though not confirmed by Justices under 59 Geo. 3, c. 12, 8. 7, before a notice of claim to vole was sent to him :Held, that he had a valid appointment to his office at the time the notice was sent so as to make the notice legal under section 30 of the Reform Act. This was an appeal from a decision of the revising barrister for South Devon. The claimant claimed to vote, and sent in his notice of claim to the assistant overseer of the borough of Ashburton to be placed on the register. Before this, the assistant overseer had tendered his resignation, but it had not been accepted; on the contrary, his salary was raised from 157. to 257. per annum, and he subsequently withdrew his resignation. By 59 Geo. 3, c. 12, s. 7, the appointment of assistant overseer by the inhabitants, together with the salary allowed, must be confirmed by the Justices, and the person so appointed shall then be able to fulfil all the duties of the office. By the 30th section of the Reform Act notices of claim are to be sent to the assistant overseer. It was objected that the increased salary of the assistant overseer never having been sanctioned by the Justices, he was not a duly appointed overseer at the time of the notices given. This was a consolidated appeal. The revising barrister allowed the vote. Karslake, Q.C., for the appellant. Coleridge, Q. C. (Bullen with him), for the respondent, was not called upon. ERLE, C.J.-The revising barrister was right. The assistant overseer had a valid appointment, but his salary had been raised. Perhaps he might not have been able to recover that additional salary had payment been refused and the Justices had not confirmed it, but the parish here had paid him the extra 107. The notices were valid, and the decision must be affirmed with costs. Libel-Privileged Communication. The defendant received the plaintiff into his service as gardener, upon the recommendation of A, who, as secretary to the Horticultural Society, was frequently applied to by members of that society who required gardeners. Defendant discharged the plaintiff, and subsequently wrote to the secretary a letter containing inter alia the words following:-"he ran towards me several ves with an open knife, with eyes starting from their vrkets—a perfect raving madman :’ Held, that whether the occasion created a privilege or , the terms "raving madman" &c. went beyond what any privilege would have justified. It appeared that the plaintiff was a gardener, and that the defendant was an old member of the Horticultural Society, of which society one Ayles was secretary. The members of this society were in the constant habit of writing to Ayles to ask him to recommend them gardeners. The defendant did so, and the plaintiff was accordingly recommended to him. He entered into his service; but, after some time, quarrels arose between them, and the plaintiff was dismissed. Before his dismissal there appeared to have been some verbal communications between the defendant and Ayles; and afterwards the defendant wrote to Ayles a letter, which contained the alleged libel. The words complained of were to this effect-"I have just had another scene with that fellow Fryer. He ran towards me several times with an open knife, with eyes starting from their sockets-a perfect raving madman. I had to draw back to escape him; and he charged me with detaining his letters. Shee, Serjt., and Kingdon, supported the rule. It was contended for the plaintiff that there was no duty whatever on the defendant to make the communication to Ayles, as he was not interested in the matter. On the other side it was argued that, as Ayles was, from his office, in the habit of recommending gardeners to members of the society, it was of importance that he should know the characters of those whom he recommended. The following cases were cited in the course of the argument : Saunders v. Bate, 1 H. & N. 402; Coxhead v. Richards, 2 C. B. 569; Rogers v. Clifton, 3 B. & P. 587, and Lowry v. Pattison v. Jones, 8 B. & C. 578; 23 Nov. 1863. Cur. adv. vult. THE COURT (Erle, C.J., Williams, Byles, and Keating, JJ.) now said, that whatever their opinion might have been about the occasion creating a privilege, if 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 could not take any advantage of that, because the letter went beyond what the occasion would have justified, inasmuch as it spoke of his being a "raving madman," and used other expressions which were in their opinion excessive beyond what any privilege would have justified, even if it had existed. The rule for a nonsuit must therefore be discharged, and the verdict would stand. C. P. 6, 21, 23 Nov. 1863. WHITELEY. ADAMS. Libel-Privileged Communication. and a quantity of hay from Fowler, for all of which he did not pay. It was also alleged, that, while at Fowler's he was in the habit of drinking much strong ale and spirits, and that, on such occasions, he became noisy, and took liberties with the maid-servant, and also with Mrs. Fowler in a gig, which induced the Fowlers to get rid of him out of the house; and as he did not pay for his board, and lodging, and other articles, Rule discharged. Fowler brought an action against him to recover 1007., and being much scandalised at his proceedings, communicated all these facts to his clergyman, the defendant, at whose house the plaintiff had visited. In answer to this action the plaintiff alleged, as to the board and lodging, he was a visitor only; and, as to the fowls and butter, that they were presents, for which his wife had made presents in return; and, as to the horse and the hay, he denied that he was indebted. The action going on, the plaintiff seemed to have communicated with the curate of St. Barnabas (Mr. Cleaver), as a member of his congregation, and Mr. Cleaver thereupon wrote to the defendant, urging him to use his influence to put an end to so great a scandal on the congregation of St. Barnabas, as this trial promised to be, by inducing his parishioner, Mr. Fowler, to consent to refer his action to his (Mr. Adams's) arbitration. Mr. Adams wrote, in answer, declining to interfere, and intimating, that if Mr. Cleaver, or any clergyman of St. Barnabas, would pay him a visit, he would receive them at his parsonage, and give them his reasons for so declining. Mr. Cleaver again wrote an urgent letter, conjuring the defendant, as a Christian minister, in favour of peace, to accept the office of arbitrator. Mr. Adams then wrote in reply the following letter: Defendant was a country clergyman. Plaintiff was a member of St. B congregation in London. II, another member, was staying in defendant's parish. Plaintiff came there on a visit, and was introduced by II to defend ant, and to F. Plaintiff became intimate with F, but afterwards quarrelled with him about money matters. F made statements to defendant about plaintiff's character, which defendant believed. Fbrought an action against plaintiff for goods sold, &c. C, a curate of St. B, wrote to ask defendant to act as arbitrator. Defendant wrote a letter to C refusing to act, and giving as his reason the reports he had heard of plaintiff. Plaintif brought an action for libel. Defendant came up to London and spoke about this action to H, who told him plaintiff was not guilty of the charges made. II wrote to defendant, who replied, making further charges against the plaintiff. A second action was brought; the two actions were consolidated. The jury found that the charges were not true, but that the defendant had made them bonâ fide. Held, that under all these circumstances both letters were privileged communications. This action which was tried at Guildhall, before Erle, C.J., was brought by the plaintiff, an assistantclerk of Wood, V.-C., and a member of the congregation of St. Barnabas, against the defendant, for a libel, contained in two letters, reflecting on the moral character of the plaintiff, the defendant being the clergyman of the village of Stockcross, near Oxford. The facts of the case were, that the plaintiff, being acquainted with a Mrs. Hurry and her daughters, members of the congregation of St. Barnabas, who had gone down to lodge at Stockcross, went on a visit there, and while there was introduced by Mrs. Hurry to Mr. Adams, the clergyman, the present defendant, and also made the acquaintance of a farmer there, named Fowler, with whom he went to lodge. It was alleged that he represented himself to Fowler to be "something more than a barrister, as barristers came before him," and also, that he had an estate in Kent; this, however, was denied by the plaintiff, and it was alleged, that, by these means, he induced the Fowlers to pay him much attention, to send him presents of fowls and butter, and eventually he obtained a horse "Stockcross Parsonage, March 17. "DEAR SIR,-I cannot, I am sorry to say, accede to your request for the following reasons: "1. Because Mr. Fowler's lawyer, Mr. Smale, whom I know to be an honourable man, will, I am sure, be quite ready to compromise the matter, instead of carrying it into Court, if Mr. Whiteley will make fair overtures to him. "2. Because Mr. Whiteley's conduct has been so bad that I should be sorry to have my name in any way associated with him or his affairs. To give you an outline of all the charges which I hear laid against him would occupy more time than I have to spare this morning, but I will mention two or three which I have reason to believe well founded. Though only a lawyer's clerk, he passed himself off for some time in this parish as a lawyer of considerable wealth, and talked largely about his landed property in Kent. This enabled him to impose upon the rustic simplicity of the Fowlers in a way which he would not otherwise have done. Under the impression that he was a gentleman of considerable means, they allowed him from time to time to make himself an unbidden guest at their house, and to send his son to stay with them for the benefit of his health for a month or two. They also sent at his request poultry, &c., and were given to understand by him that full compensation would be made to them for all the trouble and expense to which he had put them. But, with the exception of a shawl sent by Mrs. Whiteley to Mrs. Fowler, they have received no payment whatever. Last of all he bought a horse of Mr. Fowler which is not yet paid for, and his attempts to evade payment have been characterised by extreme meanness, if not downright dishonesty. There are unpleasant rumours about his being immoral and intemperate, but how far they are true I am unable to say. "It grieves me very much to make these statements respecting a man who evidently wishes to be considered a religious man and a good Churchman; but inasmuch as he said a great deal to my parishioners about his intimacy with the clergy of St. Barnabas, I think it my duty to unmask him to you, and I should be very thankful to be enabled to tell some of my neighbours that his position at St. Barnabas is not quite what he led them to suppose it to be, and especially that his official connection with the English Church Union had ceased." This letter was shown to the plaintiff, and an action for libel was immediately commenced. The defendant came apto London, called on Mrs. Hurry, and spoke to her on the subject; she said she was sure he was mistaken in forming a bad opinion of the plaintiff, that she would speak to the plaintiff on the subject, and she was sure he would tell her the truth. After this she wrote to the defendant, and he immediately wrote to her the following letter : "Stockcross Parsonage, May 6. "MY DEAR MRS. HURRY,-Time will show whether I have been misinformed or not respecting Mr. Whiteley. A writ has been served upon me, and a public investigation must therefore take place. If he states on oath in the witness-box what he has stated to you, especially as to the charge of assault, he will most certainly be prosecuted for perjury, for there is not the shadow of a doubt but that the complaint of the servant girl is correct. She is a person of unblemished reputation and a communicant, and no one can listen to her statement, as I have done, without believing every word of it. As to the story about the farmer's wife and the beer-drinking at 10 o'clock on the Sunday morning, I do not attach much importance to it. They are charges of a very minor consideration, but the alleged assault is a very weighty accusation. I am sorry that I shall not be able to call on you again for some time. Until the trial comes on I shall hardly be able to leave home, but if you have any inclination to ask for further information and details my attorney, Mr. Smale, 18, New Bridge-street, Blackfriars, will be happy to see you. With our kind regards to Miss Hurry, sister Pauline, and yourself, &c." This letter was the second libel complained of. A second action was immediately brought, but the two actions were consolidated, and each libel formed a separate count in the declaration. Mrs. Hurry stated, in giving her evidence, that the plaintiff did not ask her to write the letter to the defendant, in answer to which the second libel was written, but that he was aware of its being written, and called on her for the answer, which was immediately given to him. At the trial a great deal of very contradictory evidence was adduced, and at last the learned Judge left it to the jury to say; 1st, were the imputations conveyed in the defendant's two letters substantially true; 2nd, if not, did he write them believing them to be true, and without corrupt motives? The jury found the first question in favour of the plaintiff, with 40s. damages on each libel, and the second for the defendant. The Judge then said he would reserve the question of privileged communication. They contended that, in order to constitute a privileged communication, there must be a duty cast on a man to make it, and that no one had a right to volunteer a statement. The circumstances here did not The defendant was asked to act as arbitrator, and all show any sufficient reason for writing the first libel. he had to do was to answer in the affirmative or the negative, and he was not called upon to express his opinion as to the plaintiff's character. The second libel was, if possible, still more unjustifiable. There had clearly been a verbal slander preceding it, and from that arose the occasion for writing the libel. Coleridge, Q.C., and Henry James, in support of the rule. the utmost importance that the character of a person Both the communications are privileged. It is of should be known to those who trust him. the first instance been asked to act as an arbitrator With regard to the first libel, the defendant had in and refused, he had then been urged in his character of a Christian and a clergyman by a brother clergytion he had a right to make known his reasons for man to act as a peace-maker, and in his own justificarefusing. The second libel was written evidently at the instance of the plaintiff, who had procured Mrs. Hurry to write for the purpose of eliciting an answer. Had the letter been written to the plaintiff it would not have been Cook v. Wildes, 5 El. & Bl. 328; Tuson v. Evans, 12 Ad. & E. 733; Pater v. Baker, 3 Id. 831; Wenman v. Ash, 13 Id. 836; Toogood v. Spyring, 1 C. M. & R. 181; Starkie on Libel, "Preliminary Discourse," 48, ERLE, C.J.-I am of opinion that this rule ought to be made absolute. The action was brought in the first count of the declaration on a letter to Mr. Cleaver, and on the second count on a letter to Mrs. Hurry. Each of these letters contain matter defamatory of the plaintiff, and each contain matter sufficient to main tain the action if they do not come within the rule of privileged communications. I take the law to be that defamation is presumptive evidence of malice, but that the malice may be rebutted by showing the circumstances under which the words were written. This rule has very lately been laid down in the Court of Exchequer, and also in the Court of Queen's Bench, that if the circumstances brought the Judge to the opinion that the communication was made in the discharge of a social and moral duty, or on the ground of an interest in the person making it, or of a corresponding social duty or interest in the person receiving it, and if the words were spoken in the honest belief that such person was performing such duty, the Judge was to say that the action failed. On the present occasion the jury had found, and it was established, that the words were written bona fide by the defendant in the honest belief that they were true, and that it was his duty to write these letters. Then, did the circumstances show that they were written in the discharge of a social and moral duty, or on the ground of interest? I am bound to answer both these questions in the affirmative in respect of both of the letters. They were confidential communications in the sense that they 1 not have passed from the parties to whom they were written, and never did pass, except to the plaintiff, who had brought this action on them. The plaintiff was in great estimation at St. Barnabas. Mr. Cleaver was curate there. Mrs. Hurry and her daughters took great interest in the parish. The plaintiff was introduced in the country by Mrs. Hurry. Owing to the introduction to Fowler, all this trouble had taken place. An action was brought for the horse, hay, board and lodging. It does not signify here that the award in that case was, I believe, in favour of Whiteley. It was during this litigation that the letter was written. Cleaver had written to the defendant, begging him to act as mediator. Не refused; and said, if you or any other of the clergy of St. Barnabas will come to me, I will tell you my reasons. Mr. Cleaver then wrote to him again, adjuring him most solemnly to mediate between the parties. Under these circumstances, it seems to ine that it was a social and moral duty in Mr. Adams, when urged by Mr. Cleaver to be an arbitrator between the plaintiff and Mr. Fowler, to give to Mr. Cleaver, as his reason for refusing, what he believed to be true and correct information. He, in effect, wrote, "You are exhorting me, almost blaming me, for not interfering in this matter. I tell you, you are under a mistaken impression as to the confidence you ought to place in Mr. Whiteley; and I tell you, as clergyman of St. Barnabas, that I think it my duty to unmask him." I think that the defendant was then discharging a social and a moral duty. With respect to the other letter, it was written after the action had begun, and after the defendant had had a conversation with Mrs. Hurry about the plaintiff, who had been introduced to him to her. Mrs. Hurry saw Whiteley, and then wrote to the defendant that Whiteley totally denied the impu tations cast upon him, and assuring the defendant that he was entirely mistaken as to Whiteley, and hoping that the action would be settled. As the litigation then stood, what position would the defendant have been in if he had sent no answer? Had he not a right and an interest to say in reply, "I do assure you solemnly that the imputations that I have made against Mr. Whiteley are well founded, and if Mr. Whiteley denies that charge about the maid servant, he will assuredly be prosecuted for perjury?" If the defendant believed that to be true, I think he discharged a social and moral duty in saying to Mrs. Hurry, "your confidence is misplaced." I think, also, that Mr. Adams had an interest in so writing, inasmuch as he was bound to state what he did. I agree fully with the general view of the doctrine cited from Starkie, that it was of uncommon importance that there should be a means of arriving at the true estimation of parties whom you are obliged to place in a position of confidence, and if every word that was said were to be made the ground of an action, cautious people would take care that their words were words only of praise, for, for such words no action would lie. The rules as to the privilege of criticising public men have in modern times been very largely extended, and so also has the rule as to privileged communications; and, in my opinion, with very good reason. WILLIAMS, J.-I am of the same opinion. The jury found that the defendant acted bond fide-this shows that he believed all he said to be true-he felt that Cleaver and Mrs. Hurry believed the plaintiff to be a good man. I agree then with my Lord, it was his social duty to undeceive them, not to expose the plaintiff in public, but by means of a confidential letter to persons who ought to know his real character. BYLES, J.-I am of the same opinion. The rule of law has been clear ever since the case of Toogood v. Spyring. signed the submission to the award, and after his signature added the words, "for self and Hancox." The defendant had signed the submission himself. being taken to the Rule Office to be made a rule of The award was in favour of the plaintiff's, and on its Court, the Clerk of the Rules objected, on the ground that it had not been signed by both parties. It was now argued that this was unnecessary, the plaintiff agent. Even assuming that he had not been authoAltington having as it was contended signed as an rised, Hancox could ratify the signature at any time, and of course would ratify it, as the award was in his favour. ERLE, C.J.-It will be better to have an affidavit either from Altington that he had the authority of Hancox, or from Hancox that he gave this authority. Then the rule may be made absolute. The rest of the COURT (Williams, Byles, and Keating, The first part of the first libel is excusable, because it had reference to his own affairs. There is a passage towards the close of the letter which Mr. Joyce referred to, in which there might be some difficulty. | JJ.) concurred. "He said a great deal to my parishioners about his intimacy with the clergy of St. Barnabas, &c.," but he begins this by saying, "I think it my duty," and the jury have found that he did think it his duty. It was one conscientious clergyman writing to another about a man whom he thought placed in a wrong position. With regard to the second letter, I should be inclined to rest it on the ground of interest. The plaintiff was decidedly interested in knowing that he ran a risk of being indicted for perjury. It was sent to reach the hands of the plaintiff, and if it had been sent to him direct, of course it would not have been actionable. KEATING, J.-I am of the same opinion. The law as to privileged communications has been clearly laid down in Toogood v. Spyring and Harrison v. Bush. The only difficulty is the application of well-known rules to the circumstances of each case. C. P. 23 Nov. 1863. } Rule absolute. ALTINGTON and HANCOX v. Submission to Arbitration-Practice. Held, that before the award (which was in favour of A & B) could be made a rule of Court, there must be an afidavit, either by A that he had B's authority for signing for him, or by B that he gave such authority. Needham moved for a rule calling on the defendant to show cause why an award should not be made a rule of Court, under the 17th section of the Common Law Procedure Act, 17 & 18 Vict. c. 128, 1854, under the following circumstances :-The plaintiff Altington had VOL. III. C. P. 24 Nov. 1863. Rule absolute on obtaining the affidavit. } CROWTHER, Appellant, v. REGISTRATION APPEAL. Notice of Objection—6 Vict. c. 18, Sch. B. No. 11. The addition to the signature of the objector in 6 Vict. c. 18, Sch. B., No. 11, must specify on what list of voters (if there are more lists than one) his name appears. barrister for the borough of Kidderminster. The This was an appeal from a decision of the revising respondent had signed the notice of objection as follows: George Bradney, of Wharf Hill, on the list of persons entitled to vote for the borough of Kidderminster, in respect of property within the parish of Kidderminster." The ancient parish of Kidderminster consisted of the borough of Kidderminster, the forraine of Kidderminster, and the hamlet of Lower Mitten, which last was within the borough of Bewdley. There were two lists of voters for Kidderminster, one for the borough, the other for the forraine of Kidderminster. It was objected that the notice was invalid, because it was not stated by the objector on which of the two lists his name appeared. And the barrister disallowed the objection, holding the notice sufficient. Karslake, Q. C., for the appellant. The appellant was not bound to search both lists. Property in the parish does not necessarily give a vote for the borough, as some of the parish is out of the borough. [WILLIAMS, J. referred to Samuel v. Hutchinson, 13 C.B., (N. s.) 1.] In that case there was actually only one list which was divided into two parts, but here the lists are altogether different and separate. The two parishes, which G |