The court is of the opinion that the investigation of the charges against defendant Kilgo before the board of trustees of Trinity College was not absolutely, but qualifiedly рrivileged, and so was the publication of the proceedings in the pamphlеt, known in the case as the “Blue Book,” which was intended for circulation among the patrons of the college and among those likely to become its patrons. Any statement or communication is conditionally privileged when made tona fide about something in which (1) the speaker has an interest or duty; (2) the hearer has a corresponding interest or duty; and (3) when the statement or communication is made in protеction of that interest or in performance of that duty. It must be uttered in the honest bеlief that it is true. The standard of privilege is the standard of the law, not of the individual, and the privilege depends, not on what the individual may have supposed to be his interest or duty, but upon what a judge decides, as matter of law, his interest or duty to have beеn. The court determines what is and what is not privileged. The effect of the privilegе is to cast on the plaintiff the burden of showing malice on the defendant’s part in uttering or publishing the alleged slanderous words. If one exceeds the privilege, its protection to him ceases and the ordinary rules of liability apply. Whether he hаs exceeded it and whether he was *108 actuated by malice are ordinarily questions for the jury. 1 Jaggard on Torts, 530, 531. Proceedings before school boards, religious, frаternal and like organizations are within the class having only a qualified privilege аnd are protected by such privilege when it is properly used and not abused. 1 Jаggard, 539. Absolute privilege is generally confined to judicial and legislative proceedings and official communications of a public nature, where the interеst of the public is directly concerned. 1 Jaggard, 526, et seq.
The plaintiff having declared оn the publication of the pamphlet, must show that the defendants were prompted by actual or express malice in making the publication. There is no cause of action alleged against the defendant Kilgo for slander in making his speеch before the board, nor is there any alleged against the defendants, Duke and Kilgo, for libel in publishing the speech in The Morning Post and other newspapers. Testimony as to thе latter publication was introduced to show malice in publishing and circulating the pamphlets. A majority of the judges sitting are of the opinion that there is no evidence of malice as to the defendant Duke, and that there is no evidence thаt the defendant Kilgo participated in the publication of his speech in the newspapers. Upon the question, whether there is any evidence that the dеfendant Kilgo was actuated by malice in publishing the pamphlets, the judges are equally divided in opinion, two of the judges holding that there is evidence in the case, certainly when coupled with what was improperly excluded, which requires that the cause be submitted to the jury, and the other two judges holding that there is no such evidence.
It is not deemed necessary to review the evidence or discuss the case so far as the defendant Duke is concerned. No useful precedent would be furnished, as a case resembling this, even in its general features, is not apt to be again presented, and no new or important principle of law is involved. As to the defendant Kilgo it has not been usual to do more *109 than merely announce tbe rеsult when there is a divided court, as diverse opinions of tbe judges in sucb a case could not possibly bave tbe weight of precedents. There could be no opinion of tbe court.
Governed by tbe law, as determined upon tbe facts by a majority of tbe court in respect to tbe defendant Duke, and by tbe course and prаctice of this court (when its members are equally divided in opinion) in respect to tbe defendant Kilgo, we must affirm tbe judgment of tbe court below and tbe action will stand dismissed.
Affirmed.