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Mitchell v. Roberts, 17 Fed. Rep. 776; Loughborough v. McNevin, 14 Pac. Rep. 773; Ratcliffe v. Vance, 2 Const. (S. Car.) 239; Kortright v. Cady, 21 N. Y. 343; Cass v. Hizenbotam, 100 N. Y. 248, 3 N. E. Rep. 189; Moynahan v. Moore, 9 Mich. 9; Stewart v. Brown, 48 Mich. 383, 12 N. W. Rep. 499. The appellants concede that while the general rule that tender of the amount due at the time it becomes due, discharges the lien of collateral securities, yet contend that such is not the effect of a tender after that time. Such a distinction has been recognized in respect to mortgages, based upon the fact that the legal title has become vested in the mortgagee. No such distinction can be made in the case of bailments of personal property as security." And it was held that a tender at any time after the debt became due discharged the lien. In Tompkins v. Batie28 it was held that where the tender was after the debt became due, the tender must be kept good. In a later case in the same court it was held that where the obligation is admitted in a suit pending in court, in order to avoid the payment of interest the money must be paid into court." The tender must be without qualifications, that is, there must not be anything which implies that the debtor intends thereby to bar a claim for any amount beyond the sum tendered.30 It is said: "It is not of the nature of a tender to make conditions, terms, or qualifications, but simply to pay the sum tendered as for an admitted debt. Interlarding any other object will always defeat the effect of the act as a tender."'81 In Wood v. Hitchcock," Judge Cowen says: "The books are sufficiently nice as to the manner of a tender. The person making the tender may avoid all implication against the idea of a qualification or other circumstance destroying the tender," etc. The more liberal procedure of the courts at the present time would seem to justify, if not require a departure from the

law of tender. And already the courts hold that the creditor is entitled to a reasonable time in which to examine his accounts, and accept or refuse the tender.38 The tender must be made at or after the day the debt is due, and is of no avail if made before. But where the law made days of grace a part of the contract, and a tender was made by the debtor on the day preceding the first day of grace, and the creditor treated the debt as due, but refused to accept the tender on the ground that he was entitled to hold the collateral to secure another claim of the debtor to the creditor, the court held that both parties in respect to the tender treated the debt as due when the tender was made, and the refusal to accept it was put by the defendants solely upon the ground that they were entitled to hold the bonds as security in another transaction, and that the creditor had waived the objection that the tender was prematurely made.35 The tender must be in money which is a legal tender ;36 but a tender in bank notes on solvent banks when such notes are in general circulation is a valid tender unless objection is made to the medium of payment offered. In Jennings v. Mendenhall,38 Brinkerhoff, J., says: "It has long been settled both in England and in this country by cases too numerous and familiar to need to be cited, that a tender of payment in current bank notes where bank notes constitute the common currency of the country is good unless objected to on account of the medium of payment offered." On the same principle a bank check drawn against funds in a solvent bank has been held a good tender unless objections were made by the creditor. If no objection is made on that ground or if objections are made on other grounds-as that the amount tendered

37

33 Moore v. Norman, 43 Minn. 428, 45 N. W. Rep. 857; Rost v. Bradley, 49 Mich. 27, 12 N. W. Rep. 896. 34 Moore v. Kime, 43 Neb. 517, 61 N. W. Rep. 736.

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is insufficient it will be a waiver of the medium of payment offered."

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cured thereby. 2. That payment has been
made by. collections from the securities
pledged for said loan by the makers thereof
in an amount unknown to plaintiff. 3. That
the plaintiff on the -- day of
quested of the defendant an accounting and
offered to pay the amount remaining due
and unpaid on said loan, but the defendant
refused to render an account, etc., with an
appropriate prayer for relief." The petition
by the creditor will in most cases contain
three main propositions, and should show
that the debt is due and the pledgor has neg-
lected to pay the same, and should pray for
an account and sale of the pledges. In the
absence of an agreement to that effect the
pledgee cannot retain the goods for any
other debt than that for which they were
pledged. The assignee of equitable se-

The right of the pledgor to redeem the pledge inheres in every case, because from its nature a deposit of goods as security redeemable on certain terms, and either with or without a definite time for redemption does not pass the title to the pledgee. Therefore, in order to bar the right of the pledgor he must be given an opportunity to redeem. Under the civil law a pledge could not be sold except under the judgment of the court unless there was a special provision in the contract to dispense with such decree.40 Under the pressure of modern times for prompt payment the courts of England and this country for more than 100 years have held that reasonable previous notice to the debtor to redeem, and a failure to do so would authorize the pledgee to sell the pledge at pub-curities pledged may bring an action thereon

lic auction to the highest bidder." There are many cases, however, where it is sought to redeem stocks, bonds, plate or other securities of considerable value pledged for the payment of a debt in which a bill in equity is necessary and has been sustained.42 Where commercial paper is pledged the remedy of the pledgee seems to be to collect the same as it becomes due and not to sell it,43 but under special circumstances the court may decree a sale. To entitle a court of equity to take jurisdiction the petition should state some equitable ground for relief. Thus, suppose the action is brought by the pledgor to redeem. In an ordinary action there would probably be three main propositions set forth in the petition. 1. A description of the securities pledged and the debts se

Mitchell v. Vermont M. Co., 67 N. Y. 280, it is said: "There was no objection to the tender at the time it was made, either as to form or amount, and all objections which might have been taken on either ground was therefore waived." Becker v. Boon, 61 N. Y. 317; Jennings v. Mendenhall, 7 Ohio St. 257; Le Pol v. Shutt, 78 N. W. Rep. 288; 2 Greenleaf, Ev. (Lewis Ed.), sec. 601.

40 Hart v. Ten Eyck, 2 Johns. Ch. 100, and cases cited.

41 Id. Tucker v. Wilson, 1 P. Wms. 161; Lockwood v. Ewen, 2 Atk. 303.

42 Kemp v. Westbrook, 1 Ves. 278; Wanderzer v. Willis, 3 Brown. 21; Hart v. Ten Eyck. 2 Johns. Ch. 100.

43 Wheeler v. Newbold, 16 N. Y. 392. A different rule applies to goods and chattels pledged as collateral. Id.; the pledgee may foreclose negotiable securities, however, and sell them under the decree of the court.

when due in his own name, accounting to the pledgor for any surplus which he may receive. 45 Where a third party claims an interest in the subject of the action he may intervene to assert or protect his rights.46 If there are conflicting claims to the property pledged so that the pledgee is in doubt to whom it belongs he may bring an action in the nature of a bill of interpleader making the claimants parties thereto, and in that form of action, it can be determined who is the true owner of the property.47 Where an action is brought for loss of the pledge or for injury to the same the leading points are the delivery of the pledge [describing it] to the pledgee, his promise to take due and proper care of the same, and his failure to do so, and damages thereby sustained. Fremont, Neb. SAMUEL MAXWELL.

44 Id.

45 Citizens' Nat. Bank v. G. W. Elevator Co., 82 N. W. Rep. 186; Seeley v. Wickstrom, 68 Id. 1017.

46 O. S. Ry. Co. v. Benson, 36 Neb. 361. But a mere creditor, although he may have an interest in the subject of the suit will not be permitted to intervene therein. K. C. P. R. Co. v. Fitzgerald, 83 Neb. 137. 47 Cass v. Hizenbotam, 100 N. Y. 255.

LIBEL AND SLANDER-PUBLICATION.

GAMBRILL v. SCHOOLEY.

Court of Appeals of Maryland, February 21, 1901.

1. The dictation of defamatory matter to a confidential stenographer constitutes a publication.

2. Where one dictates a letter containing defamatory matter to a stenographer, the stenographer's

notes, typewritten copy, and letter press copy constitute the publication of a libel.

3. In libel, the words charged were actionable per se, and defendant requested that the jury be instructed that if the defendant honestly and in good faith believed the statements contained in the letters to be true, and had ground for such belief sufficient to satisfy an ordinarily prudent and cautious man that such statements were true, then the jury might take into consideration all the circumstances of the case, and award the plaintiff nominal damages merely. Held that, the conclusion of the instruction being the converse of a proposition contained in an instruction properly given at the request of plaintiff, it was error to reject defendant's instruction, since thereby the jury were practically told that they must give exemplary damages, and, where there is evidence sufficient to uphold a verdict for exemplary damages, the question whether they shall be given or not is one for the jury.

PEARCE, J.: This is an action of libel, in which the appellee recovered a judgment for $500 against the appellant in the superior court of Baltimore city. The plaintiff offered 5 prayers, all of which were granted; and the defendant offered 15 prayers, of which the 4th, 5th. 6th, 7th, 8th, 10th, 11th, 12th, 13th, and 14th were granted and his 1st, 2d, 3d, 9th, and 15th were rejected. A single exception was taken by the defendant to this ruling on the prayers, and the three following questions arise upon the exception: (1) Whether the dictation of alleged libelous letters to defendant's private and confidential stenographer, their reduction by her to stenographic characters, and subsequent reduction to the characters of the alphabet by means of a typewriter, their signing by the defendant, and their transmission by his direction to the plaintiff, are in law a publication of such letters, where there is no communication of any of said letters in any manner to any other person; (2) whether in such case the proper action is for libel or slander; (3) whether, under the testimony in this case, the jury was properly instructed as to the allowance of exemplary or vindictive damages.

There were three counts in the declaration, upon three separate letters, and the case was tried on the general issue plea; there being no plea of justification, alleging the truth of any of the charges contained in any of the letters, either in whole or in part. Of the libelous character of each of these letters there can be no question, but the letter in the 3d count was shown by the uncontradicted testimony to be wholly in the handwriting of defendant, and never to have been read or exhibited to any one but the plaintiff; and the jury was properly instructed by the defendant's 4th prayer that there could be no recovery on the 3d count.

It was very earnestly and ably argued by the appellant's counsel that, as the two letters in the 1st and 2d counts were not otherwise published than as above stated, there was no actionable publication of either letter. so as to make either

one a libel, and consequently that the court erred in granting the plaintiff's 31-2 and 4 1-2 prayers, and in rejecting the defendant's 1st, 2d, and 3d prayers, which, respectively, raised the contentions of the parties on this point. This is certainly an important question, and one which bas never before been raised in this court. Indeed, the appellant's counsel states in his brief that it has never been expressly ruled upon in America. though he has referred us to a case in the appellate division of the Supreme Court of New York (Owen v. Publishing Co., 32 App. Div. 465, 53 N. Y. Supp. 1033), which he contends supports his position. The appellee's counsel has submitted a very full brief, but has referred us to no American case upon this point. If such authorities existed. we may safely assume they would not have escaped the well known diligence of counsel, and we have found none such in our own examination; but the principles and considerations upon which this question should be decided are not, in our opinion, difficult to determine, and the instructive English cases which have been cited are in accord with these principles and considerations.

Before considering the argument of the appellant, it will be well to recall the definition of "publication," given by competent authority, as necessary to constitute slander a libel. Mr. Odgers, in his work on Libel and Slander (page 150), defines “publication" as applicable either to slander or libel, as "the communication of the defamatory words to some third person;" and on page 1 he says, "False defamatory words, if written and published, constitute a libel; if spoken, a slander." It is obvious, however, that publication is essential to either, and that the words "if published," though not repeated in the latter clause, must be understood as if repeated. For to shout aloud defamatory words on a desert moor, where no one hears them, is not a publication of the slander; nor is the utterance of such words in a foreign language a publication, if no one present understands their meaning. Id. 151. For the same reason, very clearly, if one should write a defamatory letter, and hand it to a third person, to be read, who does not understand and cannot read that language, there would be no publication of the libel. In Pullman v. Walter Hill & Co. (1891), 1 Q. B. 529, Lopes, L. J., defines publication of a libel" in the exact words cited from Mr. Odgers; and in the same case Lord Esher, master of the rolls, defines it, more fully, and perhaps with more technical accuracy, as the making known the defamatory matter, after it has been written, to some person other than the person to whom it is written." Appellant's counsel, in his brief. says, with equal clearness and accuracy, "Publication, in the law of libel and slander, means the transmission of ideas and thoughts to the perception of a person other than the parties to the suit."

Bearing in mind these definitions and simple illustrations of what is and what is not publica

tion, it will be seen that the argument that there has been no actionable publication in this case divides itself into two branches. The theory of the first branch is that, while there was in fact a physical or mechanical reception by the stenographer of the thoughts expressed by the appellant, such reception was instantaneous only, and merely sufficient for their reduction to written characters, but that there was no comprehension and no lodgment of their meaning in the brain of the recipient, who acted as a mere phonograph, and whose function in that regard was not a mental, but purely a mechanical, process, so that there was no such perception as is requisite to constitute publication. This theory is both ingenious and subtle, but we cannot be persuaded it is sound. We cannot doubt that the dictation to Miss Willis, though taken down in stenographic characters, produced in her mind as full and complete perception of the thoughts of the appellant as a slower dictation. for the purpose of reduction to ordinary characters, would have produced in the mind of one not a stenographer. If this were not so, there could be no assurance that there would be an accurate reproduction of the matter dictated, such as common knowledge gives assurance of from any skillful stenographer. A communication, therefore, to a stenographer, must be regarded precisely as a communication to an ordinary amanuensis, and as establishing all that is ordinarily necessary to constitute publication. The second branch of the argument is that in view of the fact that Miss Willis was the private and confidential stenographer of the defendant. and in view of the almost universal employment in this country of such stenographers, and the necessity for such employment consequent upon the demands of business, a communication to such a stenographer should be made an exception to the general rule, and be held not to be an actionable publication. But we cannot adopt this view. Apart from any precedent or authority, we can perceivė no good reason why such an exception should be made to the rule. Neither the prevalence of any business customs or methods. nor the pressure of business which compels resort to stenographic assistance, can make that legal which is illegal, nor make that innocent which would otherwise be actionable. Nor can the fact that the stenographer is under contractual or moral obligation to regard all his employsr's communications as confidential alter the reason of the matter. This defense was made in Williamson v. Freer, L. R. 9 C. P. 393, where it was held that the necessary transmission by a postoffice telegram of libelous matter which would have been privileged if sent in a sealed letter avoids the privilege; Lord Coleridge, C. J., saying. Although the clerks are prohibited, under severe penalties, from disclosing the contents of telegrams passing through their hand-. still there is a disclosure to them." In Pullman v. Walter Hill & Co., already cited, the exact

question here presented was decided. There the letter containing the defamatory matter was dictated by the managing director of a corporation to a clerk, who took down the words in shorthand, and then wrote them out fully by means of a typewriting machine, and the letter thus written was copied by an office boy in a letterpress book. When it reached its destination it was, in the ordinary course of business, opened by a clerk of the plaintiff; and it was held that the letter must be taken to have been published both to the typewriter and to the copyoress boy, as well as to the plaintiff's clerk. Lord Esher, M. R., in the course of his opinion, said: "I do not think that the necessities or the luxuries of business can alter the law of England. If a merchant wishes to write a letter containing defamatory matter, and to keep a copy of the letter, be had better make the copy himself." Lopes, L. J., said: "It is said business cannot be carried on if merchants may not employ their clerks to write letters for them in the ordinary course of business. I think the answer to this is very simple. I have never yet heard that it is in the usual course of a merchant's business to write letters containing defamatory statements. If a merchant has occasion to write such a letter, he must write it himself and copy it himself, or be must take the consequences." Kay, L. J., said: "The consequence of such an alteration in the law of libel would be this: That any merchant or solicitor who desired to write a libel concerning any person would be privileged to communicate the libel to any agent he pleased, if it was in the ordinary course of his business. That would be an extraordinary alteration of the law, and it would enable people to defame others to an alarming extent." We were referred to Boxsius v. Goblet Freres [1894] Q. B. Div. 843, as evincing a disposition to qualify the rule in Pullman v. Walter Hill & Co.; but we cannot discover such disposition, and if we could we should not be inclined to follow it. There the libelous letter was dictated by a solicitor, acting in behalf of and at the direction of his client, and copies were made as in the case mentioned. The court distinguished the case very cleariy from Pullman v. Walter Hill & Co., holding, through two of the same judges, that the solicitor owed to his client the duty to act on his instructions, and that if the solicitor had communicated directly with the plaintiff the communication would have been privileged, and that he could discharge that duty, as he did other business of the office, in the ordinary way, without losing the privilege. But there was no question of privilege in Pullman v. Walter Hill & Co., and there is none here, as the appellant owed no duty in the matter to any one. The typewriter had no conceivable interest in hearing or seeing the letters, and there could be. therefore, no privilege between her and the appellant. In Owen v. Publishing Co., 32 App. Div. 465, 53 N. Y. Supp. 1033, the alleged libelous letter, relating to the business of a corpora

tion, was dictated by its manager to its stenog. rapher, who wrote it out in shorthand, copied it upon a typewriter, and mailed it. The manager and stenographer were held to be servants of a common master, and to be engaged in the performance of duties which their respectivie employments required, and that under such circumstances the stenographer should not be regarded as a third person, in the sense that either the dictation or the subsequent reading should be regarded as a publication by the corporation. The English cases mentioned were not referred to, but the court nevertheless said: "It may be that the dictation to the stenographer and her reading of the letter would constitute a publication of the same by the person dictating it, if the relation existing between the manager and the copyist was that of master and servant, and the letter be held not to be privileged." Upon the exact question here involved the above extract from the opinion in that case seems to afford slender support to the appellant's contention, and what it does decide is not in accord with the views expressed by this court in Carter v. Machine Co., 51 Md. 294, in which Judge Alvey said that it would seem to be now clear, whatever may have been the former state of judicial opinion upon the subject, that corporations are liable for all acts, whether willful or malicious, of their agents or servants, done in the course of their employment, and that actions for such injuries, including libel, could be sustained against corporations in any case where under similar circumstances such actions could be sustained against individuals for the acts of their servants. It is true that that case was not an action for libel, but it sufficiently indicates that this court would not be astute to find reasons for relieving corporations from liability in libel cases for want of technical publication. We think, for the reasons given above, that the defendant's 1st prayer was properly rejected.

Apart from the question of publication, the defendant's 2d and 3d prayers raise the additional question whether, under the pleadings in this case, the action must not have been for slander, instead of libel, but we have no difficulty on this point. We have no doubt that the dictation of these letters to the stenographer was the publication of a slander, for which, if nothing further had been done by either, an action of slander could have been maintained, but we have no more doubt that the stenographic notes, the typewritten copy, and the letterpress copy constituted the publication of a libel, and that either slander or libel could be maintained, as the appellee should elect. This conclusion, we think, necessarily follows from what we have already said, without more formally stating the reasons; and our conclusion is not shaken by Mr. Odgers' criticism of the decision in Pullman v. Walter Hill & Co. upon the form of action, to be found on page 174 of his last edition. We therefore think the defendant's 2d and 3d pray

ers were properly rejected, not only for the reasons now given, but for those applicable to defendant's 1st prayer, and that the plaintiff's 3 1-2 and 41-2 prayers were for the same reasons properly granted."

NOTE.-What Constitutes Sufficient Publication in Cases of Slander and Libel.-Exaggeration and misrepresentation of the character and faults of others, if not the greatest, is undoubtedly the most common failing of human nature. The Bible, the oldest and highest authority for this statement gives the following awful commentary on human nature in this regard: "There is none that doeth good, their throat is an open sepulchre, the poison of asps is under their lips, their mouth is full of cursing and bitterness." Again: "Thy tongue imagineth wickedness and with lies thou cuttest like a sharp razor. Thou hast loved to speak all words which may do hurt; Oh thou false tongue, therefore shall God destroy thee forever." And still further: "Let the lying lips be put to silence which cruelly, disdainfully and despitefully speak against the righteous." The world has

never found fault with this severe condemnation of its own inherent weakness. Indeed, it has fully shared the sentiment therein expressed, and no law is more stringently enforced than that which condemns the man who "cruelly, disdainfully and dispitefully" speaks against his neighbor.

The gist of the action of libel or slander being the injury to one's reputation or the estimate put upon him by his fellowmen, it is absolutely necessary, that before defamatory words become actionable they must be published, that is, communicated to some third person. Therefore defamatory words spoken in an uninhabited wilderness or in the presence of the person of whom they are spoken cannot be the ground for an action of either libel or slander. They must be brought to the attention of a third person and in a language which he can understand. What will constitute a sufficient publication, however, can be more accurately determined by a glance at the authorities. If a person compose a libel and send it to his agent to be read by him, and it reaches its destination and is read by such agent, this is a sufficient publication to support an action. And this rule ap plies to a publication by a corporation to its agent of the cause of the discharge of an employee. Bacon v. Railroad, 55 Mich. 224. Where defendant sent through the mail a letter addressed to the prosecuting witness, in an envelope with the words "Bad Debt Collecting Agency" printed thereon, he was held guilty of criminal libel. State v. Armstrong, 106 Mo. 395. As this form of libel has arisen quite frequently in late years, being used by certain collection agencies as a means of coercing the payment of bad debts, it will not be unprofitable to quote from the opinion of the case just cited: "Was the sending of this envelope the publishing of a libel? We are clearly of the opinion that it was. The words 'Bad Debt Collecting Agency' were printed in large, bold type on the envelope, and were obviously intended to attract the attention of the public. These words must be construed in the light of the times in which they are used. Similar associations had sprung up all over the country, and these devices were resorted to to force debtors to pay their debts. To such extent did they go that the congress of the United States forbade the use of the mails for their distribution. Under this state of affairs, the defendant resorts to this Chicago agency to collect this debt of the

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