defamatory the occasion on which it is either written or spoken is privileged, it is necessary to consider how, although the occasion is privileged, yet the defendant is not permitted to take advantage of the privilege. If the occasion is privileged it is so for some reason, and 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. If he uses the occasion to gratify his anger or his malice, he uses the occasion not for the reason which makes the occasion privileged, but for an indirect and wrong motive. If the indirect and wrong motive suggested to take the defamatory matter out of the privilege is malice, then there are certain tests of malice. Malice does not mean malice in law, a term in pleading, but actual malice, that which is popularly called malice. If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes thenceforth that he was malicious, that he did do a wrong thing for some wrong motive. So if it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive. The judgment of Bayley, J., in Bromage v. Prosser, 4 B. & C., at p. 255, treats of malice in law; and no doubt where the word 'maliciously' is used in a pleading, it means intentionally, wilfully. It has been decided that if the word 'maliciously' is omitted in a declaration for libel, and the words 'wrongfully' or 'falsely' substituted, it is sufficient, the reason being that the word 'maliciously,' as used in a pleading, has only a technical meaning; but here we are dealing with malice in fact, and malice then means a wrong feeling in a man's mind." (Clark v. Molyneux, 3 Q. B. D. 246, 247; 47 L. J. Q. B. 230; 26 W. R. 104; 37 L. T. 696, 697.)

Malice may be defined as any indirect and dishonest motive which induces the defendant to defame the plaintiff. "Malice means any corrupt motive, any wrong motive, or any departure from duty." (Per Erle, C. J., 2 F. & F. 524.) If malice be proved, the privilege attaching to the occasion, unless it be absolute, is lost at once.

The onus of proving malice lies on the plaintiff; the

defendant cannot be called on to prove he did not act maliciously, till some evidence of malice, more than a mere scintilla, has been adduced by the plaintiff. (Taylor v. Hawkins, 16 Q. B. 321; 15 Jur. 746; 20 L. J. Q. B. 313; Cooke and another v. Wildes, 5 E. & B. 340; 24 L. J. Q. B. 367; 1 Jur. N. S. 610; 3 C. L. R. 1090; Laughton v. Bishop of Sodor & Man, L. R. 4 P. C. 495; 42 L. J. P. C. 11; 21 W. R. 204; 28 L. T. 377; 9 Moore, P. C. C. N. S. 318; Clark v. Molyneux, (C. A.), 3 Q. B. D. 237; 47 L. J. Q. B. 230; 26 W. R. 104; 37 L. T. 694; 14 Cox, C. C. 10.) Such evidence may either be extrinsic-as of previous ill-feeling or personal hostility between plaintiff and defendant, threats, rivalry, squabbles, other actions, former libels or slanders, &c.; or intrinsic-the violence of defendant's language, the mode and extent of its publication, &c. But in either case, if the evidence adduced is equally consistent with either the existence or non-existence of malice, the judge should stop the case; for there is nothing to rebut the presumption which has arisen in favour of the defendant from the privileged occasion. (Somerville v. Hawkins, 10 C. B. 590; 20 L. J. C. P. 131; 15 Jur. 450; Harris v. Thompson, 13 C. B. 333; Taylor v. Hawkins, 16 Q. B. 308; 20 L. J. Q. B. 313; 15 Jur. 746.) That the words are strong is no evidence of malice, if on defendant's view of the facts strong words were justified. (Spill v. Maule, L. R. 4 Ex. 232; 38 L. J. Ex. 138; 17 W. R. 805; 20 L. T. 675.) That the statement was volunteered is no evidence of malice, if it was defendant's duty to volunteer it. (Gardner v. Slade et ux, 13 Q. B. 798; 18 L. J. Q. B. 336.) That the statement is now admitted or proved to be untrue is no evidence that it was made maliciously (Caulfield v. Whitworth, 16 W. R. 936; 18 L. T. 527); though proof that defendant knew it was untrue when he made it would be conclusive evidence of malice. If the defendant is in a position to prove the truth of his statement, "he has no need of privilege: the only use of privilege is in cases where the truth of the statement cannot be proved." (Per Lord Coleridge, C. J.,

in Howe v. Jones, 1 Times L. R. at p. 462. This is so also in America; see Lewis and Herrick v. Chapman (Selden, J.), 2 Smith (16 N. Y. R.)369; Vanderzee v. McGregor, 12 Wend. 546; Fowles v. Bowen, 3 Tiffany (30 N. Y. R.) 20.)

A mere mistake innocently made through excusable inadvertence cannot in any case be evidence of malice. (Harrison v. Bush, 5 E. & B. 350; 1 Jur. N. S. 846; 25 L. J. Q. B. 25; Brett v. Watson, 20 W. R. 723; Kershaw v. Bailey, 1 Ex. 743; 17 L. J. Ex. 129; Scarll v. Dixon, 4 F. & F. 250 ; Pater v. Baker, 3 C. B. 831; 16 L. J. C. P. 124; 11 Jur. 370; Tompson v. Dashwood, 11 Q. B. D. 43; 52 L. J. Q. B. 425; 48 L. T. 943; 48 J. P. 55.)

to

The question of malice or no malice is for the jury. But there is always the prior question: "Is there any evidence of malice to go the jury?" and this is for the judge. The presumption in favour of the defendant arising from the privileged occasion remains till it is rebutted by evidence of malice; and evidence merely equivocal, that is, equally consistent with malice or bona fides, will do nothing towards rebutting the presumption; if, therefore, only such evidence be offered, the judge should nonsuit the plaintiff. So, too, the judge should stop the case if there be no more than a scintilla of evidence of malice to go to the jury. But it is difficult to say beforehand what will be deemed a mere scintilla, what more than a scintilla, in any given case. The same evidence may make different impressions on different minds. (See Adams v. Coleridge, 1 Times L. R. 87.)

The facts tendered as evidence of malice must always go to prove that the defendant himself was actuated by personal malice against the plaintiff. In an action against the publisher of a magazine, evidence that the editor or the author of any article, not being the publisher, had a spite against the plaintiff, is of course inadmissible. (Robertson v. Wylde, 2 Moo. & Rob. 101; Clark v. Newsam, 1 Ex. 131, 139; Carmichael v. Waterford and Limerick Ry. Co., 13 Ir. L. R. 313. So in America, York v. Pease, 2 Gray (68 Mass.) 282.)

Illustrations.

Defendant claimed a leasehold interest in the manor and castle of Hely, and produced a lease which she knew to be a forgery. Judgment for the plaintiff. Gerard v. Dickenson (1590), 4 Rep. 18; Cro. Eliz. 197.

Defendant wrote to his wife's uncle telling him that his son and heir was leading a fast wild life, and was longing for his father's death, and that all his

inheritance would not be sufficient to satisfy his debts. The Court of Star Chamber were satisfied that this letter was written with the intention of alienating the father from the son, and inducing the father to leave his lands and money to the defendant or his wife, and not from an honest desire that the son should reform his life; and they fined defendant £200.

Peacock v. Reynal (1612), 2 Brownlow and Goldesborough, 151. Plaintiff assaulted the defendant on the highway; the defendant met a constable and asked him to arrest the plaintiff. The constable refused to arrest the plaintiff unless he was charged with a felony. The defendant knowing full well that the plaintiff had committed a misdemeanour only, viz., the assault, charged him with felony, in order to get him locked up for the night. Held, that the charge of felony was malicious, as being made from an indirect and improper motive.

Smith v. Hodgeskins (1633), Cro. Car. 276.

A near relative may warn a lady not to marry a particular suitor, and assign his reasons for thus cautioning her, provided this be done from a conscientious desire for her welfare, and in the bona fide belief that the charges made are true.

Todd v. Hawkins, 2 M. & Rob. 20; 8 C. & P. 888.
Per De Grey, C. J., in case cited 2 Smith, at p. 4.

As to a mere friend,

See Byam v. Collins, 39 Hun. (46 N. Y. Sup. Ct.) 204; and per
Hill, J., in case referred to in 15 C. B. N. S. 410, 411; 33 L. J.
C. P. 93; ante, p. 219.

But if a rival thus endeavoured to oust the plaintiff from the lady's affections, there would be evidence of malice to go to the jury.

And see Adams v. Coleridge, 1 Times L. R. 84.

It is usual for a former master to give the character of a servant on application, and not before. Hence if a master hears a discharged servant is applying for a place at M.'s house, and writes at once to M. to give the servant a bad character, the fact that the communication was uncalled for will be apt to tell against the master. M. would almost certainly have applied to the defendant for the information sooner or later; and the eagerness displayed in thus imparting it unasked will be commented on as a proof of malice, and if there be any other evidence of malice, however slight, may materially influence the verdict. But if there be no other evidence of malice, the communication is still privileged.

Pattison v. Jones, 8 B. & C. 578; 3 M. & R. 101.

Fowles v. Bowen, 3 Tiffany (30 N. Y. R.) 20; ante, p. 203.

The defendant on being applied to for the character of the plaintiff, who had been his saleswoman, charged her with theft. He had never made such a charge against her till then; he told her that he would say nothing about it, if she resumed her employment at his house; subsequently, he said that if she would acknowledge the theft he would give her a character. Held, that there was abundant evidence that the charge of theft was made malâ fide, with the intention of compelling plaintiff to return to defendant's service. Damages, £60.

Jackson v. Hopperton, 16 C. B. N. S. 829; 12 W. R. 913; 10 L. T.

529.

Rogers v. Clifton, 3 B. & P. 587.

The defendant made a charge of felony against his former shopman to his relatives during his absence in London, with a view of inducing them to compound the alleged felony, and not for the purpose of prosecution or investigation. He actually received £50 from plaintiff's brother as hush-money. Held, that the charge of felony was altogether unprivileged.

Hooper v. Truscott, 2 Bing. N. C. 457; 2 Scott, 672.

A colonel was dismissed from his command in consequence of charges made by the defendant. A member of Parliament gave notice that he would ask a question in the House of Commons relative to this dismissal. Defendant thereupon called on the member, whom he knew, to explain matters. The conversation that ensued was held to be primâ fucie privileged; but on proof that the charges were made, not from a sense of duty, but from personal resentment on account of other matters, and that the object of the conversation was to prejudice the plaintiff by reason of such personal resentment-held, that there was actual malice, taking away the privilege.

Dickson v. The Earl of Wilton, 1 F. & F. 419.

A speech made by a member of Parliament in the House is absolutely privileged; but if he subsequently causes his speech to be printed, and published, with the malicious intention of injuring the plaintiff, he will be liable both civilly and criminally.

R. v. Lord Abingdon, 1 Esp. 226.

R. v. Creevey, 1 M. & S. 273.

The rector dismissed the parish schoolmaster for refusing to teach in the Sunday School. The schoolmaster opened another school on his own account in the parish. The rector published a pastoral letter warning all parishioners not to support "a schismatical school," and not to be partakers with the plaintiff "in his evil deeds," which tended "to produce disunion and schism," and "a spirit of opposition to authority." Held, that there was some evidence to go to the jury that the rector cherished anger and malice against the schoolmaster. Gilpin v. Fowler, 9 Ex. 615; 23 L. J. Ex. 152; 18 Jur. 293.

I. Extrinsic evidence of malice.

Malice may be proved by extrinsic evidence showing that the defendant bore a long-standing grudge against the plaintiff, that there were former disputes between them, that defendant had formerly been in the plaintiff's employ and was dismissed for misconduct, or any previous quarrels, rivalry, or ill-feeling between plaintiff and defendant. Anything defendant has ever said or done with reference to the plaintiff may be urged as evidence of malice. Indeed, it is very difficult to say what possible evidence is inad