the association are not privileged. But it might be otherwise, if the words formed part of the proceedings of a meeting of the body convened to inquire into the conduct of the medical man.b Where the defendant, having some cause for suspicion, went to plaintiff's relations, and charged him with theft, it appearing, however, that his object in making the communication was rather to compromise the felony than to promote inquiry, or to enable the relations to redeem the plaintiff's character; it was held, not to be a privileged communication. So where a letter to the manager of a property in Scotland, in which the plaintiff and defendant were jointly interested, related principally to the property, and the plaintiff's conduct respecting it, but it also contained a passage reflecting on his *1366 *conduct to his mother and aunt; held, that the latter part could not be privileged as a confidential communication.d racter of a Any thing published bond fide with a view of investigating a fact in which the party publishing it is interested is also privileged, however injurious the matter published may be to another person. As where the defendant, at the instance of the plaintiff's wife, published an advertisement, imputing a charge of bigamy to the plaintiff; Lord Ellenborough, C. J., held, that as it was published at the instance of the wife, with a view of discovering whether the plaintiff had another wife living at the time he married her, that being a fact in which she was interested, the publication was justifiable, however injurious it might be to the plaintiff. But if the object could be obtained by means less injurious, or if the publication be more extensive than is necessary for the purpose of obtaining the desired information, it will be actionable.f Anything 2.-Characters of servants.] Questions respecting privisaid bond leged communications principally arise in actions brought by fide in giv- servants against their former masters, for giving them an unfaing a chavorable character. The general rule is, that "any thing said servant, is or written by a master when he gives the character of a serprivileged. vant, is a privileged communication; and to support an action for any communication made by a master on such occasion, the plaintiff must prove that it was malicious." But if the C с Hooper v. Truscott, 2 Bing. N. C. 457. (29 Eng. C. L. 395.) • Warren v. Warren, 4 Tyr. 850. 1 C. M. & R. 150. Delany v. Jones, 4 Esp. 191. (3 Eng. C. L. 353.) Brown v. Croome, 2 Stark. 297. Edmonson v. Stephenson, B. N. P. 8. Weatherstone v. Hawkins, 1 T. R. 110. Per Lord Mansfield, 4 Burr. 2425. "The rule laid down by Lord Mansfield, in Edmonson v. Stephenson, has been followed ever since. It is, that in an action for defamation in giving a character of a servant, the gist of it must be malice, which is not implied from the occasion of speaking, but should be directly proved." Per Parke, J., in Child v. Affleck, 9 B. & C, 406, (17 Eng. C. L. 405,) post, 1368. But see Kelly v. Partington, post, 1368. communication be not made bonâ fide, it does not fall within the protection which the law extends to privileged communications. "Unquestionably," said Lord Alvanley, "the mas- *1367 ter who has given a bad character of a servant to persons inquiring after his character, is not bound to substantiate by proof what he has said; but it is equally clear that the servant may, if he can, prove the character to be fulse, and the question between the master and servant will always in such case be, whether what the former has spoken concerning the latter be malicious and defamatory."b lunteers to give a cha "Upon the question," said Littledale, J., "whether the mas- Where a ter who has written a libel in giving the character of a servant master vohas acted bona fide or not, it may make a very material difference, whether he volunteered to give the character, or had racter. been called upon to do so. At all events, when he volunteers to give a character, stronger evidence will be required that he acted bona fide, than where he has given a character after being required to do so." But in the same case, Bayley, J., said, "that a master may (when he thinks that another is about to take into his service one whom he knows ought not to be taken) set himself in motion, and do some act to induce that other to seek information from him, and put questions to him. The answers to such questions, given bond fide, with the intention of communicating such facts as the party ought to know, will, although they contain slanderous matter, come within the scope of privileged communications. But in such a case, it will be a question for the jury whether the defendant has acted bona fide, intending honestly to discharge a duty, or whether he has acted maliciously, intending to do an injury to the servant." In the case which gave rise to the preceding observations, the defendant wrote a letter to B., who was about to engage the servant, informing him that he, the defendant, had discharged such servant for misconduct; B. in answer desired further information, upon which the defendant wrote a second letter, stating the grounds upon which he discharged the servant; in an action by the servant for a libel contained in the second letter; the court held, that assuming that letter to be a privileged communication, yet, as the defendant had invited the inquiry, it was properly left to the jury to consider, whe- *1368 ther it was written by the defendant, bona fide, or with an intention to injure the servant, and the jury found a verdict for the plaintiff. But where the defendant, in answer to inquiries respecting the character of the plaintiff, who had been his servant, wrote a letter imputing misconduct to her whilst in his service, and after she left it; and also made similar parol state Per Bayley, J., in 8 B. & C. 584, (15 Eng. C. L. 305,) infra. Per Lord Ellenborough, C. J., in Hodgson v. Scarlett, 1 B. & A. 240. Per Lord Alvanley, C. J., in Rogers v. Sir Gervase Clifton, 3 B. & P. 587. d Pattison v. Jones, 8 B. & C. 578. (15 Eng. C. L. 305.) General rities. ments to two other persons who had recommended such servant; it was held, that the letter was a privileged communication, and that the parol statements did not imply malice, and that the plaintiff was properly nonsuited." Where the defendant, on being asked respecting the character of his servant, charged her with theft; a friend of hers afterwards proposed to inquire into the grounds of the charge, but the defendant refused to give satisfactory information on the subject; upon which the friend remonstrated, saying that "if she (the servant) had not friends, she might have gone upon the town;" and the defendant said, speaking of himself and his wife," what is that to us?" held, that this conduct was evidence (though slight) to go to the jury, that the communication was made maliciously. "When it is clear," said Lord Denman, C. J., "that the words complained of are nothing more than a communication from one master to another, informing him of the character of a servant, the case certainly ought not to go to the jury; but where there are other circumstances from which malice may be inferred, the question is for them to decide."b The fair inference from the authorities is, that if the conduct result of of the defendant entirely consists of an answer to an inquiry, the autho- the absence of malice will be presumed, and the plaintiff will be nonsuited, unless he produces evidence of malice; but if a master unasked, officiously gives a bad character of a servant, or if his answer to an inquiry is attended with other circumstances from which malice may be inferred, it will be a question for the jury whether he acted bona fide, or was actuated *1369 by malice. *Proof of the falsehood of the communication is evidence of malice, but it is not necessary for the maintenance of this action, though formerly it was considered otherwise.d Words Where the plaintiff, knowing the character which the master would give, procured a character from him with a view of founding an action upon it; it was held that he could not re cover.e 3.-Words used in legal or judicial proceedings.] Words used in ju- used in the course of a legal or judicial proceeding, however dicial pro- hard they may bear upon the party of whom they are used, ceedings are privi- are protected by the occasion, and cannot form the foundation leged. of an action for slander without proof of express malice, as by showing that the defendant knew at the time that the charge was false; for it would be a matter of public inconvenience, and operate to deter persons from preferring their complaints against offenders, if words spoken in the course of their giving a Child v. Affleck, 9 B. & C. 403. (17 Eng. C. L. 405.) b Kelly v. Partington, 4 B. & Ad. 700. (24 Eng. C. L. 144.) Rogers v. Clifton, Pattison v. Jones, Child v. Affleck, Kelly v. Partington, supra. d In Weatherstone v. Hawkins, 1 T. R. 112, Buller, J., said that it was incumbent on the plaintiff to prove that the charge was malicious as well as false. King v. Waring, 5 Esp. 14. charge of them, or preferring their complaint, should be deemed actionable. (1) Thus, an action will not lie for words spoken on giving a party in charge to a constable, or in preferring a complaint to a magistrate. Nor where a man, upon reasonable grounds of suspicion, charges an innocent person with a theft. Nor if a servant summon his master before a court of conscience for wages, and the latter, in his necessary defence utter words imputing felony to the former. Nor for words spoken in a court of justice in a man's own defence against a charge therein preferred against him. d Where a court martial, after stating in their sentence the ac*quittal of an officer against whom a charge had been prefer- *1370 red, subjoined thereto a declaration of their opinion, that the charge was malicious and groundless, and that the conduct of the prosecutor, in falsely calumniating the accused was highly injurious to the service; it was held, that the president of the court martial was not liable to an action for a libel for having delivered such sentence and declaration to the judge advocate.f or a mem On the same principle whatever is said by a barrister or ad- Words vocate in the conduct of a cause, relevant to the subject mat- said by a ter, is privileged, and not actionable. So, no action lies for barrister, any thing said by a member of parliament in the house; but ber of parthe privilege does not extend beyond the walls of the house; liament, and if a member of either house publishes his speech, he is are privias liable as a private individual to be prosecuted for any libel- leged. lous matter which it may contain. It is established by numerous authorities, that an action cannot be maintained for anything said or otherwise published, either by a judge, a party, or a witness in the due course of a judicial proceeding, whether civil or criminal.i 4.-Criticisms of literary works.] Criticisms on literary productions and works of art publicly exhibited may also be ranked in the class of privileged communications. It is esta a Per Lord Eldon, C. J., in Johnson v. Evans, 3 Esp. 32. Id. But where A. obtained a warrant to search the house of B. for goods suspected to be stolen, and in accompanying the officer to execute the warrant, told him that B. had robbed him; held, not a privileged communication. Doncaster v. Hewson, 2 M. & R. 176. с Fowler v. Homer, 3 Camp. 294. And see Wood v. Brown, 1 Marsh. 522. 6 Taunt. 169. (1 Eng. C. L. 347.) Trotman v. Dunn, 4 Camp. 211. e Astley v. Younge, 3 Burr. 807. 6 Esp. 63. f Jekyll v. Sir John Moore, 2 N. R. 341. 4 Taunt. 67. Home v. Lord Bentinck, 1 Moore, 563. L. 46.) And see Warden v. Bailey, 2 B. & B. 130. (6 Eng. Č. Wood v. Guston, Styles, 462. Brooke v. Sir Henry Montague, Cro. Jac. 90. Hodgson v. Scarlett, 1 B. & A. 232. See Flint v. Pike, 4 B. & C. 473. (10 Eng. C. L. 380.) Rex". Lord Abingdon, 1 Esp. 226. R. v. Creevy, 1 M. & S. 273. i See 1 Stark. Sland. 240, et seq. (1) (Allen v. Cropot, 2 Wend. 515.) blished by a variety of authorities, that a fair and candid, though erroneous criticism of any publication, however poignant it may be, and however severely it may reflect upon the author, so far as he has embodied himself with his work, cannot form the foundation of an action, unless it appears that the defendant under a pretext of criticising the work, indulged in personal defamation against the author, unconnected with the publication. "One writer," said Lord Ellenborough, C. J., *1371 in exposing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the reputation or pecuniary interest of the person ridiculed suffer, it is damnum absque injuria. Where is the liberty of the press if an action can be maintained on such principles? Liberty of criticism must be allowed or we should neither have purity of taste, nor of morals. We really should not cramp observations upon authors and their works; they should be liable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous. Reflections upon personal character, is another thing. Show me an attack upon the moral character of the plaintiff, or an attack upon his character, unconnected with his authorship, and I shall be as ready as any judge who ever sat here to protect him; but I cannot hear of malice on account of turning his works into ridicule."b Publica- 1.-Parliamentary proceedings.] PUBLICATIONS duly made tions un- in the ordinary course of parliamentary proceedings are privithority of leged, and therefore not actionable. As where a false and der the au either house of parlia ment, are privileged scandalous libel was contained in a petition which the defendant caused to be printed and delivered to members of a committee of parliament, appointed by the House of Commons to hear and examine grievances; it was held, that an action would not lie for it; but the court said, that if copies had been distributed to any but members of parliament, it would have been actionable. Carr v. Hood, 1 Camp. 355. Macleod v. Wakeley, 3 C. & P. 311. (14 Eng. C. L. 322.) Thompson v. Shackell, M. & M. 187. (22 Eng. C. L. 286.) Tabart v. Tipper, 1 Camp. 350. Fraser v. Berkeley, 7 C. & P. 621. (32 Eng. C. L.) Per Lord Ellenborough, C. J., in Carr v. Hood, 1 Camp. 354. And see Stuart v. Lovell, 2 Stark. 73. Herriott v. Stuart, 1 Esp. 437. Lake v. King, 1 Saund. 131. 1 Lev. 240. 1 Sid. 414. |