bearing on the case, for the tenth section of the act of June 22, 1860, makes the judgment of consuls, with the aid of assessors, in civil suits final.

Being estopped by law from an appeal from the decision of the consular court, Mr. Lake sued Mr. Mangum before the ministerial court, Hon. Charles E. De Long, United States minister, etc., for damages, to wit: (1) for loss caused to said Lake by the abuse of his powers on the part of the consul, $1,500; (2) for false imprisonment (Mr. Dent, United States marshal, being made a party defendant to this suit), $5,000; (3) libel alleged to be contained in an official dispatch from Mr. Mangum to the Hon. J. C. Bancroft Davis, of the Department of State. In these several suits Mangum demurred to the jurisdiction of the court. Mr. De Long was in doubt as to his proper course; for he had heard a case which he describes as similar to these, and the Department had neither approved nor disapproved of his course. Besides, the new consular regulations received in Japan in the meantime say distinctly: "The power to commence civil and criminal proceedings is vested in consular officers exclusively." The minister therefore asked for instructions, and refused to proceed until these reached him.

The governor made a formal demand for Lake's expulsion under the seventh article of the treaty between the United States and Japan, for improper conduct toward a woman named Toka. Mangum issued the order, giving Lake three months to wind up his affairs and go. Mr. Lake complained that his suits could not be tried in the short time allowed him; that the delay in their hearing was not of his seeking, and that it was beyond his control. On this C. O. Sheppard, United States chargé d'affaires, suspended the order for his expulsion-as to time-for an indefinite period, and the Secretary of State approved both the order expelling Lake, issued by Mangum, and its suspension by Sheppard. Lake failed to take advantage of Sheppard's order. He claims now that he did not know of its existence, and yet admits that he did not obey the order of expulsion, although he knew that disobedience subjected him to loss and punishment. He was ordered to leave in three months after July 7, 1871, to wit, on October 7, 1871. By his own admission, contained in the petition now under consideration, he did not leave Japan until the 23d of October, 1871. Leaving, he appointed his brother Edward his attorney to attend to his affairs. De Long heard the suits against Mangum. The decision was adverse to Lake, and Lake appealed to the United States district court of California. Of this appeal the committee have no knowledge from anything submitted for their consideration.

Mr. Lake now appeals to Congress for relief and indemnity in the sum of $35,000. It is not perceived by the committee that the United States is liable for claims against its officers after these have been submitted to the judgment of the courts, or at any time while such officers are amenable to law for acts which are supposed to render them liable to prosecution and penalties. Nor can they admit the principle which an approval of Mr. Lake's claim would go far to establish. The courts are open to Mr. Lake. One has passed upon his causes, and even now the committee are left under the impression that they are pending in another court.

From this review of the testimony before them the committee have arrived at the conclusion that the claim of George W. Lake is baseless and that his petition should be denied. They therefore urge its rejoction.

United States Ministerial Court in and for the Empire of Japan.

GEORGE WILKINS LAKE, PLAINTIFF.

v.

WILLIE P. MANGUM, DEFENDANT.

Action No. 1 for the recovery of damages in the sum of $1,500.

STATEMENT OF THE CASE.

In this action the plaintiff charges that in the month of April, 1869, one McCaslin and himself entered into an agreement to refer certain differences then existing between them respecting their ownership in a certain flouring mill, situated at Nagasaki, in Japan, to Messrs. J. U. Smith and Johannes Brunier, as arbitrators, empowering them (in the event of their being unable to agree) to select a third person to act with them as an umpire.

That said arbitrators were unable to agree, and did select one John Maltby to act as such umpire.

That while this arbitration was proceeding, and before any award had been made, this defendant willfully and maliciously, and with the intent to injure this plaintiff, did, as United States consul at Nagasaki, interfere with and prevent an award being made by these arbitrators by wrongfully and unlawfully is-uing an order to said umpire directing him to withhold giving an award; which order was obeyed, and thus for a long time the award was delayed, the plaintiff kept out of his money; and further, that this action caused him, the plaintiff, to be sued in consular court, whereby the plaintiff was caused damage and loss in the sum of $1,500.

The answer of defendant, Mangum, admits the making of the order complained of, etc., but denies that this action was wrongful or malicious, or that plaintiff was thereby caused any loss or damage whatever.

OPINION.

From the evidence adduced in this action, it appears that this petitioner and McCaslin were the joint owners and tenants in common of a flouring mill, purchased in Shanghai, brought to Nagasaki, and there erected on land belonging to and in the possession of the plaintiff.

That this mill was conducted for some time by this plaintiff, when some trouble and misunderstanding arose between McCaslin and himself about its business, and also regarding the amount of their respective interests in the mill itself.

Some talk about commencing legal proceedings was indulged in by the parties, but at the instance of this defendant the agreement to submit their differences to arbitrators was entered into. Under this agreement the plaintiff selected Mr. Smith as his arbitrator, and McCas in chose Mr. Brunier, who being at first unable to agree, selected Mr. Maltby as umpire. The reason why these arbitrators could not at first agree it appears was because a certain written agreement entered into between McCaslin and Lake governing their partne: ship relations had been lost or mislaid, and for a time could not be produced. The date of the agreement to submit to an arbitration is April 7, 1869. It bears the signature of both Lake and McCaslin, and also of this defendant, Mangum, as a witness thereto. It fairly appears that this was not only entered into by the advice of defendant Mangum, but that it was the understanding and intention of all parties that the whole proceeding should be under the general jurisdiction and control of the consul. This is shown by the fact that the agreement was lodged with him, and applications were made to him from time to time by this plaintiff, as well as others in the interest, for his official assistance and instruction.

In November, 1868, this defendant addressed a note to this plaintiff, directing him not to sell or remove the mill until certain parties who claimed to be interested in it could be communicated with. In explanation of this action on his part, the defendant testifies that he did this because he had been advised of a claim made by H. Fogg & Co., of Shanghai, to an interest in the property. It may well be questioned whether, upon mere information of such a nature, this de endant had any authority to take such action, giving it the force of an order: but this is a matter immaterial now to consider, inasmuch as it is not assigned in the petition, nor was it proven during the trial, that this action of defendant caused the plaintiff any loss or damage, or in fact that this plaintiff paid any attention to the direction at all, but, on the contrary, it seems that he did not, as on the same day that he entered into the agreement for an arbitration he authorized McCaslin to sell the mill, which McCaslin at once did, through the house of Adrian & Co., at Nagasaki, for the sum of $5,500, payable when delivered at Osaka by Messrs.

Adrian & Co. The proceeds derived from the sale to be held by Messrs. Adrian & Co. in trust for Lake and McCaslin, to be paid by them as directed by the judgment to be rendered by the arbitrators. This sale and arrangement as to the delivery of the mill and disbursement of the proceeds this plaintiff notified this defendant Mangum about, and advised him that he had assented thereto.

On the 15th of April following this the defendant addressed a note to Maltby, the umpire, informing him "that H. Fogg & Co., of Shanghai, having declared to me that they have an interest in this mill also, it is necessary that you withhold giving any award until you receive further instructions from me on the subject." The making of this order by defendant is the subject of plaintiff's complaint in this action, and hence it deserves special consideration.

Whether it had any effect at all upon Maltby in preventing him from deciding the case is not proven, except by the evidence of defendant Mangum, who testifies that Maltby obeyed it, that is, that he did not render any decision; but there is not a particle of evidence offered to show what his decision would have been if he had rendered one. It is certainly as fairly presumable that his decision would have been unfavorable to plaintiff as it is that it would have been favorable; hence this action of this defendant may have been beneficial to plaintiff instead of injurious. It seems to be clear that, if this arbitration preceeding was by the parties or the law placed under the supervision and control of this defendant, he had a perfect right to stay this action temporarily for any reason that seemed to him to be a sufficient one. If, on the contrary, he had no such legal jurisdiction over them, his note to the umpire was without any legal force or binding effect, and the umpire remained as fully authorized to proceed as if no such note had been written. That this plaintiff, as well as all others in interest, considered the matter as being under the immediate supervision of Mr. Mangum is plainly shown by the fact that after this sale was made, and while Adrian & Co. were proceeding to remove the mill, he, Lake, becoming alarmed lest his interests might suffer, went at once to this defendant and solicited him to interfere to prevent its removal until he, Lake, should be further secured. Acting at once upon this request, this defendant, Mangum, directed Adrian & Co. to desist from removing the mill until further ordered by him. Messrs. Adrian & Co. did desist, and immediately, that is, on the 15th day of April, executed and delivered to Mr. Lake their written promise to hold the proceeds arising from the sale of the mill subject to the award to be made by the arbitrators.

This written assurance Mr. Lake at once exhibited to Mr. Mangum, and announced his complete satisfaction with it, whereupon Mr. Mangum authorized Adrian & Co. to proceed with the removal of the mill. It is certainly not very consistent for this plaintiff to insist upon the position that this defendant had no rightful charge of or jurisdiction over this property or over the arbitrators when on the very day that the order to the umpire was made by this defendant, of which in this action plaintiff now so strongly complains, he was himself seeking this defendant's intervention in the same business and profiting by it.

On the 17th of April, only two days after the last action mentioned, it was reported to Mr. Mangum that Mr. Lake was interfering with and preventing the delivery of the mill, whereupon he (Mangum) addressed a note to Mr. Lake, advising him that Adrian & Co. had preferred such complaint; that, if he was so doing, he was violating his agreement, and directing him to desist, or otherwise he would be liable to an action for damages.

This instruction Mr. Lake seems to have entirely disregarded, and on the 24th of April Adrian & Co. brought an action against him for damages and to compel him to perform his agreement with reference to the removal of the mill. This action was tried on the 12th of May, and resulted in a judgment being rendered against Mr. Lake for damages in the sum of $400 and directing him to allow the removal of the mill to proceed. In the conduct of this trial this defendant was associated with three American residents of Nagasaki, drawn as assessors, all of whom joined with Mr. Mangum in the judgment. This was the only action that was commenced against this plaintiff about this property, and I am unable to find in all of the testimony any tending to show that Mr. Mangum's order to the umpire directing him to delay making an award had any effect whatever in inducing the commencement of this action or in any manner affecting its result.

The claim of H. Fogg & Co., mentioned by their agents to Mr. Mangum in the fall of 1868, and which caused him to instruct Mr. Lake not to sell the mill unti claimants against it could be heard from, was formally presented to him and filed on the 11th day of May. It proved to be a claim to the ownership of an interest of one-third part of the mill. This claim the plaintiff settled privately and voluntarily. In a letter written by Lake to McCaslin, of date July 27, 1869, in speaking of this Fogg claim, he says: "As I said before, the arbitration agreement was to be final, and it is decided now what is to be done. Mr. Twombley's claim (the Fogg claim)

is no good only for one-third: your third will stand good, for all that I can see," etc. Thus it is proven that there was justice in the demand that Mr. Mangum was endeavoring to have investigated before allowing this mill to be sold and removed. Relative to the further proceedings and final action of the arbitrators, it is proven that on the 27th of May, 1869, the two original arbitrators, Smith and Brunier, agreed upon and made an award, which was filed in the consulate and fully and promptly enforced. In making this award Mr. Maltby, the umpire, did not join, as it was not necessary for him to do so, as Smith and Brunier were enabled to agree at once upon the discovery and production before them of the written contract of partnership before mentioned, which was supposed to have been lost.

Thus it appears that within less than two months from the time when the agreement to arbitrate was made, an award was rendered in which Mr. Smith, this plaintiff's selected referee, joined. There seems about all this to be no appearance of unusual delays having been sustained: and as justice to all parties was, beyond question, meted out, greater expedition, if productive of any different results, could only have produced wrongful ones.

This defendant, in advising all of the claimants to this mill property to settle their difficulties out of court, by arbitration or otherwise, and in lending the full force of his official position in securing substantial justice for all, and preventing a multiplicity of actions at law from being commenced, was obeying and carrying out both the letter and the spirit of the statutes of the United States of America on the subject. Section 19 of the act of 1860 provides as follows: " It shall be the duty also of the said ministers and the consuls to encourage the settlement of controversies of a civil character by mutual agreement. or to submit them to the decision of referees agreed upon by the parties; a majority of whom shall have power to decide the matter." etc.

Whatever of technical informality there may have been in any of these proceedings was invoked and assented to as much by the plaintiff as by any of the other claimants, and did not result in damage or injury to any.

In brief, I fail to find any evidence tending to show that this plaintiff sustained any damage, or that any action taken by this defendant was without his strict line of duty. An action more entirely barren of merit it has never been my fortune to examine.

JUDGMENT.

It is ordered, adjudged, and decreed that this action be, and the same is hereby, dismissed, and that this defendant have and recover of and from this plaintiff his proper costs disbursed in this action, taxed at the sum of dollars, and that execution therefor.

Ordered accordingly.

Done at Yokohama, this 19th day of December, 1871.

C. E. DE LONG,

Envoy Extraordinary and Minister Plenipotentiary
of the United States of America in Japan.

United States ministerial court in and for the Empire of Japan.

GEORGE WILKINS LAKE, PLAINTIFF, Action of libel to recover damages in the sum of $25,000.

v.

WILLIE P. MANGUM, DEFENDANT.

STATEMENT OF THE CASE.

Plaintiff in his petition in this action charges that the defendant, while United States consul at Nagasaki, wrote and published certain false and libelous statements respecting him, in a dispatch addressed to Hon. H. Fish, Secretary of State, dated July 7, 1870. and claims damages in the sum of $25,000.

Defendant in his answer admits writing a dispatch to the honorable the Assistant Secretary of State, in which the language mentioned and complained of in the petition was used, but he denies that these statements are libelous or false, or uttered with any intention to injure this plaintiff, and further avers that his dispatch was an official and privileged communication, and denies that he otherwise uttered or published said statements except by having sent said dispatch.

OPINION.

The only evidence adduced upon the trial of this action in addition to what was adduced upon the trial of the two former causes was the production of a copy of the dispatch mentioned in the petition and a copy of a letter from the honorable the Assistant Secretary of State to Hon. B. F. Butler and others, showing that the Secretary had forwarded a copy of said dispatch to Mr. Butler.

Technically, plaintiff's case fails in his failure to prove that such a dispatch was addressed to the person named in his petition, viz, Hon. H. Fish; but inasmuch as this point was not raised by defendant, this court will proceed to pass upon the case on its merits.

It is undoubtedly true that in ordinary correspondence, by common-law rules, language such as is contained in this dispatch is actionable and is presumptively false and malicious, but such a rule of presumption does not apply to privileged communications, as will be seen by the following references:

'Communications made bona fide in performance of a duty or with a fair and reasonable purpose of protecting the interests of the party using the words are privileged. (Somerville v. Hawkins, 12 Jur., 450, per Marle, J., 3d Eng. Law and Eq. R., 503.)

"Where the relation between the parties by whom and to whom the communication is made is such as to render it reasonable and proper that the information should be given, it will be regarded as privileged. (Lewis et al. v. Chapman, 16 N. Y. R., 374.)

"A communication which would otherwise be actionable is privileged if made in good faith upon a matter involving an interest or duty of the party making it, though such duty be not strictly legal but of imperfect obligation, to a person having a corresponding interest or duty. (Van Wyck v. Aspinwall, 17 N. Y. R., 190.)"

As the evidence shows that Mr. Mangum, while consul of the United States at Nagasaki, wrote this dispatch to his superior officer upon his demand for him to inform him fully with regard to all of his proceedings had in connection with this plaintiff, it is at once seen that it falls fully within the rules of law above quoted, and therefore that it is to be regarded as a privileged communication.

In the trial of actions of this nature, the burden of proof remains on the plaintiff to prove actual malice if the communication is a privileged one, regardless of the nature of the language used, as will be seen by reference to the following citations:

"The rule, observes Lord Campbell, is, that if the occasion be such as repels the presumption of malice, the communication is privileged, and the plaintiff must then, if he can, give evidence of actual malice. If he gives no such evidence, it is the office of the judge to say that there is no question for the jury, and to direct a nonsuit or a verdict for the defendant, etc. (Taylor v. Hawkins, 16 Queen's B., 321; Addison on Wrongs, p. 684.)

"A communication being shown to be privileged, the burden of proof is on plaintiff to show actual malice. (Somerville v. Hawkins, above quoted; Greenleaf on Evidence, vol. 2, sec. 421.)

"If from the plaintiff's own showing it appears that the words were not used in an actionable sense, he will be nonsuited. (Ib., sec. 423.)"

Plaintiff in this action did show this by proving that defendant Mangum, as a consul and a judge of a consular court, uttered these words solely in a dispatch that may be termed a report of his proceedings to his superior officer, as he was in duty bound to do upon his request.

The sending of a copy of this dispatch to Mr. Butler and others by the honorable Secretary is not a matter affecting this defendant or increasing his liability in any manner, as there is no evidence that such a proceeding on the part of the honorable Secretary was usual or probable, or that defendant expected any such course to be pursued. the rule governing such matters being only and correctly stated in the following citation:

"When the publication is by a private letter directed and sent by mail to a particular person the defendant is liable for the damages caused by any further publication of the letter by the person to whom it is addressed or by other persons after it comes into the hands of the person addressed if such publication is a probable and natural consequence of the first sending the letter. (Miller v. Bartlett, 6 Cush., 71.)"

Plaintiff having failed to prove actual malice on defendant's part in uttering these words or their falsity or that plaintiff sustained any actual damage by their utterance his case remains almost entirely unsupported by any evidence.

Although somewhat irr gular, the court will notice and reply to an argument made by plaintiff's couns 1 du ing this trial to the effect that defendant had made