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though not confirmed by Justices under 59 Geo. 3, c. 12, It appeared that the plaintiff was a gardener, and that $. 7, before a notice of claim to vote was sent to him :- the defendant was an old member of the Horticultural

Held, that he had a valid appointment to his office at Society, of which society one Ayles was secretary. the time the notice was sent so as to make the notice legal The members of this society were in the constant habit under section 30 of the Reform Act.

of writing to Ayles to ask him to recommend them This was an appeal from a decision of the revising

The defendant did so, and the plaintiff

gardeners. barrister for South Devon. The claimant claimed to

was accordingly recommended to him. He entered vote, and sent in his notice of claim to the assistant into his service; but, after some time, quarrels arose

between them, and the plaintiff was dismissed. overseer of the borough of Ashburton to be placed on the register. Before this, the assistant overseer had Before his dismissal there appeared to have been some

verbal communications between the defendant and tendered his resignation, but it had not been accepted ; on the contrary, his salary was raised from 151. to Ayles ; and afterwards the defendant wrote to Ayles

a letter, which contained the alleged libel. The words 251. per annum, and he subsequently withdrew his resignation.

complained of were to this effect—"I have just had By 59 Geo. 3, c. 12, s. 7, the appointment of another scene with that fellow Fryer. He ran towards assistant overseer by the inhabitants, together with me several times with an open knife, with eyes startthe salary allowed, must be confirmed by the Justices, ing from their sockets—a perfect raving madman. I and the person so appointed shall then be able to fulfil had to draw back to escape him ; and he charged me all the duties of the office. By the 30th section of the with detaining his letters.” Reform Act notices of claim are to be sent to the

A verdict was obtained by the plaintiff, and leave

reserved to the defendant to move for a nonsuit, or to assistant overseer. It was objected that the increased salary of the enter the verdict, on the ground (inter alia) that the

letter was, under the circumstances, a privileged comassistant overseer never having been sanctioned by

munication. the Justices, he was not a duly appointed overseer at the time of the notices given. This was a consolidated 2 Nov. 1863. appeal. The revising barrister allowed the vote.

Shee, Serjt., now moved accordingly. Karslake, Q.C., for the appellant.

13 Nov. 1863. Coleridge, Q.C. (Bullen with him), for the respondent,

Laxton (Digby Seymour, Q.C., with him), now showed was not called upon. ERLE, C.J.—The revising barrister was right. The

Shee, Serjt., and Kingdon, supported the rule.

It was contended for the plaintiff that there was no assistant overseer had a valid appointment, but his salary had been raised. Perhaps he might not have duty whatever on the defendant to make the combeen able to recover that additional salary had pay.

munication to Ayles, as he was not interested in the ment been refused and the Justices had not confirmed matter. On the other side it was argued that, as it , but the parish here had paid him the extra 107. Ayles was, from his office, in the habit of recommendThe notices were valid, and the decision must be ing gardeners to members of the society, it was of affirmed with costs.

importance that he should know the characters of

those whom he recommended. Decision affirmed.

The following cases were cited in the course of the

argument :C. P.

} FRYER v. KINNERSLEY. Saunders v. Bate, 1 H. & N. 402; 2, 13, 23 Nov. 1863.

Cochead v. Richards, 2 C, B. 569 ; Libel-Privileged Communication.

Rogers v. Clifton, 3 B. & P. 587, and Lowry v.

Aikenhead there cited ; The defendant received the plaintiff into his service as Pattison v. Jones, 8 B. & C. 578; gardener, upon the recommendation of A, who, as secre- Brooks v. Blanshard, 1 Cr. & M. 779 ; tary to the Horticultural Society, was frequently applied Toogood v. Sprying, 1 Cr. M. & R. 181 ; to by members of that society who required gardeners. Wright v. Woodgate, 2 Saund. 753 ; Defendant discharged the plaintiff, and subsequently Martin v. Strong, 5 Ad. & E. 535; Erde to the secretary a letter containing inter alia Harrison v. Bush, 5 El. & Bl. 344. the words following :-"he ran towards me several

Cur. adv. vult. times with an open knife, with eyes starting from their

23 Nov. 1863. Exclus—a perfect raring madman:"Held, that whether the occasion created a privilege or

THE COURT (Erle, C.J., Williams, Byles, and Keatest , the terms "raving madman” de. went beyond ing, JJ.) now said, that whatever their opinion might

have been about the occasion creating a privilege, if what any privilege would have justified.

the letter had contained simply a statement of the This was an action for libel, tried before Keating, J. plaintiff's conduct, they thought that the defendant

cause.

not

} WHITELEY v. Adams.

could not take any advantage of that, because the and a quantity of hay from Fowler, for all of which letter went beyond what the occasion would have jus. he did not pay. It was also alleged, that, while at tified, inasmuch as it spoke of his being a “raving Fowler's he was in the habit of drinking much strong madman,” and used other expressions which were in ale and spirits, and that, on such occasions, he became their opinion excessive beyond what any privilege noisy, and took liberties with the maid-servant, and would have justified, even if it had existed. The rule also with Mrs. Fowler in a gig, which induced the for a nonsuit must therefore be discharged, and the Fowlers to get rid of him out of the house; and as he did verdict would stand.

pay

for his board, and lodging, and other articles, Rule discharged. Fowler brought an action against him to recover 1001.,

and being much scandalised at his proceedings, commuC. P.

nicated all these facts to his clergyman, the defendant, 6, 21, 23 Nov. 1863.

at whose house the plaintiff had visited. In answer

to this action the plaintiff alleged, as to the board and Libel-Privileged Communication.

lodging, he was a visitor only; and, as to the fowis Defendant was a country clergyman. Plaintif was

and butter, that they were presents, for which his wife a member of St. B congregation in London. I, another had made presents in return ; and, as to the horse and member, was staying in defendant's parish. Plaintif" the hay, he denied that he was indebted. The action came there on a visit, and was introduced by II to defend going on, the plaintiff seemed to have communicated ant, and to F. Plaintiff b.came intimate with F, but with the curate of St. Barnabas (Mr. Cleaver), as a afterwards quarrelled with him about money matters. F member of his congregation, and Mr. Cleaver theremade statements to defendant about plaintiff's character, upon wrote to the defendant, urging him to use hiz which defendant believed. P brought an action against influence to put an end to so great a scandal on the plaintiff for goods sold, dc. C, a curate of St. B, wrote congregation of St. Barnabas, as this trial promised to to ask defendant to act as arbitrator. Defendant wrote be, by inducing his parishioner, Mr. Fowler, to consent a letter to C refusing to act, and giving as his reason the to refer his action to his (Mr. Adams's) arbitration. reports he had heard of plaintiff. Plaintifj' brought on

Mr. Adams wrote, in answer, declining to interfere, action for libel. Defendant came up to London and and intimating, that if Mr. Cleaver, or any clergyman spoke about this action to I, who told him plaintiff was

of St. Barnabas, would pay him a visit, he would not guilty of the charges made. II wrote to defendant, receive them at his parsonage, and give them liis who replied, making further charges against the plain

reasons for so declining. Mr. Cleaver again wrote an tiff. A second action was brought; the two actions urgent letter, conjuring the defendant, as a Christian were consolidated. The jury found that the charges minister, in favour of peace, to accept the office of were not true, but that the defendant had made them arbitrator, Mr. Adams then wrote in reply the folbonâ fide.

lowing letter :Held, that under all these circumstances both letters

“Stockcross Parsonage, March 17.

Dear Sir,–I cannot, I am sorry to say, accede were privileged communications.

to your request for the following reasons :This action which was tried at Guildhall, before “1. Because Mr. Fowler's lawyer, Mr. Smale, Erle, C.J., was brought by the plaintiti, an assistant- whom I know to be an honourable man, will, I am clerk of Wood, V.-C., and a member of the congrega- sure, be quite ready to compromise the matter, instead tion of St. Barnabas, against the defendant, for a libel, of carrying it into Court, if Mr. Whiteley will make contained in two letters, reflecting on the moral cha- fair overtures to him. racter of the plaintiff, the defendant being the clergy- 2. Because Mr. Whiteley's conduct has been so man of the village of Stockcross, near Oxford.

bad that I should be sorry to have my name in any The facts of the case were, that the plaintiff, being way associated with him or his affairs.

To give you acquainted with a Mrs. Hurry and her daughters, an outline of all the charges which I hear laid against members of the congregation of St. Barnabas, who him would occupy more time than I have to spare this

down to lodge at Stockcross, went on a visit morning, but I will mention two or three which I have there, and while there was introduced by Mrs. Hurry to reason to believe well founded. Though only a law. Mr. Adams, the clergyman, the present defendant, and yer's clerk, he passed himself off for some time in this also made the acquaintance of a farmer there, named parish as a lawyer of considerable wealth, and talked Fowler, with whom he went to lodge. It was alleged largely about his landed property in Kent. This that he represented himself to Fowler to be “some enabled him to impose upon the rustic simplicity of thing more than a barrister, as barristers came before the Fowlers in a way which he would not otherwise him," and also, that he had an estate in Kent; this, have done. Under the impression that he was a gun. however, was denied by the plaintiff, and it was tleman of considerable means, they allowed him from alleged, that, by these means, be induced the Fowlers time to time to make himself an unbidden guest at to pay him much attention, to send him presents of their house, and to send his son to stay with them for forls and butter, and eventually he obtained a horse the benefit of his health for a month or two. They

had

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cause.

also sent at his request poultry, &c., and were given to were consolidated, and each libel formed a separate
understand by him that full compensation would be count in the declaration.
made to them for all the trouble and expense to which Mrs. Hurry stated, in giving her evidence, that the
he had put them. But, with the exception of a shawl plaintiff did not ask her to write the letter to the
sent by Mrs. Whiteley to Mrs. Fowler, they have defendant, in answer to which the second libel was
received no payment whatever. Last of all he written, but that he was aware of its being written,
bought a horse of Mr. Fowler which is not yet and called on her for the answer, which was imme-
paid for, and his attempts to evade payment have diately given to him.
been characterised by extreme meanness, if not down- At the trial a great deal of very contradictory evi-
right dishonesty. There are unpleasant rumours about dence was adduced, and at last the learned Judge left
his being immoral and intemperate, but how far they it to the jury to say ; 1st, were the imputations con-
are true I am unable to say.

veyed in the defendant's two letters substantially true ;
"It grieves me very much to make these statements 2nd, if not, did he write them believing them to
respecting a man who evidently wishes to be considered be true, and without corrupt motives ?
a religious man and a good Churchman ; but inasmnch The jury found the first question in favour of the
as he said a great deal to my parishioners about his plaintiff, with 40s. damages on each libel, and the
intimacy with the clergy of St. Barnabas, I think it second for the defendant.
my duty to unmask him to you, and I should be very The Judge then said he would reserve the question
thankful to be enabled to tell some of my neighbours of privileged communication.
that his position at St. Barnabas is not quite what he
led them to suppose it to be, and especially that his Nov. 6, 1863.
official connection with the English Church Union had

Coleridge, Q.C., moved accordingly to enter the ceased."

verdict for the defendant on the ground that the letters This letter was shown to the plaintiff, and an action for in question were privileged. libel was immediately commenced. The defendant came

Rule nisi. upto London, called on Mrs. Hurry, and spoke to her on

Nov. 21, 23, 1863. the subject; she said she was sure he was mistaken in

Montague Chambers, Q.C., and Joyce, now showed forming a bad opinion of the plaintiff, that she would speak to the plaintiff on the subject, and she was sure

They contended that, in order to constitute a privi. he would tell her the truth. After this she wrote to the defendant, and he immediately wrote to her the leged communication, there must be a duty cast on a following letter :

man to make it, and that no one had a right to volun

teer a statement. The circumstances here did not “Stockcross Parsonage, May 6. "MY DEAR MRS. HURRY,— Time will show whether the defendant was asked to act as arbitrator, and all

show any sufficient reason for writing the first libel. I have been misinformed or not respecting Mr. White- he had to do was to answer in the affirmative or the ley. A writ has been served upon me, and a public

negative, and he was not called upon to express his investigation must therefore take place. If he states

opinion as to the plaintiff's character. on oath in the witness-box what he has stated to you,

The second libel was, if possible, still more unjustiespecially as to the charge of assault, he will most cer- fiable. There had clearly been a verbal slander pretainly be prosecuted for perjury, for there is not the ceding it, and from that arose the occasion for writing shadow of a doubt but that the complaint of the

the libel. servant girl is correct. She is a person of unblemished reputation and a communicant, and no one can listen

Coleridge, Q.C., and Henry James, in support of the to her statement, as I have done, without believing rule. every word of it. As to the story about the farmer's

Both the communications are privileged. It is of wife and the beer-drinking at 10 o'clock on the Sunday the utmost importance that the character of a person morning, I do not attach much importance to it should be known to those who trust him. They are charges of a very minor consideration, but the alleged assault is a very weighty accusation. I am the first instance been asked to act as an arbitrator

With regard to the first libel, the defendant had in sorry that I shall not be able to call on yon again for and refused, he had then been urged in his character some time. Until the trial comes on I shall hardly be of a Christian and a clergyman by a brother clergyable to leave home, but if you have any inclination to ask for further information and details my attorney, tion he had a right to make known his reasons for

man to act as a peace-maker, and in his own justificaMr. Smale, 18, New Bridge-street, Blackfriars, will be

refusing. happy to see you. With our kind regards to Miss Huny, sister Pauline, and yourself, &c."

The second libel was written evidently at the instance

of the plaintiff, who had procured Mrs. Hurry to write This letter was the second libel complained of. A second for the purpose of eliciting an answer. Had the letter action was immediately brought, but the two actions been written to the plaintiff would not have been

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actionable, and, under the circumstances, it may be were written, and never did pass, except to the plaintiff, said to have been actually written to him.

who had brought this action on them. The following authorities were cited in the course of

The plaintiff was in great estimation at St. Barnabas.

Mr. Cleaver was curate there. Mrs. Hurry and her the argument :

daughters took great interest in the parish. The Bromage v. Prosser, 4 B. & C. 247, 254 ; Pattison v. Jones, 8 Id. 578;

plaintiff was introduced in the country by Mrs. Child v. Affleck, 9 Id. 403 ;

Hurry. Owing to the introduction to Fowler, all this

trouble had taken place. An action was brought for Cook v. IVildes, 5 El. & Bl. 328; Harrison v. Bush, Id. 344 ;

the horse, hay, board and lodging. It does not signify

here that the award in that case was, I believe, in Tuson v. Evans, 12 Ad. & E. 733 ;

favour of Whiteley. It was during this litigation that Brown v. Croome, 2 Stark. 297;

the letter was written. Cleaver had written to the Woodward v. Lander, 6 C. & P. 548; Godson v. Home, 1 B. & B. 7 ;

defendant, begging him to act as mediator. He Coxhead v. Richards, 2 C. B. 569 ;

refused ; and said, if you or any other of the clergy of

St. Barnabas will come to me, I will tell you my reaBlackham v. Pugh, Id. 611 ;

Mr. Cleaver then wrote to him again, adjuring Pater v. Baker, 3 Id. 831 ; Wenman v. Ash, 13 Id. 836 ;

him most solemnly to mediate between the parties.

Under these circumstances, it seems to me that it was Toogood v. Spyring, 1 C. M. & R. 181 ;

a social and moral duty in Mr. Adams, when urged by Gilpin v. Fowler, 9 Exch. 615;

Mr. Cleaver to be an arbitrator between the plaintiff Peacock v. Reynal, Brownl. 2nd part, 151 ;

and Mr. Fowler, to give to Mr. Cleaver, as his reason Gardner v. Slade, 13 Q. B. 796 ;

for refusing, what he believed to be true and correct Pilt v. Donovan, 1 M. & S. 639 ;

information. He, in effect, wrote, “You are exhort. Somerville v. Hawkins, 20 L. J. C. P. 131 ;

ing me, almost blaming me, for not interfering in this 1 Com. Dig. Action on Case, “ Defamation;"

matter. I tell you, you are under a mistaken impresAddison on Torts, 584 ; Starkie on Libel, “ Preliminary Discourse,” 48, sion as to the confidence you ought to place in Mr.

Whiteley; and I tell you, as clergyman of St. Bar84; body of the book, 320, 321.

nabas, that I think it my duty to unmask him." I ERLE, C.J.-I am of opinion that this rule ought think that the defendant was then discharging : to be made absolute. The action was brought in the social and a moral duty. With respect to the other first count of the declaration on a letter to Mr. Cleaver, letter, it was written after the action had begun, and and on the second count on a letter to Mrs. Hurry. after the defendant had had a conversation with Mrs. Each of these letters contain matter defamatory of the Hurry about the plaintiff, who had been introduced to plaintiff, and each contain matter sufficient to main him to her. Mrs. Hurry saw Whiteley, and then wrote tain the action if they do not come within the rule of to the defendant that Whiteley totally denied the impuprivileged communications. I take the law to be that tations cast upon him, and assuring the defendant that defamation is presumptive evidence of malice, but that he was entirely mistaken as to Whiteley, and hoping the malice may be rebutted by showing the circum- that the action would be settled. As the litigation then stances under which the words were written. This stood, what position would the defendant have been rule has very lately been laid down in the Court of in if he had sent no answer? Had he not a right and Exchequer, and also in the Court of Queen's Bench, an interest to say in reply, “I do assure you solemnly that if the circumstances brought the Judge to the that the imputations that I have made against Mr. opinion that the communication was made in the dis- Whiteley are well founded, and if Mr. Whiteley denies charge of a social and moral duty, or on the ground that charge about the maid servant, he will assuredly of an interest in the person making it, or of a corre- be prosecuted for perjury ?" If the defendant besponding social duty or interest in the person receiving lieved that to be true, I think he discharged a social it, and if the words were spoken in the honest belief and moral duty in saying to Mrs. Hurry, "your that such person was performing such duty, the Judge confidence is misplaced.” I think, also, that Mr. was to say that the action failed. On the present occa Adams had an interest in so writing, inasmuch as sion the jury had found, and it was established, that he was bound to state what he did. I agree fully with the words were written bona fide by the defendant in the general view of the doctrine cited from Starkie, the honest belief that they were true, and that it was that it was of uncommon importance that there should his duty to write these letters. Then, did the circum- be a means of arriving at the true estimation of parties stances show that they were written in the discharge whom you are obliged to place in a position confiof a social and moral duty, or on the ground of interest ? | dence, and if every word that was said were to be made I am bound to answer both these questions in the the ground of an action, cautious people would take affirmative in respect of both of the letters. They were care that their words were words only of praise, for, for confidential communications in the sense that they such words no action would lie. The rules as to the

-1 not have passed from the parties to whom they privilege of criticising public men have in modern times been very largely extended, and so also has the rule signed the submission to the award, and after his sig. as to privileged communications; and, in my opinion, nature added the words, "for self and IIancox.” The with very good reason.

defendant had signed the submission himself.

The award was in favour of the plaintiffs, and on its WILLIAMS, J.-I am of the same opinion. The being taken to the Rule Office to be made a rule of jury found that the defendant acted bond filo--this Court, the Clerk of the Rules objected, on the ground shows that he believed all he said to be true-he that it had not been signed by both parties. It was felt that Cleaver and Mrs. Hurry believed the plaintiff

now argued that this was unnecessary, the plaintiff to be a good man. I agree then with my Lord, it was

Altington having as it was contended signed as an his social duty to undeceive them, not to expose the agent. Even assuming that he had not been authoplaintiff in public, but by means of a confidential rised, Hancox could ratify the signature at any time, letter to persons who ought to know his real character. and of course would ratify it, as the award was in his

BYLES, J.-I am of the same opinion. The rule of favour. law has been clear ever since the case of Toogood v. ERLE, C.J.-It will be better to have an affidavit Spyring.

either from Altington that he had the authority of The first part of the first libel is excusable, because Hancox, or from Hancox that he gave this authority. it had reference to his own affairs. There is a passage Then the rule may be made absolute. towards the close of the letter which Mr. Joyce The rest of the Court (Williams, Byles, and Keating, referred to, in which there might be some difficulty. JI.) concurred. " He said a great deal to my parishioners about his

Rule absolute on obtaining the affidavit. intimacy with the clergy of St. Bamabas, &c.," but he begins this by saying, “I think it my duty," and the jury have found that he did think it his C. P.

CROWTHER, Appellant, v.

} duty. It was one conscientious clergyman writing 24 Nov. 1863.

BRADNEY, Respondent. to another about a man whom he thought placed in a

REGISTRATION APPEAL. Wing position.

With regard to the second letter, I should be Notice of Objection6 Vict. c. 18, Sch. B. No. 11. inclined to rest it on the ground of interest. The

The addition to the signature of the objector in 6 Vict. plaintiff was decidedly interested in knowing that he

c. 18, Sch. B., No. 11, must specify on what list of ran a risk of being indicted for perjury. It was sent voters (if there are more lists than one) his name appears. to reach the hands of the plaintiff, and if it had been

This was an appeal from a decision of the revising sent to him direct, of course it would not have been barrister for the borough of Kidderminster. The actionable.

respondent had signed the notice of objection as KZATISC, J.-I am of the same opinion,

The law follows:as to privileged communications has been clearly laid "George Bradney, of Wharf Hill, on the list of down in Toogood v. Spyring and Harrison Bush. persons entitled to vote for the borough of KidderThe only difficulty is the application of well-known minster, in respect of property within the parish of rules to the circumstances of each case.

Kidderminster."
Rule absolute. The ancient parish of Kidderminster consisted of

the borough of Kidderminster, the forraine of Kidder

minster, and the hamlet of Lower Mitten, which last C. P.

ALTINGTON and HANCOX v. }

was within the borough of Bewdley. There were two 23 Nov, 1863.

CHESHIRE,

lists of voters for Kidderminster, one for the borough,

the other for the forraine of Kidderminster. It was Submission to Arbitration Practice.

objected that the notice was invalid, because it was not Where an action by A and B against C was submitted stated by the objector on which of the two lists his ta arvitration, and A signed the submission with the name appeared. And the barrister disallowed the veris " for self and B," C signed it for himself, and B objection, holding the notice sufficient. did not sign it at all :

Karslake, Q.C., for the appellant. Held, that before the award (which was in favour of

The appellant was not bound to search both lists. A & B) could be made a rule of Court, there must be an ajdarit

, either by A that he had B's authority for Property in the parish does not necessarily give a voto signing for him, or by B that he gave such authority.

for the borough, as some of the parish is out of the

borough. Needluam moved for a rule calling on the defendant (WILLIAMS, J. referred to Samuel v. Hutchinson, 13 to show cause why an award should not be made a rule C.B., (N. s.) 1.] of Court, under the 17th section of the Common Law In that case there was actually only one list which Procedure Act, 17 & 18 Vict. c. 128, 1854, under the was divided into two parts, but here the lists are altofoil:wing circumstances :- The plaintiff Altington had gether different and separate. The two parishes, which

VOL. III.

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