#### Benjamin Bradley *versus*Ebenezer Heath.

Where words imputing misconduct to another are spoken by one having a duty to perform, and in good faith, and in the belief that it comes within the discharge of that duty, an action cannot be maintained for the speaking of the words, without proof of express malice.

So, where the words 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.

Thus, where a selectman, acting in his official capacity at a town-meeting during an election, said in good faith and in the belief that the words were true, “ the plaintiff has put in two votes,” it was *held,*on both the grounds above stated, that an action of slander could not be maintained for the words so uttered.

(t was also *held,*in an action against such selectman for speaking those words, that ne might prove, under the general issue, the occasion of uttering the words and that the plaintiff's own conduct was such as induced him to believe the imputation was true.

Action of slander. The first two counts in the declaration charged the defendant with having uttered, at a public town-meeting, the words, “ Bradley has put in two votes.” The defendant pleaded the general issue only.

*168At the trial, before *Putnam*J., these words were proved to have been spoken as alleged. The defendant proved, that at the time of uttering them he was one of the selectmen of Brookline, and that he was requested to see that no one voted improperly. He álso proved, that the manner of the plaintiff’s voting at the time when the words were uttered, was such as to excite suspicion and to induce others to believe that he actually put into the ballot box more votes than one at the same time.

The jury were instructed, that if from the evidence they believed that the conduct of the plaintiff was such as induced the defendant to believe the plaintiff did what the defendant said he did, and that the defendant did not speak the words maliciously, they should find a verdict for the defendant.

A verdict being returned in favor of the defendant, the plaintiff moved for a new trial, because the general issue only being pleaded, and the words charged not having been spoken either privately, confidentially, orz by mistake or accident, or in the course of legal proceedings, the jury were bound by law to return a verdict of guilty ; and if they were of opinion that the defendant had good cause to believe that the words ■ were true, they might well take such circumstances into consideration, but in mitigation of damages only. '

*Nov. 2d*

Harrington, in support of the motion,

cited *Underwood*v. *Parks, 2*Str. 1200; *Mullett*v. *Hulton,*4 Esp. R. 248 2 Stark. Evid. 878; *Root*v. *King,*7 Cowen, 613; B*odwell*v. *Swan,*3 Pick. 376; *Shepard*v. *Merrill,*13 Johns. R. 475; *Andrews*v. *Vanduzer,*11 Johns. R. 38.

*Metcalf,*for the defendant,

cited Stark. Evid. 863; 2 Saund. Pl. and Evid. 808; *Bromage*v. *Prosser,*4 Barn. & Cressw. 247; Bull. N. P. 8; *Remington*v. *Congdon, 2*Pick. 310.

Nov *5th*

Shaw C. J.

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 *169from the speaking of the words ; and therefore no action can be maintained in such cases, without proof of express malice. If the occasion is used merely as a means of enabling the party uttering the slander to indulge his malice, and not in good faith to perform a duty or make a communication useful and beneficial to others, the occasion will furnish no excuse. *Bromage*v. *Prosser,*4 Barn. & Cressw. 247; Starkie on Slander, 200.

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.1

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 *170oi express malice, or colorable pretence. With this view it was competent to show that the manner of the plaintiff’s voting at the time the words were uttered, was such as to excite suspicion and induce a belief, that the plaintiff put in more votes than one. It was in effect proof of probable cause, which is allowable when the occasion of speaking the words affords *prima facie*evidence of an excuse for speaking them. *Remington*v. Congdon, *2*Pick. 310. And we think that this in no degree impugns the rule, that in ordinary actions of slander, where the occasion furnishes no *prima facie*excuse, the truth of the words spoken cannot be given in evidence under the general issue.

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.*

1

 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