to a reasonable amount of discomfort for the convenience or benefit of his neighbor. If a discomfort were wantonly caused from malice or wickedness, a slight degree of inconvenience might be sufficient to render it actionable; but if it were to result from pursuing a useful employment in a way which but for the discomfort to others would be reasonable and lawful, it is perceived that the position of both parties must be regarded, and that what would have been found wholly unreasonable before may appear to be clearly justified by the circumstances.1 Instead of being a question of personal health and comfort on the one hand, and a profitable use of property on the other hand, the question is, on whom in equity should the loss fall, where two adjoining or contiguous land proprietors find their interests clashing in the attempted use of the land by one for a purpose or trade, which causes personal discomfort to the other, who is residing upon his land. The injury to the personal comfort and health is not in such a case an absolute one. For, as was said by the court in one of the leading cases, "the people who live in such a city, i.e., where the principal industry consists of manufactures, or within its sphere of influence, do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts for the greater benefits they think they derive from their residence or business there." If a noisome or unhealthy trade is plied in a part of a city, which is given up principally to residences, it might be considered a nuisance, while the same trade might, in a less populous neighborhood, or in one which is devoted to trade and manufacturing, be considered altogether permissible.

1 Cooley on Torts, 596.

2 Huckenstein's Appeal, 70 Pa. St. 102 (10 Am. Rep. 669).

3 St. Helen's Smelting Co. v. Tipling, 11 H. L. Cas. 642; Whitney v. Bartholomew, 21 Conn. 213; McKeon v. Lee, 51 N. Y. 300 (10 Am. Rep. 659); Huckenstein's Appeal, 70 Pa. St. 102 (10 Am. Rep. 669); Gilbert v. Showerman, 23 Mich. 448; Kirkman v. Handy, 11 Humph. 406; Cooley

SECTION 17. Security to reputation - Privileged communications. 17a. Privilege of legislators.

176. Privilege in judicial procedings.

17c. Criticism of officers and candidates for office.

17d. Publication through the press.

§ 17. Security to reputation - Privileged communications. A man's reputation, the opinion entertained of him by his neighbors, is another valuable possession, and the security to which is most jealously, but, it must be confessed in most cases, ineffectually guarded against infractions. The breath of suspicion, engendered by a slanderous lie, will tarnish a fair name, long after the injurious statement has been proved to be an unfounded falsehood. But the aim of all legislation on the subject is to provide the proper protection against slander and libel, and failure in ordinary cases is caused by the poverty of the means of penal judicature, and does not arise from any public indifference. But dear to man as is the security to reputation, there are cases in which it must yield to the higher demands of public necessity and general welfare. Malice is generally inferred from a false and injurious statement or publication, and the slanderer and libeler are punished accordingly. But there are special cases, in which for reasons of public policy, or on account of the rebuttal of the presumption of malice by the co-existence of a duty to speak or an active interest in the subject, the speaker or writer is held to be "privileged," that is, relieved from liability for the damage which has been inflicted by his false

on Torts, 596-605; 1 Dillon's Municipal Corp., § 374, note. "If one lives in a city he must expect to suffer the dirt, smoke, noisome odors, noise and confusion incident to city life. As Lord Justice James beautifully said in Salvin v. North Brancepeth Coal Co., L. M. 9 Ch. Ap. 705, 'if some picturesque haven opens its arms to invite the commerce of the world, it is not for this court to forbid the embrace, although the fruit of it should be the sights and sounds and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitude.'" Earl, J., in Campbell v. Seaman, 63 N. Y. 568.

66

charges. These privileged communications are divided into two classes; first, those which are made in a public or official capacity, and which for reasons of public policy are not permitted to be the subject of a judicial action; and secondly, all those cases in which the circumstances rebut the presumption of malice. In these cases of the second class, the privilege is only partial. As already stated, the circumstances are held to rebut the presumption of malice, and throws upon the plaintiff the burden of proving affirmatively that the defendant was actuated by malice in making the false statement which has injured the plaintiff's reputation. In these cases, the proof of express malice revives the liability of the alleged slanderer.1 As Mr. Cooley says, they are generally cases in which a party has a duty to discharge, which requires that he should be allowed to speak freely and fully that which he believes; or where he is himself directly interested in the subject-matter of the communication, and makes it with a view to the protection or advancement of his own interest, or where he is communicating confidentially with a person interested in the communication, and by way of advice." The cases of a private nature are very numerous, and for a full and exhaustive discussion of them, reference must be made to some work on slander and libel. Under this rule of exemption are included answers to inquiries after the character of one, who had been employed by the person addressed, and who is soliciting employment from one who makes the inquiry,3

1 "It properly signifies this and nothing more; that the excepted instances shall so far change the ordinary rule with respect to slanderous or libelous matter as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice." Daniel, J., in White v. Nichols, 3 How. 266, 287. See Lewis v. Chapman, 16 N. Y. 369.

2 Cooley Const. Lim. 425.

8 Pattison v. Jones, 8 B. & C. 578; Bradley v. Heath, 12 Pick. 163; Hatch v. Lane, 105 Mass. 394; Elam v. Badger, 23 Ill. 498; Noonan v. Orton, 32 Wis. 106. So also is a subsequent communication, to one who

the answer of all inquiries between tradesmen concerning the financial credit and commercial reputation of persons who desire to enter into business dealings with the inquirers.1 While the private reports of mercantile agencies are privileged, the published reports of such agencies, which are distributed among the customers, are held not to constitute one of the privileged classes.3

All bona fide communications are privileged, where there is a confidential relation of any kind, existing between the parties in respect to the subject-matter of the inquiry. "All that is necessary to entitle such communications to be regarded as privileged is, that the relation of the parties should be such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of an appearance of officious intermeddling with the affairs of another.” 4

The first class of privileged communications, enumerated above, is absolutely privileged, and there is no right of action, even though the false statement is proved to be prompted by malice. They are few in number, and the privilege rests upon public policy, and usually have reference to the administration of some branch of the government. They will be discussed in a regular order.

§ 17a. Privilege of legislators.-In order that the

had employed a clerk upon the former's recommendation, of the facts which have induced a change of opinion. Fowles v. Bowen, 30 N. Y. 20. 1 Smith v. Thomas, 2 Bing. N. C. 372; White v. Nichols, 3 How. 266; Cooley on Torts, 216.

2 Lewis v. Chapman, 16 N. Y. 369; Ormsby v. Douglass, 37 N. Y. 477.

Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188 (7 Am. Rep. 322). See note 2, p. 55.

'Lewis v. Chapman, 16 N. Y. 369. See Todd v. Hawkins, 8 C. & P. 88; Cockagne v. Hodgkisson, 5 C & P. 543; Klinck v. Colby, 46 N. Y. 274 (7 Am. Rep. 360); Joannes v. Bennett, 5 Allen, 170; Hatch v. Lane, 105 Mass. 394; Fitzgerald v. Robinson, 112 Mass. 371; State v. Burnham, 9 N. H. 34; Knowles v. Peck, 42 Conn. 386 (19 Am. Rep. 542); Goslin v. Cannon, 1 Harr. 3; Grimes v. Coyle, 6 B. Mon. 301; Rector v. Smith, 11 Iowa, 302.

ness or duty, is not even remotely pertinent to public questions then under discussion, the legislator in his utterance of them subjects himself to civil and criminal liability.1 A similar exemption from responsibility for official utterances is guaranteed to the President of the United States and to the governors of the several States.2

§ 176. Privilege in judicial proceedings.-The object of all judicial proceedings is the furtherance of justice by preventing or punishing wrongs and providing protection to rights. Although the law does not support, and is not designed to foster, a litigious spirit, yet whenever one, from all the facts within his knowledge, is justified in believing that he has suffered a wrong; in other words, if the facts within his knowledge make out a prima facie cause of action, he has a right to call to his aid the whole power of the law in the protection and enforcement of his rights, and it is to the public interest that a sufficient remedy be provided, and a resort to the courts be encouraged, in order to diminish the temptation, which is always present, to redress one's own wrongs. Now, if one, in stating his cause of action to the court, will subject himself to liability for every mistake of fact that he might innocently make, appeals to the courts in such cases would thus be discour aged. It is therefore consonant with the soundest public policy, to protect from civil liability all false accusations contained in the affidavits, pleadings, and other papers, which are preliminary to the institution of a suit. But the courts are not to be made the vehicles for slanderous villification, and hence the false accusations are privileged only when made in good faith, with the intention to prosecute, and under circumstances, which induced the affirmant, as a reasonably prudent man, to believe them to be true. The

1 Coffin v. Coffin, 4 Mass. 1 (3 Am. Dec. 189); State v. Burnham, 9 N. H.

34; Perkins v. Mitchell, 31 Barb. 461.

2 Cooley on Torts, 214.