grounds, government are not generally responsible for the misfeasances of their officers (e).

Accordingly, in the cases before referred to of actions Deputy against the Postmaster General for the loss of letters, postmaster. we find it admitted on all hands, that the servant through whose negligence the letters were lost would have been liable to actions at the suit of the parties injured, and the only question made was as to the liability of the master. "As to an action on the case lying against the party really offending," said Lord Mansfield (ƒ), "there can be no doubt of it; for whoever does an act by which another person receives an injury, is liable in an action for the injury sustained. If the man who receives a penny to carry the letters to the Post Office loses any of them, he is answerable: so is the sorter in the business of his department. So is the postmaster for any fault of his own." Upon this principle, in several cases, the deputy postmaster has been held liable for the non-delivery of letters which it was his duty to have delivered (g).

cers liable

There is also a large class of cases, which may be Ministerial conveniently noticed in this place, in which public public offi. officers, in a merely ministerial capacity (h), have been for negliheld liable to answer, in an action at the suit of the gence, &c. party injured, for negligence in the performance of the duties cast upon them. Thus, for instance, a sheriff, Sheriff. whose duty in many cases, such as the receipt, execution, and return of writs, is that of a merely ministerial officer, is liable to be sued by the party aggrieved for any act of irregularity, misfeasance, or nonfeasance in executing writs (i).

(e) In a recent case, however, it was held, that the captain of a man-of-war who had committed an act of trespass in the public service, which was subsequently ratified by the ministers of state, was not liable to an action at the suit of the party injured, who had his remedy, such as it was, against the Crown only; Buron v. Denman, 2 Exc. 167.

(f) In Whitfield v. Lord Le Despencer, Cowp. 765.

(g) Stock v. Harris, 5 Burr. 2709; Barnes v. Foley, ibid. 2711; Rowning v. Goodchild, ibid. 2715; S. C. 3 Wils. 443; 2 W. Bl. 906.

(h) But no action lies against persons acting in a judicial capacity; Groenvelt v. Burwell, 1 Ld. Raym. 454. See Miller v. Seare, 2 W. Bl. 1145; Doswell v. Impey, 1 B. & C. 163.

(i) Bac. Abr., tit. "Sheriff;" Watson's Sheriff, 117.

But not under. sheriff.

Returning officer.

Overseer.

Lottery commis

sioners.

customs.

But an action by the party grieved does not generally (k) lie against an undersheriff for a breach of duty in the office of sheriff; the action must be brought against the high sheriff, as for an act done by him (1), and if it proceeds from the default of the undersheriff or bailiff, that is a matter to be settled between them and the high sheriff (m).

A returning officer at an election of members of Parliament was held, by the House of Lords, in the great case of Ashby v. White, to be liable to an action for maliciously refusing to receive the vote of a person entitled to vote (n).

And the case of Perring v. Harris (o), which was an action against an overseer of the poor for maliciously omitting to insert the plaintiff's name in the poor rate, whereby she was prevented from obtaining a license to sell beer, was one of a similar nature.

So, lottery commissioners have been held liable to an action for not adjudging a prize to the holder of a ticket, entitled to receive it (p).

Collector of And so a collector of customs, appointed by the Commissioners under the stat. 3 & 4 Wm. 4, c. 51, was held liable (q) to an action, at the suit of the party grieved, for nonfeasance in the exercise of his office, viz., for

(k) In certain cases it does by act of Parliament. Sce Cowp. 405. And in Ireland all actions may, by 57 Geo. 3, c. 68, s. 3, be brought against the undersheriff, unless for the immediate act of the sheriff.

(7) For the undersheriff ought to act in the name of the high sheriff. See Wats. Sheriff, 37, and Stroud v. Watts, 2 C. B. 929; S. C. 3 D. & L 799; Reg. v. Schlesinger, 10 Q. B. 670.

(m) Cameron v. Reynolds, Cowp. 403.

(n) 2 Ld. Raym. 938; S. C. 1 Salk. 19; 6 Mod. 45; 1 Smith's L. C. 105; and see Cullen v. Morris, 2 Stark. 577; Pryce v. Belcher, 3 C. B. 58; S. C. 4 D. & L. 238,

which were similar actions, and from which it would seem that malice is a necessary ingredient in such action, as the returning officer is partly a judicial and partly a ministerial officer, though it was formerly thought otherwise. See per Holroyd, J., in Doswell v. Impey, I B. & C.

165.

(0) 2 Moo. & Rob. 5. (p) Schinotti v. Bumsted, 6 T. R. 646.

(q) Barry v. Arnaud, 10 A. & E. 646; and see Barrow v. Arnaud, 8 Q. B. 595, where it was not even suggested that the defendant was not liable to be sued, if the duty claimed in that case was excessive.

refusing to sign a bill of entry of certain goods without payment of an excessive duty. In giving judgment in that case, Lord Denman, C. J., said, "The defendant is a public ministerial officer, and, being so, he is responsible for neglect of his duty to any individual who sustains damage by such neglect. Schinotti v. Bumsted (r) is a strong authority to this effect, the facts in that case respecting the commissioners of the lottery, tending much more to raise a doubt whether the defendants had not a judicial discretion entrusted to them; and in Lacon v. Hooper (8), which was an action against the Commissioners of Customs for not making a certain Commisorder for the payment of money, to which the plaintiffs claimed to be entitled under an act for the encouragement of the South Sea whale fishery, it was not questioned but that even they would be liable to the action, if the neglect of duty were made out."

sioners of customs.

Master not bound to give any character.

Carrol v. Bird.

THE CHARACTER-DEFAMATION.

THE giving a character of a servant, says the learned author of the Treatise on Slander (a), is one of the most ordinary communications which a member of society is called on to make, but it is a duty of great importance to the interests of the public; and in respect of that duty a party offends grievously-against the interests of the community in giving a good character where it is not deserved, or-against justice and humanity in either injuriously refusing to give a character, or in designedly misrepresenting one to the detriment of the indivi

dual.

It is clear, however, that in the absence of any specific agreement to that effect, there is no legal obligation binding a person who has retained another as a servant, to give that person any character at all on dismissal, and that no action will lie against him for refusing to do so. Where, therefore (b), an action was brought by a servant against her master for wholly refusing to give her any character whatever on dismissal, by reason of which refusal one S. refused to hire her; Lord Kenyon said the action could not be supported: that in the case

(a) Stark. on Slander, vol. 1, p. 293.

(b) Carrol v. Bird, 3 Esp. 201.

of domestic and menial servants, there was no law to compel the master to give the servant a character; it might be a duty which his feelings might prompt him to perform, but there was no law to enforce the doing

of it.

communica

proved.

And where a master does give a discharged servant When a character (c), what he says or writes upon the subject, given, the to a person bonâ fide inquiring, is, in general, looked tion is priupon as a privileged communication, and no action what- vileged, ever can be maintained by the servant against him on account of it, if done bona fide, and without any malicious feeling on his part against his late servant. In order to support any action, it must be proved that the unless macharacter given was false, and also that it was maliciously lice can be given. It is not sufficient to prove that the character was false, if given bonâ fide, for, as observed by Lord Denman in Fountain v. Boodle (d), even though the sufficient. statement should be untrue in fact, the master will be held justified by the occasion in making that statement, unless it can be shewn to have proceeded from a malicious mind. If, however, the party giving the character knows what he says to be untrue, that may deprive him of the protection which the law throws around such communications when made bonâ fide (e).

(c) Where A., who had been servant to G., applied to D. for a situation, and D. agreed to take her if in answer to a letter written to G. a satisfactory reply was received: D. wrote to G. for A.'s character, and G. answered the letter by post, directing the reply to D.; but A., wishing to intercept the letter, went to the post office, stated that she was D.'s servant, obtained the letter, and then burnt it: it was held by the fifteen Judges that this was larceny; Reg. v. Jones, 2 Carr. & K. 236; S. C. 1 Den. C. C. 188.

(d) 3 Q. B. 12, post, p. 230.

(e) Per Lord Ellenborough, C. J., in Hodgson v.

Scarlett, 1 B. & Ald. 240. The servant, if charged with dishonesty and misconduct in the defendant's service, is at liberty to prove his good character and conduct in former services, since general character is in some respects in issue; King v. Waring, 5 Esp. 13. So the plaintiff may prove, by the evidence of other servants in the same family, that whilst he remained in the defendant's service he conducted himself well, and that no complaints of the nature ascribed to him by the defendant then existed, 3 B. & P. 589. The tendency and bearing of this evidence is to shew that the defendant knew that the character which he gave was

Mere false

hood not