29 Mass. 163 | Mass. | 1831
delivered the opinion of the Court. Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith, to those who have an interest in the communication, and a right to know and act upon the facts stated, no pres imption of malice arises
We think the case must be governed by this rule. The charge in the two first counts was, that the plaintiff had put two votes into the ballot box. It appears that the defendant was one of the selectmen of the town, and that the words were spoken in open town-meeting, during an election at which the defendant was acting in his capacity as a public officer. It appears to us, that this falls under both branches of the rule stated. It was the duty of the defendant, charged with the proper conduct of the election, to give notice to the citizens there assembled, if any one put in two votes, in order that an investigation might take place and the truth be ascertained, and that, by a new ballot or otherwise, according to the circumstances, the error might be corrected.
And we think, also, it was a communication in which all the voters had an interest. It is not stated what the election was ; but in general it may be said, that every voter has an interest in the purity and correctness of the election in which he participates, and that the putting in of more votes than one, by any voter, is an illegal and wrongful usurpation of the rights of the other voters. It is therefore to be deemed a privileged communication.
Such being the occasion of speaking the words, as it ap peared on the proof of the plaintiff’s case, any evidence which tended to prove that the defendant was acting in good faith, in the discharge of his duty, was competent to repel the charge
As to the instruction to the jury, we think it was sufficiently favorable to the plaintiff, and that the position might have been a little broader in terms, namely, that if they found that the defendant was induced by any cause to believe that the plaintiff did what the defendant said he did, and that the defendant did not speak the words maliciously, they should find for him. But the instruction was precisely adapted to the proof; because the case finds, that there was evidence that it was the conduct of the defendant which tended to induce this belief.
Judgment on the verdict.
See Robinson v. May, 2 Smith, 3; Fairman v. Ives, 1 Dowl. & Ryl. 252; Gould v. Hulme, 3 Carr. & P. 625, Woodward v. Lander, 6 Carr. & P. 548; Spencer v. Amerton, 1 Mood. & Rob. 470; Rlake v. Pilfold, ibid. 198; Pad more v. Lawrence, 11 Adol. & Ellis, 382; Gray v. Pentland, 2 Serg. & R. 23; S. C. 4 Serg. & R. 420; Flitcraft v. Jenks, 3 Wharton, 158; Hill v. Miles, 9 N. H. R. 9; State v. Burnham, ibid. 35