The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-05-24

OF the plaintiffs statement, he out the
mee~senies that the psautiti entered INTO the employ
OF the fvm of Geo. n Wood the day al ged,
denies the snssfns of he words Of and The
plaintiff shout the days stated 10 Mr. Ooe, In tho
presence and hearing Of any person and (ey spend
ment OF the be denies that al the lime OF The al
legged speaking Of the words the plaintiff by occupation
dry goods clerk and salesman and that they spoken Of
him hts occupation h clerk and the
purpose ofnducpg the belief ths they did iaiucea be-
lief that the plaintiff had stolen personal property denies
that the alleged words were spoken with view to injure
defADe the plaintiff that he prjudicedt hereby in
his namc credit reputation, suspected 81 being
dishonest man, lar or un~orthy of confidence, or
tbathe discharged IN consequence, deprived Of
the gans Of such employment clerk injured or
has sustained any damage. The sns@er further AYERS
tha all the orsaton had by him With Jacob Cole
privileged conversation &C., and that the plaintiff,
while in the employ OF Bowen hcNamse,
did become such notorious liar Tat the
To Issue thus rcised between the parties aud ne ev
dcnco whchs relied upon in support OF the ale ons OF
ssry tia. al ould give You Instructions adapted TO the
in two aspects TO be separately considered by you
Although the speaking Of the words to the person nsm
"a partner sarer In the profits Of the firm OF Geo. b.
Wood put In issue by the the speaking ties
titled TO by the witness, and there bong no contrsc-
ton It is not on this trial contested by COUNSEL bu: for
the purposes OF tho trial Is to be deemed proved And al
though there Is allegation in the answer that "he
plaintiff while he was In the employ o. Bosen Mona
place little confidence in hm;' the defendant has
preferred 70 submit the 10 you upon the p!anan
OF this allegation. II seems, therefore, in no VIC
material to say, In respect to the words, IT,
acton can 10 msininred for the speaking Of them.
IT. them words charged spoken by the defendant
Of the paDtn and they are aSoaa0le ener ~ r
relation the plaintiff In his business or calling, IN Which
they uttered by reason OF the consequences which
resulted from such speaking )then the inquiry crises
whether the defendant had 6fu occasion for 80 speaking
by which mean occasion which under the particular
circumstances the law Recognizes a sufficient justaoa
ton, and tho speaking Of these words within tho pfv
lego which such occasion givesY The distinct aspects
Of the case to which refer are suggested BY The claim
made upon proper and legal OCCASION and was therefore
In It's nature privileged comrppcaton The other re-
spoken, If shown rot 10 b, privileged Was
the communication privilaged' advert to this aspect
be most convenient you as seems to ms TO consider
first in the order Of your deberators for You sh ,ud
fnd that the communication Tas privileged, your deioc
Yaons may stop there. In that case he defendant Is
entitled TO your verdict the circumstances under
which the words used to Mr. Cole such that it
became either the duty the right Of the defendant to
n1rm Mr. Cole Of his honest belief respecting the truth
fness, honesty fitness Of the plainiG for the bus
ncss IN which he was employed by his r a, then the
communication in Its nature privileged and the plain
h is not entitled 10 recOver, unless the evi snee satisfies
you that what the defendant said the expression
malice But if you find that he DID not believe them
when taey were uttered (and no expanat On is
found showing that they were uttered In good faah)
will be presumed that they We're spoken In malice.
Confidential communications ma &c 70 employer, uponsis
application for information respecting the character,
duct and fitness Of servant clerk other employe
in their privileged So also If the relations existing
between the party speaking and him to whom the
ncaion made such that good faith towards the lat!
ter requires the communication to be made, II true the
communication Is In Its nature privileged, although not
solicited, but made voluntarily by the speaker and this
relation exists between two employers, when ono has
Eoyed clerk in reliance upon the recommendation Of
sEother or even whom such q recommendation has been
gyeD and has been received by the party and he has
In this case Bowen McSane gave letter OF inreiuc
ton recommendation, importing that Dir. fowes
worthy Of confidence and that letter was exhibited TO the
house OF Geo NJ Wood and that firm employed the plain
tin then, on ascertainng that fact, il became lawful
for Nr. Bowen TO communicate 10 that irm what
ever in his good faith he believed 10 be true. which
affected the conduct OF character OF the plaintiff.
acts sufficient TO constitute the relation which have
described between Mr.. Bowen aud the frm of George
Wood have been given In evidence, and therefore
haIge that, under the circumstances proved, tho
licaon made by this defendant 10 Dir. Cole in It's
nature privileged communication. And where this ap
cars the plaintiff has not done enough TO ente him
when he has proved the speaking Of these words
dc has not proved enough when he has shown thai the
words spoken are not true or even when their truth Is
rot set M or proved by the defendant. He must 30
Itbcr aud satisfy the Jury they were spoken macously
Unless this Is done the defendant stands protected by
rule which founded in the reciprocal obligations due be
wcon man and man in the affairs OF business as we'll as
Df domestic and commercial fe He presumed TO have
spoken in good faith under belief that what he l.
E. hcIctore. required 10 10 further and show that the
defendant did not speak the words In good faith, believing
them TO be true II has been appropriately sad OF com
actions Of SANDER. When the relation exists which have
described in which either the interests OF the speaker
equre that his belief should lie disclosed or in which
duty e the person spoken TO in fairness requires by
oason of the Interest " sucn crson pave IN. inorms
on, aud be applies for II OF Is placed IN prsau oe
ns.d ny previous reeo,nmenaauen Interests Q. sciey
belief should be Withheld or that any obstacle should be
ncrpood TO Us frank, fee and confidential exrcssn
md this bring add, IN conclusion, upon this aspect
,r the case that IS for you TO say upon the evidence
ho,her the psnun has satisfied you that the colnmuni
alton here complained % was male ~ osa lam, "''noa
Ihayc already suggested tina, should no; royiow or
upon the evidence In detail Twill snce TO say
tina, evidence relied upon as showing that The words
relied u[on macousy spoken Is found In the ctter
bearing the sgIs,ure OF tho lrm Of Bowen McNamec,
given 10 the plaintiff after he ci their employ mcnt under
dae Of December Is, 1s) and the testimony OF Nj Car
ter - what stated him in 10 his enquiries,
and tie letter to John Shllct "a farther relied
upcn for same tho purpose, " IL urged that
the tenor and meaning OF those letters and Thai
s,aicmcn, are 60 Inconsistent with the truth OF The
words complained Of that The defendant did not believe
the latter when he spoke thom Before determining the
weight the letters you 10 be satisfied by their evidence
that you may find that The defendant knew their pur'
port: not admitted because written by Defendants part
Der but because deemed my duty 10 leave 10 you the
evidence whether they were written with the
Lpog ledge or assent OF defendant 10 their purpOrt
/ leave hat question to your de.crmins,ioO. Ia
gusse Of ne letter end q tSe sa,s ,,nsIa
tgnlnoaion they neither Of thcm evidence Of malice
III VIII At the time they were given, but Indicate the
Contrary. bui yVn thvNlu aso 49, ipso Nio~ w cN,
dence tending chow that before the conversation IN
Mr. Cole, their suspicious doubts In regard ~ the
honesty Of the p,ni were raised by hearing that he
had len the city with SIX or eight heavy trunks Tor u
The subsequently acquired Information 80 Influenced has
Judgment uai he then became sensible Of the imprudence
and imrropricy Of haying given letter OF reconmsnda
ton AMI doubled Mr. Oartor doing 80; ~ FOR any
son he lad 20 the hoDet belief tat what he sad
wss true, that belief not only iushed him IN making
statement OF his then belief but the grounds OF hs
or.po And uIon the whole evidence bearing upon this
question o. malice you find that there no bal faith
On The Part q; Mr. Bowen In saying what he did W Mr.
Cole but that be believed what he said To be rne or !,
you find that IS just probable the evil
dcnce relied on by The PLAINTIFF that Mr. Bowen spike the
words In good faith, believing them ~ be true, as That lac
did not, then aud either IL IL your duty 10 find for
the defendant In that you will have occasion 10
call what have further 10 IN relation 10 the other aspect
of tbis Tie words spoken then o. be deemed
within tie priyicgc-to be treated q privileged
communicsuoD-Apd your deliberations viii be terminated.
Bot A. the other hand, the matter complained Of i5
found by you not privileged nmunca,ion-and far
relates 10 ue question OF the dcenl suts liability