Thomas Sunderland Harrison v Edwin Bush
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1855 |
| Date | 01 January 1855 |
| Court | High Court |
English Reports Citation: 119 E.R. 509
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 25 L. J. Q. B. 25; 1 Jur. N. S. 846; 3 W. R. 474. Applied, Whiteley v. Adams, 1863, 15 C. B. N. S. 419; Henwood v. Harrison, 1872, L. R. 7 C. P. 622. Distinguished, Dickeson v. Hilliard, 1874, L. R. 9 Ex. 82. Applied, Waller v. Lock, 1881, 7 Q. B. D. 621. Distinguished, Hebditch v. M'Ilwaine, [1894] 2 Q. B. 61; Brown v. Houston, [1901] 2 K. B. 857.
[344] thomas sunderland harrison against edwin bush. 1855. A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable. And this, though the duty be not a legal one, but only a moral or social duty of imperfect obligation. - Semble that this applies also when the communication is made to a person not in fact having such interest or duty, but who might reasonably be, and is, supposed by the party making the communication to have (a) 9 Exch. 615. The passage from the judgment of Maule J. was read from 23 L. J. N. S. Exch. 156. 510 HARRISON V. BUSH 5 EL, & BL. MS. such interest or duty.-Defendant was an elector of the borough of F. in the county of S., and an inhabitant of F. He, with several hundred inhabitants of F., signed and transmitted to the Home Secretary a memorial complaining of the conduct of plaintiff, who was a justice of S., during a recent election of a member of Parliament for F. The memorial imputed that plaintiff had made speeches inciting to a breach of the peace; and that, after reading the Eiot Act, he had given orders to a man to strike persons in the streets. It prayed that the Secretary would cause to be made such an inquiry as he might think fit into the conduct of plaintiff; and that, on the allegations being substantiated, the Secretary would feel it to be his duty to recommend to the Queen that the plaintiff should be removed from the commission of the peace.-Plaintiff having sued defendant as for a libel, evidence was given, on both sides respectively, to establish and to negative express malice. The jury found that defendant acted bona fide.-Held : that defendant was entitled to the verdict on the plea of Not guilty. For that, although in practice the advice of the Keeper of the Great Seal be generally acted upon as to the removal of justices, the memorial might be considered as addressed to the Queen through the Home Secretary, who might himself have caused the inquiry to be made, have communicated with the Keeper of the Great Seal, and have, in effect, recommended the removal of plaintiff.-The defendant had pleaded Not Guilty, and a justification on the ground that the allegations in the memorial were true. The plaintiff gave evidence to shew express malice from the conduct of the plaintiff: he also called witnesses to prove that the alleged facts, which took place, if at all, in a town of which defendant was an inhabitant, were not true. The defendant called witnesses to prove that the facts were true; and some of these witnesses deposed to facts which had not come to defendant's knowledge before the publication. The verdict was for the defendant on the first issue, on the ground of privilege, and for the plaintiff on the second issue.-Held : that defendant was entitled to the costs of all such witnesses called by him, and the plaintiff was not entitled to the costs of any witness. For that the defendant, being entitled to the general costs, was entitled to the costs of all such witnesses as were not called exclusively on the issue on which he failed; and the plaintiff to the costs only of such witnesses as were called exclusively on the issue on which he succeeded : and that all the above witnesses were material to the issue of Not guilty, though their evidence was also material to the issue on the justification. [S. C. 25 L. J. Q. B. 25 ; 1 Jur. N. S. 846 ; 3 W. R. 474. Applied, Whiteley v. Adams, 1863, 15 C. B. N. S. 419 ; Henwood v. Harrison, 1872, L. R. 7 C. P. 622. Distinguished, Dickeson v. Hilliard, 1874, L. R. 9 Ex. 82. Applied, Waller v. Lock, 1881, 7 Q. B. D. 621. Distinguished, Hebditch v. M'llwaine, [1894] 2 Q. B. 61 ; Brmmv. Houston, [1901] 2 K. B. 857.] The first count charged that a libel was published by the defendant upon the plaintiff, a justice of peace for the county of Somerset, acting as such, of and concerning him as and being such justice as aforesaid. There was a second count, not material to the present decision. [345] The defendant pleaded Not guilty ; and a justification. Issues thereon. The case was tried before Crowder J., at the last Wiltshire assizes ; when a verdict was found for the plaintiff, for 20s. damages, leave being reserved to move as after mentioned. In last Term, Slade obtained a rule Nisi for entering a verdict for the defendant, " on the ground that, the jury having found that the defendant acted bona fide in publishing the memorial complained of, the said publication was a privileged communication, and the verdict ought to have been entered for the defendant." In the game Term (a), Kiuglake Serjt. and Phinn shewed cause ; and Slade, Collier and F. Edwards were heard in support of the rule. The facts of the case, and the nature of the arguments, appear so fully in the (a) May 7tb and 8tb, 1855. Before Lord Campbell C.J., Coleridge, Wightman, Erie and Crompton Js, JEL*BL.348. HARRISON V. BUSH 511 t, that it is considered sufficient to refer to it. The following authorities, besides those noticed in the judgment, were mentioned ; Coxhead v. Richards (2 Com. B. 569), Blackham v. Pugh(e), Sims v. Kinder (1 C. & P. 279), Bromage v. Prosser (1 C. & P. 475, 673 ; 4 B. & C. 247), Wright v. floodgate (2 C. M. & E. 573), Pallium v. Jones (8 R & C. 578), M'Dmigall v. Olaridge (1 Camp. 267), Dunman v. Bigg (1 Camp. 269), M'Qregar v. Thwaites (3 B. & C. 24), Wenman v. Ash (13 Com. B. 836). Cur. adv. vult. [346] Lord Campbell C.J., in this Term (May 24th), delivered the judgment of the Court. This waa an action for a libel, tried before my brother Crowder at the laat Salisbury assizes. The defendant pleaded Not guilty, and a justification. It appeared that Dr. Harrison, the plaintiff, before and at the time when the cause of action accrued, waa a justice of peace for the county of Somerset, and was in the habit of acting at petty sessions held in the borough of Frome. In the month of October last, there was a contested election for a member to represent this borough in parliament. During the election, there was much excitement; many windows were broken by the mob ; and there were dangerous riots in the streets. The defendant was an elector and an inhabitant of the borough ; and, after the election was over, he arid several hundred other inhabitants of the borough prepared, signed and transmitted to Viscount Palmerston a memorial complaining of the conduct of the plaintiff as a magistrate during the election, imputing to him that he had made speeches directly inciting to a breach of the peace; that, after reading the Riot Act, he had sent a man into the streets armed with a bludgeon, and ordered him to strike any person he might meet, indiscriminately ; and that he had himself violently struck and kicked several men and women. The memorial alleged that the plaintiff ought not to be allowed to remain in Her Majesty's Commission of the peace, and concluded thus. " Your memorialists therefore earnestly pray that your Lordship will cause such an inquiry to be made into the conduct of the said Dr. Harrison as your Lordship may think fit; and that, on the allegations contained in the memorial being duly substantiated and [347] verified, your Lordship will feel it to be your duty to recommend to Her Majesty that the said Dr. Harrison be removed from the commission of the peaca" The memorial being produced, and evidence given that it was signed by the defendant and transmitted by him to the office of the Secretary of State, the plaintiff appeared as a witness for himself, and denied the truth of the criminatory allegations in the memorial. He was followed by other witnesses to the same effect. At the close of the plaintiffs case, the defendant's counsel applied for a nonsuit, which the learned Judge (we think very properly) refused to direct. Assuming that the occasion of presenting the memorial prima facie repelled the inference of malice arising...
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