So in Eaton v. Western (e), the splitting up of their business by a firm who had covenanted to teach the apprentice the business "now carried on by them" was held a breach.

It is an answer to an action by the father against the master on the covenants of an indenture for not teaching, keeping, and maintaining that the apprentice absented himself, and thereby became incapacitated from serving as an apprentice (f); or that the apprentice was an habitual thief (g).

Where the teaching should be given, is either a question of construction or of what is reasonable in the circumstances. In Royce . Charlton (h), the apprentice, son of Ann Charlton of Mansfield, in the county of Nottingham, put himself apprentice to defendant " of Mansfield in the said county of Nottingham," and the mother agreed to provide food, clothing, &c. The Court refused to imply an obligation to give instruction at Mansfield, the place where the master carried on business, and the parties to the indenture resided, at the time of its execution. This decision, however, was overruled, so far at least as outdoor apprentices are concerned, by the Court of Appeal in Eaton v. Western (e), which was an action for refusing to continue the plaintiff as apprentice against the defendants, who had removed their business to Derby from Lambeth, where it was carried on when the indenture was entered into. The defendants had required all their apprentices to go to Derby, and had offered to pay their railway fares and increase their wages. Drawing a distinction between an indoor apprentice, whom a master is bound to provide with food and board, and an outdoor apprentice, maintained by his father, the Court of Appeal thought the defendants' command to remove to Derby unlawful and unreasonable.

There is no discussion in the cases of the question whether there can be an apprenticeship to any but manual trades. There seems to be no reason against such a thing, even if "pupil" be the more appropriate designation.

No action will lie under ordinary articles of indenture against the personal representatives of the employer who has died, for not performing the covenants (i): the contract to teach is personal. It

(e) (1882), 9 Q. B. D. 636. (f) Hughes v. Humphreys (1827), 6 B. & C. 680; Raymond v. Minton (1866), L. R. 1 Ex. 244; Westwick v. Theodor (1875), L. R. 10 Q. B. 224.

(g) Learoyd v. Brook, [1891] 1 Q. B. 431 (pawnbroker's business).

(h) (1881), 8 Q. B. D. 1. As to sending an apprentice out of the country, see Coventry v. Woodhall (1616), Hob.

134.

(i) Rex v. Peck, 1 Salk. 66. It is otherwise with parish apprentices : vid. 32 Geo. III. c. 57, ss. 1-3.

is, of course, otherwise, where the contract expressly binds the executors and administrators (k).

If a master of an apprentice dies before the term for which he agreed to instruct him is ended the apprentice will not be able to recover the whole or any part of the premium on the ground of failure of consideration (1).

(k) Cooper v. Simmons (1862), 7 H. & Ν. 707.

(1) Whincup v. Hughes (1871), L. R. 6 C. P. 78; Webb v. England (1860), 29 Beav. 44; Ferns v. Carr (1885), 28 C. D. 409. But there may be an express stipulation for repayment: Newton Rowse (1687), 1 Vern. 460; and see

v.

Derby v. Humber (1867), L. R. 2 C. P. 247 (death of the apprentice), where there was an express stipulation that a part of the premium or a fixed sum should be recovered in case of death; and see sect. 6, sub-sect. 2 of Employers and Workmen Act, 1875 (38 & 39 Vict. с. 90).

CHAPTER XIV.

MASTER'S DUTY IN REGARD TO SERVANT'S CHARACTER.

A MASTER is not obliged to give his servant a character. Should a master, in giving a servant a character, state that which would be primâ facie libellous or slanderous, no action, in the absence of express malice, will lie.

It matters not how much the servant is entitled to a character in fairness, and how cruel the refusal may be; it has not been disputed since the ruling of Kenyon, C. J., in 1800 in Carrol v. Bird (a) that a servant cannot sue his master because the latter does not give him a character.

The above immunity does not arise out of any peculiarity in the relation of master and servant (b). It is one of a large class of exceptions instituted in the interests of society. It is an application of a general principle, viz., that when a communication upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is made to a person having a corresponding interest or duty, the occasion is privileged. It lies upon the defendant to make this out to the satisfaction of the judge. When this is done, the burden of proof is shifted on to the plaintiff, who, in order to succeed, has to show express malice in the defendant (c). Only in connection with the

(a) 3 Esp. 201. See also Handley v. Moffatt (1872), 7 Ir. R. C. L. 104. (The 2 Geo. I. c. 17, s. 4, required a master to give a certificate of discharge, and, in case of refusal, the servant might apply to a justice: held, that the statutory remedy was exclusive, and that no action for refusing certificate lay against the master.)

(b) Erle, J., in Coxhead v. Richards (1846), 15 L. J. C. P. 278. The origin of the exemption may, however, have something to do with the testimonials

required by the 5 Eliz. c. 4, s. 10 (repealed by 38 & 39 Vict. c. 86, s. 17), to be given to servants.

(c) See Parke, B., in Toogood v. Spyring (1834), 1 C. M. & R. at p. 193, a dictum quoted with approval in many subsequent cases, including Whitely v. Adams (1863), 15 С. B. N. S. 392; Harrison v. Bush (1855), 5 E. & Β. 344; Spill v. Maule (1869), L. R. 4 Ex. 232. See also Jenoure v. Delmége, [1891] А. С.

issue of malice is the plaintiff's belief or impression as to the facts constituting the privilege relevant (d). The master's privilege is but an application of the general rule which shielded a person who wrote a letter to his mother-in-law containing defamatory statements respecting a person whom she was about to marry (e); a person who, a box having been stolen from his shop, went to the plaintiff's master and said, "There was no one else in the room, and he (i.e., the plaintiff) must have taken it" (f); one who inserted a libel of the plaintiff in a correspondence with plaintiff's friend which was begun with the plaintiff's concurrence in order to investigate certain charges against him (g); directors who in a report to their shareholders stated with respect to their manager that there was a deficiency of stock for which he was responsible, and that his accounts had been badly kept and had been rendered to them very irregularly (h); a railway company, which, in a monthly circular to their servants, published the plaintiff's name, stating he was dismissed and giving the reason i). This privilege has been extended on the ground of public policy to communications as to servants by their former employers. The best justification which can be offered for it is the interest which employers, who are responsible for the acts of their servants, have in obtaining information as to the antecedents and characters of those whom they take into their service (k). But for this protection no one who had much regard to his safety would think of giving an unfavourable character.

Communications with respect to a servant's character will be presumed to be bonâ fide, and a master will not be, in general, required to prove or substantiate the truth of such statements (1). In order to support an action against a master who has published matter primâ facie libellous respecting a servant, malice in fact,

(d) Stuart v. Bell, [1891] 2 Q. B. 341; Hebditch v. McIlwaine, [1894] 2 Q. B. 54; overruling Tompson v. Dashwood (1883), 11 Q. B. D. 43.

(e) Todd v. Hawkins (1837), 2 M. & Rob. 20. (Letter from a person to his mother-in-law charging the person whom she was about to marry with grave misconduct; letter voluntary.)

(f) Amann v. Damm (1860), 8 С. В. N. S. 597.

(g) Hopwood v. Thorn (1849), 8 С. В.

293.

(h) Lawless v. Anglo-Egyptian Cotton Co. (1869), L. R. 4 Q. B. 262.

(i) Hunt v. Great Northern Rail. Co.,

[1891] 2 Q. B. 189.

(k) See Wightman, J., in Gardner v. Slade (1849), 13 Q. B. 796. See Farquhar v. Neish (1890), 17 R. 716, where a letter from a mistress to the registry office. where the servant had been engaged, was held privileged.

(1) Alvanley, C. J., in Rogers v. Clifton (1803), 3 B. & P. 587; Denman, C. J., in Fountain v. Boodle (1842), 3 Q. B. 5. A letter written in answer to inquiries about a servant is not privileged in the sense that it is protected from discovery, without the person who refuses to produce it pledging his oath that it will tend to criminate him: Webb v. East (1880), L. R. 5 Ex. D. 108.

that is, some wrongful act done intentionally, without just cause or excuse (m), must be proved; and the question will not be allowed to go to the jury unless there be evidence of malice (n). Its existence will not necessarily be shown by the fact that the statements complained of are not true; it is not the objective truth of the statements, but the honesty of the defendant's belief in them that is the point. Malice may be proved in so many ways that only instances can be given; for example, proof that the communications were false to the knowledge of the person making them (0); the heinous or intemperate character of the libel itself (p); the fact that statements were made under the influence of gross unreasoning prejudice (q), or were made unsolicited and officiously (r)-though that is not always conclusive or that they were uttered needlessly in the presence of third parties (s), or with unreasonable publicity (t), may substantiate the existence of malice,

(m) Bayley, J.'s, definition of malice in Bromage v. Prosser (1825), 4 B. & C. at p. 255.

(n) There "must be something that is consistent only with a desire to injure the plaintiff, to justify a judge in leaving the question of malice to the jury." Jervis, C. J., in Harris v. Thompson, see note (o), citing Somerville v. Hawkins (1851), 10 С. B. 583. Kelly v. Partington (1833), 2 Ν. & M. 460, is sometimes quoted as an authority for the statement that "Slight evidence is sufficient in these cases to warrant the jury in finding malice." It is submitted that the same rule as to leaving questions to the jury applies to these as to other cases.

(0) Fountain v. Boodle (1842), 3 Q. B. 5. (Plaintiff employed as a governess for upwards of a year, during which time she was twice recommended to other situations by defendant ; dismissed abruptly, without cause assigned; lost another situation, in consequence of the defendant writing in answer to inquiry, "I parted with her on account of her incompetency, and not being ladylike nor good-tempered." A postscript was added, "May I trouble you to tell her that this is the third time I have been referred to? I beg to decline any more applications." The judge directed the jury that the occasion was privileged; but some proof of illwill having been adduced, and there being no evidence to the contrary, he held that there was a question for the jury.) Harris v. Thompson (1853), 13 C. B. 333. (Defendant, director of two companies, &c.; plaintiff, an official in both; plaintiff dismissed from an office for misconduct;

defendant communicated the fact to the directors of the company, and, in reply to the inquiries, stated that one of the reasons was, obtaining money by false pretences: privileged communication.) Farquhar v. Neish (1890), 17 R. 716.

(p) Rogers v. Clifton (1803), 3 B. & P. 587. (Defendant quarrelled with plaintiff, his butler; called on his former master to inform him that plaintiff had behaved in an impertinent manner, and to desire him not to give him another character; being applied to by H., who wrote to him for a character, repeated the charges in a letter in strong terms: left to the jury to say, looking to all the circumstances, whether there was malice.)

(9) Royal Aquarium Society v. Parkinson, [1892] 1 Q. B. 431.

(r) Pattison v. Jones (1828), 8 B. & C. 578. (Master wrote first letter about a servant's misconduct, without having been applied to, and wrote a second in answer to inquiries: held that there was evidence of malice.) Bayley, J., pointed out that there might be occasions on which communications, though unsolicited, would be privileged. See also Coltman, J., in Coxhead v. Richards (1846), 2 С. В. p. 601; and the judgment of Lopes, L. J. (diss.), in Stuart v. Bell, [1891] 2 Q. B. 341, at p. 356. Lord Mansfield's ruling in Lowry v. Aikenhead, Folkard's Starkie, p. 253, must be taken with reservation.

(8) Taylor v. Hawkins (1851), 16 Q. B. 308; Manby v. Witt (1856), 18 С. В. 544; Toogood v. Spyring (1834), 1 С. М. & R. 181.

(t) E.g., by telegram instead of letter: Williamson v. Freer (1874), 9 C. P. 393.