ladies of her acquaintance in the same circle. She could properly tell what she knew about young men, but could not defame them, even upon request, by telling what she did not know, what nobody knew, but what she believed upon mere rumors and hearsay to be true. The mere fact that she was requested or even urged to give the information, did not make the defamatory communication privileged. (York v. Johnson, supra.)

But there is no proof that this letter was written to Dora in pursuance of any request made by her four years before its date, and there was no evidence which authorized the jury to find so if they did so find. On the contrary, it is clear that Dora would not, at the time, have gone to Mrs. Collins for any information as to the plaintiff if she had desired any, and that she did not wish for the information from her; and that this was known to Mrs. Collins the language of the letter clearly shows. In the defendant's answer it is alleged that Mrs. Collins' letter was prompted by her friendship for Dora and by the solicitation of "mutual friends to interfere in the matter and break off the relations which seemed to exist between the plaintiff and Dora," and there is no averment that it was written in pursuance of any request coming from Dora. The letter itself, as well as the evidence of Mrs. Collins, shows unmistakably that it was thus prompted. Mrs. Collins did not testify that she wrote the letter in pursuance of any request of Dora, and the action was not tried upon that theory, and no question as to the request was submitted to the jury. The trial judge charged the jury broadly that if the relations of Dora and Mrs. Collins were of such an intimate character as to warrant the latter in informing the former "against a person whom she had reason to believe was not a fit person, and if Mrs. Collins acted fairly, in good faith, conscientiously, although mistakenly, there can be no recovery against her," upon the count in the complaint for libel; and then the court said: "Did Mrs. Collins in writing that letter act fairly, act judiciously, not in the matter of good taste, but did she with the facts which had been brought to her mind act in a conscientious and proper manner? If she did, if she acted as an ordinary prudent person would act under the same circum

!

stances, if she had probable ground for her belief, she was justified in writing the letter." Mrs. Collins appears then as a mere volunteer, writing the letter to break up relations which she feared might lead to the marriage of the plaintiff to Dora. If she had been the mother of Dora, or other near relative, or if she had been asked by Dora for information as to the plaintiff's character and standing, she could with propriety have given any information she possessed affecting his character, providing she acted in good faith and without malice. But a mere volunteer having no duty to perform, no interest to subserve, interferes with the relations between two such people at her peril. The rules of law should not be so administered as to encourage such intermeddling, which may not only blast reputation but possibly wreck lives. In such a case the duty not to defame is more pressing than the duty to communicate mere defamatory rumors not known to be true.

Some loose expressions may doubtless be found in text-books and judicial opinions supporting the contention of the defendant that this letter was, in some sense, a privileged communication. But, after a very careful research, I believe there is absolutely no reported decision to that effect. The case which is as favorable to the defendant as any, if not more favorable than that of any other, is that of Todd v. Hawkins, 8 Car. & P. 88. In that case, a widow, being about to marry the plaintiff, the defendant, who had married her daughter, wrote her a letter containing imputations on the plaintiff's character, and advising a diligent and extensive inquiry into his character, and it was held that the letter was written on a justifiable occasion, and that the defendant was justified in writing it, provided the jury was satisfied that, in writing it, he acted bona fide, although the imputations contained in the letter were false or based upon the most erroneous information; and if he used expressions, however harsh, hasty or untrue, yet bona fide, and believing them to be true, he was justified in so doing. The letter was held privileged solely upon the ground of the near relationship existing between the widow and the defendant, her son-in-law, which justified his voluntary interference. But the judge expressly stated that if the widow and defendant had been strangers to each other, there would have been a

mere question of damage. A case nearer in point is that of The "Count Joannes" v. Bennett, 5 Allen, 169. There it was held that a letter to a woman containing libellous matter concerning her suitor, cannot be justified on the ground that the writer was her friend and former pastor, and that the letter was written at the request of her parents, who assented to all its contents. The decision was put upon the ground that, in writing the letter, the defendant had no interest of his own to serve or protect; that he was not in the exercise of any legal or moral duty; that the proposed marriage did not even involve any sacrifice of his feelings or injury to his affections, and did not, in any way, interfere with or disturb his personal or social relations; that the person to whom the letter was addressed was not connected with him by the ties of consanguinity or kindred, and that he had no peculiar interest in her. Some years before the same learned court decided the case of Krebes v. Oliver, 12 Gray, 239, wherein it was held that statements that a man had been imprisoned for larceny, made to the family of a woman he is about to marry, by one who is no relation of either, and not in answer to an inquiry, are not privileged communications. In the opinion it is said: "A mere friendly acquaintance or regard does not impose a duty of communicating charges of a defamatory character concerning a third person, although they may be told to one who has a strong interest in knowing them. The duty of refraining from the utterance of slanderous words, without knowing or ascer taining their truth, far outweighs any claim of mere friendship."

I am, therefore, of opinion that the letter was in no sense upon the facts as they appear in the record, a privileged communication.

There was, also, error in the court below as to the verbal slanders alleged in the second cause of action; and what I have already said applies, in part, to these slanders. There was no substantial denial of these slanders in the answer, and there is no dispute in the evidence that they were uttered, and there can be no claim upon the evidence that they were justified. The trial judge charged the jury that the words were slanderous. But he said to them that "there is not that presumption of malice in the case of oral slanders that there is in

the case of deliberate writing." This was excepted to by plaintiff's counsel, and was clearly erroneous. In the case of oral defamation, as in the case of written, if the words uttered were not privileged, the law implies malice.

The judge further charged the jury, in substance, that the words, if uttered under the circumstances testified to by Mrs. Collins, were privileged. She testified, in substance, that she uttered the words to Mr. Cameron in confidence after the most urgent solicitation on his part that she should tell him. what she knew about the plaintiff. But defamatory words do not become privileged merely because uttered in the strictest confidence by one friend to another, nor because uttered upon the most urgent solicitation. She was under no duty to utter them to him, and she had no interest to subserve by uttering them. He had no interest or duty to hear the defamatory words, and had no right to demand that he might hear them; and under such circumstances there is no authority holding that any privilege attaches to such communications. There was no evidence that would authorize a jury to find that Cameron sought the interview with Mrs. Collins, as an emissary from or an agent of the plaintiff, or that at the plaintiff's solicitation or instigation he obtained the slanderous communications from her, and he did not profess or assume to act for him on that occasion. He was the mutual friend of the parties, and seems to have sought the interview with her either to gratify his curiosity or to prevent the impending litigation between the parties. But even if he obtained the interview with her at the solicitation of the plaintiff, and as his friend, she could not claim that her slanderous words uttered at such interview were privileged.

The trial judge, therefore, erred in refusing to charge the jury that there was no question for them as to the second cause of action but one of damages.

Therefore, without noticing other exceptions to rulings upon the trial, for the fundamental errors herein pointed out, the judgment should be reversed and a new trial granted.1

1 The able dissenting opinion of Danforth, J., will repay perusal. Some cases of absolute privilege have been given under "Exceptions to Liability," supra. See, also, Wright v. Lothrop, 149 Mass. 385, witness before

CHAPTER VIII.

DECEIT: FALSEHOOD IN FACT.

STEWART v. Stearns.

(63 N H. 99.-1884.)

Ray & Walker and W. L. Foster for the plaintiff.

J. Y. Mugridge and Chase & Streeter for the defendant.

CLARK, J. The finding of the referee is authorized by the facts appearing in the case. If the defendant made false and

legislative committee. Tuckerman v. Sonnerschein, 62 Ill. 115, translating libellous words for an attorney. Moore v. M. N. Bank, 123 N. Y. 420, irrelevant allegations in legal papers, and dissenting opinion, p. 428.

Counsel's statements at trial are absolutely privileged in England (Munster v. Lamb, 11 Q. B. D. 588), but in America they must be pertinent (Marsh v. Ellsworth, 50 N. Y. 309; Hoar v. Wood, 3 Met. 193).

Fair comment or criticism, distinguished from statements of fact. (Davis v. Shepston, 11 App. C. 187 (publication of a report containing false charges of specific acts); Gott v. Pulsifer, 122 Mass. 235 (Cardiff Giant case); Sillars v. Collier, 151 Mass. 50 (" I am sorry that the representative from this district had a change of heart. Sometimes a change of heart comes from the pocket," - held not libellous. Scandalum Magnatum not known in

United States); Walker v. Hawley, 56 Conn. 559; 16 At. 674.)

Private duty. (Fahr v. Hays, 50 N. J. L. 275 (plaintiff referred to defendant for credit, and defendant called plaintiff“ a thief," etc., in the presence of disinterested parties) - privileged. Beals v. Thompson, 149 Mass. 405 (letter from creditor to debtor's husband) —not privileged. Lovell Co. v. Houghton Co., 116 N. Y. 520 (defendants charged plaintiffs with infringing copyright) - privileged.)

The communications of mercantile agencies are privileged only when made upon special request. (King v. Patterson, 49 N. J. L. 417 (1887), and cases in prevailing and dissenting opinions; Pollasky v. Minchener, 46 N. W. 5 (1890, Mich.).) Not libellous for a mercantile agency to publish that ajudgment for $4000 has been rendered against one; but if false, and special damage is shown, an action will lie. (Woodruff v. Bradstreet, 116 N. Y. 217.)