The learned judge simply left it to the jury to say what damage the plaintiff had sustained. The jury returned a verdict for 201.

Kemp, pursuant to leave, moved to enter a nonsuit.-He submitted, that, though the act of writing upon the plaintiff's license was not justified by the statute, yet, if the plaintiff bonâ fide believed that he was acting under the authority of the act,-which he might well do, seeing that the same result would have followed if he had taken the plaintiff before a magistrate *and procured the endorsement to [*805 be made by him, he was within the protection of the 47th section. Whether or not he had reasonable ground for the belief that he was acting under the authority of the act, would be a question for the jury.

ERLE, C. J.-I am of opinion that there should be no rule in this case. The action is brought by a licensed driver against his employer, for defacing his license by endorsing upon it words which must necessarily prevent his obtaining other employment. The contention at the trial, and now before us, has been, that the defendant was entitled to a notice of action under the 47th section of the 6 & 7 Vict. c. 86, because he was acting in the bonâ fide belief that what he did was done "under the authority of the act." If the defendant had any ground of complaint against the plaintiff, he might under s. 24 have applied to the police-court of the district, and the magistrate might have endorsed the nature of his offence and its consequences upon the license. Can it be said here that the defendant could honestly believe that he was acting under the authority of that section? The law upon this subject is very clearly laid down by my Brother Wil liams in the recent case of Hermann v. Seneschal, 13 C. B. N. S. 392, 403 (E. C. L. R. vol. 106), where he says, "The defendant was entitled to a notice of action if he honestly intended to put the law in motion, and really believed in the existence of a state of facts which if they existed would have justified him in doing as he did." The only person who has authority to make an endorsement on the driver's license, is, the magistrate, when the party is brought before him charged with an offence. The defendant could not honestly believe that he was a magistrate, or that he could be justified in acting as judge in his own case. There was no pretence for saying [806 that he was acting, or could for a moment suppose he was acting, under the authority of the statute.

WILLIAMS, J.-I am of the same opinion. The language I used in Hermann v. Seneschal was a mere echo of what had already been said by my Lord in the course of the argument: and that opinion was adopted in a still more recent case in the Exchequer Chamber.(a) WILLES, J.-To such authorities I can add nothing.

(a) Roberts v. Orchard, 33 Law J., Exch. 65.

Rule refused.(6)

(b) See Booth v. Clive, 10 C. B. 827 (E. C. L. R. vol. 70), and Read v. Coker, 13 C. B. 850 (E. C. L. R. vol. 76).

FORCE v. WARREN. Jan. 15.

1. A., suspecting B. of stealing meat from his shop, accused her of having done so (no one being by at the time). B. thereupon applied to a police-magistrate for a summons against A. A. meeting a third person, who was in his shop at the time the supposed larceny was committed told him that proceedings had been taken against him, and said to him,-"You were in the shop: did not you see her take it?" Held, a privileged communication.

2. A. having accused B. of stealing meat, a friend of the latter, to whom she had mentioned the fact, called at A.'s shop, and asked him if he had accused B. of stealing; to which A. answered, "Yes; and I believe it to be true:"-Held, not a privileged communication.

THIS was an action for slanderous words imputing larceny to the plaintiff. The defendant pleaded not guilty and a justification.

The cause was tried before Keating, J., at the sittings at Westminster after last term; when the following facts appeared in evidence: The plaintiff had gone to the shop of the defendant, a butcher, for the purpose of buying a piece of meat. On her passing *807] *the shop in the course of the same day, the defendant called her in, and, no person being present, accused her of stealing meat, telling her she was too light-fingered, and cautioning her not to do it again. The plaintiff thereupon went to the police-court for a summons. Upon receiving notice of this, and meeting one Herring, the defendant said to him," They have taken proceedings against me: you were in the shop; she stole a piece or two of meat; did not you see her take it?" Another witness, to whom the plaintiff had communicated the fact of the defendant having accused her of stealing, and who lodged in the same house with the plaintiff, proved that she went to the defendant's shop, and asked him whether he accused Margaret (meaning the plaintiff) of stealing a piece of meat; whereupon he answered, "Yes; and I believe it to be true."

On the part of the defendant, it was submitted that the communication in each instance was privileged. The learned judge ruled otherwise; and the jury returned a verdict for the plaintiff with 107. damages.

Joyce now moved for rule nisi to enter a verdict for the defendant, pursuant to leave reserved. He submitted, that, as to the statement made to Herring, the communication was clearly privileged as well on the ground of private interest as of public duty, inasmuch as proceedings had been taken or threatened, in which Herring might have been a witness for the defendant. And, as to the statement made to the other witness, he submitted that the defendant was not a mere volunteer, but made it bonâ fide in answer to an inquiry set in motion by the plaintiff herself; that the circumstances under which that statement was made utterly negatived all notion of malice; and that #808] the defendant was interested in protecting himself *against the effect of an admission which might have been used as evidence on the proceedings before the magistrate.

ERLE, C. J.-I am of opinion that there should be no rule in this case. No action, of course, would lie against the defendant for the words spoken to the plaintiff, no person being by: and, as to the words spoken to Herring, I agree with Mr. Joyce that the communication was privileged. Proceedings had been taken or threatened against the defendant: he had therefore an interest in making inquiry

of a supposed eye-witness in order to protect himself, and also a public duty to substantiate a criminal charge. But, as to the words spoken to the other witness, I cannot see that there was any privilege. The defendant was not acting in pursuance of either interest or duty in repeating the charge to her. It is no part of a man's duty to go into the confessional to every chance person who may choose to ask impertinent questions. And I see no interest that the defendant could. have to justify himself in the eyes of that witness. Ordinary prudence should have induced him to decline to have any conversation with her upon the matter. I do not think the defendant was excusable in regard to this upon either of the grounds upon which the doctrine of privileged communication rests.(a)

The rest of the court concurring,

Rule refused.

(a) See Whiteley v. Adams, antè, p. 392, and Fryer v. Kinnersley, antè, p. 422.

Communications, in performance of official duty, Mayor v. Sample, 18 Iowa (1865) 306, or by a past to a present employer, as to the character of a clerk, Fowle v. Bowen, 3 Tiff. (N. Y. 1864) 24, or to a subscriber at a merchandise agency in reference to the standing and credit of plaintiff, Ormsby

v. Douglass, 10 Tiff. (N. Y. 1868) 447, or a charge of theft, Brown v. Hathaway, 13 Allen (Mass. 1866) 239, Nott v. Stoddard, 38 Vt. (1865) 25, are privileged. Not, however, an accusation against a public candidate: Aldrich v. Press Pr. Co., 9 Minn. (1864) 133.

*CHRISTOPHERSON v. LOTINGA.

Jan. 21.

[*809

An application for a discovery of documents under the 50th section of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), must be made upon the affidavit of the party to the cause. Herschfeld v. Clarke, 11 Exch. 712, confirmed.

AN application was made to Willes, J., at Chambers, on the part of the plaintiff, for a discovery of documents in the possession or power of the defendant, under the 50th section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125.(a) The application was founded upon an affidavit by the managing clerk of the plaintiff's attorney, it being sworn that the plaintiff was in Spain, where he resided and carried on business. The learned judge, conceiving that the language of the statute was directory only in this respect, made the order. Kemplay, on a former day in this term, obtained a rule nisi to rescind the order of Willes, J., on the ground that the learned judge had no power to *dispense with the affidavit which the

[*810

(a) Which enacts, that "upon the application of either party to any cause or other civil proceeding in any of the superior courts, upon an affidavit by such party † of his belief that any document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession or power of the opposite party, it shall be lawful for the court or judge to order that the party against whom such application is made, or, if such party is a body corporate, that some officer to be named by such body corporate, shall answer on affidavit, stating what documents he or they has or have in his or their possession or power relating to the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he or they objects or object (and, if so, on what grounds) to the production of such as are in his or their possession or power: and upon such affidavit being made, the court or judge may make such further order thereon as shall be just."

† See Barnett v. Hooper, 1 Fost. & Fin. 412, 467.

statute in express terms requires, viz. that of the party himself. He referred to Herschfeld v. Clarke, 11 Exch. 712, where the Court of Exchequer held that the application for a discovery under this section must be made upon the affidavit of the party himself.

Sir G. Honyman now showed cause.-The case of Herschfeld v. Clarke, upon which this rule was obtained, was before the learned judge at Chambers. [WILLES, J.-I rather encouraged the application to the court, conceiving it better to have the point settled.] The matter was not very much considered in that case: Blackburn in effect obtained all he wanted, under s. 51. It is submitted that the object which the legislature had in view when framing the 50th section will be amply attained by holding the provision as to the affidavit to be directory; and this will best accord with the ordinary rule for the construction of statutes. In the notes to Collins v. Blantern, in 1 Smith's Leading Cases, 5th edit. p. 337, it is said: "A question sometimes arises, whether, when a statute points out a particular mode for the performance of some acts therein commanded, its enactments shall be taken to be imperative, or only directory; in the former only of which cases an act done in a different mode from that pointed out by the statute would be void. In Pearce v. Morrice, 2 Ad. & E. 84, 96 (E. C. L. R. vol. 29), 4 N. & M. 48, the following rule for distinguishing between imperative and merely directory enactments is given by Taunton, J.,-A clause is directory where the provisions contain mere matter of direction, and no more; but not so when they are followed by words of positive prohibition.' See The King v. The Mayor, &c., of Gravesend, 3 B. & Ad. 240 (E. C. L. R. vol. 23); The King v. The Inhabitants of St. Gregory, Canterbury, 2 Ad. & E. 99, 106, 4 N. & M. 137; Brooks v. *Cock, 3 Ad. &

*811] E. 138 (E. C. L. R. vol. 30), 4 N. & M. 652; The Southamp

ton Dock Company v. Richards, 1 M. & Gr. 448 (E. C. L. R. vol. 39), 1 Scott N. R. 219; The King v. The Inhabitants of Birmingham, 8 B. & C. 29 (E. C. L. R. vol. 15), 2 M. & R. 230; Thompson v. Harvey, 4 Hurlst. & N. 254; The Wolverhampton New Waterworks Company v. Hawksford, 7 C. B. N. S. 795 (E. C. L. R. vol. 97), where an act was required to be done within a certain time; Cole v. Green, 7 Scott N. R. 682, 6 M. & G. 872 (E. C. L. R. vol. 46), where a particular mode of signature of a contract was directed." In Morton v. Copeland, 16 C. B. 517 (E. C. L. R. vol. 81), it was held that the consent under the 2d section of the Dramatic Copyright Act, 3 & 4 W. 4, c. 15, which imposes a penalty for the representation at any place of dramatic entertainment, "without the consent in writing of the author or proprietor," of any dramatic piece, &c., the sole liberty of representing which is by s. 1 secured to such author or proprietor, need not be under the hand of the author or proprietor himself, but may be given by an agent. [ERLE, C. J., referred to The Queen v. The Mayor, &c., of Rochester, 7 Ellis & B. 910 (E. C. L. R. vol. 90). WILLES, J.-If the contention on the other side be right, a corporation could not obtain an order under this section. The learned judge referred to Cortis v. The Kent Waterworks Company, 7 B. & C. 314 (E. C. L. R. vol. 14).] Upon an application under the 52d section, the court may dispense with the affidavit of the party, and yet the language of that section is almost identical with that of the section now in question,-" upon an affidavit of the party proposing to inter

rogate, and his attorney or agent," &c. It would be extremely inconvenient if such verbal criticism should be allowed to prevail.

Kemplay, in support of his rule.-The court or judge are by the statute empowered to make the order "upon an affidavit by such party of his belief," &c. How can this affidavit be made by a third person? It may be that a corporation could not avail itself

of this section: if so, all that can be said, is, that it is casus [*812

omissus. The court will not, however, be warranted in doing vio lence to the plain words of the statute merely because inconvenience may possibly result from giving them their ordinary construction. Prima facie, the language here used imports a condition precedent: Scott v. Parker, 1 Q. B. 809 (E. C. L. R. vol. 41), 1 Gale & D. 258. The word "upon" imports a condition: The Queen v. John Humphery, 10 Ad. & E. 335, 2 P. & D. 691. The language of the acts of parliament upon which the decisions in Cole v. Green, Morton v. Copeland, and The Wolverhampton New Waterworks Company v. Hawksford proceeded, was obviously directory only, and not conditional. [ERLE, C. J.-Can you suggest any reason for the distinction between the language of the two sections?] The court cannot specu late on the intention of the legislature: all they have to do, is, to construe the language which the legislature has used, according to the ordinary and approved rules of construction. [ERLE, C. J.What do you say to the case of a nominal plaintiff? The obligor lends his name to the assignee of the bond: who is to make the affidavit?] The party whose name appears upon the record. There is no ambiguity in the language of the section.

ERLE, C. J.-I am of opinion that this rule must be made absolute. There are many reasons which make me very unwilling to hold to the extreme letter of the statute, and I have anxiously looked round to see if I could avail myself of any rule to allow of some relaxation of its strictness. But the words are few and very positive and precise and I feel bound to give effect to them, although I much doubt whether in so doing I am giving effect to the spirit and intention of the legislature.

*WILLIAMS, J.-I also think we are bound by the unequivocal language of the statute.

[*813

WILLES, J.-I am not disposed to differ from the opinion expressed by my Lord and my Brother Williams, though I must confess I should have thought we might have arrived at a satisfactory conclusion by acting upon the rule laid down by Lord Wensleydale in Becke v. Smith, 2 M. & W. 191, 195, upon the authority of Burton, J., in Warburton v. Loveland d. Ivie, 1 Hudson & Brooke 623, 648, where he says: "It is a very useful rule in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further." I subscribe to every word of that, assuming the word "absurdity" to mean no more than "repugnance." With that modification, it seems to me that the rule thus laid down is perfectly consistent with good sense and law. Construing the 50th