PRINCIPAL AND AGENT-continued.

appear in the instrument and the in-
tention, on the whole, be apparent,
726; 740, 741.

V. Of the liabilities and rights of action
upon parol contracts made by an agent
for a principal, 742, 778.

This subject considered under the follow-
ing heads:

I. LIABILITY of

(1.) Principal on parol contracts made
by agent, 757, 766.

(i.) where such contracts are ex-
press, 757, 766.

(A.) where these express contracts
are written ones, 757, 764.
(B.) where the express contracts
are verbal ones, 764, 766.
liability of foreign principals, 771,
772.

(2.) Agent on parol contracts made in
behalf of principal, 766, 770.
(i.) where such contracts are ex-
press.

(A.) where in such express con-
tracts credit has been
given to the agent exclu-
sively, 757.

(B.) where in such express con-

tracts the name of the
principal has not been
disclosed or does not ap-
pear, 766, 767.

(C.) where the agent has no au-
thority to contract, 767,
770.

(a.) the contract being verbal,

767.

(b.) the contract being writ-
ten, 767, 768.

personal liability of agent to foreign
principal, 771, 772.

(3.) Each party, st. principal and agent.
(i.) where the obligations are im-
plied, 770.

II. RIGHT OF ACTION in principal and
agent respectively, 773.

(1.) On express contracts, being chiefly
written ones, 773, 776.

(i.) where the name of both principal
and agent are disclosed, 773, 774.
(ii.) where the name of the agent
alone appears, 774, 776.
(2.) on implied liabilities, 776, 778.

VII. See RESPONDEAT SUPERIOR.

VIII. See FACTOR AND FACTORAGE.

IX. Rights of Principal against Agent, 826,
856. See specially Factor and Factor-
age, I. and III.

principal duties of an agent stated:
(i.) to employ adequate skill, and exert
reasonable diligence, 526, 827;
841.

whether left to discretion or limited
by positive order, always liable
for negligence, 841, 842.

PRINCIPAL AND AGENT-continued.
liability of banks receiving notes
for collection different in dif-
ferent States; and differences
stated, 842, 843.

(ii.) to obey instructions, 828, 835; 843.
but a reasonable, practicable
compliance with orders in accor-
dance with the usages of trade,
is usually sufficient, 843.

how far being in advance for funds
rides over orders in restraint of
sale, 844, 845.

liability for breach of order limited
by

(a.) the occurrence of an event not
contemplated at the time of
the order, making compliance
impracticable, 846, 847.
(b.) the fact that the order is not posi-
tive and amounts only to ad-
vice, suggestion or general
direction, 847, 848.
obligation of merchant agent to in-

sure for his correspondent, 848.
ratification of acts not authorized
or in violation of orders; as by
accepting or demanding pay-
ment of purchase money, &c.,
with full knowledge or by not
promptly rejecting acts, 719;
848, 849.

(iii.) to keep principal advised of what
is done; of sales made, and of
all facts and circumstances
which may render it necessary
for him to take measures for
his security, 849.

(iv.) to account at reasonable times
or on demand, 850.

how far and under what circum-
stances agent bound to pay
over without previous demand,
851, 852.

measure of damages for breach of duty,
whether negligence or breach of
order, 853.

burden of proof in regard to amount of
damages, 854, 855.

forms of action in suits by principal
against factor, 855.

X. Right of Agent against Principal,
856, 877.
(i.) to

indemnify for all damages
incurred by the agent, without
his fault, in the course of the
agency and in consequence of
it, 856, 866; 869, 873.
unimportant whether the act
which has caused loss to the
agent be right or wrong, pro-
vided he could not prevent it,
869, 873.

(ii.) compensation for services ren-
dered, 873.

(iii.) to a general lien upon the prin-
cipal's goods, the agent being
a factor; and hence called the
factors' liens, 874.

the factor's lien defined and dis-

PRINCIPAL AND AGENT-continued.

tinguished from the other
kinds of lien mentioned in
books, st. (a) lien at common
law, (b) lien by special con-
tract, 874, 876.

facts and acts by which the fac-
tor's lien is created, continued
and lost, 875, 876.
the factor's lien, a cumulative
remedy not imposing right of
personal resort, 875, 876.
how far sub-agents possess this
lien, or affect it in regard to
their principals, 876, 877.

PRIVILEGED COMMUNICATION. See
LIBEL. See SLANDER, 192, 221.

PROCHEIN AMY. See INFANCY.

suits brought by, infants, by, 325, 328.
appointment, admission, and powers
of, 326, 328

PROMISSORY NOTE. See NEGOTIABLE
PAPER, NGOTIATION, NOTICE, PRESENT-

MENT.

requisites of a negotiable note, 363,
411.

PUBLICATION.

of libel, 133, 134.
See LIBEL.

RATIFICATION. See INFANCY. See PRIN-
CIPAL and AGENT, III.

of an infant's voidable parol contracts,
by express promise after age, 309,310.
of his contracts under seal, 311, 312.
implied ratification by acts after age,
313.

of ratification by a principal of acts
done without authority, by one as-
suming to be agent, 714, 721.
ratitication, express and implied, 719.
there can be no ratification without full
knowledge, 720.

of ratification as a discharge of the
agent's liability to the principal, 848,
849.

REAL ESTATE.

held by a partnership, 592, 610.

RELEASE.

of the validity of a condition of release
in an assignment for creditors, 81,
84.

RENT ARREAR.

of interest on, 620.

RESPONDEAT SUPERIOR. See PRINCI-
PAL AND AGENT, 778, 788.

principal civilly liable to strangers, i.e.,
to third parties for neglect, fraud,
deceit, or other wrongful act of his
agent in the course of his employ-
ment, though the principal did not
authorize the specific act, 780.

RESPONDEAT SUPERIOR-continued.
but not liable to one servant for injuries
occasioned by negligence of another
servant in the same employment,
778, 780; 781, 783.

provided, perhaps, that the one servant
does not stand in the relation of a
superior to the other, 783.

maxim respondeat superior does not
apply where the relation is not that
of master and servant, but of con-
tractors, 783.

difference between master and servant,
and contractors, 783, 785.
responsibility of public officer depend-
ent on fact whether the persons
employed are his servants, or whether
they are his official subordinates,
785.

the distinction explained and illus-
trated, 785, 786.

responsibility of public municipal cor-
porations for the acts of its officer,
dependent on distinction between an
exercise of those legislative powers
which it holds for public purposes,
and as a part of the government of
the country and those private fran-
chises which belong to it as a crea-
ture of law, 787.

the distinction explained and illus-
trated, 787, 788.

measure of damages in cases where the
maxim of respondeat superior applies,
788.

SLANDER-continued.

or dishonesty or general incapacity in
a lawyer, 117.

or drunkenness in a clergyman, 117.
or want of integrity or capacity in a
judge, 117.

or malpractice of one being at the
time in public office, 117.
(iv.) produce (being wrongful) special
as distinguished from general
damage, 119, 121.

e. g., imputing incontinence to an un-
married women, whereby she
has lost valuable hospitality and
support, or income, or lost health
or consequent capacity for busi-
ness, 121.

but this damage must arise before suit
brought, 121,

to this 4th head may be referred “slan-
der of title;" though this suit is not
strictly an action for words spoken
or written but an action on the case
for special damage, 121.
whether corporations may sue and be
sued for slander and libel, 122; 136,
138.

II. CONSTRUCTION OF PLEADINGS IN LI-
BEL AND SLANDER, 138, 175.
the words are to be taken neither in
mitiore sensu, nor in malam partem,
but according to the sense in which
they appear to have been used, and
the ideas which they were adapted to
convey to those to whom they were
addressed, 154; 166.

the actual meaning of the words in the
particular case, and the effective
sense in which they were used, is a
matter of fact and for the jury, 154,
156; 166.

the question, what constitutes an of-
fence, the imputation of which is
slanderous, or libellous, is a question
'of law for the court, 154, 156; 166,
169.

the meaning of words is therefore a
mixed question of law and fact, 154,
156; 166, 169.

an averment of meaning cannot be
proved by witnesses stating their
opinion or belief as to meaning; they
niust state facts, 156; 166.
to an action for words clearly slander-
ous, it is no defence that the plaintiff
could not have committed the crime,
unless such fact was known to those
who heard the words, and qualitied
the meaning of the words as then
understood, 156, 157, 166.
otherwise, where the party uttering the

words goes on to explain them as
relating to something not capable of
being the crime which he imputes,
or if facts are known to all the hear-
ers, and in relation to which they
understand the words are used, which
render the crime impossible, 157;
166.

but no explanation made subsequently

SLANDER-continued.

to the uttering of the words will take
away their originally actionable char-
acter, 158; 166.

to make an imputation slanderous, the
crime alleged must be precise; a
general charge of wickedness would
be insufficient, 158; 166.

but need not be charged directly or
affirmatively, 158; 166

may be made by ambiguous insinua-
tion; by delivering the words as
matter of hearsay; by way of inter-
rogation or exclamation by condi-
tional words or words in the future
tense, 158; 166.

and it is unimportant whether the party
expects to be believed or not, 158,
159; 166.

in determining whether matter amounts
to libel or slander, the construction
must be put on the whole language
used, 160; 166.

to be actionable, words must have an
individual application, as distin-
guished from application to a class;
the question when several are sland-
ered being, whether the charge bears
on the plaintiff personally, though
among others, 160, 166.

whether the whole matter charged
amounts to slander, in other words,
whether the declaration contains a
good cause of action is for the court
to determine, 161; 166, 169.
meaning of " colloquium;" st. an aver-
ment that the words were used of
and concerning a particular person,
or particular circumstances, or sub-
ject matter, 161, 162; 166.

office of innuendo" is whenever the
words in their legal meaning do not
amount to a slanderous imputation,
to aver by way of inducement such
matter or fact as taken with them,
causes them to amount to such im-
putation, 162.

mode of declaring when the libel is
ironical, 163.

how when the language is inherently
ambiguous, 164.

how when the plaintiff has been referred
to in the third person, and his name
is not mentioned in the words set
forth, 170.

the averment of the colloquium is al-
ways traversable, 162.

meaning and office of the innuendo, 162,

163; 166.

to explain, by reference to the matter
averred, the effect of the words used,
so as to point out that they are slau-
derous, 162; 166.

being the mere statement of an infer-
ence, it cannot be proved as a fact
on the trial, and cannot enlarge, add
to or extend the sense or the effect of
the words used, 162; 166.

it cannot perform the office of a collo-
quium, 162.

SLANDER-continued.

verdict in favor of plaintiff establishes
the truth of innuendo, so far as the
innuendo express the application and
reference of the language in respect
to the person and subject of the dis-
course; for this is matter of fact; so
too and to this extent it is admitted by
demurrer or judgment by default,166.
but so far as the innuendo expresses
matter of law, and undertakes to
aver that certain language amounts
to the imputation of a certain crime,
a verdict does not touch its correct;
ness, 166.

the respective functions of judge and jury
at common law in libel cases, and as
settled by Mr. Fox's Libel Act, 32
George III., and different acts in
the United States, 167, 169.
announcement by William Bradford,
A. D. 1692, at Philadelphia, of law
as afterwards declared in Mr. Fox's
Libel Act, 168, note 1.

effect of verdict in curing want of col-
loquium and innuendo, 171.
in actions of slander or libel (except
in the case of imposing the crime of
felony), it is not enough to state in
the declaration, the effect of the words
uttered: the words themselves must
be set forth, 171, 174.

in regard to the proof of words, the
rule is that the words must be proved
substantially as they are laid and it
is not enough to prove words of the
same effect or import or conveying
the same idea, though it is not al-
ways necessary to prove all the
words set forth, 172; 174.
whether corporations can sue and be sued
for slander and libel, has been a ques-
tion differently decided; the best au-
thority being that they may, 136, 138.
III. DEFENCES TO SLANDER AND LIBEL,
175, 222.

are twofold:

(i.) justification-which shows the en-
tire truth and must be specially
pleaded, 188.

(ii) showing a just occasion and an
authorized motive, or what is called
"A Privileged Communication,"
192, 221.

(i.) justification must be pleaded
specially, and cannot be given in
evidence under the general issue, 188.
this defence an odious one and the
rules in relation to it strict, 188.
hence though the charge which is the
foundation of the action may be gen-
eral, the justification must be par-
ticular, 189.

snd must have the same particularity

of plea and be supported by the same
proof that is required on an indict-
ment for the crime, 164.

(ii.) "Privileged communications,"
comprehends all cases of communica-
tions made bonâ fide in performance
VOL. I.-59

SLANDER--continued.

of a duty, or with fair and reason-
able prospects of protecting the in-
terests of the party using them, 193.
in cases where this is the defence, the
question whether the occasion is such
as to rebut the inference of malice if
the publication be bonâ fide, is one
of law and for the court; and the
question whether bonâ fides existed
is a question of fact and for the jury,
193.

the privilege which will protect a com-
munication should result from some
right on the part of the defendant to
say what is complained of, or from
some duty, public or private, legal
or moral, as,

(a) Where it is required by the in-
terest of the person to whom it is
made and is reasonably called for by
the relation in which the party mak-
ing it stands to him, and especially
where it concerns the common in-
terests of both, 194.
illustrations (among which is con-
sidered at length the matter of mer-
cantile agencies), 194, 212.

(b) Where matter is spoken or written
by one who has a duty to perform to
the public or individuals, 212, 213.
as what a public officer, civil or eccle-
siastical, or citizen does in the course
of public duty, whether civil or ec-
clesiastical, 212.

other illustrations, 212, 213.
(e) Communications by one in the
honest pursuit of his own interests,
or in necessary self defence, 213.
illustrations, 213, 214.

of statements made in legal or ecclesi-
astical proceedings maliciously in-
stituted, 215.

sometimes these are subject of suit for
malicious prosecution alone and
sometimes for actions for libel or
slander, 216.

privileges of parties, counsel, witnesses,
jurors, judges, of legislative bodies,
217.

privileges of newspapers; and es-
pecially of their privileges in report-
ing proceedings of courts, 218.
literary criticisms; and criticisms upon
pictures and upon public entertain-
ments, 219, 220.

telegraphic communications, 220.
malice and its legal definition and char-
acteristics, 221.

statute of limitations, 221.

III. Of evidence in mitigation and in ar-
gravation of damages in actions of
slander and libel, 223, 249.

this evidence is received after the cause
of action in libel or slander has been
established, and generally has refer-
ence to the character or condition of
the parties or to the degree of malice
which entered into the communica-
tion complained of, 233.

SLANDER-continued.

may be given under the general issue,

or be specially pleaded, 187.
general bad character before and at the
time of the publication complained
of may be given in evidence; but
generally speaking not evidence of
particular facts in discredit of char-
acter, or of bad character in other re-
spects than in the matter charged,233.
the truth cannot be given under the
general issue in mitigation of dam-
ages, nor any facts which tend to
prove the truth and criminate the
plaintiff, nor in short anything which
would be evidence under a plea of
justification, 234.

and in New York State, the common

law declared to be that the evidence
in mitigation must fully admit the
charge to be false; though the rule
is now changed by statute, 234.
rules on this subject (i. e., how far the
evidence may tend to prove the truth)
not uniform throughout the United
States; and their differences stated,
234, 235.

whether previous reports of the plain-
tiffs having been guilty of the offence
charged are admissible, either as
affecting character or in mitigation
of damages, 237.

has been much disputed; but the weight
of authority is clearly and power-
fully against such evidence for any
purpose whatever, except as rebutting
evidence of actual malice, and ex-
cept in cases of privileged communi-
cations, 237, 239.

rule of the Earl of Northampton's
case-st. that if one publish that he
heard another, naming him, say
that the plaintiff was a traitor, or a
thief in an action on the case, if the
truth be such he may justify-is a
rule resting on certain authority, and
has, while admitted, been so strictly
construed, as to be in effect over-
ruled, 239, 240.

the rule has never been extended to
libels, and applies only to suits for
slander, 240, 241.
plaintiff may prove in mitigation that

the words were spoken in heat or
under intoxication, and without in-
tention to make a serious charge:
or that they are a resentment: and
generally, perhaps, may prove all
the immediate circumstances under
which the words were uttered, but
may not prove that the parties were
enemies or had a quarrel, 241, 242.
insanity a defence; but it must be
proved by proper evidence and not
by opinions of the neighborhood,242.
the question considered-how far
filing a plea in justification, which
the defendant is unable to support
by proof is such conclusive evidence

of malice that the defendant will not

may consist of proof of actual malice
and of vindictive motives; which
may themselves be proved by evi-
dence of all the circumstances under
which the words were spoken, and
of the acts and manner of the de-
fendant at the time, 243.

the question considered how far other
words of writings or the same pur-
port, published at a different time,
and before or after the suit has com-
menced, may be given in evidence,
243, 244.
accumulated authority of decided cases
in favor of it; but the practice de-
clared and shown to be inconsistent
with legal principle, and to tend to
injustice, 244, 247.

but the plaintiff may give evidence of
the utterance of the same words, at
different times, so long as he does
not go beyond the words laid in the
declaration, 247.

evidence of plaintiff's good character
has, in some States, been admitted
in chief; but the practice is not
approved nor general; the true
principle being, and most decisions
conforming to this, that except to
rebut, evidence given by the defend-
ant of general bad character (when
it is clearly admissible), such evi-
dence is wholly inadmissible, 247.
to increase or diminish damages the
plaintiff's or defendant's circumstan-
ces, rank, condition and of the state
of his family, may be taken into
consideration, 248.

in assessing damages, the jury may
consider and take into account pros-
pective damages, 249.

SURETY.

when interest begins to accrue
against, 618.

application of payments, where one of
the debts is with surety, 350.
application to an account, where there
are different sets of sureties, 359.

TELEGRAPH MESSAGES.

not "privileged communications,"
within the meaning of that term as
used in the law of libel and slander,
220.

TIME.

of presentment of a bill or note, 449,
453.

of giving notice of dishonor, 478, 494.
VOLUNTARY CONVEYANCE.

See ASSIGNMENTS. See FRAUDULENT
CONVEYANCES.