the ship, showed the letter to the owner; the owner dismissed the captain, who sued the defendant for libel. Tindal, C. J., and Erle, J., held the occasion privileged. Coltman and Cresswell, JJ., held that it was not. In Amann v. Damm (h) the late Willes, J., said he was fully prepared to go the whole length of the doctrine laid down by Tindal, C. J., and Erle, J., in Coxhead v. Richards (i). Lord Blackburn also approved of it in Davies v. Snead (k). Having carefully considered all the four judgments in that celebrated case Coxhead v. Richards (i), I have no hesitation in saying that the judgment of Tindal, C. J., is the one which carries conviction to my own mind, and is the one which I consider the most accurate and safe to take as a guide, nor am I aware of any subsequent case in which that judgment has been disapproved."

In all the above cases it must, moreover, be remembered that the privilege does not extend to expressions wholly unwarranted by the circumstances of the case (1), nor to unnecessary publication (m). On the other hand, "the simple fact that there has been some casual bystander cannot

(h) 8 C. B. (N. S.) 597.

(i) 2 C. B. 569.

(k) (1870), L. R. 5 Q. B. 608-611.

(1) Per Parke, B., in Warren v. Warren (1834), 1 C. M. & R. at p. 252; Gilpin v. Fowler (1854), 9 Ex. 615; 23 L. J. Ex. 152; Fryer v. Kinnersley (1863), 33 L. J. C. P. 96.

(m) Brown v. Croome (1817), 2 Stark. 297; Lay v. Lawson (1836), 4 A. & E. 795; Botterill and another v. Whytehead (1879), 41 L. T. 588.

That

alter the nature of the transaction "(n). there were other persons present than those to whom the defendant was under a duty to make the statement in question will not necessarily destroy the privilege; if their presence was accidental, or could not be prevented by the defendant, the privilege will not be lost. Thus, in Pittard v. Oliver (o) it was held that the privilege which would have attached to defamatory statements made at a meeting of a board of guardians of which the defendant was a member was not destroyed by the presence of reporters. "Was the defendant's duty to the guardians and to the ratepayers generally taken away by the presence of these other persons, who were not called in by him, and over whose presence he could exercise no control? The question answers itself; the presence of these persons left his duty to discuss the matter untouched; the occasion was privileged for the performance of that duty, and the privilege was not taken away by the presence of such people under such circumstances" (p).

"Where, indeed, an opportunity is sought for making such a charge before third persons, which might have been made in private, it would afford strong evidence of malicious intention, and thus deprive it of that immunity which the law allows to such a statement when made with honesty of

(n) Per cur. in Toogood v. Spyring (1834), 1 C. M. & R. at pp. 193-194.

(o) (1891) 1 Q. B. 474.

(p) Per Lord Esher, M. R., (1891) 1 Q. B. at p. 478.

purpose; but the mere fact of a third person being present does not render the communication absolutely unauthorized, though it may be a circumstance to be left with others, including the style and character of the language used, to the consideration of the jury, who are to determine whether the defendant has acted bonâ fide in making the charge, or been influenced by malicious motive" (q).

ART. 36.-Malice.

Malice is any corrupt or wrong motive, or personal spite or ill-will (r).

NOTE.- "If the occasion is privileged, the plaintiff must prove malice in fact; the burden of proving this is on him, as was settled in Clark v. Molyneux (s). Malice in fact is not confined to personal spite and ill-will, but includes every unjustifiable intention to inflict injury on the person defamed, or, in the words of Brett, L. J., every wrong feeling in a man's mind” (†).

"It lies on the party who would deprive the other party of his privilege to show what the law

(q) Per cur. in Toogood v. Spyring (1834), 1 C. M. & R. at p. 194.

(r) Stuart v. Bell, (1891) 2 Q. B. 351; Royal Aquarium, &c. Society v. Parkinson, (1892) 1 Q. B. 434.

(s) (1877), 3 Q. B. D. 237. See also Jenoure v. Delmege, (1891) App. Cas. 73.

(t) Ibid. 247. Per Lindley, L. J., in Stuart v. Bell, (1891) 2 Q. B. at p. 351.

calls malice. But by that term is meant, not only spite, for any indirect motive other than a sense of duty is what the law calls malice" (u).

And in a very recent case (v) Lord Esher thus explained the meaning of the word malice in relation to a privileged occasion. "The ques

tion is, whether the defendant is using the occasion honestly or abusing it. If a person on such an occasion states what he knows to be untrue, no one ever doubted that he would be abusing the occasion. . . . But there is a state of mind, short of deliberate falsehood, by reason of which a person may properly be held by a jury to have abused the occasion, and in that sense to have spoken maliciously. If a person from anger or some other wrong motive has allowed his mind to get into such a state as to make him cast aspersions on other people, reckless whether they are true or false, it has been held, and I think rightly held, that a jury is justified in finding that he has abused the occasion. Therefore, the question seems to me to be whether there is evidence of such a state of mind on the part of the defendant. It has been said that anger would be such a state of mind; but I think that gross and unreasoning prejudice, not only with regard to particular people, but with regard to a subjectmatter in question, would have the same effect.

(u) Per Lord Campbell, C. J., in Dickson v. The Earl of Wilton (1859), 1 F. & F. at p. 419.

(v) Royal Aquarium, &c. Soc. v. Parkinson, (1892) 1 Q. B. at pp. 443, 444.

If a person charged with the duty of dealing with other people's rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject-matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion."

In the same case Lopes, L. J., said (x), "Not only must the occasion create the privilege, but the occasion must be made use of bonâ fide and without malice. The defendant is only entitled to the protection of the privilege if he uses the occasion in accordance with the purpose for which the occasion arose. He is not entitled to the protection of the privilege if he uses the occasion for some indirect or wrong motives. This casts upon the plaintiff the burden of proving express malice or malice in fact. 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 not stopping or taking the trouble to ascertain whether it is true or not-stated it recklessly by reason of his anger or other indirect motive-the jury may infer that he used the occasion not for the reason that justifies it, but for the gratification of his anger or other indirect motive."

Thus, malice may be proved by showing that the defendant knew the words were untrue when

(x) (1892) 1 Q. B. at p. 454.