that it was exercised with actual malice.

Absolute privilege. P sued D for slander, because D had said of P, in the hearing of others, "You are a harpy, preying on the vitals of the poor." D pleaded that he uttered the words while acting as a judge in the trial of a case in which this plaintiff was defendant. The plaintiff replied that the words were uttered falsely, and without reasonable cause, and were wholly irrelevant and impertinent to the cause before the defendant, as the latter well knew. P's demurrer to this reply admitted the facts pleaded. In other words, it appeared that D had defamed P without just cause or excuse. But the court held that as the statement was by a judge on the bench, "no such action as this can, under any circumstances, be maintainable." 25

The case referred is a typical instance of absolute privilege, and makes clear the reason for it. "It is essential in all courts that the judges who are appointed to administer the law should be privileged to administer it under the protection of the law independently and freely, without favour and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. How could a judge so exercise his office if he were in daily and hourly fear of an action

25 Scott v. Stansfield, L. R. 3 Ex. 220 (Eng.); 37 L. J. Ed. 155, 18 L. T. N. S. 572, LEADING ILLUSTRATIVE CASES.

being brought against him, and of having the question submitted to a jury whether a matter on which he had commented judicially was or was not relevant to the case before him?" 26

Out of regard to the public interests, therefore, certain persons are permitted to defame others with impunity. It is not a privilege to the individual, but a privilege to the state. The persons protected occupy in one way or another either a judicial, a legislative, or an executive position. "It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law, but it is the fear that, if the rule were otherwise, numerous actions would be brought against persons who are merely discharging their duty. It must always be borne in mind that it is intended to

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protect persons acting bona fide, who under a different rule would be liable, not, perhaps, to verdicts and judgments against them, but to the vexation of defending actions." 27

Thus, the privilege extends to statements, however malicious, made by one who at the time is sitting as judge in a court recognized and constituted by law;28 to statements made in the course of legislative proceedings, and relating to them;29 to statements in a petition to the legislature, so far

26 Kelly, C. B., in Scott v. Stansfield, L. R. 3 Ex. 220 (Eng.), LEADING ILLUSTRATIVE Cases.

27 Per Fry, L. J., in Munster v. Lamb, 11 Q. B. D. 588, 607 (Eng.). 28 Scott v. Stansfield, L. R. 3 Ex. 220 (Eng.), LEADING ILLUSTRATIVE CASES; Hodson v. Pare, (1899) 1 Q. B. 455 (Eng.).

29 Sheppard v. Bryant, 191 Mass. 491.

as relevant to the prayer of the petition and confined to members of the legislature;30 to statements by the defendant in the course of his military duty as an officer, made as a report to a superior officer and reflecting on the plaintiff in his military capacity;31 to statements in the proceedings of the executive department of the government.32

In England, this absolute privilege extends also to the counsel engaged in conducting proceedings before a court, to the witnesses, and to the parties.83 In America, the rule has been qualified as respects counsel, witnesses, and parties; their statements are protected only when they are pertinent and material to the controversy-"in order that the protection given to individuals, in the interest of an efficient administration of justice, may not be abused as a cloak from beneath which to gratify private malice.'' 34

Conditional privilege. If the defendant's statement is absolutely privileged, neither its falsity, nor the bad faith of the defamer, is a subject of inquiry. "Granting that the defendant knew his statement was absolutely false, and that he took advantage of his position from the meanest of motives, he still goes scott free." 35 But if the statement is condi

30 Lake v.

King, 1 Wms. Saund. 131 b. (Eng.); Flint v. Pike, 4 B. & C. 423 (Eng.); Bigelow, Torts (8th ed.), p. 306.

31 Dawkins v. Lord Paulet, 9 B. & S. 768 (Eng.).

32 Spalding v. Vilas, 161 U. S. 483; Chatterton v. Secretary of State, 2 Q. B. 189 (Eng.).

33 Munster v. Lamb, 11 Q. B. D. 588 (Eng.) (solicitor); Hodgson v. Scarlett, 1 B. & Ald. 232 (Eng.) (counsel); Seamen v. Netherclift, 2 C. P. D. 53 (Eng.) (witnesses); Bens v. Smith, 18 C. B. 126 (Eng.).

34 Lord, J., in McLaughlin v. Cowley, 127 Mass. 316.

35 Burdick, Law of Torts (2nd ed.), p. 322.

tionally privileged, the defendant, although he pleads and proves the existence of his condition, will fail if the plaintiff can show that it was published maliciously. In cases of conditional privilege, the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. "He is not entitled to the protection if he uses the occasion for some indirect and wrong motive." 36

This "indirect or wrong motive" commonly takes the form of "malice." But by this is not meant the implied malice, or "pleading malice," which is still customarily alleged by the plaintiff in his first pleading, in an action for defamation; it is malice in fact; i. e., a wrong motive on the part of the defendant. There are several classes of these conditionally privileged communications.

(a) Statements made in the performance of some social or moral duty. When the defamatory statement was made in the discharge of some public or private duty there is no liability in the absence of proof of actual malice. "That duty need not be, and indeed seldom is, one enforcible at law; it is sufficient that by the moral standard of right conduct prevalent in the community the defendant lay under an obligation to say what he did."38 In such cases the law affords a qualified defense, depending upon the absence of actual malice.39 Nor is this privilege restricted within narrow limits. "If fairly war

36 Per Brett, L. J., in Clark v. Molyneux, 3 Q. B. D. 237, 246 (Eng.). 37 Clark v. Molyneux, 3 Q. B. D. 237 (Eng.).

38 Salmond, Law of Torts (2nd ed.), p. 427.

39 Parke, B., in Toogood v. Spyring, 1 C. M. & R. 181 (Eng.).