open to discussion whether the words were or were not in the nature of fair comment on the matter in hand, or otherwise relevant or proper, or whether or not they were used in good faith.

Other persons in judicial proceedings. Parties, advocates, and witnesses in a court of justice are under the like protection. They are subject to the authority of the Court itself, but whatever they say in the course of the proceedings and with reference to the matter in hand is exempt from question elsewhere. It is not slander for a prisoner's counsel to make insinuations against the prosecutor, which might, if true, explain some of the facts proved, however gross and unfounded those insinuations may be (b); nor for a witness after his cross-examination to volunteer a statement of opinion by way of vindicating his credit, which involves a criminal accusation against a person wholly unconnected with the case (c). The only limitation is that the words must in some way have reference to the inquiry the Court is engaged in. A duly constituted military court of inquiry is for this purpose on the same footing as an ordinary court of justice (d). So is a select committee of the House of Commons (e). Statements coming within this rule are said to be "absolutely privileged." The reason for precluding all discussion of their reasonableness or good faith before another tribunal is one of public policy, laid down to the same effect in all the authorities. The law does not seek to protect a dishonest witness or a reck

Ex. 220, 37 L. J. Ex. 155; the protection extends to judicial acts, see the chapter of General Exceptions above, pp. 104 106, and further illustrations ap. Blake Odgers, 188.

(b) Munster v. Lamb (1883), 11 Q. B. Div. 588, where authorities are collected.

(c) Seaman v. Netherclift (1876), 2 C. P. Div. 53, 46 L. J. C. P. 128.

(d) Dawkins v. Lord Rokeby (1873-5),

Ex. Ch. and H. L., L. R. 8 Q. B. 255, 7 H.
L. 744, 45 L. J. Q. B. 8, see opinion of
judges 7 H. L. at p. 752; Dawkins v. Prince
Edward of Saxe Weimar (1876), 1 Q. B.
D. 499, 45 L. J. Q. B. 567.

(e) Goffin v. Donnelly (1881), 6 Q. B. D. 307, 50 L. J. Q. B. 303. A licensing meet. ing of a County Council is not a Court for this purpose: Royal Aquarium Society v. Parkinson, '92, 1 Q. B. 431, C. A.

less advocate, but deems this a less evil than exposing honest witnesses and advocates to vexatious actions.

Reports of officers, etc. As to reports made in the course of naval or military duty, but not with reference to any pending judicial proceeding, it is doubtful whether they come under this head or that of" qualified privilege." A majority of the Court of Queen's Bench has held (against a strong dissent), not exactly that they are "absolutely privileged," but that an ordinary court of law will not determine questions of naval or military discipline and duty. But the decision is not received as conclusive (ƒ).

Qualified immunity of "privileged communications. There is an important class of cases in which a middle course is taken between the common rule of unqualified re

(f) Dawkins v. Lord Paulet (1869), L. R. 5 Q. B. 94, 39 L. J. Q. B. 53, see the dissenting judgment of Cockburn C. J., and the notes of Mr. Justice Stephen, Dig. Cr. L. art. 276, and Mr. Blake Odgers, op. cit. 195. The reference of the Judicial Committee to the case in Hart v. Gum

pach (1872), L. R. 4 P. C. 439, 464, 42 L. J. P. C. 25, is quite neutral. They declined to presume that such an " absolute privilege" existed by the law and customs of China as to official reports to the Chinese Government.

Qualified immunity of "privileged communications." As stated in the text, communications like those above mentioned, by members of legislative or judicial bodies, are absolutely privileged. There are certain occasions which permit communications not otherwise privileged; and, therefore, such communications may be said to be conditionally or qualifiedly privileged.

In Hastings v. Lusk (22 Wend. 414), the court said: "In one class of cases the law protects the defendant so far as not to impute malice to him from the mere fact of his having spoken words of the plaintiff which are in themselves actionable, though he may not be able to prove the truth of his allegations. But the plaintiff will be able to sustain his action for slander, if he can satisfy the jury, by other proof, that there was actual malice on the part of the defendant, and that he uttered the words for the mere purpose of defaming the plaintiff. In the other class of cases the privilege is an effectual shield to the defendant; so that no action of slander can be sustained against him, whatever his motive may have been in using slanderous words." See Bacon v. Mich. Cent. R. Co., 66 Mich. 172; Briggs v. Garrett, 111 Pa. St. 414; Moore v. Manufacturer's

sponsibility for one's statements, and the exceptional rules which give, as we have just seen, absolute protection to the kinds of statements covered by them. In many relations of life the law deems it politic and necessary to protect the honest expression of opinion concerning the character and merits of persons, to the extent appropriate to the nature of the occasion, but not necessary to prevent the person affected from showing, if he can, that an unfavourable opinion expressed concerning him is not honest. Occasions of this kind are said to be privileged, and communications made in pursuance of the duty or right incident to them are said to be privileged by the occasion. The term " qualified privilege" is often used to mark the requirement of good faith in such cases, in contrast to the cases of "absolute privilege" above mentioned. Fair reports of judicial and parliamentary proceedings are put by the latest authorities in the same category. Such reports must be fair and substantially correct in fact to begin with, and also must not be published from motives of personal ill-will; and this although the matter reported was "absolutely privileged " as to the original utterance of it.

Conditions of the privilege. The conditions of immunity may be thus summed up:—

The occasion must be privileged; and if the defendant establishes this, he will not be liable unless the plaintiff can prove (g) that the communication was not honestly made for the purpose of discharging a legal, moral or social duty, or with a view to the just protection of some private

(g) The burden of proof is not on the defendant to show his good faith:

Jenoure v. Delmege, '91, A. C. 73, 60 L. J
P. C. 11, J. C.

Nat. Bank, 123 N. Y. 420; 25 N. E. Rep. 1048; King v. Patterson, 49 N. J. L. 420; Marks v. Baker, 28 Minn. 162; Nix v. Caldwell, 81 Ky. 295; Rubelman v. Larchman, 14 Mo. App. 601; Lowry v. Vedder, 40 Minn. 475; Smith v. Smith, 3 L. R. A. 52; 41 N. W. Rep. 499; Palmer v. Concord, 48 N. H. 211; Warden v. Whalen, 8 Pa. Co. Ct. Rep. 660; Metzler v. Romine, 9 Id. 171.

interest or of the public good by giving information appearing proper to be given, but from some improper motive and without due regard to truth.

Such proof may exist either in external evidence of personal ill-feeling or disregard of the truth of the matter, or in the manner or terms of the communication, or acts accompanying and giving point to it, being unreasonable and improper, "in excess of the occasion," as we say.

"Express malice." The rule formerly was, and still sometimes is, expressed in an artificial manner derived from the style of pleading at common law.

The law, it is said, presumes or implies malice in all

"Express malice." Express malice must be specifically proved; that is, it must be shown that outside of the language itself there existed an intent to injure the individual defamed. Pollasky v. Minchener, 81 Mich. 280; 46 N. W. Rep. 5; Vickers v. Stoneman, 73 Mich. 419; Jno. W. Lovell Co. v. Houghton, 54 N. Y. Superior Ct. 60; Palmer v. Concord, 48 N. H. 211; Miner v. Detroit, etc., Co., 49 Mich. 358; Jellison v. Goodwin, 43 Me. 288.

Whatever tends to show the motive which prompted the utterance of the words is competent, under the general issue, as tending to prove presence or absence of malice. Cameron v. Tribune Assoc. 7 N. Y. S. Rep. 739; Steinecke v. Marx, 10 Mo. App. 580; Hotchkiss v. Porter, 30 Conn. 414; Gribble v. Pioneer Press Co., 34 Minn. 193; Hastings. Stetson, 130 Mass. 76; York v. Pease, 2 Gray, 282; Goot v. Pulsifer, 122 Mass. 235; Dixon v. Allen, 69 Cal. 527; Lewis v. Chapman, 16 N. Y. 372; Wilson v. Noonan, 35 Wis. 321). As, for example, in the Illinois case of Hintz v. Graupner (37 Ill. App. 510; 27 N. E. Rep. 935), it was held, that when defendant was asked why he made charges against plaintiff, and he said that he had a grudge against her father, it is competent to prove malice. Distinguishing Stowell v. Begle, 57 Ill. 97. See Ward v. Beane, 57 Hun, 585; Grace v. McArthur, 76 Wis. 641; Freeman v. Sanderson, 123 Ind. 264; Wabash Print. & Pub. Co. v. Crumrine, 123 Ind. 89; Beneway v. Thorp, 77 Mich. 181. And in the case of Harris v. Zanone (93 Cal. 59; 28 Pac. Rep. 845), it was held that in an action for slander, in uttering defamatory words concerning plaintiff, evidence of the other utterance of words of similar import is admissible to show malice.

Express malice must be proven in privileged communications to entitle the plaintiff to recover. Remington v. Congdon, 2 Pick. 310; 13 Am. Dec. 431; King v. Root, Wend. 113; 21 Am. Dec. 102; Fahr v. Hayes,

cases of defamatory words; this presumption may be rebutted by showing that the words were uttered on a privileged occasion; but after this the plaintiff may allege and prove express or actual malice, that is, wrong motive. He need not prove malice in the first instance, because the law presumes it; when the presumption is removed, the field is still open to proof. But the "malice in law" which was said to be presumed is not the same as the " express malice" which is matter of proof. To have a lawful occasion and abuse it may be as bad as doing harm without any lawful occasion, or worse; but it is a different thing in substance. It is better to say that where there is

50 N. J. L. 275; 13 At. Rep. 261; Conroy v. Pittsburgh Times, 139 Pa. St. 339; 21 At. Rep. 154; 27 W. N. C. 239; Schuyler v. Busbey, 68 Hun, 474; 23 N. Y. S. Rep. 102.

A repetition of the defamation may be shown to prove malice. Reiten v. Goedel, 33 Minn. 151; Ward v. Dick, 47 Conn. 300; Noeninger v. Vogt, 88 Mo. 589; Welch v. Tribune Pub. Co., 83 Mich. 661; 47 N. W. Rep. 562.

So, a failure to publish a retraction promptly is evidence of malice. Hermann v. Bradstreet Co., 19 Mo. App. 227. Contra, Bradley v. Cramer, 66 Wis. 297.

If the publication is ambiguous, express malice may be shown in order to enhance the damages. Huson v. Dale, 19 Mich. 29; Thompson v. Powning, 15 Nev. 195; Bush v. Brosser, 11 N. Y. 347.

Express malice may be shown in aggravation of damages. True v. Plumley, 36 Me. 481; Fowler v. Gilbert, 38 Mich. 292; Delaney v. Kaetel, 81 Wis. 353; 51 N. W. Rep. 559; Walker v. Wickens, 49 Kan. 42; 30 Pac. Rep. 181.

So circumstances which disprove malice, may be given in evidence in mitigation of damages. Gilman v. Lowell, 8 Wend. 575; Commonwealth v. Snelling, 15 Pick. 340; Sick v. Owen, 47 Cal. 252.

Where malice is not inferred by law from the defamatory matter itself it is a proper question for the jury to pass upon and determine. Lawson v. Hicks, 38 Ala. 287; 81 Am. Dec. 49; Nott v. Stoddard, 38 Vt. 32; Weaver v. Hendrick, 30 Mo. 506; Nebb v. Hope, 111 Pa. St. 145; Bacon v. Mich. Cent. R. Co., 66 Mich. 166; 31 Am. & Eng. R. Cas. 357; Coleman v. Playsted, 36 Barb. 26; Klinck v. Colby, 46 N. Y. 427; Hamilton v. Ens, 81 N. Y. 116; Adcocks v. Marsh, 8 Ired. 361; Alliger v. Brooklyn Daily Eagle, 6 N. Y. S. Rep. 110; Locke v. Bradstreet Co., 22 Fed. Rep. 772; Fowles v. Bowen, 30 N. Y. 20; Gassett v. Gilbert, 6 Gray, 94; Liddle v. Hodges, 2 Bosw. 537; Erwin v. Sumrow, 1 Hawks, 472.