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:
(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,
(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-
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.
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,
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.
(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.
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.
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.
of presentment of a bill or note, 449, 453.
of giving notice of dishonor, 478, 494. VOLUNTARY CONVEYANCE.
See ASSIGNMENTS. See FRAUDULENT CONVEYANCES.
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