Washburn v. Cooke.

horse wagon, and 1 one horse harness. Hoag has just hove in, and succeeded in tracing the cattle and one horse, which passed through the turnpike gate, two miles this side of Gilbertsville, Saturday morning at half past one o'clock. The woman at the gate house noticed the cattle particularly, and knew the persons that were driving them, being Nelson Washburn and David Nash, the one-armed man. Hoag thinks the cattle have gone to Philadelphia, and that they will meet John Blakely there, and says you had better go by rail-road and water to Philadelphia and Westchester, where the cattle probably are, yourself, as you, he thinks, can do the business better than himself. There can be no doubt about the cattle having gone that way, nor any doubt that Nelson Washburn and David Nash were the persons that drove them through the gate, although Washburn is now at home, and probably sent Nash on with the horse and cattle alone, with directions where to drive them. Hoag thinks you can easily find them, and that you will most likely meet old John on the route at some place. I think so too, although I think you could do a very fair business by arresting Washburn and Nash for stealing, as there can be no doubt but that the cattle were feloniously taken. I throw out these hints in a hurry. You will do as you think best. Write me if you desire me to execute any particular business. I will keep my eye ahead and let you know all that I can discover. In haste,

WOODBURY R. COOKE."

The letter was received by Sheriff Winsor in August, 1843, who showed it to his attorney and counsel, and to no one else. The letter was afterwards thrown aside as waste paper, and was found in an out house on the sheriff's premises, and this suit, and another in favor of Nash, were afterwards commenced against the defendant.

The defendant offered to prove that he was employed by the sheriff to ascertain the facts, and inform him; and to counsel and advise the sheriff what course he thought best to pursue. The plaintiff objected; and the judge, after ascertaining that the defendant was not an attorney or counsellor at law, rejected

Washburn v. Cooke.

the evidence. The judge charged the jury that the letter was libellous, and not a privileged communication; and that being libellous, the law implies malice so as to sustain the action; but the amount of damages was exclusively a question for the jury. The jury found a verdict for the plaintiff for $51 damages. The defendant moves for a new trial on a case.

N. Hill, Jr. for the defendant, cited 3 John. 180; 1 T. R. 110; 3 id. 61; 4 B. & C. 247; 1 Camp. 267, 269, note; 7 Car. & Payne, 680; 5 id. 543; 8 id. 234; 2 Moody & Rob. 20; 1 Denio, 41; 2 Stark. Ev. 630 to 634, ed. of '42; Ham. N. P. 292, and note (m); Bull. N. P. 8.

R. W. Peckham, for the plaintiff.

By the Court, BRONSON, Ch. J. If the letter was not a privileged communication—if there was nothing in the occasion of writing it to distinguish this from the ordinary case of making a slanderous charge against another-the judge was clearly right in his instruction to the jury. In the common case of a libellous publication, or the use of slanderous words, the charge of malice in the declaration calls for no proof on the part of the plaintiff, beyond what may be inferred from the injurious nature of the accusation. The principle is a broad one. In all cases where a man intentionally does a wrongful act, without just cause or excuse, the law implies a malicious intent towards the party who may be injured; and that is so, even though the wrongdoer may not have known at the time on whom the blow would fall. But in actions for defamation, if it appear that the defendant had some just occasion for speaking of the plaintiff, malice is not a necessary inference from what, under other circumstances, would be a slanderous charge; and it will often be necessary for the plaintiff to give other evidence of a malicious intent. There may be many of these privileged communications; as where the charge is made in giving the character of a servant; or in a regular course of discipline between members of the same church; in answering an inquiry concerning the

Washburn v. Cooke.

solvency of a tradesman, or banker; or where the communication was confidential, between persons having a common interest in the subject to which it relates. In these, and other cases of the same nature, the general rule is, that malice is not to be inferred from the publication alone. The plaintiff must go fur ther, and show that the defendant was governed by a bad motive that he did not act in good faith, but took advantage of the occasion to injure the plaintiff in his character or standing. These principles are sufficiently exemplified in the cases cited by the defendant's counsel.

In this case, it may be collected from the evidence given, and that which was offered and rejected, that the sheriff had made a levy upon certain cattle, which had afterwards been wrongfully driven away, in consequence of which the sheriff was likely to suffer damage: that the sheriff thereupon employed the defendant to ascertain and inform him of the facts in relation to the wrong which had been done, and to advise what course it was best to pursue: and that the defendant wrote the letter in question to his employer, concerning the subject matter of his employment. It was the communication of an agent to his principal, touching the business of his agency, and not going beyond it. The charge of larceny, of which the plaintiff complains, was directly pertinent to the matter in hand; and I think the letter must be regarded as a privileged communication. The occasion upon which it was written sufficiently rebuts the inference of malice, which, under other circumstances, would have arisen from the injurious nature of the charge. In such a case, although there may be no proof of the truth of the accusation, and even though it may be shown to be false, the jury are not to render a verdict for the plaintiff as a matter of course. They must first be satisfied, on looking at the whole case, that the defendant did not act honestly and in good faith, but intended to do a wanton injury to the plaintiff.

Although the defendant was neither an attorney nor counsellor at law, he may have been quite competent to ascertain the facts concerning the driving off of the cattle, and to exVOL. III.*

15

Williams v. Larkin.

press an opinion upon the question whether the taking was felonious.

It follows from what has been said, that the evidence offered by the defendant should not have been rejected.

New trial granted.

WILLIAMS vs. LARKIN and another.

Where an alteration of school districts made by the proper officers affected three districts, and the trustees of two of the districts consented to the alteration, but the trustees of the other district did not consent; held that the alteration took effect immediately as to those districts whose trustees consented, notwithstanding the provisions of 1 R. S. 471, § 22, requiring notice and the lapse of three months before an alteration takes effect, where the trustees do not consent. Where the notice of a special district school meeting stated that it was to be held "for the purpose of buying or building a school house," and a tax was voted to purchase a school house already built; held sufficient, and that the tax was legal.

It is not necessary for the district meeting to designate a site for a school house before laying a tax. Per BRONSON, C. J.

A tax voted to pay for a school house already purchased, is a sufficient designation of the site.

It is not a good objection to a tax to pay for a school house, that the title to the property had not been acquired; but the trustees ought not to pay out the money until they obtain a conveyance.

The rule that an objection not raised at the trial is waived, applied to the case of trustees of a school district justifying the selling of the plaintiff's property on a warrant issued for the collection of one dollar more than the amount of the tax voted by the district meeting, where the point was not taken at the trial; the statute (in a proper case) permitting other expenses not embraced in the vote to be included in the warrant.

ERROR to Onondaga C. P. Williams sued Larkin and Cole before a justice, and declared in trespass for taking and selling certain personal property. The defendants were trustees of school district No. 3, in Van Buren, Onondaga county: they issued a warrant for the collection of a tax which had been voted

Williams . Larkin.

by the district for purchasing a school house; the plaintiff was an inhabitant of the district, and one of the persons taxed; the collector took and sold his property to pay the tax; and for that taking this action was brought. The complaint is, that the proceedings were not regular and lawful. Prior to the 5th of January, 1844, the plaintiff was in school district No. 14 in Van Buren. On that day the town superintendent with the supervisor and town clerk annexed a part of district No. 14, including the plaintiff, to district No. 3; the residue of No. 14 was annex ed to district No. 13; and district No. 14 was annulled. The trustees of No. 3 and No. 14 consented to these alterations; and notice of the alteration was given to the trustees of No. 13, who had not consented. The trustees of No. 3 called a special district meeting for the 29th of February, 1844; the notice for which was in writing, signed by the trustees, and stated that the meeting was to be held "for the purpose of buying or building a school house, and for the transaction of such other business as the meeting may deem necessary." The meeting adjourned to the 28th of March, when the district voted to raise a tax of two hundred and ten dollars for the payment of a school house and site, purchased of Belden Ressigue. It was also resolved to have a quarter of an acre of land for the site. The list annexed to the warrant issued by the trustees states the tax to be, "for the purpose of raising the sum of two hundred and eleven dollars laid and charged on the said district according to law." The justice gave judgment for the defendants, which the common pleas affirmed. The plaintiff brings error.

S. C. Parker, for the plaintiff in error.

D. C. Le Roy, for the defendants in error.

By the Court, BRONSON, Ch. J. The town superintendent, associated with the supervisor and town clerk, had ample authority to alter the districts. (1 R. S. 470, § 20. Stat. 1843, p. 163,1 to 3.) We are referred to the Statutes of 1831, p. 47, 1 to 3; but this was not a case within that statute. There