Common Pleas.-Lane v. Dixon.

til the removal, he was lawfully in pos- trespass: the defendant was called upon session. He is only liable, if at all, in to plead to the substantive trespass only, trover. (2 Wms. Saund. 477, cc.) Be- and not to the matter in aggravation; sides, the removal of the brass-plate was and he did plead to it by denying the only matter of aggravation, not a sub. plaintiff's possession of the plate. There stantive trespass. Bennet v. Alcock, (6 T. was no point made at the trial, that the R. 166.) Kavannah v. Gudge, (7 M. & Gr. plate was so fixed as to alter the posses317.) sion. Throughout the trial, the plate was treated as a chattel. If it was intended to contend that the plate was a part of the freehold, then it should have been shown at the trial. The defendant did not do so there, and he cannot, therefore, be allowed to do so here. Both the plaintiff and the defendant, at the trial, treated the door-plate as a distinct chattel, and so it must be treated now. The case of Welsh v. Nash, (8 East, 394,) is analagous to the present case. For this reason, I think that this rule must be discharged.

WILDE, C. J.—This rule was moved on two grounds. With respect to the breaking and entering into the apartments of the plaintiff, it has been objected that there was no evidence offered at the trial, sufficient to support the plaintiff's case. The evidence was, the taking by the plaintiff of certain lodgings for a term yet unexpired; and of the defendant who succeeded the person who let the lodgings in the occupation of the house, refusing to allow the plaintiff to enter his apartments when he desired to MAULE, J.-I am of the same opinion. do so. It is said that such evidence was With respect to the first point, it is clear insufficient to support the trespass, with- on the evidence, that the defendant exout showing an expulsion. But I must cluded the plaintiff from the rooms; and think that such evidence was proper to the intention of the defendant doubtless submit to the jury. The period of time was to deprive him of the possession of during which he was expelled, the na- the rooms, and to enter therein himself. ture of the property, and other circum- There was sufficient evidence of that stances, must all be taken into account. fact to go to the jury, and the jury found When the plaintiff sought to occupy his accordingly. As to the door-plate, the rooms, according to his undoubted legal question, whether it was other than a right, the defendant refused to allow chattel, was not made at the trial. It him to enter. The house is a lodging was most probably loosely hung upon house; what is the reasonable intend- the door, or placed thereon in such a ment of the use the defendant would way as to be easily removed. The case, make of the plaintiff being kept out of therefore, as to this point, amounts to possession. I think a jury might fairly this: the plaintiff was possessed of a infer that the object of the defendant was to, and that he did, enter, and became a trespasser. As to this point, therefore, the ground of motion fails. With respect to the second point, the removal of the door-plate. The door-plate was in itself a chattel, and the right of possession followed the chattel, unless circumstances prevent that being the case. It was part of the contract of hiring, that the plaintiff should have his nameplate upon the door. What was there adduced in the evidence at the trial to affect the plaintiff's right of possession? All that appeared was, that the plate was upon the door, and that the defendant removed it. This was treated by the plaintiff, and was tried as a substantive

chattel which he hung upon the door of the defendant, on which, by reason of his agreement, he had a right to hang it. The plate was not thereby out of his possession. Whether this is a case of mere aggravation is not open. At the trial it was treated as a substantive trespass, and must be so treated here; and it may be observed, also, that the trespass complained of with reference to the door-plate takes place in a different spot from that complained of in the rooms.

CRESSWELL, J.-I think there was sufficient evidence to go to the jury in this case. It is one essentially different from that of Hartley v. Moxham. In the pleadings and at the trial, the case was treated

Common Pleas.-Coxhead v. Richards.

as a substantive trespass-it is too late to contend differently here. I do not think there was a bailment; the plate was not delivered to the landlord, but a permission was given to affix it in a particular place. If, at the trial, it had been said that this was a matter of mere aggravation, then the plaintiff would have been entitled to damages for that aggravation. The objection in this respect is one of a mere matter of form; but, as I have observed already, it cannot be taken now.

VAUGHAN WILLIAMS, J.-As to the second point, the question not having been raised at the trial, it is unnecessary to give an opinion upon it. It might have been a question of great difficulty, the ascertaining of what was a sufficient annexation to the freehold to bring the case within the rule, " Quidquid plantatur solo solo cedit." We are bound now to treat the door-plate as it was treated at the trial, viz., as a chattel.

Rule discharged.

COXHEAD V. RICHARDS.

LIBEL CONFIDENTIAL COMMUNICATION.

ciently appear in the opinion of Chief Justice Tindal.

Sir T. Wilde, Sergt., for plaintiff.

Talfourd, Sergt., for defendant.

TINDAL, C. J.-This was an action upon the case for the publication of a false and malicious libel, in the form of a letter, written by one John Coss, the first mate of a ship called The England, to the defendant; the letter stating that the plaintiff, who was the captain of the ship, and then in command of her, had been in a state of constant drunkenness during part of the voyage, whereby the ship and crew had been exposed to continual danger; and the publication of the libel by the defendant was stated to be the communication by him of this letter to the owner of the ship, by reason whereof, which was the special damage alleged in the declaration, the plaintiff was dismissed from the ship, and lost his employment. To this declaration, the defendant pleaded, firstly, that he was not guilty; secondly, that the charges made by the mate against the plaintiff in his letter were true; and, lastly, that the shipowner did not dismiss the captain by reason and in consequence of the communication of the letter to him. The jury found a verdict for the plaintiff upon the upon the two latter issues, but first issue they found for the defendant. I directed the jury at the trial, that the occasion and circumstances under which the communication of this letter took place, were such as, in my opinion, to furnish a legal excuse for making the communication; and that the inference of malice, which the law prima facie draws from the bare act of publishing any statement false in fact, containing matter to the reproach and prejudice of another, was thereby rebutted; and that the plaintiff, to entitle himself to a ver

A letter written by the mate of a ship from a seaport in Wales, whence the ship was to sail on her voyage out a fortnight afterwards, falsely charging that the captain had been guilty of misconduct in navigating his vessel, in consequence of continued intoxication, and asking advice as to whether he (the mate) should remain with the ship, and go the voyage out or not, was written to A., (who had no personal interest in the ship, but who believed the statement in the letter to be true, and who acted bona fide and honestly in the matter,) and was pat by A. into the hands of the owner of the ship, who, in consequence of the contents of the letter, discharged the captain. In an action for defamation brought by the captain against A.Per Tindal, C. J., and Erle, J., that such publica-dict, must show malice in fact: concludtion by A. was a privileged communication. Per Coltman and Cresswell, JJ., that it was not.

Held,

ing by telling them, that they should find the verdict for the defendant, if they thought the communication was strictly THIS very important case was twice honest on his part, and made solely in argued before the full court, and on the execution of what he believed to be a latter occasion at the particular request duty; but for the plaintiff, if they thought of the judges. The circumstances suffi-the communication was made from any

Common Pleas.-Coxhead v. Richards.

Common Pleas. Coxhead v. Richards.

law is so narrowed and restricted by any out of harbor before the end of the authority, that a person having informa- month. It was urged upon the argu. tion materially affecting the interests of ment, that the defendant, instead of comanother, and honestly communicating it, municating the letter to the owner, might in the full belief, and with reasonable have instituted some inquiry himself. grounds for the belief, that it is true, will But it is to be observed, that every day not be excused, though he has no personal the ship remained under the command interest in the subject-matter. Such a re- of such a person as the plaintiff was destriction would surely operate as a great scribed to be in the letter, the ship and restraint upon the performance of the va- company continued exposed to hazard, rious social duties by which men are though not to so great hazard as when bound to each other, and by which so- she was upon her voyage: not to menciety is kept up. In Pattison v. Jones, (1 tion the immediate injury to the shipB. & C. 78), the defendant, who had dis-owner, which must necessarily follow, charged the plaintiff from his service, whether the vessel is in port or at sea, wrote a letter to the person who was from the want of discipline of the crew, about to engage him, unsolicited: he and the bad example of such a master. was therefore a volunteer in the matter, And, after all, it would be too much to and might be considered as a stranger, say that there was any duty cast upon having no interest in the business; but the defendant to lay out either his time neither at the trial nor on the motion be- or money in the investigation of the fore the court was it suggested, that the charge, even if the thing itself had been letter was on that account an unprivi- practicable, with any success. Upon leged communication, and it was left to the consideration of this case, I think it the jury to say whether the communica- was the duty of the defendant not to keep tion was honest or malicious. Again, in the knowledge he gained by this letter Child v. Afleck and Wife, (9 B. & C. 403), to himself, and thereby make himself rethe statement by the former mistress of sponsible in conscience, if his neglect of the conduct of the servant, not only du- the warnings of the letter brought de. ring her service, but since she left it, was struction upon the ship or crew. That held to be privileged. The rule appears a prudent and reasonable man would to have been correctly laid down by the have done the same. That the discloCourt of Exchequer: "That, if fairly sure was made not publicly, but private. warranted by any reasonable occasion or ly, to the owner; that is, to the person exigency, and honestly made, such com- who of all the world was the best quali munications are protected for the com- fied, both from his interest in the subjectmon convenience and welfare of socie- matter and his knowledge of his own of ty; and the law has not restricted the ficers, to found the most just conclusion as right to make them within any narrow to its truth, and to adopt the most proper limits." Toogood v. Spyring, (1 C., M. and effective measures to avert the dan& R. 193). In the present case, the de- ger: after which disclosure, not the defendant stood in a different situation fendant, but the owner, became liable to from any other person, he was the only the plaintiff, if the owner took steps person in the world who had received the which were not justifiable; as by unjustletter, or was acquainted with the infor. ly dismissing him from his employment, mation contained in it: he cannot, there- if the letter was untrue. And as all this fore, properly be treated as a complete was done with entire honesty of purpose, stranger to the subject-matter of inquiry, and in the full belief of the truth even if the rule excluded strangers from of the information, and that a reasonable the privilege. Upon the second ground belief, I am still of the same opinion of qualification, was the danger sufficient- which I entertained at the trial, that this ly imminent to justify the communica- case ranges itself within the pale of prition? It is true, that the letter which vileged communications, and that the accame to the defendant's hands about the tion is not maintainable. I therefore think 14th December, contains written in it the rule for setting aside the verdict and the information that the ship cannot get for a new trial should be discharged.

VOL. V.

26

Common Pleas-Coxhead v. Richards.

COLTMAN, J.-I regret much that I am munication is privileged or not, is a quesunable in this case to agree with the tion of law for the judge. But, in conopinion of my Lord Chief Justice, that it sidering the question whether a commuis a sufficient justification of the defend- nication is privileged or not, the condiant's conduct that he acted bond fide and tions necessary to make it privileged without malice. The facts of the case must be assumed. What I mean by which I consider as material are, that, this remark will be more intelligible by on the 14th December, the defendant re- referring to the line of argument used ceived from the mate of a ship belonging on the discussion of the present motion. to Mr. Ward a letter, containing impu- In the first argument of this case, many tations against the captain of constant remarks were made on the mate's letter, drunkenness and unfitness for command, tending to show that a man at all expeasking for the defendant's advice, and in rienced in the ways of the world could forming him that the ship was then at not have been duped by the statements Fishguard, and would not sail thence be- in the letter, or have believed them to be fore the end of the month. There was true. But it appears to me that such a no intimacy between the defendant and line of argument is inapplicable to the Mr. Ward, nor any relation in business question of law, whether the commubetween them. The defendant, after nication was privileged; for the quesconsulting with some friends, by their tion of law is, whether, assuming that advice communicated the letter to Mr. the defendant really bona fide believed Ward. I apprehend the rule of law, ap- the contents of the letter to be true, plicable to questions of this nature, has the occasion was such as justified been laid down with accuracy by the the making the communication; in Court of Exchequer in the case of Too- other words, according to the rule laid good v. Spyring, (1 C., M. & R. 193), down by the Court of Exchequer, in where it was said, “In general, an ac- Toogood v. Spyring, (1 C., M. & R. 193), tion lies for the malicious publication of was there any duty, public or private, legal statements which are false in fact and or moral, calling on the defendant to injurious to the character of another, make the communication complained within the well-known limits as to verbal of? It cannot, I think, be said that slander; and the law considers such there was any legal duty. Was there publication as malicious unless it is fair- any moral duty calling on him to make ly made by a person in the discharge of it? The necessity which exists in the some public or private duty, whether le- transactions of society for full inquiry gal or moral, or in the conduct of his own and for facilities in obtaining informaaffairs, in matters where his interest is tion for the guidance of persons engaged concerned." In such cases, the occa- in important matters of business, has so sion prevents the inference of malice far prevailed, that it has been established which the law draws from unauthorized as a rule, that for words spoken conficommunications, and affords a qualified defence, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. Communications of this nature have been commonly termed "privileged communications," and the term, if not directly accurate, is, perhaps, sufficiently so for practical purposes; and it has been generally held, and, in my judgment, rightly held, that the question, whether a com

dentially upon advice asked, no action lies unless express malice can be proved. Bromage v. Prosser, (4 B. & C. 257.) The duty which may be supposed to exist to give advice faithfully to those who are in want of it, has been allowed to prevail for the sake of the general convenience of business, though with some disregard of the equally important rule of morality, "That a man should not speak ill falsely of his neighbor." Even though the statement is not on advice asked, but is made voluntarily, that circumstance was said, in Pattison v. Jones, (8 B. & C. 585,) not necessarily to prevent the statement from being considered