dishonesty and of fraudulent issue of stock. In August, 1904, the company became practically insolvent. To aid it, the defendant loaned it the sum of $10,000, to be repaid in thirty days, and took as security therefor a mortgage on all its property and assets. . . . At a stockholders' meeting on September 1, 1904, a new board of directors was elected. One Wheeler, who had previously been vicepresident of the company and represented the defendant's interest therein, refused to recognize the election as legal because a majority of the stock was not voted thereat. He sought to retain possession of the offices of the company. Litigation followed both in the State and federal courts, where the validity of the election was upheld. The plaintiff Ashcroft was elected general manager by the new board. . . . Mr. Clemens in the controversy sided with Ashcroft, who testified he was Clemens' representative. Conferences took place between Mr. Clemens and the defendant, but without result. On September 15 the plaintiff and Mr. Clemens called at the defendant's hotel for further conference, but found him out of town. Thereupon the following telegram was sent: "New York, September 15, 1904. John Hays Hammond: . . . Please wire Wheeler instructing him to vacate Plasmon offices forthwith; withdraw his policemen, recognize new board and release bank account. Also wire Truslow to relinquish deed of trust and other documents on payment of your loan by us. Telegraph reply Hotel Walcott. S. L. Clemens." To this the defendant answered on the same day: "Gloucester, Mass., Sept. 15, 1904. S. L. Clemens, Hotel Walcott, New York: I shall strongly oppose turning over company to Ashcroft's board of directors. He has been identified with the rotten administration of Cook and Wright, and is incompetent or worse. Unless Davis accepts management and my stipulation that Ashcroft should not be employed by company, I shall retain Wheeler for the present. You have been imposed upon by Ashcroft and others regarding Wheeler. John Hays Hammond." It is this telegram that the plaintiff charged to be libelous. The trial Court held the communication privileged and dismissed the complaint. The Appellate Division reversed the judgment on that decision, and ordered a new trial, from which the defendant has appealed to this Court. James Byrne, for appellant. R. A. Mansfield Hobbs, for respondent. CULLEN, C. J. [after stating the facts as above]. 1. That presumptively the defendant's telegram was privileged is entirely clear, and the question was one for determination by the Court, where the circumstances were not in dispute. Lovell Co. v. Houghton, 116 N. Y. 520, 22 N. E. 1066, 6 L. R. A. 363. The definition of a privileged communication given by Judge FOLGER in Klinck v. Colby, 46 N. Y. 427, 433 (7 Am. Rep. 360), and reiterated in all the decisions on the subject since is: "When a communication is fairly made by a person in the discharge of some private or public duty, legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned."... .. Both the defendant and Mr. Clemens were vitally interested in the proper management of the company and in the settlement of the controversy that had arisen as to the validity of the election of the new board of directors. Each had the right to endeavor to convert the other to his own view, and for that purpose to state such facts relative to the subject as he believed to be true. . ... 2. It is urged that the privilege which might protect a written or oral communication from the defendant to Mr. Clemens did not extend to a telegraphic message, necessarily read by the operators. The learned judge who wrote for the Court below did not accede to this claim. He held that the sending of the communication by telegraph was not such a disclosure to others as destroyed the privilege, since it was an ordinary means of business communication. It is unnecessary to determine the general question. It is sufficient to say that the plaintiff could not complain of the method of communication adopted. The dispatch from Clemens asked for an answer by telegraph, and the plaintiff wrote that dispatch and sent it. . . . 3. The defendant's telegram thus being presumptively privileged, to render it actionable it was incumbent on the plaintiff to prove that it was false and that the defendant was actuated by express malice or actual ill-will. While there are numerous cases in the books in which it is said that as to privileged communications the good faith of the defendant and the existence of actual malice are questions of fact for the jury, the expression must not be misunderstood. Those questions are for the jury only when there is evidence in the case warranting their submission to the jury; and the burden of proof is on the plaintiff. Lovell Co. v. Houghton, 116 N. Y. 520, 22 N. E. 1066, 6 L. R. A. 363; Hemmens v. Nelson, 138 N. Y. 517, 34 N. E. 342, 20 L. R. A. 440. Nor is evidence of mere falsity of the charge sufficient. Lewis v. Chapman, 16 N. Y. 369. It is true that a communication may be so extravagant in its denunciations or so vituperative in its character as to justify an inference of malice. The defendant's telegram is subject to no criticism of that character. It is temperate and moderate in its tone. . . . 4. It was held by the Appellate Division that no case of privilege was shown because the telegram was sent by the defendant in furtherance of the attempt to keep out the new board and continue the old board, a controversy subsequently determined by the Court adversely to the defendant's claim. It was also said that on a new trial the defendant might establish the illegality of the election of the new board, where upon an occasion of privilege would appear. From this view we dissent. The question of privilege did not depend on the legality or illegality of the new election, but on the defendant's good faith. Lovell Co. v. Houghton, supra. The fact that the defendant was defeated in a lawsuit by no means established bad faith, and it must be borne in mind that it was in negotiations for the settlement of that very lawsuit that the alleged libel was published. The order of the Appellate Division should be reversed and the judgment of the trial term affirmed, with costs in both courts. GRAY, HAIGHT, WERNER, HISCOCK, and CHASE, JJ., concur. 905. COLEMAN v. MACLENNAN. (1908. 78 Kan. 711, 98 Pac. 281.) BURCH, J. It is said that malice is the gist of the action for libel. This is pure fiction. It is not true. The plaintiff makes a complete case when he shows the publication of matter from which damage may be inferred. The actual fact may be that no malice exists or could be proved. Frequently libels are published with the best of motives, or perhaps mistakenly or inadvertently, but with an utter absence of malice. The plaintiff recovers just the same. Therefore, "the gist of the action" must be taken out of the case. This is done by another fiction. It is said that, of course, malice does not mean the one thing known to fact or experience to which the term may apply, but it is just a legal expression to denote want of legal excuse. In this State a statutory definition of libel making malice an essential ingredient as at the common law compels this Court to say that the intentional publication of libelous matter implies "malice" whatever the motive in fact may be. State v. Clyne, 53 Kan. 8, 35 Pac. 789. So a fiction was invented to meet an unnecessary fiction which became troublesome, and the Courts go on gravely ascending the hill for the purpose of descending, meanwhile filling the books with scholastic disquisitions, verbal subtleties, and refined distinctions about malice in law, malice in fact, express malice, implied malice, etc. Now what is the fact? Instead of malice being the gist of the action, it may come into a libel case and be of importance in two events only, -to affect damages and to overcome a defense of privilege.. If the occasion be absolutely privileged, there can be no recovery. If it be conditionally privi 1 [PROBLEMS: "A young man named George Hatch, having left my employ, and taken upon himself the privilege of collecting my bills, this is to give notice that he has nothing further to do with my business." The defendant, who was a baker, published this notice in the Taunton newspaper. His customers lived in Taunton and in adjacent towns. Was the notice privileged? (1870, Hatch v. Lane, 105 Mass. 394.) The plaintiff had been at the defendant's house, and, after she left, a brooch was missed. The defendant then went to the plaintiff's lodging and accused her, in the presence of a third person, of taking the brooch, and then caused the plaintiff to be searched, with her own consent, the search being made by two other persons, to whom the reason for it was stated. Afterwards the brooch was found where the defendant's wife had mislaid it. Were the above statements privileged? (1840, Padmore v. Lawrence, 11 Ad. & E. 380.) Is it an excess of privilege to send on a post card a defamatory message? (1901, Sadgrove v. Hole, 2 K. B. 1.)] leged, the plaintiff must prove malice, actual evil-mindedness, or fail. When it comes to this proof, there is no presumption, absolute or otherwise, attaching to a charge of crime. The proof is made from an interpretation of the writing, its malignity, or intemperance by showing recklessness in making the charge, pernicious activity in circulating or repeating it, its falsity, the situation and relations of the parties, the facts and circumstances surrounding the publication, and by other evidence appropriate to a charge of bad motives as in other cases. SUB-TOPIC AA. SLANDER OF TITLE OR OF GOODS. 907. SMITH v. SPOONER COMMON PLEAS. 1810 3 Taunt. 246 THIS was an action upon the case for slander of title. The plaintiff in his declaration, in substance, averred that he was possessed of a house for twenty-four years, the residue of a term of thirty-one years, under a demise from the defendant to Francklin, and an assignment made on the 31st of August, 1809, from Francklin to the defendant. That the plaintiff put up the residue of his term to sale by auction. That the defendant was present, and declared that the plaintiff could give no title if he did sell the property; and averred a special damage sustained thereby. The defendant pleaded the general issue. Upon the trial of this cause at the sittings after Easter term, 1810, before CHAMBRE, J., at Westminster, it was proved that the plaintiff, in the month of August, 1809, exposed to sale by auction his unexpired term in the premises, and that at the time of the sale, when this lot was put up, the defendant was present, and told the auctioneer it was of no use to sell the lot or put it up; the house was his own, he was the landlord of it, and no title could be made to it. Some other persons were there present, who said they had come to bid for this lot, but, rather than involve themselves in a lawsuit, they would go away without bidding for it. . . . The lease was given in evidence: it contained a proviso for reëntry in case the rent, which was payable quarterly, should be behind and unpaid for twenty-eight days after either of the days of payment. At that time there was half a year's rent due and in arrear, and certain parts of the premises were out of repair. . . . The defendant had, two or three weeks before the auction, applied to the auctioneer for the purchase of the lease. The auctioneer told the defendant he thought he was liable to the expenses of the auction, to which he answered that he would rather pay ten pounds than that the plaintiff should sustain any injury. The expenses of the sale amounted to £6 and 8s. Best, Serjt., for the defendant, objected that the plaintiff could not recover upon defendant. this evidence, because there was no proof of malice in the ... Frere, Serjt. (Pell, who was with him, being confined by illness), now showed cause. If the defendant asserts that the plaintiff has no title, the onus lies upon him to prove it. And the only proof given is of a flaw in the plaintiff's title at the time of the action brought, not of the words spoken: at the time of the act complained of the plaintiff had the possession of the premises, and possession is a sufficient title against a wrongdoer. . . . It is not true that no action is maintainable where the defendant claims an interest. (MANSFIELD, C. J. That position may not perhaps be supported to the full extent: if a man knows that he has not a title, and maliciously asserts that he has, perhaps it would not serve. But, where there is a bona fide assertion of title, it is sufficient.) . . Best, Serjt., contra, was stopped by the Court. MANSFIELD, C. J. The ground of this action is that the defendant is supposed falsely and maliciously to slander the title of the plaintiff. Here is an auction, and the plaintiff's estate is put up. It does not appear whether the plaintiff was present. The auctioneer, as agent for the vendor, probably knew something of the estate: the defendant says, "The plaintiff cannot make a title"; the auctioneer asks no questions; if he had asked, and the other had affirmed something false, it might have been different. . . . Stopping here, then, what evidence is there of malice? What evidence that the plaintiff meant anything more than to assert his right to that possession, which he afterwards obtained before the cause was tried? ... On the part of the plaintiff it was said, the defendant ought to prove his title: that it is not necessary; for pretty strong cases say that, if a defendant says he has title to an estate, no action will lie against him, therefore it cannot be incumbent on him to prove his title. . . . The slander, also must be malicious; and what proof of malice is here? I think the rule must be made absolute for a nonsuit. HEATH, J. I am of the same opinion. There is no pretense of express malice, and as little proof of implied malice. LAWRENCE, J. I am of the same opinion.. 908. HALSEY v. BROTHERHOOD CHANCERY DIVISION. 1881 L. R. 15 Ch. D. 514, 19 Ch. D. 386 THE statement of claim alleged to the following effect: The plaintiff was an engineer and the assignee of a patent taken out in 1876 for improvements in engines for steam launches. The defendant was |