234
HARVARD LAW REVIEW,
Bat in yoannes v. Bennett, 5 All. 169, and several other cases, such communications, unless previously solicited, are held not privileged. See Byam v. Collins, 39 Hun, 204.
It has been decided by a recent case in the Court of Queen's Bench (Thompson v. Daskwoody 11 Q. B. D. 43) that mailing a letter, ^r/wa facie privileged, to the wrong person does not take away the privilege. The court put the case on the ground that the animus with which the plaintiff acted determined the question of privilege, and that, if his in- tention was otherwise justifiable, the privilege could not be taken away by a mere mistake.
The case has, as yet, been but littie cited or discussed. It would seem, however, since the privilege exists only between certain persons, that any publication to other persons, by conduct involving negligence, should be held to be a violation of the privilege.
In King v. Patterson, 49 N. J. Law, 417, it was held that a mer- cantile agency was justified in making bona [fide statements, which were false, in regard to the standing of a business firm, only when the publi- cation was sent to those having actual business relations with the per- son Ubelled, the case belonging to that class of privileged coramtmica- tions where the communication is made in the interest of the person receiving it. This application of the rule is almost equivalent to say- ing that every statement in such a publication, which cannot be justified under the plea of the truth, is at the risk of the agency ; for but few, if any, of the customers of a commercial agency can have such a direct personal interest in the standing of all persons rated in its publications as this case requires. The contract usually made by the agency with its customers, not to divulge the information given, strictly speaking, affords no protection, for it is a libel to publish such statements, even to a customer who has no interest in them. There was a dissenting opinion in King v. Patterson, but the case is supported by decisions in other States. See Sunder Un v. Bradstreet, 46 N. Y. 188.
The question whether a communication is conditionally privileged is a question of law for the court. Gassett v. Gilbert, 6 Gray, 94, 97. To destroy the privilege the plaintiff must prove "actual malice," which can be done, and is often done, by showing that the defendant exceeded the conditions on which the privilege rests, without other evidence of a malicious purpose. See per Ld. Blackburn, in Capital and Counties Bank v. Henty, 7 App. Cas. 741, at 787. But if the statements are in all other respects within the conditions of the privilege, a malicious or improper motive in making the publication will render the defendant liable. See Stevens v. Sampson, 5 Ex. D. 53.
��RECENT CASES.
��[These cases are selected from the current English and American decisions not yet re^larly reported, for the purpose of giving the latest and most progressive work of the courts. No pains are spared in selecting a// the cases* comparativnly few in number, which disclose the general prog- ress and tendencies of the law. When such cases are particularly suggestive, oommenU and refer- ences arc added, if practicable.]
Attorney and Client — AuTHORrrv of Attorney — Compromise. — An attorney, by virtue of his employment, cannot bind his client by a compromise of the demand sued on. BrockUy v. BrockUy, 15 Atl. Rep. 646 (P«.).
