No. 5.Toogood v. Spyring, 1 Cr. M. & R. 181, 182.

having got drunk and spoilt the work. A. afterwards told D., in the absence of C., that he was confident C. had broken open the door.-On the same day A. complained to B. that C. had been negligent in his work, had got drunk, and he thought he had broken open his cellar door:- Held, that the complaint to B. was a privileged communication, if made bonâ fide, and without any malicious intention to injure C. :- Held also, that the statement made to C. in the presence of D. was also privileged, if done honestly and bond fide; and that the circumstance of its being made in the presence of a third person does not of itself make it unauthorized, and that it was a question to be left to the jury to determine from the circumstances, including the style and character of the language used, whether A. acted bonâ fide, or was influenced by malicious motives: - Held also, that the statement to D., in the absence of C., was unauthorized and officious, and therefore not protected, although made in the belief of its truth, if it were in point of fact false.

Slander. The first count of the declaration stated that the plaintiff, at the time of committing the grievances thereinafter mentioned, was a journeyman carpenter, and accustomed to employ himself as a journeyman carpenter, and gain his living by that employment, and had been, and was at the time of committing the grievances, &c., retained and employed by, and in the service of, one James Brinsdon, as his journeyman carpenter and workman, at and for certain wages and rewards by the said James Brinsdon to him to be paid in that behalf; and in that capacity and character had always behaved and conducted himself with honesty, sobriety, and great industry and decorum, and never was, nor, until the time of committing the grievances, was suspected to have been or to be, dishonest, drunken, dissolute, vicious, or lazy, to wit, in the county aforesaid; by means of which said several premises he had not only acquired the good opinion of his neighbours and divers other good and worthy subjects, &c., and especially the high esteem of his masters and employers, but had also derived and acquired for himself divers great gains, &c. That the plaintiff, at the time of committing the grievances in the first, second, and last counts mentioned, had been employed by the said James Brinsdon, as his workman and journeyman, in and upon certain work, to wit, on and about certain premises of the defendant, and then and there, upon and throughout that occasion, and during the whole of

his the plaintiff's work in and about the same, had behaved [*182] and conducted * himself with honesty, sobriety, and great industry and decorum, and in a proper and workmanlike manner; yet, the defendant, well knowing, &c., but contriving, &c.,

No. 5.—Toogood v. Spyring, 1 Cr. M. & R. 182, 183.

and to cause it to be suspected and believed that the plaintiff had been and was guilty of the offences and misconduct thereinafter stated, to have been charged upon and imputed to him by the defendant, theretofore, to wit, on the 9th of January, 1834, in the county aforesaid, in a certain discourse which the defendant then and there had with the plaintiff of and concerning the plaintiff, and of and concerning him with reference and in relation to the aforesaid work, in the presence and hearing of divers worthy subjects, &c.; then and there, in the presence and hearing of the said lastmentioned subjects, falsely and maliciously spoke and published to and of and concerning the plaintiff, and of and concerning him with reference and in relation to the aforesaid work, the false, scandalous, malicious, and defamatory words following, that is to say, "What a dd pretty piece of work you (meaning the plaintiff) did at my house the other day." And in answer to the following question, then and there, in the presence and hearing of the said last-mentioned subjects, put by the plaintiff to the defendant, that is to say, "What, Sir!" then and there, in the presence and hearing of the said last-mentioned subjects, falsely and maliciously answered, spoke, and addressed to, and published of and concerning the plaintiff, and of and concerning him in relation and with reference to the aforesaid work, these other false, scandalous, malicious, and defamatory words following, that is to say, "You broke open my cellar door, and got drunk, and spoiled the job you were about" (meaning the aforesaid work).

The words, as stated in the second count, were, "He broke open my cellar door, and got drunk, and spoiled the job he was about."

In the third That in answer to an assertion of the plain

*

tiff that he had never broken into or entered the defend- [* 183] ant's cellar, the defendant said, 'What! I will swear

it and so will my three men."

The fourth count stated, that on &c., in a certain other discourse which the defendant then and there had with a certain other person, to wit, one Richard Taylor, of and concerning the plaintiff, in the presence and hearing of the said last-mentioned person, and of divers other good and worthy subjects, &c., and in answer to a certain question, whereby the last-mentioned person, to wit, the said Richard Taylor, did then and there, in the presence and hearing of the other last-mentioned subjects, interrogate and ask of the defend

ant, whether he, the defendant, meant to say that the plaintiff had broken into the cellar of the defendant, he, the defendant, then and there, in the presence and hearing of the last-mentioned subjects, falsely and maliciously answered, spoke, and published to the last-mentioned person, to wit, the said Richard Taylor, in his presence and hearing, these other false, scandalous, malicious, and defamatory words following, of and concerning the plaintiff, that is to say, "I" (meaning the defendant) "am sure he" (meaning the plaintiff) "did" (meaning that the plaintiff had broken into his the defendant's cellar); "and my " (meaning the defendant's) "people will swear it."

*

The words in the fifth count were alleged to be spoken generally, as in the first three, and not to any particular individual; and they were these: "You got drunk, and spoiled the job you were about" (meaning the aforesaid work). The declaration then alleged, that, by reason of the committing of the grievances, he, the plaintiff, was greatly injured in his good name, fame, character, occupation, and credit, and brought into public scandal, &c., insomuch that divers of those neighbours and subjects, to whom the innocence and integrity of the plaintiff in the premises were unknown, have, on account of the committing of the said grievances by the defendant as aforesaid, from thence hitherto suspected and believed [184] and still do suspect and believe him to have been and to be a person guilty of the offences and misconduct so as aforesaid charged upon and imputed to him by the defendant; and have, by reason of the committing of the said grievances by the defendant as aforesaid, from thence hitherto wholly refused and still do refuse to have any transaction, acquaintance, or discourse with the plaintiff, as they were before used and accustomed to have, and otherwise would have had; and also by means of the premises the said James Brinsdon, who before and at the time of the committing of the said grievances had retained and employed and otherwise would have continued to retain and employ the plaintiff as his journeyman, workman, and servant for certain wages and reward, to be therefore paid to the plaintiff, afterwards, to wit, on the day and year aforesaid, in the county aforesaid, discharged the plaintiff from his service and employ, and wholly refused to retain and employ the plaintiff in his said service and employ; and the plaintiff hath from thence hitherto wholly, by means of the premises, and from no other cause whatever, remained and continued and still is out of employ, &c.

The defendant pleaded, first, the general issue; secondly, that, before the committing of the grievances, to wit, on the 7th January, 1834, the said plaintiff broke open a door of a cellar of the said defendant, in a house of the said defendant, and then and there broke into the said cellar, and got drunk, and spoiled the said work in the introductory part of the said declaration mentioned; wherefore he the said defendant did speak and publish the said words, as in the said declaration respectively mentioned, of and concerning and relating to the said house and the said cellar door, as he lawfully might for the cause aforesaid. And this, &c. Thirdly, as to the first, second, and last counts, and as to the speaking and publishing of the following words, that is to say, "I am sure he " (meaning the plaintiff) "did," (meaning that the said

*

plaintiff had broken into his the said defendant's cellar), [*185] as in the said fourth count of the declaration mentioned,

that before &c., to wit, on the 7th of January, 1834, the said plaintiff broke open the door of a cellar of the said defendant in a house of the said defendant, and then and there broke into the cellar of the said defendant, and got drunk, and spoiled the said work in the introductory part of the said declaration mentioned; therefore, the said defendant did commit the supposed grievances in the introductory part of that plea mentioned, as he lawfully might for the the cause, aforesaid. And this, &c.

Replication. De injuria to the second and last plea.

At the trial, before BOSANQUET, J., at the last Spring Assizes for the county of Devon, it appeared that the plaintiff was a journeyman carpenter and had been in the employ of Brinsdon, a master carpenter in the constant employ of the Earl of Devon, at Powderham Castle. That the defendant resided on a farm under the Earl of Devon. That the defendant required some repairs at his farm; and that pursuant to the orders of Mr. Brinsdon, the plaintiff and another workman went to the defendant's residence on the 7th of January, for the purpose of erecting a new door to the defendant's tool-house (which adjoined the cellar), and doing other repairs to the house and premises of the defendant. It was proved that the work was done in a negligent manner, and not to Brinsdon's satisfaction, the door being cut so small as not to answer the purpose for which it was intended. That, during the progress of the work, the plaintiff got drunk, and circumstances occurred which induced the defendant to believe that the plaintiff had broken open the

No. 5.-Toogood v. Spyring, 1 Cr. M. & R. 185–187.

cellar door and obtained access to his cyder. Brinsdon had requested the defendant to inspect the work. It was proved that the plaintiff and one Taylor were at work on the 9th of January, at Powderham Castle, and that the defendant came up, and addressing himself to the plaintiff, spoke in his presence the follow[*186] ing words, "What a d-d pretty piece of work you did at my house the other day."

*

That the plaintiff said, replied, — “You broke

— “What, sir!”—and that the defendant open my cellar door, and got drunk, and spoiled the job you were about." That the plaintiff denied the charges, but that the defendant said he would swear it, and so would his three men. It was also proved, that, in a subsequent conversation, when the plaintiff was not present, the defendant, in answer to a question put to him by Taylor, whether he really thought the plaintiff had broken the cellar door, said, "I am sure he did it, and my people will swear to it." That the defendant then went away in search of Mr. Brinsdon. It was proved that the defendant afterwards saw Brinsdon on the same day, the 9th of January, and that he said to him that Toogood had spoiled the door, and that the cellar had been broken open, and that Toogood had got drunk; he said, he considered it had been done with a chisel, and that Toogood did it, because of the getting drunk. It appeared that Brinsdon went afterwards to the plaintiff and told him, that he could be no longer in the employ of the Earl of Devon until this was cleared up; that he must come to the defendant's with the other workman the following morning to have the matter investigated; that he, Brinsdon, went to the defendant's the following morning, and that the plaintiff and defendant were there, and that he examined the cellar door, but doubted whether it had been broken open at all, though the bolt was broken; and Brinsdon told the plaintiff he considered the charge againt him was not made out, and that he thought his character was cleared up, and that he might go to work again if he thought proper; but the plaintiff said his character was not cleared up; and he did not go to his work afterwards.

The learned Judge, in summing up the case to the jury, said, that he should have thought that the defendant would have been.

justified if he had made the complaint to Mr. Brinsdon in [*187] the first instance; but that he had spoken the words in

the presence of a third person, and that the speaking was not in the nature of a complaint to the plaintiff's employer.