free scholars by examination, so as to avoid any invidious distinction between the two classes of boys, and provision being also made for the regulation from time to time of the number of free scholars according to the state of the income.

The question as to the admission of boarders in such a state of circumstances discussed, and distinguished.

This was a summons, adjourned from chambers, for he purpose of settling an amended scheme for the reulation of the Manchester Free Grammar School, which was founded in the reign of King Henry VIII. By the original foundation deed, which was an indenture of feoffment, dated the 1st April, 1525, after reciting the endowment of the school, it was stated hat the trustees should stand seised of the premises o the use therein specified, and should perform and bserve all the ordinances and constitutions in the chedule to the indenture for the maintenance of the chool. Among the ordinances contained in the scheule were provisions that every schoolmaster and usher hould teach, freely and indifferently, every child and cholar coming to the school without any money or ther rewards, except only his stipend and wages; nd that every scholar should pay at his first admiting one penny sterling, and not above, to the two Joor children for the time being, keeping the book of scholars' names, and making clean the school. It was also provided that any surplusage of the income of the school above 407., after satisfying all wages, reparations, and other necessary expenses, should be given to the exhibition of scholars yearly at Oxford or Cambridge brought up in the school; and power was given to the trustees, with the advice of "discreet learned ounsel and men of good literature, to have full power nd authority to augment, increase, expound, and reorm all the ordinances, only concerning the schoolaaster, usher, and the scholars, for their, and every of heir, offices concerning the said free school, for ever." In the year 1833 the income of the school had largely ncreased, and amounted to about 40007. per annum; nd the Court of Chancery, upon an application by the rustees under Sir Samuel Romilly's Act, sanctioned a ew scheme for the management of the school, and ubsequently in the year 1849, a fresh scheme was ettled by the decree of the Court on an information led against the trustees in the year 1835. A report f these proceedings is contained in 1 Ph. 737 and 16 im. 453, nom. The Attorney-General v. The Earl of Stamord, where the facts will be found more fully stated. The scheme, as finally settled in 1849, provided for the gratuitous instruction of all the scholars, and for their education in arithmetic, mathematics, the modern languages, and the modern arts and sciences; nd that all boys of the age of five years should be ligible to become scholars, and should be allowed to continue up to the age of twenty years; and that no boarders should in future be taken by any master or eacher. Provision was also made for the awarding of prizes and exhibitions.

Subsequently, however, great depreciation took place in the income of the school, and there were at the present time only 250 boys enjoying its benefits, though there was accommodation for 350. The sanction of the Court was, therefore, now sought to a proposal for the admission to the school of a certain number of boys on payment of a capitation fee, to be fixed by the trustees at a sum not exceeding twelve guineas for each boy, so as to enable them to carry out the course of instruction sanctioned by the decree of 1849. This proposal, though opposed by several influential people, was approved by the masters of the school, the visitor the Dean of Manchester, and

others.

Rolt, Q. C., and Little appeared in support of the summons.

Wickens, for the Attorney-General, contra.

Sir W. P. WOOD, V. C.-I think that the scheme suggested, of introducing a class of paying scholars, ought to be sanctioned by the Court. The scheme of 1833 was one for dealing with the funds of the charity by enlarging the benefits derived from it, in consequence of a great increase of income. The only question then raised and discussed from 1833 to 1849, was, what was best to be done with reference to those improved means, and whether or not, regard being had to the narrow construction of the words " grammar school," and to the direction contained in the founder's instrument, that the surplus sums should be applied in exhibitions to the University, there could be any of that enlarged species of education which, in a city like Manchester, was of course eminently a necessity. That necessity was strongly felt with reference to the introduction of the modern languages and of mathematics, and other subjects besides those to which this Court originally confined the word “grammar." It appears that a great difficulty was supposed to exist, with respect to this school, because it was excepted from that act of the Queen (3 & 4 Vict. c. 77), which authorises and superadds other branches of instruction to those which were supposed by the Court of Chancery to be included in the word "grammar;" and being so excepted, it was pressed in argument, that it would be impossible for the Court to introduce any scheme other than that of a "grammar school," strictly speaking. Lord Cottenham's judgment disposed of that, on the ground of a special clause in the founder's deed, by which the trustees are authorised, without derogating from the operation of the school, to introduce such changes as they think may be requisite from time to time, as regards the masters or the scholars. It is true, that at the time that scheme was settled in 1849, a good deal of that depreciation in the value of the property which is now deplored had taken place. Whether that was brought before the Court, I have no means of knowing. I should have thought, however, if it had been, that the Court would hardly have sanctioned so extensive a scheme as was adopted, particularly as the profits from the boarders were cut off; for it was thought right at that time to deprive the masters of the privilege of taking boarders, which was to some extent a provision for them, and that rendered it necessary to provide a substitute out of the funds of the school. But whether that was considered or not in 1849, the fact is now before me that the income of the charity is utterly insufficient for carrying into effect a very large portion of the scheme then settled.

That being so, the matter does not come before me, so that I am asked to make an alteration in the scheme of 1849, by introducing a totally new system upon the same state of circumstances as then existed, or upon a state of circumstances so little changed as regards the position of the school as might ordinarily be the case during a period such as that of thirteen or fourteen years. But the Court in 1849 having acted upon a mistake with regard to what the revenues of the school would afford, which was not then called to its attention, am I now to cut off or stint a large quantity of the objects specified in the scheme then sanctioned? The trustees allow that, owing to the present position of the property, that scheme has become impracticable, unless some further means be provided for supporting the school. And I look upon the case very much as if the trustees said, "Being before the Court in 1849 with a scheme which appeared not to require any additional support, we now find that without it that

Dec. 9, 1863,

the number of free scholars, in the event of the mentation or further diminution of the funds the charity, so as to secure the whole benefit of the rity for the free scholars.

Some discussion then took place as to the age of adsion, having regard to the competitive examina1, and that matter was ultimately referred to chams for further consideration.

Note for reference-Story's Eq., sect. 1170 a.

COURT OF QUEEN'S BENCH.
TRINITY TERM.

At

sented the protest to the defendant for his signature. The defendant refused to sign the document, and, being asked his reasons for so refusing, said "he would not sign to keep a big rogue like Cowles" (the plaintiff) in the trust." Upon this Cooper pressed the defendant for further explanation, who then stated, that the plaintiff had left the parish under discreditable circumstances, not having paid his creditors, of whom he (the defendant) was one, and that the plaintiff had robbed him of two pounds. In consequence of what he heard from the defendant, Cooper dismissed the plaintiff from his situation of farm bailiff. The counsel for the defendant also called witnesses, and amongst them the defendant himself, who gave substantially the same account as that deposed to by the witnesses for the plaintiff; but added, that to[Before BLACKBURN, MELLOR, and SHEE, JJ.] wards the end of the conversation he told Cooper that he (the defendant) was surprised that he kept such a COWLES v. POTTS.-May 31. man as the plaintiff on with his (Cooper's) son. Slander-Privileged communication-Malice. the close of the plaintiff's case, the defendant's counsel submitted that the words were privileged by the e plaintiff, being one of the trustees of a certain charity, occasion; the learned judge, however, declined to stop rom which it was proposed to remove him, requested C., the case, but left it to the jury to say whether the n whose employ he was, to canvas for signatures to a special damage resulted from the words spoken; and rotest against his removal. C. applied, amongst others, if so, what was the amount of damage to which the o the defendant for his signature, which the defendant plaintiff was entitled; and, further, whether there was efused, and, on being asked his reasons, said he would malice; reserving for the Court the question, whether never sign to keep a big rogue like R. C. (the plaintiff) the words were privileged. The jury found, that the in the trust, as he has robbed me of two pounds; fur- dismissal of the plaintiff from the service of his emther stating, by way of explanation, that he (the ployer was the consequence of the words spoken, asplaintiff) had left the parish under discreditable cir- sessing the damage at 107., but negatived malice; and cumstances, and without settling with his creditors; and the verdict was thereupon entered for the plaintiff. added, that he was surprised C. kept such a man on A rule nisi was afterwards obtained, calling on the with his son. In consequence of the words spoken, C. plaintiff to shew cause why the verdict entered for dismissed the plaintiff from his employ. The judge re-him should not be set aside and a verdict entered for served for the Court the question, whether the words the defendant, on the ground that the judge ought to were privileged or not, and asked the jury whether the have held that the words were privileged; against special damage was the consequence of what the defend- which, ant said, and whether there was malice. The jury answered the first question in the affirmative, and gave damages, but negatived the second:-Held, that the occasion was privileged, and that mere intemperance of language, though forming evidence of malice, will not operate, if malice be negatived, to take away the privilege.

The declaration stated, that the defendant falsely
dmaliciously spoke of the plaintiff the words fol-
wing, that is to say, "I will never sign to keep a big
gue like Robert Cowles in the trust" (meaning a
rtain trust, called Buckman's Charity, in the parish
&c., whereof the plaintiff, at the time the defendant
oke and published the above false and defamatory
ords, was a trustee), "as he has robbed me of two
ounds. I will not vote to keep such a rogue and
windling thief like Robert Cowles in the trust" (mean
ig the said trust).
"You will find him a big rogue
efore long." Whereby the plaintiff lost his situa
on as farm bailiff in the employ of Charles Cooper,
dy b

*

O'Malley, Q. C., and Bulwer, Q. C. (Easter Term, May 10) shewed cause. The learned judge was right in ruling that this was not a privileged communication. Independently of the question of malice, enough was proved to entitle the plaintiff to succeed in the action. Even when an occasion is properly the subject of privilege, the communication may, by reason of the employment of terms of unnecessary severity, render the person making it liable in damages; as if a master, in giving the character of a servant, should enter into unnecessary and groundless abuse of him. So, here, if asked for facts, the defendant might have stated, them, but he had no right to impute unworthy motives to the plaintiff, and assert of him, that he was an improper and dangerous companion for the son of his employer. [Keane, contra. The assertion, that the plaintiff was an improper companion for the son of his employer, was no part of the cause of action stated in the declaration. It was relied upon as evidence of malice, and the jury have expressly negatived malice. There is no authority precisely in point, but the Plea, not guilty. nearest case to the present is Martin v. Strong (5 Ad. At the trial, which took place before Channell, B., & El. 535), where it was held that words spoken the Suffolk Summer Assizes, 1864, it appeared that by a subscriber to a charity, in answer to inquiries by he plaintiff, who was in the employ of Charles Cooper, another subscriber, respecting the conduct of a mefarmer at Kessingland, as farm bailiff, was also one dical man in his attendance upon the objects of the of the trustees of a local charity, known as "Buck- charity, were not merely, on account of those circumnan's Charity." Certain persons in the neighbourhood stances, a privileged communication; at all events, it seing dissatisfied with the conduct of the plaintiff re- is submitted that the case does not come within the rule lative to the affairs of the charity, it had been pro- laid down in Martin v. Toogood (1. C., M., & R. 181°). posed to remove him from the trust; but the plaintiff, [Mellor, J.If certain questions were pressed upon the being desirous of continuing in office, requested his defendant by the plaintiff's employer, might he not, in employer, Mr. Cooper, who was called as a witness for answer to them, say, "He has cheated me" (assuming the plaintiff, to procure signatures to a document such to have been the case), and may, perhaps, misdrawn up by way of protest against his removal. This Cooper undertook to do, and, amongst others, pre

Fully set out in the judgment, post, p. 951.

[Queen's Bench.] [Dec 9, conduct himself in his trust?" Shee, J.-Surely he | the close of the plaintiff's case there is no intrinsic had a right to state the circumstances which influenced extrinsic evidence of malice, that it is the duty of the his own mind.] In delivering judgment in Robertson judge to direct a nonsuit or a verdict for the defendv. M'Dougall (4 Bing. 679), Best, C. J., says " If an ant." As to Fryer v. Kynnersley, cited on the other individual, unauthorised, publishes reflections on a side, it is somewhat difficult to follow the grounds of man's character, and injury results from the publica- that decision. [Blackburn, J.-It certainly sens at tion, the law does not inquire into his motives. But variance with the law as generally understood, and I if, in the performance of a duty, he makes charges confess that I do not understand the ratio deded] honestly, even though he express himself with warmth, [They also referred to Whiteley v. Adams (15. B. he is excused; for the law has respect to human in- N. S., 392; S. C., 10 Jur., N. S., 470).] Cur, adr firmity; he must, however, confine himself to what The judgment of the Court was now (May 1 the occasion requires; for if he goes beyond it, im-livered by puting base motives, he is not excused unless he justifies himself by shewing the truth of his assertions." [Blackburn, J.-If you do away with the right of imputing base motives, you at once put an end to privileged communications altogether. Mellor, J.-Suppose a master, to whom reference is made for the character of a servant, to say, "He stole my wine," such an answer you contend would be improper, and that he should have said something to this effect-" He certainly carried away and drank my wine, but whether this amounted to stealing, I leave you to judge."] Fryer v. Kynnersley (10 Jur., N. S., 441) is in point. There, in delivering the considered judgment of the Court, Erle, C. J., says-" Whatever our opinion might have been about the communication being privileged, if the letter had been confined to a simple statement of the servant's conduct, the letter clearly goes, in our judgment, beyond what was justified by such a communication." [They also referred to Wenman v. Ash (13 C. B. 836); S. C., 17 Jur. 579); Tuson v. Evans (12 Ad. & El. 733); Wright v. Woodgate (2 C., M., & R. 573); Gilpin v. Fowler (9 Exch. 615); Milne v. Marwood (15 C. B. 778); Fairman v. Ives (5 B. & Al. 643); and Somerville v. Hawkins (10 C. B. 583; S. C., 15 Jur. 450).]

Keane, Q. C., and Markby, in support of the rule.Whether words spoken are privileged or not, is a question which depends not merely on the fact of their falsity, but whether they were so far in excess of the occasion as to lead to the inference of malice (George v. Goddard, 2 Fost. & F. 689); and here the question of malice has been negatived by the jury. The distinction to be taken in questions of this kind is well set forth in Peacock v. Sir George Reynall (2 Brownl. & G. 151), which shews that this was a privileged occasion, and the judge should so have directed the jury at the trial. The only questions which can arise in such cases are, first, whether the occasion be privileged, and if so, whether there be an abuse of the privilege. Here the conversation, in the course of which the defendant honestly and properly expressed his opinion of the plaintiff's demerits, was an entire and undivided one, and should not be broken up in order to deprive a separate portion of it of the benefit of privilege. [Bulwer, contra, referred to Starkie's Law of Libel and Slander, Preliminary Discourse, p. 17, where it is said-" For as to the excess, no legal justification or excuse arises from the occasion, and the case stands on the same footing, as far as regards such excess, with any other communication made with

out lawful excuse-that is, the mere absence of ex

BLACKBURN, J.-In this case the action was fr words spoken to one Charles Cooper, imputing to the plaintiff that he was a rogue, in consequence of which the plaintiff lost his situation, as servant to Cooper. Plea, not guilty. On the trial, before my Brother Channell, it appeared that the plaintiff was a trustee of some local charity; that it had been proposed to remove him from that trust, and that Cooper, to whom the plaintiff was then farm bailiff, at the request and instance of the plaintiff, was canvassing for signatures to a protest against his being turned out of the trust. Cooper requested the defendant to sign this protest, and he having refused to do so, was pressed to give his reasons, and gave them, namely, that he would not keep a big rogue in the trust. Being further pressed, he explained his resons for this opinion, which were, that the plaintif had left the parish under discreditable circumstances, and without settling with his creditors, including the de fendant, so that it was plain that the words were used in a sense disparaging to the plaintiff, but were not actionable without special damage. Cooper gave evidence that he, in consequence of these words, dis missed the plaintiff, not wishing, as he said, to have him near his son, a boy of about eighteen years of age. At the close of the plaintiff's case, the defendant's counsel submitted that there was no case, as the words were privileged by the occasion. The learned judge said he should reserve the question for the Court above, and in the meantime leave to the jury the two questions, whether the special damage da result from the words spoken, and the amount of d mages, and also (in case the Court should think th words privileged by the occasion) whether there malice. The defendant's counsel then called nesses, and amongst others, the defendant hist whose account of the conversation with Cooper did not materially differ from that given by the plais witnesses, except that the defendant stated that t wards the end of the conversation he told Cooper th he (the defendant) was surprised that he kept su man as the plaintiff on with his son. The jury fad that the dismissal was in consequence of the uttered by the defendant, and assessed the dama 107., but they negatived malice. The verdict was entered for the plaintiff, with leave to move to a verdict for the defendant, if the judge ought to have held that the words were privileged. A rule nisi obtained accordingly, which was argued before my Brothers Mellor, Shee, and myself during last term.

During the argument, a doubt occurred to some of press malice cannot justly repel the action."] It may us whether the words, which, according to the defendbe gathered from Cooke v. Wildes (5 El. & Bl. 328; ant's own account, he had spoken, as to his surprise S. C., 1 Jur., N, S., 610), that the Court thought mere that Cooper should keep the plaintiff near his son, excess did not create a new occasion; and there, in de- were not so disjoined from the discussion about the livering judgment, Lord Campbell, C. J., says "We trusteeship as not to be privileged, whatever might be fully agree to the doctrine laid down in Somerville v. the case with regard to the other words; but on refe Hawkins, that it is matter of law for the judge to de-rence to the learned judge, we are informed that the termine whether the occasion of writing or speaking whole of what was said about the plaintiff's character. criminatory language, which would otherwise be ac- was said with reference to the discussion, whether i tionable, repels the inference of malice, constituting was proper that he should be continued as a trustee what is called a privileged communication; and if at of the charity; and that the question reserved to the

Court was whether, that being the case, words im- | of this Court in Cook v. Wildes, of which we approve, puting roguery to the plaintiff were primâ facie pri- the intemperance of the defendant's language, and the vileged or not. The intemperance of the defendant's unnecessary force of his expressions, formed evidence expressions, and the assertion on his part, that the of malice which it was proper to leave to the jury, but roguery of the plaintiff was so great, that he was not did not take away the privilege, the jury having negafit to be near young Cooper, were left to the jury as tived malice. evidence of malice; but that being negatived, the ques- We think, therefore, that the rule must be abtion reserved is, whether the occasion excused language solute to enter the verdict for the defendant.-Rule strongly disparaging the plaintiff's character for ho- absolute. nesty, but bonâ fide spoken with reference to the discussion, whether it was proper to take steps to retain him as a trustee of the charity. No motion has been made to set aside the finding as to malice as against evidence, nor would the Court, according to its usual practice, have granted a rule on that ground, where the damages were so small.