his service on suspicion of theft, and, upon plaintiff coming for his wages, called in two other of his servants, and, addressing them in the presence of the plaintiff, said: "I have dismissed that man for robbing me; do not speak to him any more, in public or in private, or I shall think you as bad as him." Held, privileged: Somerville v. Hawkins, 10 Com. B. 583; 20 L. J. Com. P. 131. W., having lost certain bills of exchange, published a handbill offering a reward for their recovery, and adding that he believed that they had been embezzled by his clerk. The clerk was still in his office. Held, that the latter part of the handbill was not privileged: Finden v. Westlake, Moody & M. 461. Defendant claimed rent of plaintiff; plaintiff's agent told defendant that plaintiff denied his liability; defendant thereupon wrote to the agent, alleging facts in support of his claim, and adding, "This attempt to defraud me of the produce of the land is as mean as it is dishonest." Held, not privileged: Tuson v. Evans, 12 Ad. & E. 733.' Defendant was a candidate for Parliament. Shortly before the election, the Farmers' Association published in the Freeman's Journal an address to the constituency describing the defendant as "a true type of a bad Irish landlord, -the scourge of the country," and charging him with various acts of tyranny and oppression towards his tenants, and especially towards the plaintiff, one of his former tenants. The defendant thereupon published, also in Freeman's Journal, an address to the constituency, answering the charges thus brought against him, and in so doing necessarily libeled plaintiff. Held, that the address, being an answer to an attack, was privileged: Dwyer v. Esmonde, 2 Ir. L. R. 243, reversing Ir. R. C. L. 542. Plaintiff, a barrister, attacked a bishop before a legislature in an argument against a bill, imputing to the bishop improper motives in his exercise of church patronage. The bishop wrote a charge to his clergy refuting these insinua

The court saying: "Some remark from the defendant on the refusal to pay the rent was perfectly justifiable, because his entire silence might have been construed into an acquiescence in that refusal, and so might have prejudiced his case upon any future claim; and the defendant would, therefore, have been privileged in denying the truth of the plaintiff's statement. But, upon consideration, we are of opinion that the learned judge was quite right in considering the language actually used as not justified by the occasion. Any one, in the transaction of business with another, has a right to use language

bona fide, which is relevant to that business, and which a due regard to his own interest makes necessary, even if it should directly or by its consequences be injurious or painful to another; and this is the principle on which privileged communication rests; but defamatory comments on the motives or conduct of the party with whom he is dealing do not fall within that rule. It was enough for the defendant's interest, in the present case, to deny the truth of the plaintiff's assertion: to characterize that assertion as an attempt to defraud, and as mean and dishonest, was wholly unnecessary."

ور

tions, and sent it to the newspapers for publication. Held, that the bishop was justified in sending the charge to the newspaper, for an attack made in public required a public answer: Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495. A expressed an opinion, founded on the statement of others, that B had maliciously killed his horse, and was arraigned therefor by B before the church. In self-defense, A produced the certificates of the individuals upon whose authority he made the statements. Held, privileged: Dunn v. Winters, 2 Humph. 512. At a vestry-meeting called to elect fresh overseers, plaintiff accused defendant, one of the outgoing overseers, of neglecting the interests of the vestry, and not collecting the rates; the defendant retorted that the plaintiff had been bribed by a railway company. Held, that the retort was a mere tu quoque, in no way connected with the charge made against him by the plaintiff, and was therefore not privileged, for not having been made in self-defense: Senior v. Medland, 4 Jur., N. S., 1039. A wrote to B that C, by lying, had got possession of certain goods, and that if B would withhold from his indebtedness to C the amount claimed by A, A would not claim a lien on the goods. C was B's servant, and B claimed the goods. Held, not privileged: Over v. Schiffling, 102 Ind. 191.

§ 1298. Reports of Judicial Proceedings. The publication of reports of proceedings in the courts is privileged;1 for "the general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to private persons whose conduct may be the subject of such proceedings." The rule is the same whether the report is published by a private person in a pamphlet or by a newspaper. The privilege extends to proceedings which take place publicly before a magistrate on the preliminary investigation of a criminal charge,* to proceedings held in jail before a registrar in bankruptcy, under a bankruptcy act, upon an examination of a debtor in custody, and to proceedings in the nature of trials in

voluntary associations, as, for example, a medical society.1

But where the hearing is merely ex parte, the privilege does not attach, at least beyond the publishing of the fact that the charge has been made. The publication of the contents of a petition for the disbarment of an attorney filed in vacation, and not presented or docketed, is not privileged. No privilege attaches to the report of

1 Barrows v. Bell, 7 Gray, 301; 66 Am. Dec. 479.

2 Cooley on Torts, 218; Huff v. Bennett, 4 Sand. 120; Stanley v. Webb, 4 Sand. 21; Matthews v. Beach, 5 Sand. 256; Usher v. Severance, 20 Me. 9; 37 Am. Dec. 33; Tresca v. Maddox, 11 La. Ann. 206; 66 Am. Dec. 198; Cinn. Gazette Co. v. Timberlake, 10 Ohio St. 548; 78 Am. Dec. 285. Contra, McBee v. Fulton, 46 Md. 403; 28 Am. Rep. 465. In Barber v. St. Louis Dispatch Co., 3 Mo. App. 377, the court say: "Where a court or public magistrate is sitting, publicly, a fair account of the whole proceedings, uncolored by defamatory comment or insinuation, is a privileged communication, whether the proceedings are on a trial or on a preliminary and ex parte hearing. But the very terms of the rule imply that there must be a hearing of some kind. In order that the ex parte nature of the proceedings may not destroy the privilege, to prevent such a result there must be at least so much of a public investigation as is implied in a submission to the judicial mind with a view to judicial action." In England, in the case of Lewis v. Levy, El. B. & E. 537, it was held that a report of a preliminary investigation before a magistrate was privileged, if the result was that the summons was dismissed and the person accused discharged. In Duncan v. Thwaites, 3 Barn. & C. 556, 5 Dowl. & R. 447, it was held that such a report was unprivileged, if the accused be ultimately sent to take his trial before a jury. In Usillv. Hales, 3 Com. P. Div. 319, the magistrate on an ex parte application decided that he had no jurisdiction, and declined to issue a summons. The court held

In

that this was a judicial proceeding, and that a report of it published by the defendants was privileged. delivering the judgment of the court, Coleridge, C. J., said: "It was attempted to distinguish this case, and to bring it within an alleged qualification of the rule by showing this to have been an ex parte proceeding before a magistrate. Sixty or seventy years ago this argument might have prevailed. From the cases cited in Starkie on Libel, 4th ed., pp. 167 et seq., the rule seems to have been established that an ex parte proceeding was not privileged, on account of the hardship which would otherwise ensue to the party libeled, and this was adopted in Duncan v. Thwaites. But since that time the courts have come to conclusions irreconcilable with those cases.

3 Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318, the court saying: "It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsi bility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed. If these are not the only grounds upon which fair reports of judicial proceedings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge

unsworn statements made by a by-stander at an inquest,1 and it has been held that the publication of a slander uttered by a murderer at the time of his execution is not privileged, either under the statute law of New York or under the common law. The statute of New York relates only to statements made in judicial, legislative or administrative bodies, in the execution of some public duty." The privilege does not attach where the subject-matter of the trial is indecent, obscene, or blasphemous, or where the court has prohibited the publication.*

The report must be accurate; it need not be verbatim, but where it is abridged or condensed, it must be correct; it may not omit what is favorable to the plaintiff and contain what is unfavorable. In other words, it must be substantially what took place. A newspaper report of a criminal trial must be a fair and impartial report of what took place with reference to its effects on the defendant's character. If a verbatim report would have the same effect on his character as the abridged one, the abridged report is, so far as the defendant is concerned, a fair and impartial one. Whether it is such a report or not is a question for the jury. And the publication of judicial proceedings is not privileged to the extent of protecting statements made in connection therewith, but drawn from other sources, and without stating the judicial con

of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege further than we feel prepared to carry it, to say that by the easy means of entitling and filing it in a cause a sufficient foundation may be laid for scattering any libel broadcast with impunity: See Sanford v. Bennett, 20 N. Y. 20, 27; Lewis v. Levy, El. B. & E. 537; Barber v. St. Louis Dispatch Co., 3 Mo. App. 377."

Lynam v. Gowing, 6 Ir. L. R. 259. 2 Sanford v. Bennett, 24 N. Y. 20.

clusion. A report is not privileged which does not give the evidence, but merely sets out the circumstances "as stated by the counsel" for one party. Still less will it be privileged if after so stating the case the only account given of the evidence is that the witnesses "proved all that had been stated by the counsel for the prosecution."3 Nor where it is accompanied by sensational headings not justified by the evidence, or by sensational or defamatory comments upon the characters of those in relation to whom the proceedings are taken. And it must be strictly confined to the actual proceedings. The report must not contain comments of the writer insinuating bad motives, or that the plaintiff committed perjury, or the like. So a statement made upon the authority of a newspaper, and not purporting to be a report of proceedings of a court, is not privileged, and the responsibility therefor cannot be evaded by an offer of proof that the libel was in fact matter of evidence. The publication of a statement made by a justice of what had been said by persons applying to him for a warrant, which statements do not appear in any affidavit, nor were made as part of a hearing, are not privileged.3

As the privilege is only qualified, the defendant is liable, though the report be fair and accurate, if it was nevertheless maliciously published, or if it contain intrinsic evidence that it was not published with good motives or for justifiable ends.10 In the case of a reporter or one connected with the paper, this will be hard to

Bathrick v. Detroit Post and Pub- Pittock v. O'Neill, 63 Pa. St. 253; 3 lishing Co., 50 Mich. 629.

2 Saunders v. Mills, 6 Bing. 213; 3 Moore & P. 520; Woodgate v. Ridout, 4 Fost. & F. 202.

3 Lewis v. Walter, 4 B. & Ald. 605. Lewis v. Levy, El. B. & E. 537; Boydell v. Jones, 4 Mees. & W. 446; Clement v. Lewis, 3 Brod. & B. 297.

Scripps v. Reilly, 38 Mich. 10. Andrews v. Chapman, 3 Car. & K. 288; Stiles v. Nokes, 7 East, 493;

Am. Rep. 544; McBee v. Fulton, 47 Md. 403; 28 Am. Rep. 465; Thomas v. Croswell, 7 Johns. 264; 5 Am. Dec. 269; Stanley v. Webb, 4 Sand. 21; Edsall v. Brooks, 26 How. Pr. 426. Storey v. Wallace, 60 Ill. 51.

7

8 McDermott v. Evening Journal Ass'n, 43 N. J L. 488.

9 Stevens v. Sampson, L. R. 5 Ex. Div. 53.

10 Saunders v. Baxter, 6 Heisk. 369.