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Ill Juagment of Judge Loranger in the Superior Court, Montreal, November 20th, 188S, A 1^0, Judgment in Court of Appeal, Montreal, May 26th, 1887. Present: Chief Justice Dorion, Justices Tessier, Cross, Baby and Church. HDD'S ^ Purchased CANAOIANA from the ^i i ^^--i^^-i Chancellor COLLeCTlON Richardson queGN'S Memorial \ . _,__i___ fund UNiveRSixy AT KiNQSTON (^ ONTARIO CANAOA The EDITH and LORNE PIERCE COLLECTION o/CANADIANA ^eens University at Kingston ^" f'^t l\ THE MP:KCANTiLE AGENCY CASE. Carsley versus Bradstreet. r. In the Sui)erior Court, F'riday, JSovember 30th, judgment was given in the celebrated case of Samuel Carsley et al. vs. The Brad- etreet Company. Present, Mr. Justice Loran- Rei"; The court, in giving judgment for the plaintifts made tlie following observations :— The plaintiffs, wholcsule dry goods mer- chants, claim damages to the amount of $50,000 from the defendants, a mercantile agency, for having, on the Ifith June, 1884, caused their firm name, Carsley k Co., to he inserted in a certain circular printed and published by said defendants at Montreal, styled "Sheet of Changes and Corrections," with the words " Call at office," after their said firm name, and lor having published and circulated the said sheet among their subs- cribers and among the customers of the said plaintirts and others throughout Canada, the United States and Europe, the said words " call at office " meaning and intending to convey, a-! in fact they did convey, say the plaintiffc, to the persons receiving the circu- lar, that the defendants possessed information regarding the plaintiffs, which injuriously affected their standing, credit and position. The plaintiffs allege, further, that divers in- fluential persons of Montreal and elsewhere were induced by the said circular to call at the office of the defendants for information, and were informed that plaintiffs had asked for an extension of time for the payment of a large sum of money, to wit, about $300,000, which defendants alleged was due by said plaintiffs to their creditors in England ; the whole of which statements were false and un- irue. The defendant admits having printed, published and sent the said circular to its subscribers, with the addition of the words " call at office " to the name of the plaintiffs, but denied having done so maliciously and with the view of injuring the plaintiffs ; and the plea specially alleges : Montreal, November, 1885. That the coinpiiny, defendant, has contracts in writing, founded upon valuable consideration, with ita subscribers, which contracts required the defen- dant to seek for, and furnish it« Hubscribers any rojjort of change in the fiuanoial standing or other- wi.xe ol merchants, that might come to the know- ledge of defendant." "That in furtherance of said agreement, and on and prior to the 16th day of .Tune hist past, defen- dant ha(' been in )he habit of issuing to said sub- scribers only, for their solo use and benefit, and in strict oonhdence, circulars or sheets similar in all material respects to the one particularly incrtioned and referred to in said complaint." " That on the 16th day of June last past, in further pursuance of said agreement aforesaid, de- fendant having received certain mforraation con- cerning said plaintiffs, of interest to their customers, defendant caused to be printed and delivered to its -subscribers only, the aforesaid circular or sheet, "?"^.'"'".« ""^t" on that day, wherein, . jferring to the iWaintiffs. wiuf the fol'nwing : Montreal, ,S. Ursley & Co., W. dry goods ; call at office. ; " but the defendant e.vpressly denied that by said circular it meant m any way to state to its subscribers, or to have Its subscribers know and understand that the plaintifr6 in some way or manner had become finan- cially embarrassed in their business, and that their credit and good name as merchants had become iinijaired : or to indicate anything detrimental to their position or standing ; or to warn its subsorib- crs not to deal with plaintiffs without calling at the ofhco of the defendant. . " That all that was meant to be conveyed by said circular, and which it did convey, and which its customers understood it to convey, was that it had certain confideniial information of the said plain- tiffs which It confidentially and by word of mouth would convey to any of its subscribers directly in- terested in plaintiifs and their affairs, providinc said subscribers would oallatthe office of defendant at the city of Montreal and make personal enouirv therefor." The whole case of the defendant, as can be seen, rest upon their claim of a privileged communication between it and its clients or subscribers, such communication having been made without malice and under a special contract with their subscribers. The defendant contends that, true or not, such communication is not actionable, if made without malice and in the course of their ordinary business. The case is of some im- portance for the commercial commmunity ^ m m and haK been argued witli care and ability. CouDHol on both HidcH left no boolt unopened among those where this question of privi- leged oommunicHtiou is to i)e found, and the court has b'en greatly asnisted by tlicir able argument. It has been said by tiie plaintiff's counsel that the French law must apply, and so do I rule. But there is no difference, as will be shown hereafter, as to the prin- ciples in the matter between the English and French law ; and bofore coming to the facts of the case, it is well to state what the law is as to the so-called privileged commu- nications. Privilege occasions are of two liinds, says Odgers, those absolutely privi- leged and those in which tlie privilege is but justified. In the first-class, the immun- ity is confined to cases where it is to the public interest that the defendant should speak out his mind fully and freely, but there are not many such cases, nor is it desirable that there should be many. The courts refuse to extend their number. In short, says the same author, neither party, witness, counsel, jury nor judge can be put to answer civilly or criminally for words spolien in office. As to cases of qualified privilege, they come under tliree lieads: 1. When circumstances cast upon the de- fendant the duty of malting a communication to certain other persons to whom he makes such communication in tlie bona fide per- formance of such duty. 2. Where the de- fendant has an interest in the subject matter of the communication and the person to whom he communicates it has a correspond- ing interest. 3. Fair and impartial reports of the proceedings of any court of justice or of Parliament. This case would come under the first and second class. Under the first head, according to Odgers, and the prin- ciples laid down by him are acknowledged under the French law, the privilege extends to communications which cast upon the defendant a duty which he owes to society, or to his family, or to .imself; such communications are: Characters of servants, confidential communications of a private nature, information given to any public officer imputing crime or misconduct to others, statements made to protect the de- fendants' private interests, statements pro- voked or invited by previous words or acts of the plaintiff. In all these cases (No. 198) it is a question of bona fides, in determining which, the judge will look at the circum- stances as they presented themselves to the mind of the defendant at the time of publi- cation ; supposing, of course, that he is gidlty of no laches, and does not wilfully shut his eyes to any source of information. If, in- deed, there were means at hand for asccr- titining the truth of the matter, of which the defendant neglects to avail himself, and chooses rather to remain in ignorance when he might have obtained full information, there will be no pretence for any claim of privilege. Moreover, the communication to be held privileged must be made fairly, im- partially, without exaggeration or the intro- duction of irrelevant calumniatory matter. As to the second class of privilege — that is, where the defendant has an interest in the subject matter of the communication, and the person to whom he communicates it has a corresponding interest — such common in- terest must be one arising from the joint exercise of any legal right or privilege, or from the joint performance of any duty im- posed or recognized by the law. To be within the privilege (No. 234), the statement must be such as the occasion warrants, and must be made bona fide to protect the private interest both t'f the speaker nnd of the per- son addressed. But (No. 237) where a large number of persons have an interest more or less remote in the matter, defendant will not be privileged in informing them all by cir- cular or otherwise unless there was no other way of effecting; his object. * * • • A communication can scarcely be called confi- dential which is addressed to some two or three hundred people at once (230). And, a fortiori, if the words be spoken in the pre- sence of strangers wholly uninterested in the matter, the communication loses all privi- leges. The defendant has cited Odgers, Nos. 210-211. But the citation does not lean upon the present case, as, in the case cited, it is spoken of communications made in dis- charge of a duty arising from a confidential relationship existing between the parties, that is, where the parties are principal and agent, solicitor and client, guardian and ward, partners, or even intimate friends, which is not the case in this instance. The case of flenwood and Harrison, quoted from the 7th vol. Law Rep. Com. Pleas, has no more bearing upon this case. The plalntitt', a naval architect, had submitted to the Ad- miralty proposals for the construction of certain ships; his proposals were rejected, and in the minute prepared by the controller of the navy, the plans of the plaintiff were criticized and noted as having no weight whatever from the known antecedents of 8 their author. At the trial of the action for this libel, the judge, aHsuming the minute to ho prima Jack iibellouH, and it being con- ceded that the publication was without mal- ice, non-Buitcd the plaintiff on the ground that it was a fair criticism upon a matter ol public and national importance, and there- fore privileged. It was held that every man had the right to discuss freely, so long as ho does it honestly and without malice, any subject in which the public are interested generally ; to state his own views and to advance those of others for the consideration of all or any of those who have a common interest in the subject. In the case of Taylor vs. Church, K N. Y., 452, it has been decided that one who undertaltes for an association of merchants to ascertain the pecuniary standing of merchants and traders who are customers of some members of the asso- ciation, and who furnishes reports to all the members of the associatic ■, irrespective of the question whether they have an interest in the question of the standing of such merchants and tra has been proved that the plaintlfls did not owt) in London the amount stated by the defendant, their total liabilities In England being $152,- 000 Instead of $300,000, as mentioned by the defendant; so that the report made by the defendant was false, not only as to the de- mand for an extension of time, but was also latter, on i.u« °' --.-i , -., .. to the office in Montreal, as aforesa d At that time no information of. a'»y/^°'^^^^°l" ! ^3ee7ateTa8"to'the amount.' But in this the plaintiffs could be found in the office m jWratea as .^^.^^ ^^ Toronto. The alleged cable never was seen l^~;«^^,;See the cor'rectness of its in- either by Brown or Priestman, who had not f o* ™/,^X subscribers. It is so stated even the thought which would have occurred | toimation w ine_ ^^ ^^^^^ ^^ ^^^^ ^^^^ to the mind of any man of common prudence viz . to call upon Toshack to exhibit this cable; upon the mere information of an outsider, of their office, who may have been actuated by malice, for what we know, he transmits the report to the city, where the plaintiffs are ke?eping their place of business. It nnist ha,ve been hurried by telegraph, as the circular formation ^ — .. ^ ... in plain terms in the contract ; so thnt they may be at liberty to circulate any amount of false rumors, and still they would claim that this is a privileged communication. A trader not a subscriber, as is the case for the plaintiffs, might have been ruined by such false rumors, and because it would have pleased the subscribers V « V to relievo t!io company in n private contract of tiie reHpousibil'.ty of itf own acts, wo aro to lio told tliat tiilH in a privi. loKod communication, and that hiicIi trader must Rubmit to a contract to whicli lie Hbh been no party and Nufter for it. TliiH iH not and never haH been the law. Tliis contract may lie binding between the jArties to it, but amounts to nothing aw rejrardH third partien, and will not under any circum- HtanccH be considered an onr conferring on the informer the right of hiding himself under the cover of a privileged commun- ication against the party whose name, reputation or credit he would liave blackl ened. It does not come within the cla.ss of any subjects known and recognized by the law and juiisprudonco as above mentioned, in which such right to privileged connuu- I ication may be admitted, 'i'he defendant argues that its industry is one of publii' utility and of necessity for commerce. It may be, though the fact is oi)en to discussion. One may question the interest which the public in general may have to know whether the firm of Uarsley & Co. has ahked or obtained an extension of time from their creditors. As to being a necessity of com- merce, I conid only say this ; that the evidence in this case shows such a lack f>f prudence in tlie way of proc'uring inform- ation, and taking into consideration the fact that defendant does not even guarantee the correctness of its information, that if mer- cantile agencies are all of the same species, they would constitute a danger for com- merce. But, admitting the utility of such companies, it does not follow that they are not, like all individual-s, submitted to the law. !So it has been decided lately by our own Court of Appeals in the case of the Grand Trunk and Meegan, reported in the number of .July, 1885, of the Montreal Law Rep -rts, Queen's Bench series, p. 228. I have ao hesitation, under the circumstances, in saying that this case does, not come within any class of subjects of privileged occasions, and that the private con- tracts between the defendant and its subscri- bers is no answer to an action for damages arising from false informations given under the cover of such contract. Now comes the question of damages. The plaintifl's claim is lor $50,000. The defendant's answer, is that no special damages were proved, and, more- over, there being no proof of malice, no dam- ages can be awarded. The akseiice of evidence of any special damages is no groiuid for re- fusal to grant damages at all. This is a niattar left altogether to the judge who will have to consider the cin 'nnstanceH of the case as to the amount to be awarded. It has been rightly held in Qirard and Lepage, l U. L. 55,^ t^|,^j. the difficulty in determining the exact extent of the injury sullered, and the absence of means to fix the amount of damages, aro not a reason for dismissing the demand, as it rests witli the judge in such case to determine the amount as a jury would do. It is a well settled rule that in actions for malicious injuries juries have always been allowed to give what aro ( ailed vindictive daamges and take all the circumstances together. It has been ruled in many instancas that the actual pecuniary damages in actions for defamation, as well as in other actions for tort, can rarely be com- puted, and are never the sole rule of a.ssess- ment. As to malice, it is no doubt a lu'ces- sary ingredient in slander, and the declara- tion usually charges the utterance to have been malicious; but, as remaiks the learned judge in the case of Meegan above cited, it need not necessarily do so, because the law itself ^rima/(/c«a implies malice in the utteror of defamatory words to the injury of another. The word malice must bi; understood in its legal signification, and is thus defined :-— Malice in common acceptation means ill-u>ill ac/ainsl a person, but in its leyal seme it meant a wrongful act done intentionally without Just cause or excuse, as has been the case in the present instance. Even admitting the want of malice on the part of the defendants, they are responsible for their own imprudence and negligence, and I must say that the evi- dence discloses gross negligence in the way of procuriiig the information which they have circulated not only to their subscribers, many of whom were not interested in tho subject, but even in communicating it to an outsider, whom they knew to be connected with the press. I have no hesit^ition in say- ing that the defendant has to answer for the wrong it has done to the plaintifts. The only question is as to the amount to be allowed. No special damages have been proved, in this sense that it was impossible tor the plaintiffs to come to any definite amount. But it has been admitted by all the witnesses that the circular was received and considered as a danger signal, it must neces- sarily have had a damaging effect upon the plaintifts. No one would have made any transaction with them until further information. One of tho banks refused further advances, and i*^ is only after ^O-Xl^DS 6 wlHoh had ».,..,;,„ 1 ^^ \y ,"' tl.o report "^"^t«.l long bioro tl. "« ,. "';V ■•"""•" <«^rnii)if the Dlninfid-i J. J, ot Jiuio con tmv.-llinj,^.ie,k 'f ,;^'''T'« '""^ «'«« A« to th« «io*'" ''";•-'•■*"'" aHtodatoH. **>« vvho,;'''teki t'TT I''?"^''^^"- O" ' "*f "'^ ^"^tH together, and i P«n«atio„for t .e I ^h „ S f^ '?"","?« " ^"n,: '••"UttntforhLmiH ...'T""""* ^ »''<"««-'- ' the ,'n„. of $2' o„ w if "" '" •/"'• '•'«'""«•« given in..r.. w'e . * otT ;, ^ ™'»f''t have ««m.- amount iiVfiZo^H ''?'"* *■"' 'he not only ex„K>ferat,. n! !^"* '*'"»*«'"t *«« I doscriptJon, lilt (iH It com. '"it will «Iho < to tin* do. sittiiiif ,iH a 'f plaintlirs m'K'it Lavo ntt that tho '«"y iH rtui,. f, the rt'Hult •^•t for the '*-'ffH, niuk. that in this iej)ort was raoiint ilue tolo, an the toiiMtiy at f^s was iu 559.80 <'()LRT OF QIEKN-,S liKNCH-|.\ AI'I'EAL Montreal, Mjiy 26, 1HH7. Pre.ent:_CI.;of.luHtice lJoRf„N mul .JuHticcn Tkss-ku, Cross, Hahv and CiiuROH. The Mer(-antii.e Agency Cask-Judgment in Mh. Carsley's FAVOUR UNANIMOUSr.Y -JON FIRMED. Thb Bradhthbrts Companv, Appellant, and Samdbl Cakslry, Respondent.— Cro.sh, J., rendering the judgment of the court, said :— The appellantu are a commercial agency carrying on business in Canada, United States and England, with brancnes in the principal cities «n the Dominion. They have a large number of Bubscrlberc to whon they under- take to furnish information concorning the responsibility and character of commercial persons enquired for,i,n. consideration of being paid a certain annual subscriptiou. The re- spondentaaro very cjctensive importers, as well as retail dealers in fancy dry goods in the city of Montreal. The respondent brought the present action against the appellants, in which they in substance allege that they are extensive importers and dealers with ample credit and reputation which they required and used in the carrying on of the bufeiness ; that about the middle of June, 1884, the appellants maliciously and without any ieasocable or probable cause, caused the name of the re- spondent to be inserted in a circular publish- ed by them at Montreal, styled sheet of changes and correcUons, and put after his name the words "call atofBce," which they published and circulated among their subscri- bers and amongst the respondent and others throughout Canada, the United States and Europe; that the words "call at office," according to the custont and practice of ap- pellantB, signifled that the persons against whose name they were iaserted were persons about whom they had something tocommuni- cate detrimental to their osltiou and standing andwere a warning tc all persons receiving said circularr that they should not deal with Huch persons without calling at appellants' office to obtain such information, and that in this case the words meant and intended to convey and did convey to ihe persons receiv- ng the clrc«lar that the appelant- possessed information regarding the respondents which iDjuriously affected their standing, position and credit; that divers Influential pe As hid in consequence called and been informed hat respondent had asked for an extension of time for the payment of a large sum. to wit aooutiyo.OOO sterling, due to creditors in h-ngland, whereby divers persons at Montreal and elsewhere were caused to believe that re- spondent was in straitened circumstances and unable to pay their debts as they fell due the whole of which statements were false H./"''^ publication injured respondent's credit, and the Information so given bv an pellants became generally kuown, being pub- lished in the newspapers in Ifontreal, Toronto and elsewhere. Respondents thereb^ suffered loss to the extent of 150.000, for which they Mked a condemnation. The defendants, by their pleas, contended that no such ln{er« arsley's name in the circular were not in themselves libellous, and if enquiry be made as to the significance of their use on the occasion in question, it might be implied that the news to be communicated might as readily be favorable as unfavorable. No one would doubt that under the circum- stances they indicated that something inter- esting to the parties addressed was known and would be communicated to them at the intelligence office. What kind of news would people so addressed under the circumstances naturally expect? The most of them had paid for the information ; they would be much less liltely to expect an accession of capital or credit to Carsley' s already established first class credit and standing "than some warning of disaster, misfortune or other cause where- by their credit would be injuriously affected. If the news were good there would be no reason for secrecy, and it would be compara- tively unimportant, as Carsley' s trade was very large, and his credit first class. He had paid his billS; and a stroke of good fortune would add little or nothing to their punctual- ity ; but their greater interest was to hear of any misfortune, ill luck, or other cause for loss of credit which might lessen their ability to pay them. It was, then, more natural for them to expect unfavorable than favorable news, and the fact of that expectation would alone and of itself affect their credit with those who had communication of the circular, hence the reason for Mr. Penfold and others consid- ering the words employed in the circular opposite the name of the respondents, a sig- nal of danger and detrimental to their credit. 2. The communication respecting respondents made by the appellants to their customers might, according to the English ruling, be considered privileged, provided all their cus- tomers, to whom it was communicated, had such dealings with respondents as gave them an interest in having information that might affect their standing. 3. If the information 10 was given in good faith in the form received, with proper precautions exerciHed as to the authenticity of its source, it might, according to the same ruling, be deemed privileged. 4. If these subscribers had, or proposed to have, dealings with the resoondonts ihey, or so many of them as were likely to be so interested, were entitled to ask and obtain correct information of the like nature. The present action charges the appellants with having committed a libel on the respondents by the publication of the circular complained of. 2. For having, thereby, intended to con- vey to divers persons, intelligence to the effect that they, the appellants, had something to communicate to the oersons to whom the circular was addressed detrimental to the commercial standing and credit of the re- pondenta. 3. For having intimated and pub- lished, to divers persons, false and slanderous information to the effect that the respondents were asking time from one of their largest creditors in England. It combines an action for libel with one tor slander. These charges are proved it is indieputable that respondents' case is made out prima facie. It is only questionable how far the appellants have pleaded and proved a sufficient justification of their conduct. The excuse urged is to the effect that words in the circular were not in themselves libellous, th^t the information furnished by the appellants was so in good faith, they believing it to be true, and was given in fulfilment of a lawful obligation contracted in favor of their subscribers. It seems to me that the natural inference from the terms of the circular and the object with which it was written was that it suggested something detrimental to the reputation of the respondent, that reasonable persons would be likely to arrive at that conclusion, especially when taking into consideration the attending facts and circumstances. It is proved that it was so understood by Mr. Pen- fold, manager of the Bank of British North America, with whom respondents did their banking business. It was also so understood by Mr. Walker, Mr. Ogilvey and others, and that for the time together with the ex- traneous fact of the rumor regarding the asking for time from a principal creditor in England, had the effect of suspending their usual advances from the said bank. The same effect was also produced on Mr. Walker Mr. Ogilvie, Mr. Richer and others. Unlike the inference to be drawn from the words of the circular, doubtful as to their libellous character, the information communi- cated to the after callers to the effect that Carsloy & Co. were in financial difficulties and were asking for time from a principal creditor, left no doubt as to their injurious nature ; they were clearly imputations which If made public and credited were calculated to seriously affect the credit and reputation of Carsley & Co. and were without doubt action- able unless privileged. There is proof of actual curtailment of credit, although very little m the v^y of serious pecuniary loss • but on the other hand it might, as Mr. Walker says, have ruined the respondents ; they were exposed to considerable danger and had to exert themselves to sustaia their repu- tation. The authorities cited from Dalloy, 1869, Part 2, p. 84,and from Laurent, vol 20, p. 480 and 481, show that in Franco and Bel- gium commercial ngencies are held respon- sible to parties who may be injured thereby for false information propagated by them, and that these appellants would be held to a mea- sure of responsibility at least equal to that held by P.oglish and Ameiican precedents. Ihese certainly do commend themselves to the practical common sense of the tribunals, and the appellants cannot com.plain if they are allowed all the oenetit of the more liberal view of their case, applying to them the ad- vantages of the English precedents. No doubt shades of difference will be perceived between the law of libel and slander govern- ing, ^ under the civil law system, derived from B ranee and the English system, where the subject has undergone much scrutiny, but the difference will be found more in the practical application of the law than in the principles themselves. With us the basis of I liability in these cases will be found to have I Its origin in the Art. 1053 of the Civil Code, providing the general rule that every person capable of discerning right from wrong is re- sponsible for the damage caused by his fault to another, whether by positive and impru- dent neglect or want of skill. Under this system whatever tends to inflict in- jury to the reputation or honor of a per- son IS considered defamatory, and if done by writing is deemed to be of greater gravity than when it consists of only words spoken; there is nothing to prevent both heiag prosecuted for in the same action, and one may be alleged as an aggravation of the other. Under the English system a sharp distinction is drawn between libel and slan- derj they are not usually, if ever, made to- gether, the subject of complaint in one and the same action, and an action of K!.«u1er is f 11 where only given for the grosser kind of words.such as impute positive crimes or charge a person with contagious disorders which teod to ex- pel him irom society ; but under our syatem the rules of law applicable to the two are ab- solutely identical, save that written defama- tion is deemed of greater gravity than words spoken, so that there can be no objection to them being as in the present case included in the same complaint, that is in the same action. While the circular complained of may be treated as written defamation, the inform- ation given verbally in answer to fhe en- quiries it elicited considered as verbal slander is yet appropriately joined in the same com- plaint. Again, as regards defence. What in France would be considered a confidential communication would not give a title to a claim for reparation unless dictated by actual malice, while in England the same idea has given rise to a multitude of fine distinc- tions elaborated by the judges under the term of privileged communications. Such commercial agencies are conceded to be a necessity of modern commerce and, if con- ducted within reasonable limits, the occupa- tion is iid to be lawful and commendable, but there is no special rule of law or ex- emption applicable to them which is not the common right of others. In general an action lies for the publication of statements which are false in fact and injurious to the character of another. Such publications are presumed to he malicious, but such pre- sumption may be removed by proof for the defence that they were fairly made in dis- charge of some public or private duty, legal or moral, or in matters where required for the protection of the defender's own interest. Under the English system if the statements are fairly warranted by any reasonable oc- casion or exigency and honestly made, such communications are held to be privileged and are protected for the common convenience and welfare of society. It should neverthe- less be borne in mind by such institutions that they conduct a business of peculiar de- licacy, on which the reputation and fortunes of those engaged in trade may depend, and it behooves them to be especially guarded in treating of the character and standing of those on whom they report and ha to the perei ns to whom they communicate their estimate of their standing. They are employed to fulfil the role of moral and financial detectives to ferret out the loss of strength in persons and firms, and give forewarning of impending disasters or diffi- culties likely to render hazardous giving to them credit. It therefore becomes highiy important to determine to what extent this doctrine of privilege can fairly be invoked by them, and whether that doctrine would give them complete immunity under the circum- stances of the present case. It may be as- sumed that privileged communications are such as would be considered defamatory if not made on occasioi which rebut the pre- sumption of malice ; that such privilege is net absolute, but qualified, and may be re- butted by proof of actual malice ; also that every defamatory publication implies malice but subject to be rebutted. In reference to the present case take Lord Campbell's defini- tion of privilege' in the case of Harnson vs. Bush, 5 Ellis and Blackburn's reports, p. 343 : A communication made bona fide upon any subject matter in which the party com- municating has an interest, or in reference to which he has a duty, is privileged it made to a person having a corresponding interest or duty, although it contained criminatory mat- ter which without this privilege would be slanderous and actionable. It mc>,y be said that in this case the interest and duty existed in the party communicating the information, and the interests existed in some although not in all of those to whom it was communi- cated. As regards the bona fides of the com- munication, this depended upon the question how far the appellants were warranted in giv- ing currency to the rumor; whether they ex- ercised reasonable precaution in ascertaining what foundation existed for it and whether they confined themselves strictly to the terms of the information as received by them or added anything to its credibility by its adoption and propagation by them. The proof shows that only a small number of the GOO to whom the circular was sent and only a few of those to whom the after-communica- tions were made had any interest in the credit or standing of Carsley & Co. Both as regards this point and the question of bona j'ides, Judge Allison, of Philadelphia, in the case of the Commonwealth vs. Stacey re- marks : There is no great hardship imposed on an agency of this kind if they are re- quired to know beforehand that their state- ments are true, and that the persons to whom they are sent have an interest in re- ceiving the information, and this could be accomplished by requiring every subscriber to furnish the agency from time to time the names of the persons with whom they had established business relations or who may 12 have applied to th-jm for credit. I think the appellants gave additional credit to the rumor in queHtiou by its adop- tiou and propagatiaf? it without giving its origin, and were guilty of im- prudence in accepting it without Huttii lent precaution. They got it from one of their reporters, wlio Havs he got it from a Mr. Toshack, from whom he had previously got information wliich proved to be correct. It 18 only the reporter who, in this limited sense, 'suggests the posi^ibility of the source of the information being credible. The ap- pellants themselves do not, and fail to resort to Mr. Toshack' s evidence, who alone could have spoken as to the rumor or its crtdibility. They do not themselves communicate the origin of the report, but take the responsi- bility of giving it currency by the declara- tion, '-it is said," tiiereb'y assuming that they had credible information, which they did uot possess. They, therefore, bad small and, to my mind, insutl":ient grounds for propa- gating a rumor ..jich might have caused ruin to appellants' extensive and apparently prosperous business. In a case of Eber vs. Dun, which much resembles the present, tried in the Circuit court of the United States before Caldwell, D J., in charging the jury the judge said: "This sheet was dis- tributed to persons having no interest in being informed of the condition of plaintilT's firm. This fact robs it of the protection of a privileged communication, and it contains a libel on the plaintifls, the defendant cannot escape responsibility for such a libel on the plea that it was a privileged communication to their subscribers. Although there are features in the case favorable to the defence, and the appellants are to some extent protected by the privileged nature of their communications, I think a liability for libel and slander is established against them. First, from having Issued the circular above alluded to, placing .espond- ent's name therein in connection with an equivocal announcement whereby respond- ents suffered damage to their credit with their bankers, who were subscribers to appellant s company and were one of the recipients of the circular. 2. In having admitted to Mr. Wallace and others, non subscribers, that the circular had been Jfisned by them, the appellants. H. From the injury resulting from the terms and publication of the circular, as alleged in respondent's declaration, being proveable and procured by sufficient evidence. 4. From damage resulting frwm the pub- lication of the circular and the false rumor as to respondent's credit and standing being proved. 5. From the improvidence of the ap- pellants in propagating a false rumor injurious to the credit and standing of respondents without the exercise of reasonable precaution to satisfy themselves as to its truth or false- hood before adopting and propagating it as useful information. 6. From having com- municated the ruinous and damaging informa- tion to persons having no interest in tne standing of the business firm of Carsley k Co. 7. From having published damaging state- ments in excess of the information they them- selves pretend to have received as to the credit and standing of the respondents. There is much resemblance between the case of the Capital Counties bank vs. Henty, but in my opinion it dilfers in the particulars involving, liability as above stated. The inference that the circular suggested something detrimental to the reputation of the respondents was one that reasonable persons would be likely to draw, and the attending facts and circum- stances showed that it was understood in the sense of an injurious imputation against the reputation of the respondent; it was actually interpreted in this sense ; this together with the extraneous facts connected with it, including the inform- ation afterwards given, go to show that the effect was to cause damage to the respondent, audit is actually proved that it did so cause him damage. There is but little proof in the way of any serious pecuniary loss by the re- spondent. I do not myself think that it was great but on the other hand it might have ruined him, as Mr. Walker says. He was exposed to considerable danger, and had to exert himself to sustain his reputation. There is evidence of damage ; the judge of the Superior court was competent to estimate i the amount, and I do not think we should ' criticise his measure of the damages. 1 am, ! therefore, of opinion that the judgment of j the Superior court should be confirmed. ry ' *!, ^Hl ^ /