who has published matter prima facie libellous respecting a servant, malice in fact, that is, some wrongful act done intentionally, without just cause or excuse (1), must be proved; and the question will not be allowed to go to the jury unless there be evidence of malice (m). Its existence will not necessarily be shown by the fact that the statements complained of are not true. 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 (n); the heinous or intemperate character of the libel itself (o); the fact that statements were made unsolicited and officiously (p)—though that is not always conclusive-or

Clifton (1803), 3 B. & P. 587; Den-" I parted with her on account of man, 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.

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

(m) 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 (n), citing Somerrille v. Hawkins (1851), 10 C. B. 583; 20 L. J. C. P. 131; 15 Jur. 450. Kelly v. Partington (1833), 2 N. & 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.

(n) 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.

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.)

(0) 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.)

(p) Pattison v. Jones (1828), 8 B.

that they were uttered needlessly in the presence of third parties (q), may substantiate the existence of malice, that is, a design to injure the servant. No enumeration of the circumstances which may prove this, and constitute extrinsic or intrinsic evidence of malice, is possible; the question of malice or bona fides, of proper or improper feeling, being peculiarly one for a jury. It is their business to say whether a master has made a letter about a servant a pretext for expressing private spite or conveying an ill-natured and unjust insinuation, or has described faults in an exaggerated fashion, indicating a wish to harm the servant.

In modern times the courts have been disposed to give a liberal application to the rule stated above, and they have not confined privilege to cases in which communications are made to a person about to engage a servant. This is illustrated by Weatherston v. Hawkins (r). The defendant, in answer to an application made to him by R., to whom the plaintiff was recommended, gave the plaintiff a bad character. The brother-in-law of the plaintiff having repeatedly called on the defendant with reference to the subject, the defendant sent him a letter containing specific charges of fraud; it was held that this was a privileged communication as being incidental to the application for a character. This species of privilege, it is said, extends even to the communication of facts which were unknown to a master while a servant was in his employment; "the privilege lasts as long as anything is discovered before unknown to the master." It will cover communications respecting the conduct of a servant after he

& C. 578; 3 M. & R. 101. (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 C. B. p. 601. Lord Mansfield's ruling in

Lowry V. Aikenhead, Folkard's Starkie, p. 253, must be taken with reservation.

(9) Taylor v. Hawkins (1851), 16 Q. B. 308; 20 L. J. Q. B. 313; 15 Jur. 746; Manby v. Witt (1856), 18 C. B. 544; 25 L. J. C. P. 294; 2 Jur. N. S. 1004; Toogood v. Spyr ing (1834), 1 C. M. & R. 181; 3 L. J. Ex. 347.

(r) (1786), 1 T. R. 110.

has quitted a master's employment. When a master wrote in answer to inquiries "nothing can be in justice said in her favour," and that "she (defendant) has, since her dismissal, been credibly informed she (plaintiff) has been and now is a prostitute at Bury," it was held, in the absence of any evidence of the falsehood of the statement, that the letter was privileged (8).

A mutual insurance society for shipping may, in order to protect its interests, communicate to the owner of a vessel that if he gives the command to a certain person whom they believe guilty of drunkenness, they will decline to continue to insure the vessel. If made in good faith and without malice towards the plaintiff, such a communication will be privileged (t).

The exact limits of the qualified privilege described in Toogood v. Spyring (u) are hard to define. Such expressions as "public and private duty," "matters where his interest is concerned," "the discharge of some duty, public, private or official, which the ordinary exigencies of society, his own private interest, or even that of another called upon him to perform," (x) are ambiguous. It cannot be said that they are yet clearly explained by the decisions. This much, however, is certain by duties are not to be understood merely legal duties; they include moral and social duties of imperfect obligation; the duties, for example, which neighbours owe to each

18 L. J. Dixon v. (Letter

(3) Child v. Affleck (1829), 9 B. & C. 403; 4 M. & R. 338; Gardner v. Slade (1849), 13 Q. B. 796; Q. B. 334; 13 Jur. 826. Parsons (1858), 1 F. & F. 24. to a person who has given a good character to a servant which had procured a situation with defendant, saying that the servant does not deserve the character given; privileged.) Somerville v. Hawkins (1851), 10 C. B. 583; 20 L. J. C. P. 131; 15 Jur. 450. (Warning by master to servants not to associate with a dismissed servant, and statement of cause of dismissal; privileged.)

(t) Hamon v. Falle (1879), L. R. 4 Ap. C. 247.

(u) See note (q).

(x) Folkard's edition of Starkie on Slander, 250. See further as to privilege in communications respecting servants; Johnson v. Evans (1800), 3 Esp. 32; Cockayne v. Hodgkinson (1833), 5 C. & P. 543; Rumsey v. Webb (1841), C. & M. 104; Coxhead v. Richards (1846), 2 C. & B. 569; Gilpin v. Fowler (1854), 9 Ex. 615; Fryer v. Kinnersley (1863), 33 L. J. C. P. 96; 15 C. B. N. S. 422; Cowles v. Potts (1865), 34 L. J. Q. B. 248.

other, and which solicitors owe in vindication of the character of their clients (y). An action will lie against a person who makes a false and fraudulent statement with respect to the character of a servant (2).

The uttering of a forged character or testimonial is an offence at common law. Thus when a person had forged and uttered a document purporting to be a testimonial by a clergyman, and recommending him for the situation of a schoolmaster, he was properly convicted of a misdemeanour at common law (a).

(y) Harrison v. Bush (1855), 5 E. & B. 344.

(2) Wilkin v. Reid (1854), 15 C. B. 192; Foster v. Charles (1830), 6 Bing.

396.

(a) R. v. Sharman (1854), Dears. 285. See 32 Geo. III. c. 56, and Part II., Chapter III.

CHAPTER XIX.

MEASURE OF DAMAGES.

A SERVANT Who is discharged improperly or without due notice is entitled to recover such damages as a jury thinks compensation for the actual loss which he has sustained.

Sometimes the master and servant agree as to the terms on which they shall be at liberty to terminate the contract. If it be agreed that they may determine the engagement on a month's notice, the servant can recover only a month's wages in the event of his being improperly discharged (a). A servant who is dismissed is bound to make reasonable exertion and show diligence in endeavouring to procure employment. It is deemed contrary to public policy that he should remain idle. He must seek for employment and accept it if it be offered. The true measure of damages is therefore not the amount of wages which he was promised under the agreement, but his probable loss. This will be his wages less the value of any place which he has obtained, or might have got by reasonable exertions. Mr. Justice Willes, in Hartland v. The General Exchange Bank (b), told the jury that in estimating the damages due to the plaintiff-the manager of a banking company-who had been engaged for a term of three years, and who had been dismissed at the end of four months,

(a) Hartley v. Harman (1840), 11 A. & E. 798; see Gordon v. Potter (1859), 1 F. & F. 644.

(b) (1866), 14 L. T. N. S. 863; see also statement of law by Black

burn, J., in Sowdon v. Mills (1861), 30 L. J. Q. B. 176; Emmens v. Elderton (1853), 13 C. B. 508; Speck v. Phillips (1839), 5 M. & W.

283.