law of the general assembly of Maryland," for the publication of a libel by them, in which his capacity and skill as a mechanic and builder of depots, bridges, station-houses, and other structures for railroad companies, had been falsely and maliciously disparaged and undervalued. The defendants pleaded the general issue. On the trial of the cause it appeared that in 1854 the president and directors, then in charge of the affairs of the defendants, instituted an inquiry into the administration and management of a person who had been the superintendent of their railroad for ten years. Among other subjects, the nature of his connection and dealings with the plaintiff, who had likewise been in the service of the corporation as "general foreman of all their carpenters," engaged the attention of the committee of investigation. The president of the company, who conducted the inquiry before this committee on behalf of the corporation, seems to have been convinced that the superintendent had exhibited partiality for the plaintiff, and had allowed him extravagant compensation for service, and the privilege of free transit over the road for himself, his workmen, and freight, to the detriment of the company, and in breach of his duty as superintendent. The superintendent defended himself against these and other imputations, and produced testimony to the skill and fidelity of the plaintiff while in the service of the company; also, to the value of his services, and to the effect that no unusual or improper favor had been extended to him.

The president of the company, in the course of the investigation, addressed a letter to an architect who had some acquaintance with the plaintiff, to request his opinion of his skill as a mechanic, and whether the services of the plaintiff could have had any peculiar value to a railroad company. The reply of this architect was very pointed and depreciative of the plaintiff, affirming that "he was not entitled to rank as a third-rate workman," and "was unable to make the simplest geometrical calculations." All the testimony collected by the committee, as produced by the superintendent, was carefully reduced to writing, and printed; first, for the use of the president and directors, and afterwards was submitted to the company at their meeting on the 8th of January, 1855, with a report, which exonerated in a great measure the superintendent from any malpractice in consequence of his relations with the plaintiff. The investigation was searching, and testimony, which, with the report of the committee, fills two printed volumes, was submitted to the company. The letter of the architect, in answer to the letter of the president, is printed in one of these volumes, and this publication is the libel complained of. Several of the directors testify they were not aware of the publication, and evidence was adduced that the plaintiff had declared that the investigation had resulted in increasing his business. A verdict was returned in favor of the plaintiff. The defendants are a company incorporated by the legislatures of Delaware and Pennsylvania, as well as of Maryland, to construct a railroad to connect the three cities which contribute to form its name, and a portion of their directors and stockholders are citizens of Delaware.

The defendants contend that they are not liable to be sued in this action; that theirs is a railroad corporation, with defined and limited faculties and powers, and having only such incidental authority as is necessary to the full exercise of the faculties and powers granted by their charter; that, being a mere legal entity, they are incapable of malice, and that malice is a necessary ingredient in a libel; that this action should have been instituted against the natural persons who were concerned in the publication of the libel. To sup

port this argument we should be required to concede that a corporate body could only act within the limits and according to the faculties determined by the act of incorporation, and, therefore, that no crime or offense can be imputed to it. That, although illegal acts might be committed for the benefit or within the service of the corporation, and to accomplish objects for which it was created by the direction of their dominant body, that such acts, not being contemplated by the charter, must be referred to the rational and sensible agents who performed them, and the whole responsibility must be limited to those agents, and we should be forced, as a legitimate consequence, to conclude that no action ex delicto or indictment will lie against a corporation for any misfeasance. But this conclusion would be entirely inconsistent with the legislation and jurisprudence of the states of the Union relative to these artificial persons. Legislation has encouraged their organization, as they concentrate and employ the intelligence, energy and capital of society, for the development of enterprises of public utility. There is scarcely an object of general interest for which some association has not been formed, and there are institutions whose members are found in every part of the Union, who contribute their efforts to the common object. To enable impersonal beings-mere legal entities, which exist only in contemplation of law-to perform corporal acts, or deal with personal agents, the principle of representation has been adopted as a part of their constitution. The powers of the corporation are placed in the hands of a governing body selected by the members, who manage its affairs, and who appoint the agents that exercise its faculties for the accomplishment of the object of its being. But these agents may infringe the rights of persons who are unconnected with the corporation, or who are brought into relations of business or intercourse with it. As a necessary correlative to the principle of the exercise of corporate powers and faculties by legal representatives is the recognition of a corporate responsibility for the acts of those representatives.

$495. Corporations are liable ex delicto for torts committed by their agents in the course of their employment.

With much wariness, and after close and exact scrutiny into the nature of their constitution, have the judicial tribunals determined the legal relations which are established for the corporation by their governing body, and their agents, with the natural persons with whom they are brought into contact or collision. The result of the cases is that for acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business and of their employment, the corporation is responsible as an individual is responsible under similar circumstances. At a very early period it was decided in Great Britain, as well as in the United States, that actions might be maintained against corporations for torts; and instances may be found, in the judicial annals of both countries, of suits for torts arising from the acts of their agents, of nearly every variety. Trespass quare clausum fregit was supported in 9 Serg. & R., 94; 4 Mann. & G., 452; Assault and Battery, 4 Gray, 465; 6 Ex. Ch., 314. For damages by a collision of rail-cars and steamboats, 14 How., 465; 19 How., 543. For a falsere presentation, 34 L. & Eq. R., 14; 11 Wheat., 59. § 496. Liability of corporation for fraudulent representations.

The case of The National Exchange Co. of Glasgow v. Drew, 2 Macqueen, H. of L. Cas., 103, was that of a company in failing circumstances, whose managers sought to appreciate its stock by a fraudulent representation to the company, and a publication of the report as adopted by it that its affairs were

prosperous. Two of its stockholders were induced to borrow money from the company to invest in its stock. The question in the cause was whether the company was responsible for the fraud. In the house of lords, upon appeal, Lord St. Leonards said: "I have come to the conclusion that if representations are made by a company fraudulently, for the purpose of enhancing the value of stock, and they induce a third person to purchase stock, those representations so made by them bind the company. I consider representations by the directors of a company as representations by the company, although they may be representations made to the company." The report" becomes

the act of the company by its adoption and sending it forth as a true representation of their affairs; and if that representation is made use of in dealing with third persons, for the benefit of the company, it subjects them to the loss which may accrue to the party who deals, trusting to those representations." $497. A corporation is liable for libel published by its officers.

It would be difficult to furnish a reason for the liability of a corporation for a fraud, under such circumstances, that would not apply to sustain an action for the publication of a libel.

The defendants are a corporation, having a large capital distributed among several hundreds of persons. Their railroad connects large cities, and passes through a fertile district. Their business brings them in competition with companies and individuals concerned in the business of transportation. They have a numerous body of officers, agents and servants, for whose fidelity and skill they are responsible, and on whose care the success of their business depends. The stock of the company is a vendible security, and the community expects statements of its condition and management. There is no doubt that it was the duty of the president and directors to investigate the conduct of their officers and agents and to report the result of that investigation to the stockholders, and that a publication of the evidence and report is within the scope of the powers of the corporation.

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But the publication must be made under all the conditions and responsibilities that attach to individuals under such circumstances. The court of queen's bench, in Whitefield v. South East. R. R. Co. (May, 1858), say: "If we yield to the authorities which say that, in an action for defamation, malice must be alleged, notwithstanding authorities to the contrary, this allegation may proved by showing that the publication of the libel took place by order of the defendants, and was therefore wrongful, although the defendants had no ill-will to the plaintiffs and did not mean to injure them." And the court concluded: "That for what is done by the authority of a corporation aggregate, that a corporation ought, as such, to be liable, as well as the individuals who compose it."

§ 498. The report of the officers of a corporation of testimony taken while conducting inquiry into the conduct of officers is a privileged communication, but not if published.

The question arises whether the publication is excused by the relations of the president and directors, as a committee from their board, to the corporation itself. It cannot be denied that the inquiries directed by those officers were within the scope of their power and in the performance of a moral and legal duty, and that the communication to their constituents of the evidence collected by them and their conclusions upon the evidence was a privileged communication in the absence of any malice or bad faith. But the privilege of the officers of the corporation, as individuals, or of the corporate body,

does not extend to the preservation of the report and evidence in the permanent form of a book for distribution among the persons belonging to the corporation or the members of the community. It has never been decided that the proceedings of a public meeting, though it may have been convened by the authority of law, or of an association engaged in an enterprise of public utility, could be reported in a newspaper as a privileged publication. But a libel contained in such proceedings, if preserved in the form of a bound volume, might be attended with more mischief to private character than any publication in a newspaper of the same document. The opinion of the court is that, in so far as the corporate body authorized the publication in the form. employed, they are responsible in damages. The circuit court instructed the jury:

1. If the jury find, from the evidence in this case, that the defendants, by the president and directors of said company, published the letter from John T. Mahoney to S. M. Felton, president, etc., dated March 3, 1854, in the declaration mentioned, and that any or all of the statements in the said letter respecting the plaintiff, in his trade and occupation, are false; and shall further find that the said president and directors, at the annual meeting of the stockholders of said company, held 8th January, 1855, reported to the said stockholders their action in the premises, and that the proceedings of the committee of investigation (which contained the said letter) were then being printed, and, as soon as printed, would be distributed to the stockholders, and that said report was accepted by the stockholders; and if the jury shall further find that, after the meeting of the stockholders had adjourned, the president and directors of said company distributed the book containing the said letter among the stockholders of this company, or any of them, then the jury may find for the plaintiff.

2. And if the jury find for the plaintiff under the first instruction they are not restricted, in giving damages, to the actual positive injury sustained by the plaintiff, but may give such exemplary damages, if any, as, in their opinion, are called for and justified, in view of all the circumstances in this case, to render reparation to the plaintiff and act as an adequate punishment to the defendant.

The first instruction is erroneous because the publication to which the court referred as blameworthy, and to authorize the jury to find a verdict against the defendant, took place after the commencement of this suit.

The second instruction contains the same error, and is objectionable for the additional reason that the rule of damages is not accurately stated to the jury.

§ 499. Exemplary damages in suit for libel not recoverable unless libel was conceived for mischievous or malicious purpose.

In Day v. Woodworth, 13 How., 371, this court recognized the power of a jury, in certain actions of tort, to assess against the tort-feasor punitive or exemplary damages. Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief or of criminal indifference to civil obligations. Nothing of this kind can be imputed to these defendants.

The letter of Mahoney was reported to the company with other evidence that rendered it innocuous, and its statements were never adopted by them. The plaintiff has repeatedly affirmed that he had derived an advantage from the investigation by the company, and, upon reading all the evidence, as reported and published, we do not perceive how an impression unfavorable to him could have been made by it upon any candid mind. The circumstances under which the evidence was collected, and the publication made, repel the presumption of the existence of malice on the part of the corporation, and so the jury should have been instructed.

The averments in the declaration of the facts proper to give the circuit court jurisdiction over the parties are identical with those which were fully considered by this court, and received the sanction of two-thirds of the judges in Marshall v. The Baltimore & Ohio R. R. Co., 16 How., 314. A repetition. of the discussion that took place and was reported with that case is deemed to be unnecessary.

The only plea filed in this cause is the general issue. That plea raises an issue upon the merits of the complaint, and leaves the jurisdictional allega tions without a traverse.

No question involving the capacity of the parties in the cause to litigate in the circuit court can be raised before the jury under such pleadings. Conard v. Atlantic Ins. Co., 1 Pet., 386; Evans v. Gee, 11 Pet., 80; Owings v. Wickliffe, 17 How., 47. The testimony that the states of Delaware and Pennsylvania had respectively granted a corporate character to the same corporators that form the corporation in Maryland, for the extension of the railroad through those states to connect the cities that appear in the name of the corporation, and the testimony that some of the directors of the several corporations reside in Delaware, in the condition of the pleadings, was immaterial and irrelevant.

For the errors we have noticed the judgment of the circuit court is reversed and the cause remanded.

Mr. JUSTICE DANIEL dissented, on the ground of want of jurisdiction, a corporation being a party to the suit.

DEXTER v. SPEAR.

(Circuit Court for Rhode Island: 4 Mason, 115-118. 1825.)

STATEMENT OF FACTS.-Case for a libel on the wife before marriage. The .declaration alleged the purport to be a charge of illicit and criminal intercourse between the husband and wife before the marriage. The libel was contained in a newspaper called "The Beacon," which was published by the defendant. Plea, not guilty.

Opinion by STORY, J.

This cause has been argued as if there was something peculiar in an action for a libel, and as if it rested on harsh and extraordinary principles, not to be encouraged in an enlightened age. I know of nothing that justifies such a notion.

§ 500. Law as to libel stated.

The case of libels stands upon the same general grounds as other rights of action for wrongs. The general rule of law is that whoever does an injury to another is liable in damages to the extent of that injury. It matters not