that others had previously published the same defamatory matter is not in itself admissible in mitigation, yet the defendant ought not to be held liable for any injury not resulting from his act, and it seems that evidence of previous publication by others will be received, if it can be shown that part of the injury claimed by plaintiff was in fact caused by such other publications and not by defendant's act. Whether upon a plea of justification only, any evidence in mitigation may be given has been a disputed question, but the weight of authority is that such evidence may be admissible, whatever the issue.

Exemplary or punitive damages are based upon the mental attitude of the wrongdoer, and are by way of rebuke or punishment for his malice. They may be given on account of the violent or exaggerated character of the charge as showing deliberate malice. Evidence may be received of previous transactions that indicate malice in the case at bar; of recklessness in uttering the false statement; of the publicity and repetitions of the charge, as showing unusual malice; of a refusal to listen to explanations, or after explanation to make retraction. It is the uniform rule, however, that exemplary damages can not be allowed where the defamation is punished criminally. Hence, where libel is an indictable offense, evidence of the defendant's actual motive, malicious or otherwise, is not properly admissible, except so far as it can be shown to have affected the actual injury.

It is to be noted that in slanders of the fourth class, that is, those actionable only by reason of special damages, the plaintiff is confined to such actual injury as he alleges and proves, and since exemplary damages are not based upon actual injury, it follows that in cases of slander not actionable per se, no exemplary damages can be recovered.

§ 105. Kinds of fraud.-It is every one's right to have others exercise good faith toward him and to refrain from violating the trust and confidence that he may place in them. The social fabric rests upon the maintenance of this right. It is evidently impracticable, however, for the law to enforce perfectly honest and fair dealing under all circumstances. The inquiry must be, how far does the law take cognizance of or undertake to remedy violations? This is the subject of frauds and deceptions.

Wrongs of this kind may exist where the parties are not upon terms of equality, and the injured person is by reason of some special relation entitled to repose more

than usual confidence in the wrongdoer. Or such wrongs may be where the parties do not occupy any special relation toward each other. As to both classes, the wrong may consist in either affirmative conduct, as where one makes a false statement misleading another, or in negative conduct, as where one who ought to speak is silent.

§ 106. Frauds in confidential relations.-Where parties are upon any special terms of relationship under which one is entitled to place peculiar reliance upon the other, the law will closely scrutinize transactions between them, and may hold any violation of confidence to be a legal wrong. Some of these relations will be separately considered. The principles are analogous in all.

§ 107. Parties having illegal sexual relations.— Although persons living in illegal sexual relations are both in the wrong, and although no contract will be enforced which has for its consideration such relation, nevertheless the law recognizes that there is under such circumstances an opportunity for one to take undue advantage of the other through misuse of confidence reposed. Business transactions between such persons are open to suspicion, and unless the party benefited shows that no advantage was taken, the law will afford a remedy, either by restoring to the injured party what was lost, or by giving damages.

§ 108. Trustees.-The relation of trustee may be created either by the party himself, or by some individual for his benefit, or by judicial action. Executors and administrators, guardians, assignees, receivers, partners, agents for sale of property, and the like, are all trustees as much as if they were expressly so named. In every case the trustee is selected on account of confidence re

posed in him; and the law requires of the trustee perfect good faith and integrity in the discharge of his obligations. It is an elementary principle that a trustee is permitted to do nothing whereby he personally reaps an advantage to the detriment of his trust. Hence, whenever he deals with his beneficiary, the transaction will be deemed fraudulent unless he shows that he made full disclosure of all matters that he knew or ought to know, and that the transaction was in fact a fair one. It is necessary that he shall have put the beneficiary on terms of perfect equality with him. Whenever a trustee sells property of the trust, or makes contracts in relation thereto, he is not permitted either directly or indirectly to make a profit to himself. He can not, either himself or through a third person, become the purchaser at his sale, without being held guilty of fraud. The beneficiary has the option to declare the sale void, or to affirm it, if he deem it to his advantage.

In cases where the confidential relation is of such a character that its influence can be supposed to continue after the relation has in fact terminated, subsequent dealings between the parties may be held to be not on equal terms, and for any misuse of the influence the court may declare the transactions fraudulent.

§ 109. Attorneys, physicians and clergymen.—For · the discharge of these professional duties it is necessary that there should be a high degree of confidence reposed by those who ask their aid. Without such confidence it would often be impossible to secure any benefit from the services required. The law not only favors, but protects to the fullest degree, all communications made to secure such services. Not only does the law refuse to compel the professional man to disclose what was told him in confidence, but if the confidence is violated by his

voluntary disclosure, a remedy in damages may be given for the injury done.

The confidence reposed begets a strong influence by the professional adviser. If in any business dealings between them any undue advantage is taken, the law will rectify the wrong by compelling the wrongdoer to make restitution or by giving damages against him.

§ 110. Persons of weak mind. It is not intended here to refer to persons so idiotic and mentally diseased as to be incapable of contracting or giving consent. Such persons are not in any proper sense the victims of fraud. Fraud presupposes some intelligence, enough at least to be misled. The acts of idiots are simply void.

There are, however, persons whose intellectual power, though feeble, is sufficient for carrying on some of the affairs of business. Their acts are not void. The law recognizes that such persons are not upon terms of equality with their fellows, and therefore justly requires of every person who deals with them a high degree of good faith. Acts that might not be held deceptive when practiced on a person of average intellect will be held fraudulent as to one of defective mental powers. The least undue advantage or unfairness taken by one in his dealings with the weakminded, will be laid hold of by the law as a ground for giving redress.

Persons intoxicated fall into the same category with those of feeble intellect. Whoever deals with a drunken person is held to take upon himself the burden of showing good faith. The greater the degree of intoxication, the greater is the necessity for exercising a scrupulous good faith.

And to the extent that their powers may be interfered with by defects, the blind and the deaf stand within the protection of the law.