ARTICLE III.

OF THE DEFENSES.

Section 1. In general. The defendant may show that the alleged libel was not in fact written and used in an injurious and actionable sense; or that he had nothing to do with its composition or publication; or that it does not relate to the plaintiff; or that, in the delivery of the libel, he acted in honest ignorance of its contents, and did not know, or have any reason to suppose, that the act was illegal. Underwood v. Parks, Str. 1200; Mullett v. Hulton, 4 Esp. 248. Where it appeared that five packets addressed to as many different persons, and inclosed in one, which was directed to the defendant, was received at the coach office where he was porter, and that he delivered them, it was held that, although if the jury found that he did so in the course of his business and in ignorance of the contents, he was not liable, yet that it was incumbent upon him to show such ignorance. Day v. Bream, 2 Mood. & Rob. 54. When the libelous matter is sold by an agent of the defendant, in a shop, in the usual course of business, the defendant may rebut the presumption of a publication with his knowledge and privity by proving that the libel was sold contrary to his orders in his absence, or clandestinely, or when he was confined to his house by sickness, or in prison, to which his agent had no access. Rex v. Almon, 5 Burr. 2689, per ASTON, J.

It may be shown in defense that the plaintiff himself procured the act to be done of which he complains (King v. Waring, 5 Esp. 13; Smith v. Wood, 3 Camp. 323; Weatherston v. Hawkins, 1 Term R. 110); or that the libel was concerning the plaintiff's conduct in an illegal transaction (Yrisarri v. Clement, 3 Bing. 432); or that the plaintiff's businesss in relation to which the libel was published was illegal. Hunt v. Bell, 1 Bing. 1; Manning v. Clement, 7 id. 362.

§ 2. Privileged communications. A privileged communication means that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the burden of proving malice in fact, but not by proving it by extrinsic evidence only. He has still a right to require that the alleged libel shall be submitted to the jury, that they may judge whether there is evidence of malice on the face of it. Wright v. Woodgate, 2 Cromp. M. & R. 573; Saunders v. Baxter, 6 Heisk. (Tenn.) 369. The description of

cases recognized as privileged communications must be understood as founded upon some, apparently recognized obligation, legal, moral, or social, which may fairly be presumed to have led to the publication, and, therefore, prima facie, relieves it of the implication from which the general rule is deduced. White v. Nicholls, 3 How. (U. S.) 266; and see Lucas v. Case, 9 Bush (Ky.), 297. Many of what are called privileged communications are conditionally, not absolutely, privileged; the question being one of good faith or motive, which can only be settled by a jury. The court cannot rule that such a communication is privileged, without assuming the conditions on which it is held to be privileged, namely: that it was made in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds, of its truth. Palmer v. Concord, 48 N. H. 217. Whether or not the communication was privileged is a question of law for the court; but whether the defendant fairly and properly conducted himself in the exercise of it is a question of fact for the jury. Genet v. Mitchell, 7 Johns. 120; Thomas v. Croswell, id. 264; Bunton v. Worley, 4 Bibb (Ky.), 38; Huff v. Bennett, 4 Sandf. (N. Y.) 120; Briggs v. Byrd, 12 Ired. (N. C.) 377; White v. Carroll, 42 N. Y. (3 Hand) 161; 1 Am. Rep. 503; see Carpenter v. Bailey, 56 N. H. 283.

The publication of legislative proceedings, and of memorials and other communications properly relating thereto, is absolutely privileged (Hare v. Mellor, 3 Lev. 169; Wason v. Walter, L. R., 4 Q. B. 73; Lake v. King, 1 Saund. 131; Coffin v. Coffin, 4 Mass. 1); but not a publication charging a member of the legislature with corruption. Littlejohn v. Greeley, 13 Abb. Pr. (N. Y.) 41.

Any publication made in the ordinary course of judicial proceedings by judges, magistrates, and others is privileged. The same is true of a correct report of judicial proceedings, although the person complaining of the publication was not a party to the proceedings; and also of an abridged report, if substantially a fair account of what took place. Andrews v. Chapman, 3 Car. & K. 289; Torrey v. Field, 10 Vt. 353; Hill v. Miles, 9 N. H. 9; Sanders v. Rollinson, 2 Strobh. (S. C.) 447; Briggs v. Byrd, 12 Ired. (N. C.) 377; Hartsock v. Reddick, 6 Blackf. (Ind.) 255; Holt v. Parsons, 23 Texas, 9; Marsh v. Ellsworth, 50 N. Y. (5 Sick.) 309; Ackerman v. Jones, 5 J. & Sp. (N. Y.) 42. . Where the president of a court-martial, in the opinion of the court which he delivered to the judge-advocate, animadverted in severe terms of censure upon the conduct of an officer who preferred to the court groundless and malicious charges against his commander, it was held privileged. Jekyll v. Moore, 6 Esp. 63. It is an VOL. IV.- 39

established principle upon which the privilege of publishing the report of a judicial proceeding is admitted to rest, that such report must be strictly confined to the actual proceedings in court, and must contain no defamatory observations or comments from any quarter, in addition to what forms strictly and properly the legal proceedings (Delegall v. Highley, 8 C. & P. 444); but the fact that it is couched in coarser language than is consistent with good taste and decorum will not render it libelous. Warner v. Payne, 2 Sandf. (N. Y.) 195; Garr v. Selden, 4 N. Y. (4 Comst.) 91.

A communicatian fairly made in the discharge of a public duty is privileged. Moore v. Butler, 48 N. H. 161; Vanwyck v. Guthrie, 4 Duer (N. Y.), 268. Therefore, a complaint submitted to a magistrate for the purpose of enforcing justice against a person accused of crime does not subject the complainant to an action for libel, whether the charge be true or false. Hartsock v. Reddick, 6 Blackf. (Ind.) 255; Bailey v. Dean, 5 Barb. 297; Noonan v. Orton, 32 Wis. 106; Reid v. McLendon, 44 Ga. 156. It is lawful to publish the testimony of witnesses taken before a committee of congress (Terry v. Fellows, 21 La. Ann. 375); and where a party, upon a preliminary examination before a magistrate, has been released, an impartial and correct report of the proceedings is privileged. Duncan v. Thwaites, 3 B. & C. 556. A person may make application by complaint for the removal of an unworthy officer, and, if the complaint be true and made with the honest intention of giving information, and not maliciously, or with intent to defame, the complaint will not be a libel. Larkin v. Noonan, 19 Wis. 82; see Carpenter v. Bailey, 56 N. H. 283.

The editor of a newspaper is privileged in commenting fully and freely upon all public questions and matters of general public interest (Dunne v. Anderson, Ry. & M. 287; Com. v. Featherstone, 9 Phil. [Penn.] 594); and the public conduct of public men may be discussed with the greatest freedom, provided the language be kept within the limits of an honest intention to discharge a public duty. Seymour v. Butterworth, 3 F. & F. 372; Parmiter v. Coupland, 6 M. & W. 107; Van Wyck v. Aspinwall, 17 N. Y. (3 Smith) 190; Ogden v. Mortimer, 28 L. T. (N. S.) 801. When any one consents to be a candidate for a public office, he must be considered as putting his character in issue, so far as respects his fitness and qualifications for the office; and publications of the truth on this subject, with the honest intent of informing the people, are not libelous. Com. v. Clap, 4 Mass. 169; Com. v. Odell, 3 Pittsb. (Penn.) 449. The editor of a newspaper may lawfully publish the fact that a person has been arrested, and upon what charge. Usher v. Severance, 20 Me. 9. So comments in

a newspaper upon the report of a trial which has terminated, fairly made, without malice, and founded on the facts, are privileged. Wason v. Walter, L. R., 4 Q. B. 73; 8 B. & S. 671. Whether an allegation in a divorce bill, which is put upon the files of the court, charging the defendant therein with adultery with another person named, will warrant the publication of the charge by a newspaper as a matter of privilege is questioned in Scripps v. Reilly, 35 Mich. 371.

A fair criticism of the work of another is privileged (Carr v. Hood, 1 Camp. 355, note; Thompson v. Shackell, 1 M. & M. 187; Tabert v. Tipper, 1 Camp. 350; Campbell v. Spottiswoode, 3 B. & S. 778 ; Hunter v. Sharpe, 4 F. & F. 983; Swan v. Tappan, 5 Cush. 104); and so likewise is a fair criticism of advertisements, handbills, and placards (Paris v. Levy, 9 C. B. [N. S.] 342); and also fair comments upon public entertainments (Dibdin v. Bostock, 1 Esp. 29); or in relation to the conduct and appearance of persons attending a public meeting (Davis v. Duncan, L. R., 9 C. P. 396; 10 Eng. Rep. 228); and fair and reasonable comments, however severe in terms, may be published in a newspaper concerning any thing which is made by its owner a subject of public exhibition, and are privileged communications for which no action will lie, without proof of actual malice. Gott v. Pulsifer, 122 Mass. 235.

The general rule is, that a party cannot be held liable for a publication tending to disparage private character, if it is called for by the ordinary exigencies of social duty, or is necessary or proper to enable him to protect his own interest, or that of another, and provided it is made in good faith, and without a willful design to defame. But the privilege does not extend beyond those to whom the party giving the information owes the duty. Blackham v. Pugh, 2 C. B. 611; 15 L. J. C. P. 290; Morgan v. Lingen, 8 L. T. (N. S.) 800; Krebs v. Oliver, 12 Gray, 239; Sanderlin v. Bradstreet, 46 N. Y: (1 Sick.) 188; 7 Am. Rep. 322; Klink v. Colby, id. 427; 7 Am. Rep. 360; Beardsley v. Tappan, 5 Blatchf. (C. C.) 497; Atwill v. Mackintosh, 120 Mass. 177. An advertisement in a newspaper, though injurious to the character of the persons mentioned in it, is not libelous if it was inserted bona fide, with a view of investigating a fact in which the party making it is interested. Delany v. Jones, 4 Esp. 191. A letter written to persons who employed A as their solicitor, conveying charges injurious to his professional character in the management of certain matters which they had intrusted to him, and in which the writer of the letter was likewise interested, was held not to be a libel, the writer acting bona fide, with a view to the interests of himself and the persons whom he addressed. McDougall v. Claridge, 1 Camp. 267.

A railway company may publish a placard at the stations on their road, giving the name, address, and occupation of a person who has been convicted before a magistrate of any infringement of the company's by-laws, stating the nature of the offense and the punishment. Briggs v. Great Eastern R. R. Co., 16 W. R. 908; Alexander v. North Eastern R. R. Co., 6 B. & S. 340. And a report of an incorporated society, cautioning the public against trusting a person who had formerly been employed by them to obtain and collect subscriptions, but who had afterward been dismissed, if true, is privileged. Gassett v. Gilbert, 6 Gray, 94. So a medical society may publish, in good faith, a true account of the proceedings of the society in expelling a member. Barrows v. Bell, 7 Gray, 301. See Phila. R. R. Co. v. Quigley, 21 How. (U. S.) 202. A memorial to the post-office department, charging that a successful competitor for proposals has been guilty of fraud and collusion with other bidders, is a privileged communication. Cook v. Hill, 3 Sandf. (N. Y.) 341. A petition addressed by the creditor of an officer in the army to the secretary of war bona fide, and with a view of obtaining through his interference the payment of a debt, and containing a statement of facts, which, though derogatory to the officer's character, the creditor believed to be true, is not a libel for which an action can be maintained. Fairman v. Ives, 5 Barn. & Ald. 642.

A publication made in the regular course of church discipline, to or of members of the church, is lawful (Lucas v. Case, 9 Bush [Ky.], 297); but not a publication respecting a stranger, whose character is implicated by it. Rex v. Hart, 1 W. Bl. 386; Farnsworth v. Storrs, 5 Cush. 412; Coombs v. Rose, 8 Blackf. (Ind.) 155; Streety v. Wood, 15 Barb. 105. See Remington v. Congdon, 2 Pick. 310; York v. Johnson, 116 Mass. 482.

Where the writer is acting on any legal or moral duty toward the person to whom he writes, or is bound by his situation to protect the interests of such person, that which he writes under such circumstances is a privileged communication, unless the writer was actuated by malice. Cockayne v. Hodgkisson, 5 Car. & P. 543. A widow lady being about to marry the plaintiff, her son-in-law wrote her a letter containing imputations on the plaintiff's character, and urging her to make diligent and extensive inquiry as to such character. It was held justifiable, if the jury were satisfied that the defendant acted bona fide, although the imputations contained in the letter were false, or based upon erroneous information. Circumstances of this kind should be viewed liberally by juries; and unless they see clearly that there was a