I 82 HARVARD LAW REVIEW, and the plaintiff before beginning suit sent a person to the defendant to investigate, and the latter repeated the slanders, the plaintiff could recover on the basis of the communication to his agent. For, as was pointed out by Lord Denman, it vi^ould be absurd to give the defendant extra rights when the plaintiff took a reasonable precaution. Griffiths v. Lewis, 7 Q. B. 6i ; 14 L. J. Q. B. 199. This, which is undoubtedly the present law, effectually does away with the " no publication " idea, as far, at least, as the authorities are concerned. Duke 0/ Brunswick v. Harmer, 14 Q. B. 185; 19 L. J. Q. B. 20; Gordon v. Spencer^ 2 Blackf. 286. Where the plaintiff was the first at fault, that is, where, as in the principal case, there had been no previous publication, the later decisions hold the occasion to be privileged. Warr v. j^olly, 6 Car. & P. 497 ; How land v. Blake Mfg. Co., 156 Mass. 543. On principle, this view seems scarcely more satisfactory than the older and discredited theory. Privilege to communicate imports the notion of a right like that of self-defence. Yet, in these cases, the defendant does not speak as of right ; for if he knew of the circumstance which according to the courts gives him the privilege, namely, that his listeners are the plaintiff's agents, he would not speak at all. Would it not be better for the law to admit the existence of the con- stituents necessary to make a technical libel, and deny the plaintiff relief on the ground that volenti 7ionfit injuria 1 Liability of a Lunatic for Negligence. — The case of Williams v. Hays, which has been appearing in various New York courts at irregular intervals during the last two years, and which probably has not even yet been finally decided, is remarkable for the human as well as legal interest that attaches to it. The facts of the case are refreshingly unusual. The defendant, who was one of several joint owners in a vessel, contracted with his co-owners to sail her under certain conditions, not necessary to be here detailed, but which, the court decided, made him not an agent but a charterer, or owner pro hac vice. On a voyage south the vessel met with severe storms, and her captain, the defendant, for more than two days was almost constantly on duty. Finally, becoming exhausted, he went to his cabin. The mate who had been left in charge, having found that the rudder was broken, went down for the captain and brought him on deck. The latter refused to recognize that the vessel was in danger, and declined the aid of two tug-boats, the masters of both of which offered to tow him to safety. In consequence, the vessel drifted on shore in broad daylight, and became a total wreck. The assignee of the rights of the company that insured the vessel brought suit. The defendant captain's sole defence was that from the time he entered his cabin till he found himself in the life-saving station he was totally unconscious and insane. In November, 1894, the case came before the Court of Appeals squarely on the question : Is one, insane by act of God, liable for torts of negli- gence? By a bare majority, the court decided in the affirmative, but added : " If the defendant had become insane solely in consequence of his efforts to save the vessel during the storm, we would have had a different case to deal with. He was not responsible for the storm, and while it was raging his efforts to save the vessel were tireless and unceas- ing, and if he thus became mentally and physically incompetent to give
