action for the nondelivery of letters which it was his duty to have delivered, as well as the penalty for detaining letters imposed by statute (p). officers liable There is also a large class of cases, which may be conveniently Ministerial noticed in this place, in which public officers in a merely minis- public terial capacity (7), have been held liable to answer in an action at for neglithe suit of the party injured, for negligence in the performance of gence, &c. the duties cast upon them. Thus, for instance, a sheriff, whose Sheriff; 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 (r). sheriff. But an action by the party grieved does not generally lie (s) but not against an under-sheriff for a breach of duty in the office of undersheriff'; the action must be brought against the high-sheriff as for an act done by him (t), and if it proceeds from the default of the under-sheriff or bailiff, that is a matter to be settled between them and the high-sheriff (u). A returning officer at an election of members of Parliament, Returning was held by the House of Lords, in the great case of Ashby v. officer. White, to be liable to an action for maliciously refusing to receive the vote of a person entitled to vote (x). And the case of Perring v. Harris (y), which was an action Overseer. 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 licence to sell beer, was one of a similar nature. So lottery commissioners have been held liable to an action Lottery Comfor not adjudging a prize to the holder of a ticket entitled to missioners. receive it (z). And so a collector of customs, appointed by the commissioners Collector of (p) Stock v. Harris, 5 Burr. 2709; Barnes v. Foley, ib. 2711; Rowning v. Goodchild, ib. 2715; S. C. 3 Wils. 443; 2 W. Bl. 906; see Couch v. Steel, 23 L. J., Q. B. 126. (q) But no action lies against persons acting in a judicial capacity, Groenvelt v. Burwell, 1 Lord Raym. 454; see Miller v. Seare, 2 W. Bl. 1145; Doswell v. Impey, 1 B. & C. 163. (r) Bac. Abr. Sheriff, M.; Watson's Sheriff, 117. (s) In certain cases it does by Act of Parliament, see Cowp. 405. And in Ireland all actions may, by 57 Geo. 3, c. 68, s. 3, be brought against the under-sheriff, unless for the immediate act of the sheriff. (t) For the under-sheriff ought to act in the name of the highsheriff, see Wats. Sheriff, 37; and (x) 2 Lord 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, 1 B. & C. 165. (y) 2 M. & Rob. 5. (z) Schinotti v. Bumsted, 6 T. R. 646. customs. Commis sioners of customs. Ward v. Lee. Hodgkinson under the statute 3 & 4 Will. 4, c. 51, was held liable (a) to an action at the suit of the party grieved, for nonfeasance in the exercise of his office, viz., for 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 is responsible for neglect of his duty to any individual who sustains damage by such neglect. Schinotti v. Bumsted (b) 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 (c), which was an action against the commissioners of customs for not making a certain order 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." Where an act of Parliament provided that no matter or thing done, or contract entered into by the Commissioners of Sewers or by any clerk, surveyor or other officer or person acting under their direction, should, if the matter or thing were done or the contract were entered into bona fide for the purpose of executing the act, subject them personally to any action or liability whatever, and any expense incurred by them was to be borne and paid out of the funds under the control of the commissioners; it was held that the effect of this was to absolve from personal liability to an action persons who bona fide did some act under the direction of the commissioners which but for that clause would subject them to an action (d). Where a vessel of the royal navy, towing two transports, anchored by order of the admiral, and the captain ordered the vessels in tow to hold on by their warps, and afterwards a breeze sprung up and one of the transports swinging to it came into collision with another transport in another column, and the captain stated in evidence that after the order to hold on by the warps it would have been proper for the master of the transport to let go his anchor if anything occurred which would have made it dangerous to his own or other ships if he did not do so : it was held in an action against the owner of the transport for damage done by the collision, that the judge was right in leaving it to the jury to say whether the master was not guilty of negligent seamanship in not dropping his anchor when the wind changed (e). (a) Barry v. Arnaud, 10 A. & E. 646. And see Barrow v. Ar. naud, 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. (b) 6 T. R. 646. (c) 6 T. R. 224. (d) Ward v. Lee, 26 L. J., Q. B. 142. (e) Hodgkinson v. Fernie, 26 L. J., C. P. 217. 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 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 individual." give any It is clear, however, that in the absence of any specific agree- Master not ment to that effect, there is no legal obligation binding a bound to person who has retained another as a servant to give that person character. any character at all on dismissal, and that no action will lie against him for refusing to do so. Where, therefore (b), an Carrol v. action was brought by a servant against her master for wholly Bird. 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 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. And where a master does give a discharged servant a cha- When given, racter (c), what he says or writes upon the subject to a person bonâ fide inquiring is, in general, looked upon as a privileged privileged; (a) Starkie on Slander, vol. i. 293. (b) Carrol v. Bird, 3 Esp. 201. (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. an swered the letter by post, direct- the communication is unless express malice can be proved. Mere falsehood not sufficient. Implied malice not sufficient. communication (d), and no action whatever can be maintained by the servant (e) against him on account of it, if done boná fide, and without any malicious feeling on his part, against his late servant. It is a mistake to suppose that the law allows this privilege only for the benefit of the giver of the character. It is of importance to the public that characters should be readily given. The servant who applies for the character, and the person who is to take him, are equally benefited. Indeed, there is no class to whom it is of so much importance that characters should be freely given as honest servants. It is for that object that the communications are protected (f). In order to support any action in respect of a character given by a master to a servant, it must be proved that the character was false, and also that it was maliciously given. It is not sufficient merely to prove that the character was false, if given bonâ fide, for, as observed by Lord Denman in Fountain v. Boodle (g), even though the statement should be untrue in fact, the master will be held justified by the occasion in making that statement, unless it can be shown to have proceeded from a malicious mind (h). 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 (i). In ordinary cases of slander the law implies such malice as is necessary to maintain the action, and, therefore, in such cases, it is (d) The principle seems to be that defamatory words are primâ facie malicious: some occasions rebut the presumption of malice: those are called cases of privileged communication. If the words be more defamatory than the occasion require, that again raises the presumption of malice. Per Erle, C. J., in Cooke v. Wildes, 5 E. & B. 335. (e) As to actions by the receivers of false characters against the givers, see post. (f) Per Wightman, J., in Gardner v. Slade, 13 Q. B. 801. (g) 3 Q. B. 12, post, p. 254; snd see Harris v. Thompson, 13 C. B. 333. (h) In Harris v. Thompson, ubi supra, Williams, J., said, "Few rules of law are of greater practical importance than that which requires proof of express malice, where the words are spoken under circumstances which make the communication privileged." (i) 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 show that the defendant knew that the character which he gave was false: the plain reason for this is, that the knowledge of misconduct frequently rests with the defendant himself, and being unable to prove it by the testimony of others, if the general presumption (of bona fides on the part of his master) were to operate against him he would be left sufficient to charge that the defendant spoke the words complained of falsely; it is not necessary to state that they were spoken maliciously (j). But in actions for such slander as is prima facie Malice in excusable on account of the cause of speaking or writing it, as in fact must be proved. the case of servants' characters, confidential advice or communications to persons who ask, or have a right to expect it, malice in fuct must be proved by the plaintiff (k). Therefore, where an action (1) brought by a servant against Edmonson v. her former mistress for saying to a lady who came to inquire her Stevenson. character, that "she was saucy and impertinent, and often lay out of her own bed, but was a clean girl, and could do her work well;" though the servant proved that she was by this means prevented from getting a place, yet, per Lord Mansfield, this is not to be considered as an action in the common way for defamation by words, but that the gist of it must be malice, which is not implied from the occasion of speaking, but should be directly proved; that it was a confidential declaration and ought not to have been disclosed. But if without ground, and purely to defame, a false character should be given, it would be a proper ground for an action. The same learned judge, on several other occasions, laid down similar law. And in all subsequent cases Since folsuch has been universally considered to be the rule (m); the lowed. struggle on the part of the plaintiff in actions for defamation by a servant against a master being, generally, to show that the words complained of were uttered under such circumstances as showed express malice on the part of the defendant. "The rule," said Lord Campbell, C. J., in Taylor v. Taylor v. Hawkins (n), is, that if the occasion is such as will repel the Hawkins. presumption of malice, then it is a privileged communication, and it lies on the party complaining to show that malice existed, and, if he does not show that by evidence, then it is the office of without defence. To prevent such inconvenience the law requires malice to be proved from other sources. In case, however, the plaintiff should be able expressly to prove that the defendant was aware of the falsity, no further proof of malice would be requisite ; nor indeed could stronger proof of it be adduced than that the defendant had given a character of the plaintiff injurious to his reputation, with a full knowledge that it was untrue, 2 Stark. on Sland. 58. (j) Styles, 392; Mercer v. Sparkes, Owen, 51; Noy, 35; and see per Le Blanc, J., in R. v. Creevey, 1 M. & S. 282; Rowe v. Roach, 1 M. & S. 304. (k) See per Bayley, J., in Bromage v. Prosser, 4 B. & C. 254, 256; 1 Stark. on Slander, 292. (m) See Hargrave v. Le Bre- (n) 16 Q. B. 308; S. C. 20 L. J., Q. B. 313; and see per Lord Denman, C. J., in Kelly v. Partington, 4 B. & Ad. 702. |