struck off the rolls, whereas he had only been suspended for two years, as appeared from the very report of the case cited by the writer, the court, after pointing out to the jury the important distinction between the two punishments, and that the misstatement was an unintentional mistake, left it to them to say whether it was a reasonably fair statement of the report, or whether it was a mistake arising from want of reasonable diligence and care.1

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A corporation is a person in law. It may have a reputation, which is part of its capital, and therefore be the subject of a libel. Or it may entertain malice, and be itself a libeler of others. Though, as a corporation can only act by its agent, it cannot, of course, be guilty of slander, since that crime cannot be vicariously committed. In the case of a libel, as both authors and publishers are always liable, the corporation has no such escape. They can sue or pros

1 Blake v. Stevens, 11 L. T. N. S. 544; 4 F. & F. 239.

2 Abshire v. Cline, 3 Ind. 115; Long v. Brougher, 5 Watts, 437; Smith v. Wyman, 4 Shep. 13; Lewis v. Black, 27 Miss. 425; Snow v. Witcher, 9 Ired. 346; Ingham v. Lawson, 5 Bing. N. C. 60 (this latter was a case of a libel on the plaintiff's ship); Trenton Ins. Co. v. Perrine, 3 Zabris. 402.

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* Maloney v. Bartley, 3 Camp. 210; Hecker v. De Groot, 15 How. Pr. 314. There can be no agency in a crime (Lowenstein, 54 Barb. 305; Reg. v. Bull, 7 L. T. 8).

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* Rex v. Drake, Holt, 425; Rex v. Paine, 5 Mod. 163; Rex v. Bear, Carth. 407; Rex v. Williams, 2 Camp. 646; Dale v Lyons, 10 Johns. 461; Cochran v. Butterfield, 8 N. H. 115; Dexter v. Spear, 4 Mason, 115; Watts v. Fraser, 7 Car. & P. 369; Frescoe v. Miay, 2 F. & F. 23; Miller v. Butler, 6 Cush. 71.

* Phil. R. R. Co. v. Quigley, 21 How. U. S. R. 202; Aldrich v. Printing Press Co., 9 Minn. 133; Lawless v. Anglo Egyptian Cotton Co., Law Rep. IV. Q. B. 262; Maynard v. Fireman's Ins. Co., 34 Cal. 48; Latimer v. West. Morn. News Co., 25 Law Times, N. S. 44. In New York by statute (Laws 1860, ch. 90). Whitfield v. South-East. R. R. Co., 1 Ell. B. & E. 115;

ecute for a libel of themselves, upon proof of special damage, though not otherwise. But a voluntary association, not chartered or organized under any general law, could not maintain an action, and so no action would lie by the members of a voluntary organization known as "No. 12 Hose Company," against one who published, with other defamatory matter, that his hat had been "stolen by some of the members of No. 12 Hose Company."

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86. An exception arises just here in regard to what are called private publications. (It is a well-known principle of the common law, that a communication made bona fide upon any subject-matter in which the party making it has an interest; or in reference to which he has, or honestly believes that he has, a duty, is privileged; if made to person or persons who have, or honestly believe they have, a corresponding interest or duty, is privileged accordingly ;) a bishop's charge to his clergy has been held privileged, although containing matter which would have been otherwise libelous; and injurious reflections on the Alexander v. N. East. R. R. Co., 34 Law Jour. Rep. N. S. 152,. Q. B.; 11 Jurist, N. S. 619. Exemplary damages against a corporation (Jefferson R. R. v. Rogers, 28 Ind. 1).

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1 Townshend on Slander & Libel, 263.

2 Giraud v. Beach, 3 E. D. Smith, 337.

3 Id.

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* Laughlin v. Bishop of Sodar. & Man., 4 L. R. P. C 495. 9 Moore P. C. C. N. S. 318; 42 L. J. P. C. 11; 21 W. R. 214; 28 L. T. N. S. 377, sed vid. aliter; Gournley v. Plimsoll, 42 L. J. C. P. 121; 8 L. R. C. P. 362; 21 W. R. 683; Dawkins v. Lord Rokeby, 8 L. R. Q. B. 255; 42 L. J. Q. B. 63; 21 W. R. 544; 28 L. T. N. S. 134; Exch. Cham. Hart v. Gumpach, 4 L. R. P. C. 439; 42 L. J. P. C. 25; 21 W. R. 365; 9 Moore P. C. C. N. S. 241; Hunt v. Goodlake, 29 L. T. N. S. 472, C. P.; Odger v. Mortimer, 28 L. T. N. S. 472, C. P.

The late celebrated charge of Judge Routhier, however, holding that a Roman Catholic priest was not responsible for words spoken in the pulpit, was reversed by

character and conduct of individuals, may be rendered justifiable and necessary by the occasion, or circum

stances.

Thus, it becomes absolutely necessary to the due administration of justice, that judges, jurors, witnesses, and suitors should enjoy an absolute immunity for all words spoken or written, in the course of, or necessary to any judicial proceeding, and that members of legislative bodies should not be trammeled in their deliberations by the restraints to which, as private individuals, they might be subjected.

Such publications, whether made by spoken or by written words, are known to the law as privileged publications, and are of two kinds, those absolutely privileged, and those qualifiedly privileged,—and it will make no difference with a publication so absolutely privileged, whether or not it be influenced by malice on the part of the speaker.

Publications are absolutely privileged when made by a privileged person. Publications are qualifiedly privileged, when made not by a privileged person, but upon a privileged occasion, which will excuse everything except actual malice. Thus a judge, whether he be judge of a superior or inferior court, or a coroner, is absolutely privileged. An action will not lie for defamatory matter contained in pleadings, or

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1 Scott v. Stanfield, L. Rep. 3 Ex. 220; 18 L. T. N. S. 572; Floyd v. Barker, Co. Rep., part 12, p. 24; Rex v. Skinner, Lofft, 55; Miller v. Hope, 2 Shaw, Sc. App. Cas. 125; Jekyll v. Moore, 2 B. & P. N. R. 341; Revis v. Smith, 18 C. B. 126; Henderson v. Broomhead, 4 H. & N. 569; Fray v. Blackburn, 3 B. & S. 576; Thomas v. Churton, 2 Id. 475; 31 L. J. 139, Q. B.; per Kent, Ch. J., in Yates v. Lansing, 5 Joh. 282; 9 Joh. 395. But see per Cockburn, Ch. J., 2 B. & S. 479; and per Lord Denman, Ch. J., Kendillon v. Maltby, 1 Car. & Mar. 409.

21 Roll. 33; Dyer, 285; 2 Burr. 808, 817; Weston v. Dobi

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affidavits, or judgments; and a want of jurisdiction in

net, Cro. Jac. 432; Ram v. Lamley, Hutt. 113; Astley v. Young, 2 Burr. 809, 817.

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1 Revis v. Smith, 18 C. B. 126; Astley v. Younge, 2 Burr. 817; Henderson v. Broomhead, 4 H. & N. 569; 28 L. J. 360, Ex.; Doyle v. O'Doherty, 1 C. & Mar. 418. See Maloney v. Bartley, 3 Camp. 210; and McGregor v. Thwaites, 3 B. & C. 24. But see, however, the case of King v. Townshend, 1 King's Bench, A. D. 1822, and reported in the Appendix to Townshend on Slander & Libel, p. 641. That was an action for a libel, contained in an affidavit voluntarily made by the defendant, before a magistrate, charging plaintiff with having given information to the commissioners of customs, that one Decima Barber, a milliner, was possessed of certain uncustomed goods, which were in fact seized, whereby the plaintiff, who carried on the business of a silk mercer, sustained special damage, by reason that the said Decima Barber wholly ceased to deal with the said plaintiff in consequence of such slander. Plea, not guilty, and issue joined.

Mrs. Decima Barber, to prove the special damage, deposed. that previous to the publication of this libel she had dealt almost entirely with the plaintiff, for such articles of silk as she required in her business; but that since the publication, believing that the plaintiff had been the person who caused information to be given against her to the customs, she had ceased to deal with him to so large an extent as formerly, though she had not ceased to deal with him altogether.

Abbott, Ch. J.—I am of opinion that this action is maintainable. First, I think this affidavit is not a judicial proceeding, for it is the mere voluntary affidavit of the defendant; and if such an affidavit were to be considered as a judicial proceeding, and therefore privileged, it would afford a very easy recipe for a libeler to traduce the characters of the most innocent persons. Second, I think that to designate a man as an informer, in a publication like this, if done maliciously (which is for the jury), it is libelous in a very offensive degree, and may be the subject of an action. And, Third, I have no doubt that proof of Mrs. Decima Barber having ceased to deal with the plaintiff to any extent, in consequence of the publication of this libel, will be sufficient proof of special damage to sustain this declaration; and it is for the jury to say

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2 Jekyll v. Moore, 2 B. & P. N. R. 341; Home v. Bentinck, 2 Brod. & Bing. 13. See Oliver v. Bentinck, 3 Taunt. 456.

the court1 or court martial, will not abrogate the privilege. Communications made by officers and soldiers of the army, in the discharge of military or other duty, are absolutely privileged.3

In the case of publications qualifiedly privileged, "the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defense, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or inquiry, and honestly made such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." "The proper meaning of a privileged communication is only this: that the occasion on which the communication was made, rebuts the infer

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what damages they will give under the circumstances of the case.

A letter complaining that the affidavit of an attorney's clerk was untrue was held privileged (Buckley v. Kiernan, I Ir. L. R. N. S. 75).

1 Lake v. King, 1 Vin. Abr. 389; Hawk. Pl. Cr. 73, § 8; Hare v. Meller, 3 Lev. 169).

"Jekyll v. Moore, 2 B. & P. N. R. 341; Home v. Bentinck,. 2 Brod. & Bing. 130; Oliver v. Bentinck, 3 Taunt. 456.

3 Dawkins v. Paulett, 9 B. & S. 768; L. Rep. 5, Q. B. 94; 21 L. T. N. S. 584; 39 L. J. 53, Q. B; Dixon v. Earl of Wilton, 1 F. & F. 419; Keighley v. Bell, 4 Id. 763. .

The Scotch law on this subject is in general the same as the English. In case of an action of libel against a judge or witness there is a presumptio juris et de jure in favor of the defendant, the effect of which cannot be traversed by any contrary evidence. Proof of actual malice will, however, take away the privilege from a litigant party (Borthwick's Law of Libel, ch. 5, § 1, p. 217).

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Per Parke, J., Toogood v. Spyring, 1 Cr. M. & R. 193. See also Somerville v. Hawkins, 10 C. B. 583; Croft v. Stevens, 7 H. & N. 570; Whiteley v. Adams, 15 C. B. N. S. 419; Cowles v. Potts, 34 L. J. 247, Q. B.