APPENDIX. KING'S BENCH, A. D. 1821. SWADLING v. TARPLEY.1 Where a servant brings an action for an alleged false character given of him by his late master, the latter is in general privileged, and, to sustain the action, malice must be proved, but this may be inferred by the jury from the language used and the circumstances under which the defamatory character is given. THIS was an action for a libel: the defendant pleaded, 1. The general issue, not guilty; and 2. A justification of the truth of the alleged libel, on which issue was joined. At the trial before GARROW, B., at the last assizes for the county of Oxford, a verdict was found for the plaintiff, damages £50. The case was this:-The plaintiff had been a nursery maid for four years in the family of the defendant, a magistrate and clergyman, residing in the county of Northampton; three months after she quitted the service, a lady, to whom she had hired herself, wrote to the defendant's wife for the plaintiff's character, wishing to know whether she had been found honest, sober, and steady, and equal to undertake plain cooking? To this letter the defendant sent an answer to the following effect: MADAM, Mrs. Tarpley being unwell, she has requested me to answer your letter. Susan Swadling lived as nursery maid in my family for more than four years; and I think it my duty to inform you that she is neither honest, sober, nor steady, and that she was turned away for the most gross and improper misconduct. She is a most wicked and profligate woman. It is impossible for me to describe the gross insolence and ingratitude shown by her to Mrs. Tarpley and myself. We have undoubted proof of 1 See ante, § 245, note 2, p. 428; and § 399, note 5, p. 658. her going to the man-servant's bed many nights for months before she left us. One servant who lived with us for many years has left us on her account. I am glad of an opportunity of exposing this woman's character. A more vile wretch does not exist; I know her to be a liar, a great thief, and insolent beyond bearing. She has been guilty of a criminal intrigue with the man-servant, David S I wish you to read this letter to her should you see her, and I warn you upon no account to take her into your service. I am, &c. On the part of the plaintiff, the man-servant alluded to in the letter, and mentioned as the person with whom she had had an improper intercourse, was examined, and he positively denied that any such intercourse had ever taken place between them; and he further said that she was a modest, discreet, and wellbehaved young woman. He admitted that she had been dismissed for insolence; but, on his cross-examination, nothing came out to shake his testimony. On the part of the defendant, evidence was offered in support of the justification pleaded. It was proved by other servants in the family that during the six months previous to her being turned away, after the family had gone to bed, she had several times left her own bed-room and gone to that of the man-servant; that she was watched, and next morning seen to come out of his room; that on one occasion one of the servants being disturbed by the crying of a child, she went to the plaintiff's room and found her absent from her bed; and the child continuing to cry, she was seen to return to her own room from that of the man-servant's, in her night-gown, and appeared to the witness to be extremely confused. Upon this part of the case expressions of strong affection for the man were proved to have been uttered by her repeatedly, and going, to a certain extent, to an admission of a criminal amour subsisting between them. In addition to this, evidence was offered affecting her character for honesty. It was proved that she had stolen coffee and sugar, the property of her master; and one witness deposed to her having stolen a pair of shoes. Other evidence was offered tending to show that she was a person of depraved habits. On the part of the defendant it was contended: 1. That the letter in question was privileged; 2. That there should have been evidence of express malice to render it actionable; and 3. That the weight of evidence was in favor of the defendant, and substantially justified him in writing such a letter. The learned judge summed up the whole of the case for the jury, and left it for them to say whether there was anything upon the face of the libel to warrant the conclusion that the defendant was influenced by malicious motives. If they were satisfied that the defendant was actuated by malicious motives, the plaintiff was entitled to a verdict, notwithstanding the privilege which the law threw around a master in giving the character of a servant; and notwithstanding there were some circumstances in the case which, to a certain extent, would justify a strong expression of opinion concerning the plaintiff's character and conduct. The jury found their verdict for the plaintiff, damages £50. G. Cross now moved for a rule to show cause why the verdict should not be set aside and a new trial granted. He made two points: 1. That to sustain this action, there must be evidence of express malice, for that such a letter is privileged when written honestly, though with heat and intemperance; and 2d. That the verdict was against the weight of evidence. ABBOTT, C. J.-I am of opinion that in this case there ought to be no rule granted. I should be sorry that any decision in which I took part should have the effect of breaking down or lessening that which I consider to be a very wholesome rule of law, namely, that a character written by a former master to a person instituting an inquiry, with a view to take a dismissed servant into his service, is to be considered as a privileged communication, unless it can be shown in some way that the statement of such character proceeds from a vindictive motive. The master in such cases is privileged in what he does; and, in my mind, it is of the utmost importance to society that he should be so privileged. The error is too often committed on the other side; persons are more apt to conceal the faults of servants, in order that they may not be deprived of another service, than to enlarge and expatiate upon their misconduct in a manner that might be justifiable. If, upon reading this letter, a judge could take upon himself to say that it bore nothing upon the face of it manifesting a vindictive motive, I should think he would have been bound to tell the jury that it was a privileged |