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![handle is hein.slavery/ssactsengr0238 and id is 1 raw text is: CARPENTER V, CRESSWELL
left to the jury. Was this a privileged communication or notl and if it was, was it
attended with malice? because, if so, the Defendant is not excused, [408] notwith-
standing the privilege. Giving, an answer to' enquiries touching the character of a
servant, or of a tradesman, are privileged communications, but if express malice be
shewn, they are not protected. In Edmondson v. Stephenson (Bull. N. P. 8), Lord
Mansfield said, If, without ground, and purely to defame, a false character should be
given, it would be a proper ground for an action. In the present case all that passed
at the meeting of the parties may be considered to have been a privileged communica-
tion ; but the libel in question ;makes new allegations which the Defendant is not able
to substantiate, and which he publishes, unasked, three months after the enquiry at
the meeting. It was not left to the jury to say generally, whether this publication
was attended with express malice, but, only, whether, supposing it'to be a privileged
communication, it was, nevertheless, attended with malice. On that supposition the
jury negative the existence of express malice, but by finding for the Plaintiff, notwith-
standing, they find that the communication was not privileged; and in that case malice
in law is implied from the doing a hurtful act for which there is no excuse. (After
animadverting severely on the Defendant's conduct, the learned Judge proceeded :)
This was a foul and unjustifiable libel; for even though the Defendant's first statement
at the meeting should be deemed privileged, he had no excuse for going on slandering
till he had effected the ruin of his nephew. If I give a servant a bad character, and
the jury find it a privileged communication, I stand excused ; but if it be proved that
I proceed to say I will ruin him, and act accordingly, I am justly liable for the conse-
quences. The only objection to the present verdict is, that the damages ought to have
been much higher.
[409] BURROUGH J. This is not a privileged communication, but a most foul
libel, and the verdict is right in every thing but the quantum of damages. In cases
of giving character malice is the gist of the action. But for defamation or libel which
a Defendant cannot justify by proving its truth, he is liable at all events (a).
Rule discharged.
CARPENTER, Assignee of Thomas Cresswell, a Bankrupt, v. H. R. CRE SSWELL.
Nov. 20, 1827.
[S. C. 1 Moo. & P. 66; 6 L. J. C. P. (0. S.) 27.]
T. C., in consideration of covenants by H. R. C., covenanted not to interfere in a
certain branch of the Scotch fish business, and to assign to H. R. C. a certain Scotch
fishery; H. R. C., in consideration of the assignment, and of T. C.'s covenant,
covenanted to pay T. C. an annuity :-Held, that the covenant not to interfere in
the business was only a part of the consideration for the annuity, and was, therefore,
not a condition precedent or dependent covenant.
Covenant. Upon oyer it appeared, that, by a deed of 28th October 1825, between
Thomas Cresswell, fish-factor, of the one part, and H. R. Cresswell, fishmonger, of the
other, Thomas Cresswell, in' consideration of the covenants in the deed contained,
assigned to H. R. Cresswell all that branch or portion of the trade of him T. C.
carried on at Billingsgate, consisting of purchases and assignments from Scotland, and,
also, his interest in certain salmon fisheries there, and covenanted not to inteifere
or act in the branch of the business so assigned. H. R. Cresswell, in consideration
of the assignment and covenants thereinbefore entered into by Thomas Cresswell,
covenanted on his part to pay Thomas Cresswell an annuity of 2501. by quarterly
payments every year; to abstain from interfering in the branch of trade still carried
on by Thomas Cresswell, and to refer differences to arbitration.
[410] Breach, non-payment of 621. 10s. for the quarter ending May 1, 1827.
Plea, that before the 621. 10s. became due, Thomas Cresswell interfered, acted in,
and intermeddled with the branch of trade assigned by him to the Defendant.
Demurrer and joinder.
Taddy Serjt., in support of the demurrer, was stopped by the Court.
Wilde Serjt. contrh. The covenant by Thomas Cresswell not to interfere with the
(a) Gaselee J. was at Chambers, but expressed his concurrence through Mr. J. Park.
4 BING. 408.](ViewImageLocal?handle=hein.slavery/ssactsengr0238&div=1&collection=&method=preview&ext=.png&size=3)