
    Cook v. Hill.
    A memorial to the Postmaster General, in reference to the business of his department, e. g. the bidding for contracts which he is authorized to make by law, is a privileged communication.
    So held of a memorial by one who had submitted proposals, protesting against the execution of a contract to another, whose proposals had been accepted, charging upon the latter fraud and collusion with other bidders.
    Such a memorial is not absolutely or unqualifiedly privileged, and if it bé proved that there was not probable cause for its statements, the law infers, that it was malicious as well as false, and the writer will be liable for it as a libel.
    K the statements are true, they are not libellous, no matter how maliciously they were made.
    If the statements are untrue, but the memorialist made them in good faith, believing, or having probable cause to believe them to be true, they are privileged.
    The burthen of proving the want of probable cause, is upon the plaintiflf, as in an action for malicious prosecution.
    Absolutely privileged communications are confined to two classes of cases, viz. proceedings in courts of justice, and applications, memorials, &c., presented to the legislature, or growing out of legislative proceedings. And in these cases, the privilege is confined to matters pertinent to the legal or legislative proceedings to which the communication relates.
    Where it appears upon a case, that no exception was taken to the ruling of the judge upon the trial, the party will not be permitted to object to it upon a motion for a new trial.
    The practice of this court stated, in respect of cases made with leave to turn them into bill of exceptions.
    The power to grant a new trial on the ground of excessive damages, in an action of tort, is sparingly used ; and is not exercised when the amount of the verdict does not shock the sense of the court as to its propriety.
    (Before Oakley, Ch. J., and Vanderpoel and Sandford, J.J.)
    Nov. 13;
    Nov. 24, 1849.
    Tras was an action of libel. The cause of action consisted in certain charges made against Carroll & Cook, a firm of which the plaintiff was a member, in a memorial addressed by the defendant to the Postmaster General, in which he protested against the execution of a contract with the plaintiff’s firm, for furnishing supplies for the Post-office Department, in consequence of alleged fraud on their part in submitting proposals.
    The cause came on for trial before the Chief Justice on the 22d of December, 1848.
    Upon the trial, it appeared, that, on the 24th of November, 1846, the Postmaster General advertised for proposals for furnishing various descriptions of blanks to his department. In accordance with the advertisement, sealed proposals were submitted to the department, among others,.by John T. Crowell of Hew York, Jewett and Thomas of Buffalo, Carroll and Cook of Troy, and by Isaac Hill and Sons, of which firm the defendant was a member. The bids which were submitted, were opened on the first day of January, 1841, when it was ascertained, that Carroll and Cook were the lowest bidders for a large proportion of the states, in which the blanks were to be furnished, and Crowell, and Jewett and Thomas were the lowest bidders for the residue. The contracts were accordingly awarded to those parties on the 10th of January, 1847.
    After the awarding of the contracts, the defendant made a complaint to the Postmaster General, charging that there was fraud on the part of the plaintiff’s firm, and collusion and connivance between them and some of the other parties, who had made successful bids. The defendant also charged, that the plaintiff’s firm forged the bid, which had been put in, in the name of Crowell. It also appeared in evidence, that similar statements had been made by the defendant to various other parties, and that the defendant had used very harsh language in reference to the plaintiff’s firm.
    The defendant was directed by the Postmaster General to put his charges in writing, which he accordingly did in the shape of the memorial complained of, which was addressed to the Postmaster General, and was signed by the defendant in behalf of the firm of Isaac Hill and Sons. The memorial protested against the execution of the contract to the firm of Can-oil and Cook, and assigned, among others, the following reasons:
    
      “ There is good reason to believe, that the bids of the said Crowell, and Jewett and Thomas, were entered with no view to their ultimate execution, but for the threefold purpose of affecting and ranging below our aggregate bid, for securing to Carroll and Cook the option, and claim as the next lowest bidder, and with the direct intention of cutting off every boná, fide bidder.
    “ 2d. We object further against the acceptance of any bid proffered by the said Carroll and Cook, because there is good reason to believe that the bid of the said Crowell, purporting to be dated at New York, December 26th, 1846, was not at that, •or at any other time, written or executed at that place; that Crowell’s signature with the pretended post-marks are simulated and false ; that the said Carroll and Cook, one or both of them, were cognizant of the facts of the simulation and falsification of the paper, and that it was done with the view of cutting off the bids which the firm represented by your memorialist have entered.”
    The memorial was verified by the oath of the defendant, and it demanded an investigation by the Postmaster General of the charges contained in it.
    After the memorial was submitted, copies of it were sent, by the direction of the Postmaster General, to Carroll, and Cook, Crowell, and Jewett and Thomas. Crowell thereupon filed with the department an affidavit, and the other parties statements, denying positively the allegations of the defendant, and affirming the entire good faith of their proposals, and the absence of any collusion between the parties. Copies of these statements were submitted to the defendant, who, in return, in a letter to the department, declared, that his opinion of the correctness of his charges was thereby confirmed, and requested a further investigation to be made in the city of New York. It appeared, by the testimony of the Postmaster General and the Assistant, that no official action was taken by the department, to procure the investigation demanded, and that it was decided, that there was no authority for that purpose; but the Assistant Postmaster General being about to visit New York, he took with him the papers pertaining to the case, for the purpose of bringing the parties together, and making an informal examination for the-satisfaction of the defendant. That this was done, however, without the authority or direction of the head of the department, who simply expressed a willingness that it might be done for the defendant’s satisfaction. That, accordingly, a letter was addressed to the plaintiff’s firm, desiring their attendance for the purpose of such examination. " That the examination was proceeded with on the 23d of March, 1847, and resulted in the failure of any evidence to sustain the allegations of the memorial.
    The Assistant Postmaster General testified, that at the time of the proposals being submitted, he knew of no reason for suspecting the fraud or collusion charged by the defendant; and that he had so informed the defendant at the time. It also appeared that the head of the department had assured him there were no grounds for the suspicions he entertained.
    There was some testimony to the effect that copies of the memorial of the defendant were exhibited by him to individuals not connected with the department; though the evidence of this was somewhat vague.
    Evidence was given of the good faith of Oarroll and Cook in the affair, and the absence of all fraud or collusion between the parties mentioned in the charges of the defendant. After the plaintiff rested, the defendant’s counsel moved for a nonsuit, on the ground that the memorial in question was a privileged communication, and that no action would lie upon it without express proof of malice and want of probable cause, to be given affirmatively by the plaintiff, and that no such proof had been made ; which motion was denied.
    On the part of the defence, some evidence was adduced to show the similarity and general resemblance between the handwriting of the proposals submitted by the plaintiff’s firm and by Crowell, who were the successful bidders. Mr. Burke, the late commissioner of patents, testified that at the time of the opening of the proposals, the defendant had requested him to examine them, stating that his suspicions were excited in consequence of the strong resemblance between them, Crowell’s and Carroll and Cook’s; and that the witness had examined them attentively, and was led to the same conclusion as the defendant, and had advised him to institute an investigation. That upon the termination of the investigation in New York, the defendant had expressed his entire satisfaction of thedncorrectness of his charges, and his acknowledgment of his mistake.
    The evidence here closed, and the court charged the jury—
    1. That the memorial in question was, under the circumstances, a privileged communication, and that malice is not to he presumed, and therefore that the defendant was not liable for presenting it to the Postmaster General, unless the jury should find that he had no reasonable or probable cause for the statement made by him. 2. That if the jury should believe that the memorial was shown by the defendant to any other j>erson than the Postmaster General, and those official characters connected with the government post office, then he is liable on that ground.
    And with these directions the judge left the case to the jury; who returned a verdict for the plaintiff for six hundred dollars damages. The defendant moved for a new trial on a case.
    
      W. O. Noyes, for the defendant.
    I. The memorial having been addressed to a public officer, to whom was confided the duty of giving out post-office contracts, was an absolutely privileged one, and no action was sustainable upon it, even if the statements contained in it were untrue, and were made without probable cause. (Thorn v. Blanchard, 5 John. R. 508; Lake v. King, 1 Saund. R. 131; Cutler v. Dixon, 4 Coke R. 14; Rex v. Bailie, 2 Esp. N. P. Ed. of 1820, by Gould; Bac. Abr., Libel, A. 2; 5 Bos. & Pull. 341, Jekyll v. Moore; 2 Tyler’s R. (Vt.) 129, Harris v. Huntington; 2 S. & R. 23, Gray v. Pentland.) The distinction is, that where the matter alleged is immaterial, the party is liable. But if material, no matter how false or malicious, it is not the subject of an action of libel.
    II. But if the action was maintainable at all, the plaintiff should have been non-suited, there not having been, at the time the plaintiff rested, nor at any other time, any proof of malice, or want of probable cause. (12 Wend. 545, Vanderzee v. McGregor; 21 Wend. R. 319, Howard v. Thompson; 2 Car. & Kirwan, 4, James v. Boston.)
    IH. The charge of the judge was erroneous. 1. Because it omitted to direct the jury in regard to the question of malice, without the existence of which no action could be sustained. 2. The jury were liable to be misled by the charge, as it did not state all the requisites to sustain the action, even if it was maintainable at all. 3. It was also erroneous in submitting to the jury the question whether the memorial had been shown to any other person than the Postmaster General and the other government officials, leaving it to be implied that if it had been shown to the person claimed, the defendant would be liable, which under the circumstances disclosed was incorrect; as it was exhibited to him, if at all, in connexion with inquiries defendant was making as to the matters stated in it, and in perfect good faith.' The whole charge is open for review upon a case. (4 Wend. 514, Hubbell v. Archer.)
    IY. The verdict was against evidence, and the damages excessive.
    
      B. J. Tilden, for the plaintiff.
    I. If the facts alleged to show the existence or absence of probable cause are disputed or doubtful, the question belongs to the jury.. If those facts are numerous and complex, and without prominently distinctive characteristics, from which, by some rule of law, the inference of probable cause can be established or excluded, the question should properly go to the jury. (1 Stark on Slander, by Wendell, 279, and note e; 1 Stark on Ev. 472, note p.)
    Conditionally privileged communications, are such as where the character of servant or a trader is given. The action is in form, that of libel; in proof, it resembles that of malicious prosecution.
    This is a case of a conditional privilege, not an absolute one. (1 Stark on Sland. by Wendell, 219, note 1; 21 Wend. 319, 326; 
      Fairman v. Ide, 5 B. & Ald. 647.) Ho case is to "be found, where the application or communication was made to an executive or administrative officer, and it was decided that the party-attacked cannot sue in libel.
    II. The question of malice, which arose on the testimony, both as to technical malice in fact and actual ill will, necessarily went to the jury.
    HI. In malicious prosecution, on a communication absolutely privileged from the action of libel; and a fortiori in libel, on a communication but conditionally privileged, proof of the want of probable cause is sufficient to sustain the action; for the jury may imply malice from the want of probable cause, though want of probable cause will not be implied from malice. (Murray v. Long, 1 Wend. 142; Johnson v. Sutton, 1 Term R. 544, per Lords Mansfield & Loughborough; 2 Stark on Ev. 495, and cases cited; 2 Wheat. Selwyn, 1080-1083, note 1, and 1889, and case cited; 2 Saund. Pl. 194, 200.) The express malice spoken of in some of the cases as necessary to be shown, is malice proved' or implied from facts other than the mere publication, and which the jury may infer from the want of probable cause or other circumstances, as contradistinguished from the malice in law, which is implied from the mere publication. (White v. Nichols, 3 How. U. S. 291; 1 Stark on Sland. 189, and Prelim. Disc. 75, 76, note j.)
    IV. The proof of the want of probable cause and of malice, was sufficient, not only to go to the jury, but to sustain their verdict. 1. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged. (Munns v. Nemours, 3 Wash. C. C. R. 37; Forshay v. Ferguson, 2 Den. 619.) 2. Belief, however strong, if the person is innocent, and has given no just occasion for suspicion by his own misconduct, is not sufficient. (Merriam v. Mitchell, 1 Shep. 439; see also Helbrun v. Stearns, 4 Dana 120.) 2. Proof of the want of probable cause being negative, very slight evidence is sufficient to throw the onus upon the defendant. (Cotton v. James, 1 B. & Adol. 133.) 4. Proof that the charge was without foundation, is jprimd, fade sufficient to show the want of probable cause, and from that, malice may be inferred. (Burley v. Bethune, 5 Taunt. 583.)
   By the Court. Oakley, Ch. J.

The defendant moves for a new trial, on several grounds.

1. The first which we will notice, is that the jury have given excessive damages. Although the court has the power to grant new trials on this ground, it is one that is sparingly used, and we see no reason for its exercise in this case. The amount of the verdict does not shock the sense of the court as to its propriety, and we cannot disturb it.

2. It was contended that the verdict was clearly against the weight of evidence. We have considered this objection, and without going into detail, it suffices to say, that we think the verdict is not assailable on this ground.

3. We next come to the points of law ruled at the trial. It was there contended, and the point was embodied in the motion for a nonsuit, that the memorial complained of as being a libel, was a privileged communication, upon which no action would lie, without express proof of malice and want of probable cause, to be given affirmatively by the plaintiff, and that no such proof had been made.

We are of opinion, that sufficient proof of the want of probable cause had then been given. At all events it was enough to go to the jury for their consideration.

As to the other branch of the proposition, that the memorial was a privileged communication, the judge took the view of it contended for by the plaintiff, and charged the jury accordingly, when he submitted the cause to them. We deem that to be the true rule of law applicable to the case. The postmaster general was a high executive officer of the government, charged with important public interests ; and it was the right of the defendant and of every citizen, to make a representation to him and to the subordinate officers under him, in relation to the business of his department, and the bids for contracts and other dealings connected with such business.

On the argument of the motion for a new trial, the defendant’s counsel assumed much broader ground, and claimed that the memorial in question was an absolutely privileged communication, for the publication of which, the defendant under no circumstances could be liable in an action for a libel. Although this point was not taken at the trial, and does not strictly arise in reviewing the decisions there made, we are inclined to put it in the way of being rectified, if the point be tenable. We have therefore examined the matter and considered it fully, and we are clearly of the opinion, that the memorial was not an unqualified or absolutely privileged communication.

In order to clothe it with the privilege accorded to publications of this class, -it must appear to have been made in good faith, believing the statements which it contains to be true, or having probable cause to believe them to be true. Hie action upon it is thus assimilated to an action for malicious prosecution, where the want of probable cause is to be proved by the plaintiff. He is to make out that ground of his action by proper evidence. It often happens that slender proof on his part is enough to throw the burthen of proof on the defendant. Such was the case in this suit. The plaintiff, when he rested, had given evidence, tending to show the absence of probable cause on the part of the defendant to make the charge contained in the memorial, and sufficient, if not rebutted, to warrant a jury in finding that such cause did not exist.

We were referred to a great variety of adjudications, as well as to the opinions of judges, and the treatises on this subject.

, We are not much inclined, after considering the authorities, to extend the doctrine of absolutely privileged communications. We shall conform to the settled rule, as far as the law has carried it; but we shall go no further.

In England, as well as here, this doctrine of absolute privilege, is confined to two classes of cases. First, To proceedings in corn’ts of justice. Secondly, In England, to parliamentary proceedings; and by analogy to our legislative proceedings. Hie latter class originated in England, in the fact that parliament was considered the high court of justice in the kingdom. The privilege was applied to legislative bodies in this country, without the existence of the reason which induced it there.

The doctrine has not been extended here, beyond legal proceedings ; and applications, memorials, and similar matters presented to the legislature or growing out of legislative proceedings. And in all these cases, the privilege is confined to matters pertinent to the legal or legislative proceeding, to which the communication relates.

The other class of privileged communications, for which there is no absolute privilege, is very extensive. Thus, an application to the appointing power, in respect to a candidate for a public office, is an illustration. It is privileged, in a certain way. In order to make the writer or publisher liable, it must appear that he acted maliciously and without probable cause. If there were no probable cause for the communication, the law implies that it was made with 'malice. If, however, it appear that there was probable cause, the communication is privileged; no matter how much actual malice dictated it.

To apply these principles to this case. The defendant had a perfect right to submit this memorial to the postmaster general; and it is of no consequence what were his motives, if he had probable cause for the statements which it contained.

The question was submitted to the jury whether he had such cause ; they have found against him, and we perceive no good reason for disturbing their conclusion.

4. An exception was taken at the trial, that the judge had no right to submit to the jury, the question whether the memorial was shown by the defendant to any person other than the postmaster general, and those official characters connected with the general post-office, on the ground that there was no evidence to sustain that allegation.

As to this exception, there was evidence given, tending to show that the defendant did exhibit his memorial to a person not in the post-office department. It is true, the testimony of the witness examined to this point, was somewhat vague ; but it was proper for the consideration of the jury, and it is not so indefinite that we could interfere with their verdict, if we believed it to have been given on this grounds alone.

It should be observed, that no exception was taken to the' charge at the trial; and we think, according to correct practice, the defendant is not at liberty to take his objection for the first time upon a motion for a new trial.

It is said that the practice of the late supreme court authorized a party on a case, to raise any point which the case disclosed, whether it were taken at the trial or not. That may have been so, but it never was the practice in this court. At an early period, we adopted the course of combining a case and bill of exceptions. The history of the trial was presented in the form of a case, because the evidence would then be before us for review in respect of the verdict; while the leave reserved, expressly or tacitly, to turn it into a bill of exceptions, saved the parties all ulterior remedies. We never intended by that' practice, to allow an exception to the charge of the judge to be made for the first time at the argument.

It is said by the defendant, that something was omitted by the judge in his charge, which ought to have been given to the jury. If this were so, (which we cannot perceive,) the defendant should have brought the matter to the judge’s notice at the trial, and then taken his objection, if the jury were not instructed accordingly.

The main point of law involved in the case and presented at the trial, was ruled in the defendant’s favor; and the jury having found against him on the facts of the case, we cannot interfere with their verdict.

Motion for new trial denied.  