lege will be rebutted if plaintiff prove that defendant made such statement maliciously.

NOTE." If the communication was of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them, --when those two things co-exist, the occasion is a privileged one" (y).

This common interest may be in respect of very varied and different matters, indeed, the only limitation appears to be that it should be something legitimate and proper, something which the Courts will take cognizance of, and not merely an interest which is due to idle curiosity or a desire for gossip (2). Thus, it was held that the occasion was privileged in the following cases :A letter written by a ratepayer affecting the character of the parish constable, to be read at a parish meeting at which the accounts of the parish were to be considered (a); an accusation made by a parishioner, before justices sitting in special sessions, objecting to the plaintiff who was about to be sworn in as parish constable (b); charges made at a parish meeting for the nomination of

(y) Per Lord Esher, M. R., in Hunt v. G. N. Rail. Co., (1891) 2 Q. B. at p. 191.

(z) Per Coltman, J., in Rumsey v. Webb et ux. (1841), C. & M. at p. 105; Botterill and another v. Whitehead (1879), 41 L. T. 588.

(a) Spencer v. Amerton (1835), 1 Moo. & Rob. 470.

(b) Kershaw v. Bailey (1848), 1 Ex. 743; 17 L. J. Ex. 129.

officers as to the previous conduct in office of a parish officer seeking re-election (c); anything said by a life governor of a school, to its steward, concerning one of the tradesmen employed to supply the school (d); correspondence between a curate of one parish and incumbent of another, as to the character of a parishioner of the latter who had formerly lived in the parish in which such curate worked (e); a bishop's charge to his clergy (f); communications between vicar and curate as to ecclesiastical matters (g); a letter written by one creditor who had been appointed the trustee in liquidation of a debtor's estate to another creditor (h), or by a solicitor acting for certain shareholders of a company to other shareholders (i); communications made bonâ fide to a lady by a relation or connection (k) as to the character of her intended husband.

But in all these cases the privilege will be lost if the statement is made to an unnecessarily large

(c) George v. Goddard (1861), 2 F. & F. 689.

(d) Humphreys v. Stillwill (1861), 2 F. & F. 590.

(e) Whiteley v. Adams (1864), 15 C. B. N. S. 392; 33 L. J. C. P. 89.

(f) Laughton v. Bishop of Sodor and Man (1872), L. R. 4 P. C. 495; 42 L. J. C. P. 11.

(g) Clark v. Molyneux (1877), 3 Q. B. D. 237; 47 L. J. Q. B. 230; 14 Cox, C. C. 10.

(h) Spill v. Maule (1869), L. R. 4 Ex. 232; 38 L. J. Ex.

138.

(i) Quartz Hill Gold Mining Co. v. Beall (1882), 20 Ch. D. 509; 51 L. J. Ch. 874.

(k) Todd v. Hawkins (1837), 8 C. & P. 88; 2 M. & Rob. 20.

number of persons (7); thus, where the defendant published an advertisement in a public paper, reflecting strongly on the character of the plaintiff, who had been adjudicated bankrupt, it was held that such a publication was in no way privileged, although published with the avowed intention of convening a meeting of the creditors for the purpose of consulting upon the measures proper to be adopted for their own security (m). "A communication sufficient for the purpose," said Lord Ellenborough (n), "might have been made in measured language. The want of proper caution had rendered the publication actionable, as being published to the world at large."

In such a case the fact that the defendant believed in the truth of the defamatory statements which he was making will afford him no defence. "I am clearly of opinion," said Kelly, C. B., in Botterill v. Whytehead (o), "that if a man should receive information which is injurious if true to the character of another, he is not justified in publishing that information to the prejudice of him to whom it relates, merely because he believes it to be true."

So, too, there will be no privilege if the state

(1) Toogood v. Spyring (1834), 1 C. M. & R. 181; Duncombe v. Daniell (1836), 8 C. & P. 222; Martin v. Strong (1836), 5 Ad. & E. 538; Hoare v. Silverlock (1848), 12 Q. B. 624; 17 L. J. Q. B. 306; Parsons v. Surgey (1864), 4 F. & F. 247. (m) Brown v. Croome (1817), 2 Stark. 297.

(n) Ibid. at p. 301.

(o) (1879), 41 L. T. at p. 590.

ment contains exaggerated and unwarrantable expressions (p).

And where part of the communication extends to matters outside those matters in which the plaintiff and defendant have a common interest, such part will not be protected. Thus, where the plaintiff and defendant were jointly interested in property in Scotland of which C. was manager, and the defendant wrote to C. a letter principally about the property and the conduct of the plaintiff with reference thereto, but containing a charge against the plaintiff with reference to his conduct to his mother and aunt; it was held that though the part of the letter about the plaintiff's conduct as to the property might be confidential and privileged, such privilege could not extend to the part of the letter about the plaintiff's conduct to his mother and aunt (9).

The privilege will not, however, be lost by the publication to printer's men who set up the type, provided that printing is necessary (r).

(p) Bromage v. Prosser (1825), 4 B. & C. 247; Fryer v. Kinnersley (1863), 15 C. B. N. S. 422; 33 L. J. C. P. 96.

(q) Warren v. Warren (1834), 1 C. M. & R. 250.

(r) Davis v. Cutbush and others (1859), 1 F. & F. 487; Lawless v. Anglo-Egyptian Cotton Co. (1869), L. R. 4 Q. B. 262; 10 B. & S. 226; 38 L. J. Q. B. 129.

F.

K

ART. 35.-Statements made in discharge of a duty.

Every statement made in discharge of a legal, moral, or social duty, existing, or bona fide believed by the writer or speaker to exist, and reasonably necessary for the due discharge of such duty, is privileged, but such privilege will be rebutted if plaintiff prove that defendant made such statement maliciously.

NOTE. "The rule is this, that when the circumstances are such as to cast on the defendant the duty of making the communication to a third party, the occasion is privileged "(s).

"The duty may be legal, social, or moral” (†).

Where," says Blackburn, J. (u), “a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bonâ fide and without malice does tell them, it is a privileged communication." Thus, where a person answers an inquiry bonâ fide and without malice, the answer is a privileged communication. And this is true of every answer to a confidential inquiry, for "every

(s) Per Lopes, L. J., in Pullman v. Hill & Co., (1891) 1 Q. B. at p. 530.

(t) Per Lopes, L. J., in Stuart v. Bell, (1891) 2 Q. B. at p. 353. See also per Williams, J., in Fryer v. Kinnersley

(1863), 33 L. J. C. P. at p. 98.

(u) Davies v. Snead (1870), L. R. 5 Q. B. 611; 39 L. J. Q. B. 202, cited with approval by Jessel, M. R., and Brett, L. J., in Waller v. Loch (1881), 7 Q. B. D. 621, 622; 51 L. J. Q. B.