In cases where a servant has been successful in an action for wrongful dismissal, it is apparently proper, as a general rule, for the trial judge to order the master to restore a character handed to him by the servant when he entered the employment. But a custom by which an employer whose servant is leaving him to take another situation should be bound to hand over to the new employer the character brought by the servant, has been pronounced unreasonable1o.

2. Master's duty as affected by statute.-In some jurisdictions the common law rule has been modified by statutes applicable either to employers generally, or to employers of a particular class; and there seems to be good reason to anticipate that enactments of this type will be greatly multiplied in coming years. The desirability of thus supplying the deficiencies of the common law cannot be consistently disputed by anyone who is of opinion that it is proper to protect employés by legislation against "blacklisting." See § 15, post. Manifestly the refusal to give a character may often be virtually the equivalent of "blacklisting" so far as regards the injury inflicted on the servant. The statutes which have already been passed may be conveniently classified under two heads:

hold a certificate of good character and honourable discharge, it is important to corporations, their agents and servants, and all interested in them, to be cautious and conscientious in giving such discharges and recommendations, when they are honestly deserved, and in withholding them when they are not."

9 Such an order was made by Hill, J., in Gordon v. Potter (1859) 1 F. & F. 644.

10 In Moult v. Halliday, 77 L.T.N.S. 794 [1898] 1 Q.B. 125, 67 L.J.Q. B.N.S. 451, 46 Week. Rep. 318, 63 J.P. 8, Hawkins, J., thus referred to a point which had been incidentally discussed in the lower court: "I cannot say, I think that would be a reasonable custom. There is no obligation on a master or mistress to give a character to a servant, but, if a character is given, it should be a true one. A character may be true this month and false next. A servant may come into service with a good character, and yet during the first month circumstances may come to the master's knowledge which shew that it was undeserved and should be forfeited. It would be a scandalous thing if the master was bound after that to hand over the character which he knew was false. If the good character which the servant brought with her is handed over, it must be handed over in good faith. I think, therefore, that such a custom would be unreasonable, and, indeed, not honest, and therefore bad."

(a) Those which cover both the cases in which servants have been discharged, and the cases in which they have voluntarily . left the employment1.

b) Those which deal only with the duty of employers to servants whom they have discharged2.

1 A very comprehensive specimen of this class is the Employers and Employés Act, 1890, of Victoria (Australia), in which it is provided, under the penalties specified:

§§ 20, 21. That every servant shall receive at the termination of his service a certificate of discharge.

§ 22. That the servant shall produce the certificate on any new hiring.

§ 23. That a servant shall not be hired without the production of the certificate.

§ 24. That false certificates shall not be given.

Nearly two hundred years ago it was provided by the Irish statute, 2 Geo. 1, chap. 17, § 4, that "on the discharge or putting away of any servant from his or her service, or upon such servant's regularly leaving his or her service, the master or mistress of such servant shall give a certificate in writing under his or her hand, that such person who is therein named was his or her servant, and that he or she is discharged from the said service, and shall in the said discharge certify, if desired, or such master or mistress think fit, the behavior of such servant." This statute, however, seems to have remained virtually a dead letter for a century and a half, as the court stated in Handley v. Moffatt (1873) Ir. R. 7 C.L. 104, 21 W.R. 231, (see note 3, infra), that no action in which its provisions had been relied upon had been brought during that period.

2 Georgia. By a statute passed in 1890 (Acts 1890-91, Vol. 1, p. 188) railroad, express, and telegraph companies were required to give to their discharged employés or agents the causes of their removal or discharge, when discharged or removed, and the amount of $5,000 was fixed as the penalty or damages for noncompliance with this requirement. In Wallace v. Georgia &c. R. Co. (1893) 94 Ga. 732, 22 S.E. 579, this act was declared unconstitutional. By the provision now in force (Code of 1895, § 1875) it is enacted that any employer, after having discharged any employé, shall, upon written demand by such employé, furnish to him, within ten days from the application, a full statement in writing of the cause of his discharge, and that, if any employer shall refuse within ten days after demand to furnish such statement, it shall be ever after unlawful for him to furnish any statement of the cause of such discharge to any person or corporation, or in any way to blacklist or to prevent such discharged person from procuring employment elsewhere. The penalty of treble damages, to be recovered in a civil action, is imposed for a breach of this provision (§ 1874).

Indiana. The enactment in Horner's Ann. Stat. (1901) § 5206 r. 3 is in part similar to that in the second of the Georgia statutes. But it is also provided that the written cause of discharge, when furnished at the request of the discharged employé shall never be used as the cause for an action for slander or libel either civil or criminal against the employer.

Kansas. By Gen. Stat. Dassler (1901) §§ 2422-2423 employers of labour are required, upon the demand of a discharged employé, to furnish in writing the true cause or reason for the discharge. Any employer who violates the provisions of the Act is declared to be guilty of a misdemeanour, and also liable to the party injured for treble damages.

Where a statute of this kind merely imposes a penalty for its violation, the question whether a servant who has been injured by such violation can maintain an action for damages against the delinquent employer is determined with reference to the considerations discussed in § 800, of the writer's treatise on Master and Servant3.

Montana. The provisions of the Political Code, (1895) § 3392, are essentially the same as those in the second Georgia statute.

Ohio. The same description is applicable to the statute in this State, (Ohio Laws, Vol. 87, § 1).

By $128 (1) of the English Merchant Shipping Act, 1894, (57 & 58 Vict. ch. 60) it is provided, under penalty, that the master shall sign and give to a seaman discharged from his ship either on his discharge or on payment of his wages, a certificate of his discharge in a form approved by the Board of Trade, specifying the period of his service and the time and place of his discharge.

The same section (cl. 2) also prescribes that the master shall, upon the discharge of every certificated officer whose certificate of competency has been delivered to and retained by him return the certificate to the

officer.

§ 129 (1) provides that where a seaman is discharged before a superintendent the master shall make and sign, in a form approved by the Board of Trade, a report of the conduct, character, and qualifications of the seaman discharged, or may state in the said form that he declines to give any opinion upon such particulars or upon any of them, and the superintendent before whom the discharge is made shall, if the seamen desires, give to him or indorse on his certificate of discharge a copy of such report (in this Act referred to as the report of character).

The first of the above paragraphs is substantially the same as § 172 of the Merchant Shipping Act, 1854, (17 & 18 Vict. c. 104).

By U.S. Rep. Stat. it is provided: § 4551. That, upon the discharge of any seaman, the master of the ship shall sign and give him a certificate of discharge, specifying the period of his service and the time and place of his discharge, in a prescribed form.

§ 4453. That, upon every discharge effected before a shipping commissioner, the master shall make and sign, in a prescribed form, a report of the conduct, character and qualifications of the person discharged.

3 In Handley v. Moffatt, (1873) Ir. R. 7 C.L. 104, 21 W.R. 231, where an action was brought for improperly dismissing a servant without giving him a certificate of character, as prescribed by the statute referred to in note 1. supra, it was shewn that the statute also provided that, if the master or mistress refused to give a discharge, the servant might procure a certificate from a justice of the peace or chief magistrate of the town, "to all intents and purposes as good as if the same had been given by the master or mistress." For this reason, it was held that the Act which created the duty also gave the remedy for its violation, and that the party aggrieved had no other.

In Vallance v. Falle, (1884) L.R. 13 Q.B. Div. 109, 53 L.J.Q.B.N.S. 459, 51 L.T.N.S. 158. 32 Week. Rep. 769, 5 Asp. Mar. L. Cas. 280, 48 J.P. 519, it was held that the only remedy for a breach of the duty imposed by

3. Blacklisting. Generally. In several of the reported cases the remedial rights of servants who have suffered damage from the publication of their names in those circulars or notices which are now commonly known as "blacklists" have been determined with reference to the principles of the law of libel. But as the subject has been dealt with from other standpoints also, and a peculiar interest attaches to it, as one of the characteristic incidents of the conditions created by the industrial developments of modern times, it will be of interest to the profession to bring together all the decisions, English, Canadian, and American, in which its various juridical aspects have been discussed.

In its broadest sense the expression "blacklist" may be said to denote a document by means of which A., either voluntarily, or, as is most frequently the case, in pursuance of a previous arrangement, communicates to B. certain information about C., which is likely to prevent B. from entering into business relations with C. This description is comprehensive enough to cover the posting of workmen by labour organizations. But this aspect of "blacklisting" is more appropriately treated under the head of Trade Unions. The only species of "blacklist" with which we shall deal in this article is that which is issued by an employer of labour, with the object of rendering it more difficult for the persons mentioned in it to procure work. The cases relating to each of the two forms in which such a "blacklist" is published are reviewed in the following sections.

4. Notices exchanged between different employers in the same line of business. It is to documents of this kind that the term "blacklists" is most commonly applied. The cases in which their legal

the provision of the English Merchant Shipping Act of 1854, which is referred to in note 1, supra, was by proceedings for the penalty specified.

In Crall v. Toledo & 0.C.R. Co. 7 Ohio C.C. 132, a similar decision was rendered with respect to the statute of Ohio.

1 In State ex rel. Schaffer v. Justus, 85 Minn. 279, 56 L.R.A. 757, 88 N.W. 759, the court observed: "Conceding that the word 'blacklist' has no well-defined meaning in the law, either by statute or judicial expression, the general understanding of the term is that it has reference to the practice of one employer presenting to another the names of employés for the purpose of furnishing information concerning their standing as employés.

effect has been discussed may be conveniently arranged under four distinct heads, which have reference to the nature of the remedy sought by the servant.

(a) Actions for libel.-Under the general principles of the law of libel, it is clear that, where a notice shewing the unfitness of a discharged servant for the position he held is sent by his former employer to other employers in the same line of business, without malice, and for the sole purpose of enabling them to avoid the employment of unsuitable persons, the publication must be regarded as privileged, as being made bonâ fide upon a subject-matter in which the party communicating the information has an interest, or in reference to which he has a duty, to persons having a corresponding interest or duty2. On the other hand the privilege of the occasion will not protect an employer who inserts in a notice of this description a defamatory statement which he knows, or should know, to be false3.

2 In Wabash R. Co. v. Young (1904) 162 Ind. 102, 69 N.E. 1003, a declaration which alleged that the appellant railway company “blacklisted" the appellee, by informing another railway company that he was a "labour agitator," was held not to describe such malicious interference with the appellee's business as would create a liability at common law. An analysis of the judgment of the court discloses the following grounds for its decision: (1) That there was no averment that a charge of this nature was calculated to injure the appellee, or that any odium attached to members of such orders or to labour agitators; (2) That the charge was not libelous per se, as implying the use of unlawful or improper means to promote the interests of labouring men; (3) That no connection was shewn between the alleged statement and the failure of the appellee to obtain employment or his loss of any position; (4) That for aught that appeared in the declaration, the statement made concerning the appellee was true, and, if it was true, it could not render the appellant liable; (5) That the information given to the second railway company was not volunteered by the appellant, but was given in answer to an inquiry.

The general phraseology used in the text to express the quality of a privileged communication is taken from the judgment of Lord Campbell in Harrison v. Bush (1855) 5 El. & Bl. 344.

3 An action was held to be maintainable for sending the following printed circular to a number of employers following the same business as the plaintiff's master: "John Lally, an apprentice in my shop, not out of his time, quit work without cause on August 1. If he is working for you now, or applies for work, you will understand the situation. Article eleven of the by-laws covers the case." Lally v. Cantwell (1890) 40 Mo. App. 44 (45) (former appeal, 30 Mo. App. 524, where it was held that the petition stated a good cause of action). The court said that the word "quit" implied "wrongfully quit," a false statement, as the plaintiff had not been legally bound as an apprentice, and could quit at any time.