common convenience and welfare of society, and it is obvious that no definite line can be so drawn as to mark off with precision those occasions which are privileged, and separate them from those which are not." (Per Lindley, L.J., in Stuart v. Bell, (1891) 2 Q. B. at p. 346.) But the canon or guiding principle is clear. It is thus stated by Lord Campbell, C.J., in Harrison v. Bush, 5 E. & B. at p. 348; 25 L. J. Q. B. at p. 29:

"A communication made bona fide upon any subjectmatter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter, which, without this privilege, would be slanderous and actionable."

But the duty or interest on which the privilege is founded must exist. It is not enough for the defendant honestly to believe that a duty or interest exists. It is true that the judge on a question of privilege always looks at the surrounding circumstances as they appeared to the defendant at the date of the publication, and not at the actual facts as proved at the trial. The true mode of judging upon the question is to put oneself as much as possible in the position. of the defendant." (Per Kay, L.J., (1891) 2 Q. B. at p. 359.) But if the judge holds that the surrounding circumstances, as they then appeared, did not make it the duty of the defendant to act as he did, then the fact that the defendant honestly believed that he was discharging a moral or social duty is immaterial. (See Stuart v. Bell, (1891) 2 Q. B. at pp. 349, 356, 358.) So, again, it is immaterial. that the defendant, reasonably or unreasonably, believed that the person to whom he made the communication had some duty or interest with regard to its subject-matter; if such person had in fact no such duty or interest, the defence of privilege fails. (Hebditch v. MacIlwaine and others, (1894) 2 Q. B. 54; 63 L. J. Q. B. 587.) In short, the defendant's bona fides is never an element in the question whether a

particular occasion is or is not privileged. No distinction. can be drawn between one class of privileged communications and another in this respect. (Jenoure v. Delmege,

(1891) A. C. 73; 60 L. J. P. C. 11.) As soon as the judge rules that the occasion is privileged, then, but not till then, it becomes material to inquire into the motives of the defendant, and to ask whether he honestly believed in the truth of what he stated. "That the defendant acted under a sense of duty, though important on the question of malice, is not, I think, relevant to the question whether the occasion was or was not privileged. That question does not depend on the defendant's belief, but on whether he was right or mistaken in that belief." (Per Lindley, L.J., in Stuart v. Bell, (1891) 2 Q. B. at p. 349, cited with approval by Lord Esher, M.R., in Hebditch v. MacIlwaine and others, (1894) 2 Q. B. at pp. 60, 61.)

"It is for the defendant to prove that the occasion was privileged. If the defendant does so, the burden of showing actual malice is cast upon the plaintiff; but, unless the defendant does so, the plaintiff is not called upon to prove actual malice. The question whether the occasion is privileged, if the facts are not in dispute, is a question of law only, for the judge, not for the jury. If there are questions of fact in dispute upon which this question depends, they must be left to the jury; but when the jury have found the facts, it is for the judge to say whether they constitute a privileged occasion." (Per Lord Esher, M.R., in Hebditch v. MacIlwaine and others, (1894) 2 Q. B. at p. 58.)

I. WHERE IT IS THE DUTY OF THE DEFENDANT TO MAKE A
COMMUNICATION TO ANOTHER PERSON WHO HAS AN IN-

TEREST IN THE SUBJECT-MATTER OF THE COMMUNICATION,
OR SOME DUTY IN CONNECTION WITH IT.

The word "duty" in this connection "cannot be confined to legal duties, which may be enforced by indictment, action, or mandamus, but must include moral and social duties of imperfect obligation.' (Per Lord Campbell, C.J., in Harrison v. Bush, 5 E. & B. at p. 349; 25 L. J. Q. B. at p. 29.) It is for the judge to decide whether such a duty exists or not. A legal duty is one which is imposed by the common law or created by statute. "The question of moral or social duty being for the judge, each judge must decide it as best he can for himself. I take moral or social duty to mean a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal." (Per Lindley, L.J., in Stuart v. Bell, (1891) 2 Q. B. at p. 350.)

In deciding whether such a duty exists or not, the most important question to be considered is this: Did the defendant make the communication in answer to an inquiry or was it volunteered? Hence cases under this head of privilege naturally fall into two classes :

A. Statements made in answer to inquiry.

B. Statements not in answer to a previous inquiry.

The defence of privilege is open to a defendant in all actions on the case for words causing damage (Wren v. Weild, (1869) L. R. 4 Q. B. at p. 737; Halsey v. Brotherhood, (1881) 19 Ch. D. at p. 388), except in an action for threats by a patentee under s. 32 of the Patents, Designs, and Trade Marks Act, 1883, (Skinner & Co. v. Shew & Co., (1893) 1 Ch. 413; 62 L. J. Ch. 196; 41 W. R. 217; 67 L. T. 696).

A. STATEMENTS MADE IN ANSWER TO INQUIRY.

Characters of Servants.

The instance that occurs most frequently in ordinary life of a privileged communication made in pursuance of a social duty is where the defendant is asked as to the character of his former servant, by one to whom the servant has applied for a situation. A duty is thereby cast upon the former master to state fully and honestly all that he knows either for or against the servant; and any communication, made in the performance of this duty, is clearly privileged for the sake of the common convenience of society, even though it should turn out that the former master was mistaken in some of his statements. (Edmondson v. Stephenson et. ux.,

(1766) Buller's N. P. 8.)

No one is bound to give a character to his servant when asked for it. (Carrol v. Bird, 3 Esp. 201.) The old statute 5 Eliz. c. 4, which required a master in certain cases to satisfy two justices of the peace that he had reasonable and sufficient cause for putting away his servant, had long been obsolete, and now is wholly repealed by the 38 & 39 Vict. c. 86, s. 17. But if any character is given, it must be such as the master honestly believes to be true. Of course, the mere fact that at the trial the master does not attempt to prove that his words were literally true is immaterial; that is no evidence of malice. (See post, p. 338.) But if out of anger, or any ill-feeling against the servant, or from a desire to retain her in his own service, he gives her a bad character when he knows that she deserves a good one, he is acting maliciously, and all privilege is lost. So if from any wrong motive, he makes statements about her character or her work which he does not know to be true, careless whether they are true or false, such recklessness is tantamount to malice, and takes the case out of the privilege.

Other Answers to Inquiries.

The rule which applies to characters of servants governs all other answers to confidential inquiries. "There is no reason why any greater protection should be given to a communication made in answer to an inquiry with reference to a servant's character, than to any other communication

made from a sense of duty, legal, moral, or social." (Per Lord Macnaghten, in Jenoure v. Delmege, (1891) A. C. at p. 78.) "If a person who is thinking of dealing with another in any matter of business asks a question about his character from some one who has means of knowledge, it is for the interests of society that the question should be answered; and if answered bona fide and without malice, the answer is a privileged communication." (Per Brett, L.J., in Waller v. Loch, 7 Q. B. D. 622; 51 L. J. Q. B. 274; 30 W. R. 18; 45 L. T. 242.) Every one owes it as a duty to his fellow men to state what he knows about a person when inquiry is made." (Per Grove, J., in Robshaw v. Smith, 38 L. T. at p. 424.) But the inquiry must be made by a person who has a legitimate interest in the matter, and, therefore, a right to the information for which he applies. Mere idle gossip has no privilege.

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So, too, it is a duty every one owes to society to assist in the discovery of any crime, dishonesty, or misconduct, and to afford all information which will lead to the detection of the culprit. "It is a perfectly privileged communication if a party who is interested in discovering a wrong-doer comes and makes inquiries, and a person in answer makes a discovery or a bona fide communication which he knows or believes to be true, although it may possibly affect the character of a third person." (Per Parke, B., in Kine v. Sewell, 3 M. & W. 302.)

When once such a confidential inquiry is set on foot, all subsequent interviews between the parties will be privileged, so long as what takes place thereat is still relevant to the original inquiry. And it is a question for the jury whether any further communication, though apparently casual and voluntary, did not take place under the confidential relation already established. (Beatson v. Skene, 5 H. & N. 838; 29 L. J. Ex. 430; Hopwood v. Thorn, 8 C. B. 293; 19 L. J. C. P. 94; Wallace v. Carroll, 11 Ir. C. L. R. 485.)

But the defendant's answer must always be pertinent to the inquiry. He must not wander off into matters wholly