which office he was about to be removed. A. refused to sign, and on being pressed for his reasons, stated them. Held, privileged. (1)

A. had been a Major-General commanding irregular troops during the Crimean war. Complaint having been made of the insubordination of the troops, the corps commanded by A. was placed under the superior command of General Vivian. A. then resigned, and General Vivian directed General Shirley to inquire and report on the state of the corps, and referred him for information on the matter to B. General Vivian's private secretary and civil commissioner. All communications made by B. to General Shirley touching the corps and A's management of it are privileged, if the jury find that B. honestly believed that he was acting within the scope of his duty in making them. (2)

Where a father employed the defendant to make inquiries about the position and antecedents of his daughter's husband, a report by the defendant to the father of the result of his inquiries is privileged. (3)

Nash selected A to be his attorney in an action. B., apparently a total stranger, wrote to Nash to deprecate his so employing A. This was held to be clearly not a confidential communication. (4)

A husband asked a medical man to see his wife and ascertain her mental condition. He reported to the husband that she was insame. Held, a privileged communication. (5)

I am not justified in standing at the door of a tradesman's shop and voluntarily defaming his character to his intending customers. But if an intending customer comes to me and inquires as to the respectability or credit of that tradesman, it is my duty to tell him all I know.

Horsford was about to deal with the plaintiff, when he met the defendant, who said at once, without his opinion being asked at all. "If you have anything to do with Storey, you will live to repent it; he is a most unprincipled man," &c. Lord Denman directed a verdict for the plaintiff, because the defendant began by making the statement, without waiting to be asked. (6)

296. Giving information.-No one commits an offence by publishing to another person defamatory matter for the purpose of giving information to that person with respect to some subject as to which he has, or is, on reasonable grounds, believed to have, such an interest in knowing the truth as to make the conduct of the person giving the information reasonable under the circumstances: Provided, that such defamatory matter is relevant to such subject, and that it is either true, or is made without ill-will to the person defamed, and in the belief, on reasonable grounds, that it is true.

In a marginal note, upon the subject of this article, the Royal Commissioners cite, as an authority to be referred to, in connection with this class of privileged communications, the case of Coxhead v. Richards. (7)

In that case the Judges of the English Court of Common Pleas stood equally divided, as to whether a man may inform the owner of a ship that his captain has been guilty of gross misconduct at sea. A., the defendant in the case, had

(1) Cowles v. Potts, 34 L. J. Q. B. 247; 11 Jur. N. S. 946; 13 W. R. 858. (2) Beatson v. Skene, 5 H. & N. 838; 29 L. J. Ex. 430; 6 Jur. N. S. 780; 2 L. T. 378; Hopwood v. Thorn, 8 C. B. 293; 19 L. J. C. P. 94; 14 Jur. 87.

(3) Atwill v. Mackintosh, 6 Lathrop (120 Mass.), 177.

(4) Godson v. Home, 1 B. & B. 7; 3 Moore, 223.

(5) Weldon v. Winslow, Times for March 14th to 19th, 1884.

(6) Storey v. Challands, 8 C. & P 234.

(7) Coxhead v. Richards, 2 C. B. 569; 15 L. J., C. P., 278; 10 Jur. 984.

received, from an old and intimate friend, B., the first mate of a merchant ship a letter stating that he B., was placed in a very awkward position owing to the drunken habits, etc., of C., the captain of the ship, of which B. was the first mate, and saying,-" How shall I act? It is my duty to write to Mr Ward [the owner of the ship], but my doing so would ruin the captain and his wife and family." A.,-after much deliberation and consultation with other nautical friends. thought it his duty to shew the letter to Ward, and did so; where upon Ward dismissed C. from his position as captain. A. knew nothing of the facts mentioned in B's letter, except from the letter itself, Tindal, C.J., told the jury that the publication of the letter by A., in shewing it to Ward was prima facie privileged and they negatived malice. As the full Court was afterwards equally divided on the question of whether the shewing of the letter was privileged the verdict rendered by the jury in favor of the defendant stood.

There are many authorities shewing that if a writing, although injurious to another's character, be published, without intent to injure his character, but bona fide for the purpose of investigating a fact in which the person making it is interested, or, in which the person to whom it is made is interested, or in the performance of a duty, it is not punishable as a libel (1).

ILLUSTRATIONS.

My regular solicitor may, unasked, give me information concerning third persons of which he thinks it to my interest that I should be informed, even although not at the moment conducting legal proceedings for me. (2)

A solicitor who is conducting a case for a minor may inform his guardian of the minor's misconduct. (3)

A timekeeper employed on public works, on behalf of a public department, wrote a letter to the secretary of the department, imputing fraud to the contractor. Blackburn, J., directed the jury that if they thought the letter was written in good faith and in the discharge of the defendant's duty to his employers, it was privileged, although written to the wrong person. (4)

A relation may confidentially advise a lady not to marry a particular suitor, and assign reasons, provided he really believes in the truth of the statements he makes. (5)

A. and B. were joint owners of The Robinson, and engaged C. as master; In April, 1843, A. purchased B's share; in August, 1843, A. wrote a business letter to B., claiming a return of £150, and incidentally libelled C. Held a privileged communication, as A. and B. were still in confidential relationship. (6)

The defendant, a linendraper, dismissed his apprentice without sufficient legal excuse he wrote a letter to her parents, informing them that the girl would be sent home, and giving his reasons for her dismissal. Cockburn, C. J., held this letter privileged, as there was clearly a confidential relationship bet ween the girl's master and her parents. (7)

(1) Harrison v. Bush, 5 E. & B. 344; 25 L. J., Q B., 25; Whiteley v. Adams, 15 C. B. (N. S.) 392; 33 L. J., C. P., 89; Dawkins v. Lord Paulet, L. R. 5 Q. B., 94, 102; Robshaw v. Smith, 38 L. T. 423 ; Todd v. Hawkins, 2 M. & Rob. 20; 8 C. & P. 88; Laughton v. Bishop of Sodor & Man 42 L. J. (P. C.) 11; L. R., P. C. 495.

(2) Davis v, Reeves, 5 Ir. C. L. R. 79.

(3) Wright v. Woodgate, 2 C. M. & R. 573; 1 Tyr. & G. 12; 1 Gale, 329 (Approved in L. R. 4 P. C. 495.)

(4) Scarll v. Dixon, 4 F. & F. 250.

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

(6) Wilson v. Robinson, 7 Q. B. 68; 14 L. J. Q. B. 196; 9 Jur. 726.

(7) James v, Jolly, Bristol Summer Assizes, 1879.

See Fowler and wife v. Homer, 3 Camp. 294.

A., B., and C. are brother officers in the same regiment. A. meets B. and says, "I have learned that C. has been guilty of an atrocious offence: I wish consult you whether I should divulge it-whether I should speak of it to the commanding officer.' Such remark and the discussion that ensues would be privileged, if bond fide. (1)

97

297. Selling Periodicals containing defamatory Libel.—Every proprietor of any newspaper is presumed to be criminally responsible for defamatory matter inserted and published therein, but such presumption may be rebutted by proof that the particular defamatory matter was inserted in such newspaper without such proprietor's cognizance, and without negligence on his part.

2. General authority given to the person actually inserting such defamatory matter to manage or conduct, as editor or otherwise, such newspaper, and to insert therein what he in his discretion thinks fit, shall not be negligence within this section unless it be proved that the proprietor, when originally giving such general authority, meant that it should extend to inserting and publishing defamatory matter, or continued such general authority knowing that it had been exercised by inserting defamatory matter in any number or part of such newspaper.

3. No one is guilty of an offence by selling any number or part of such newspaper, unless he knew either that such number or part contained defamatory matter, or that defamatory matter was habitually containe in such newspaper.

1

By article 3 (p), ante, it is declared, that,

"In the sections of this Act relating to defamatory libel the word newspaper shall mean any paper, magazine or periodical containing public news, intelligence or occurrences, or any remarks or observations thereon, printed for sale and published periodically, or in parts or numbers, at intervals not exceeding thirty-one days between the publication of any two such papers, parts or numbers, and also any paper, magazine or periodical printed in order to be dispersed and made public, weekly or oftener, or at intervals not exceeding thirty-one days, and containing only or principally advertisements.

The latter portion of the first paragraph of article 297 is to the same effect as section 5, (now repealed), of R.S.C., c. 163.

It is also similar to a clause contained in section 7 of Lord Campbell's Act, 6 and 7 Vict., c. 96 (Imp.), under which it has been held that the proprietors of a newspaper, who have appointed a competent editor to conduct it, are not criminally responsible for the publication of a libel inserted in the newspaper by the editor, upon proof that the publication was made without their actual authority, consent or knowledge, and that such publication did not arise from want of due care or caution on their part. (2)

Holbrook's case came up before the Court twice, each time upon a motion for a new trial, and on each occasion, (although some of the judges dissented), it

(1) Bell v. Parke, 10 Ir. C. L. R. 284.

(2) R. v. Holbrook, 3 Q. B. D. 60; 47 L. J. (Q. B.) 35; 4 Q. B. D. 42; 48 L. J. (Q. B.) 113.

was held that, upon a proper construction of the statute, general authority to an editor to conduct the business of a newspaper, in the absence of anything to give it a different character, must be take to mean an authority to conduct it according to law, and therefore not to authorize the publication of a libel; (1) and that holding has evidently been kept in view in framing clause 2 of the above article, 297.

Article 640 post, provides that every proprietor, publisher, editor or other person charged with the publication in a newspaper of any defamatory libel, shall be dealt with, indicted, tried and punished in the province in which he resides, or in which such newspaper is printed.

The Imperial Statute 51-52 Vic., c. 64, (The Law of libel Amendment Act 1888), provides, by section 8, that, no criminal prosecution shall be commenced against any proprietor, publisher, editor or any persons, responsible for the publication of a newspaper, for any libel published therein, without the order of a judge at Chambers being first had and obtained; and that the application for such order shall be made on notice to the person accused, who shall have opportunity of being heard against such application.

298. Selling books containing defamatory matter. No one commits an offence by selling any book, magazine, pamphlet or other thing whether forming part of any periodical or not, although the same contains defamatory matter. if, at the time of such sale, he did not know that such defamatory matter was contained in such book, magazine, pamphlet or other thing.

2. The sale by a servant of any book, magazine, pamphlet or other thing, whether periodical or not, shall not make his employer criminally responsible in respect of defamatory matter, contained therein unless it be proved that such employer authorized such sale knowing that such book, magazine, pamphlet or other thing contained defamatory matter, or, in case of a number or part of a periodical, that defamatory matter was habitually contained in such periodical.

--

299. When truth is a defence.-It shall be a defence to an indictment or information for a defamatory libel that the publishing of the defamatory matter in the manner in which it was published was for the public benefit at the time when it was published, and that the matter itself was true. R.S.C., c. 163, s. 4.

See comments under article 302, post.

300. Extortion by defamatory libel.-Every one is guilty of an indictable offence and liable to two years' imprisonment, or to a fine not exceeding six hundred dollars, or to both, who publishes or threatens to publish, or offers to abstain from publishing, or offers to prevent the publishing of a defamatory libel with intent to extort any money, or to induce any person to confer upon or procure for any person any appointment or office of profit or rust, or in consequence of any person having been refused any such money, appointment or office. R.S.C., c. 163, s. 1.

Under the repealed section of the R.S.C. 163, the imprisonment for this offence was any term less than two years.

(1) Arch. Cr. Pl. & Ev. 21 Ed. 890, 891.

Under the Imperial statute, 6 and 7 Vic., c. 96, sec. 3, the punishment is three years' imprisonment, with or without hard labor.

301. Every one is guilty of an indictable offence and liable to two years' imprisonment or to a fine not exceeding four hundred dollars, or to both, who publishes any defamatory libel knowing the same to be false. R.S.C., 163, s. 2.

Under the repealed sec. 2 of R.S.C., c. 163, the imprisonment was for any term less than two years.

302. Every one is guilty of an indictable offence and liable to one year's imprisonment, or to a fine not exceeding two hundred dollars, or to both, who publishes any defamatory libel. R.S.C., c. 163, s. 3.

As to Libels on Foreign Sovereigns, and Spreading False News of public interest, see articles 125, and 126, ante, p. 72; and, as to Blasphemous Libels, see article 170, ante, p. 102.

See, also, pp. 68-71, ante, for a brief history of the law of libel in general and of seditious libels in particular.

Articles 299, ante, and 634, post, giving a defendant accused of publishing a defamatory libel, the right to plead the truth of the alleged libel, do not apply either to seditious or blasphemous libels. The truth of these cannot be pleaded as a defence.

Article 593, post, provides that in preliminary investigations of indictable offences, before police magistrates, the defendant may, after the examination of the witnesses for the prosecution, call and examine witnesses for the defence; but it does not seem that this gives a defendant in a libel case the right to prove at the preliminary examination the truth of the matter charged as a libel; for, although, in England, the right to call witnesses for the defence at a police court preliminary investigation existed long before the passing of the Newspaper Libel and Registration Act 1881, it was there held, before that Act became law, that, although, where the charge was that of maliciously publishing a defamatory libel knowing it to be false, (sec. 4 of 6 and 7 Vic., c. 96), the magistrate had jurisdiction to receive evidence of the truth of thelibel, so as to negative the allegation that defendant knew it to be fall he had not such jurisdiction, when the charge was that of simply maliciously publishing a defamatory libel (sec. 5 of 6 and 7 Vic., c. 96). (1)

But the Newspaper Libel and Registration Act 1881 made, in England, a very important change; for, by sec. 4, it enacted that, "A court of summary jurisdiction upon the hearing of a charge against a proprietor, publisher, or editor, or any person responsible for the publication of a newspaper, for a libel published therein, may receive evidence as to the publication being for the public benefit, and as to the matters charged. in the libel being true, and as to the report being fair and accurate, and published without malice, and as to any matter which, under this or any other act or otherwise, might be given in evidence, by way of defence, by the person charged, on his trial on indictment; and the court, if of opinion after hearing such evidence that there is a strong presumption that the jury on the trial would acquit the person charged, may dismiss the case; and under sec. 5, of the same Act, the court, if it thinks that the libel, though proved, is of a trivial character, may, instead of sending the case before a jury, dispose of it summarily, provided the accused consents thereto, and may, in that case, adjudge him to pay a fine not exceeding £50.

An indictment for libel will not be insufficient for not setting out the words of

(1) R. v. Carden, 5 Q. B. D. 1; 49 L. J. (M. C.) I ; Arch. Cr. Pl. & Ev. 21 Ed. 976.