though the judgment is satisfied, unless the whole debt is paid or something given in full satisfaction of it: Day v. Hill, 42 Id. 390. In Finney v. Cochran, 37 Id. 450, it is held that the acceptance of a confession of judgment by the survivor in a joint action against two obligors, where one of them dies pending the action, discharges the latter's estate. A release of one of several joint trespassers releases all: Gilpatrick v. Hunter, 41 Id. 370, and note; and a satisfied judgment against one is a bar to an action against the others: Smith v. Singleton, 39 Id. 122. Otherwise where there is no satisfaction: Livingston v. Bishop, 3 Id. 330; Baker v. Lovett, 4 Id. 88; Hawkins v. Hatton, 9 Id. 700; Sheldon v. Kibbe, 8 Id. 177; Wright v. Lathrop, 15 1d. 529. But see, to the contrary: White v. Philbrick, 17 Id. 214; see also Campbell v. Phelps, 11 Id. 139. The notes, however, to the last decisions show that the doctrine that an unsatisfied judgment in such a case is no bar, is supported by a great preponderance of authority. In King v. Chase, 41 Id. 675, it is held that a judgment in favor of a deputy sheriff is conclusive evidence in favor of the sheriff in a subsequent action for the seizure of the same goods. See the note to that case.

VAN TASSEL v. CAPRON.

[1 DENIO, 250.]

NO ACTION LIES FOR CALLING A MAN OPPROBRIOUS NAMES, such as liar, cheat, rascal, swindler, blackleg, and the like.

TO SUSTAIN ACTION FOR WORDS SPOKEN OF A MAGISTRATE, which are not actionable per se, they must appear to have been spoken of him in his official character, and it is not enough that they tend to injure him in his office.

CALLING A MAGISTRATE A "DAMNED BLACKLEG," and charging him with being in a "combined company to cheat strangers," is not actionable where no official misconduct or neglect of official duty is alleged against him. CHARGING MAGISTRATE WITH OMITTING TO GIVE INFORMATION to a judgment plaintiff in his court, that his execution has not been returned in time, and that therefore he has a right of action against the constable, where it is not charged that he possessed such information, or was requested to communicate it, imputes no neglect of official duty, and is not actionable. SPEAKING OF Magistrate as "SQUIRE," IN USING OPPROBRIOUS WORDS CONcerning him, is mere descriptio persona, and does not import that the words are spoken of him in respect of his office.

SLANDER. The declaration charged, in substance, that the plaintiff was a justice of the peace, and that the defendant, having recovered a certain judgment before the plaintiff as such justice, and having caused execution to be issued thereon and delivered to a constable, afterwards sold the judgment to King Allen and Ira Greene for a price far below its nominal value, and that the defendant, contriving and intending to injure the plaintiff in his office of justice of the peace, and to cause it to be believed that, as such justice, he had conspired with the pur

chasers of the judgment to cheat and defraud the defendant, who was a stranger in Queensbury, and had, in pursuance of such conspiracy, concealed from the defendant the fact that the constable had not returned said execution in due time, and was therefore liable on his bond, and, by such concealment, had induced the defendant to sell the judgment for less than its value, etc., did, in a certain discourse, etc., had of and concerning the plaintiff, in his said office, and concerning the said judgment, etc., speak the following false, malicious, etc., words (with proper innuendoes): "I have sold the judgment; I got a note for one half the amount of the judgment, and I don't see why Squire Van Tassel (plaintiff meaning) did not tell me that the execution had not been returned in time, so that I could sue the constable and his bail. There is a combined company here to cheat strangers, and Squire Van Tassel has a hand in it. King Allen, Ira Greene, and Squire Van Tassel are a set of damned blacklegs. * Squire Van Tassel was in the combination with King Allen and Ira Greene," etc. Demurrer and joinder.

* *

D. Wright and N. Hill, jun., for the defendant.

M. T. Reynolds, for the plaintiff.

By Court, BRONSON, C. J. It is not necessary to consider the questions of form which have been made; for I am of opinion that the declaration is bad in substance. It is the privilege of the vulgar to use coarse and abusive language; and no action will lie for calling a man such opprobrious names as liar, cheat, rascal, swindler, blackleg, and the like. Nor will such words be actionable though spoken of one who holds an office, or exercises some trade or profession, unless they are spoken of, and touch him in his office or calling. It is not enough that the words may tend to injure him in his office or calling, unless they are spoken of him in his official or business character. In Oakley v. Farrington, 1 Johns. Cas. 129 [1 Am. Dec. 107], the plaintiff was a justice of the peace, and the words were, "Squire Oakley is a damned rogue." The plaintiff was nonsuited on the ground that, although the words were spoken of a magistrate, they had no relation to his official character or conduct. In Ayre v. Craven, 2 Ad. & El. 2, the words were laid to have been spoken of the plaintiff in his profession as a physician, and imputed adultery. After verdict for the plaint iff, the judgment was arrested. The court said, that after full examination of the authorities, they thought the declaration

ought not merely to state that such scandalous conduct was imputed to the plaintiff in his profession, but also to set forth in what manner it was connected by the speaker with that profession. Chief Baron Comyn says: "Words not actionable in themselves, are not actionable when spoken of one in an office, profession, or trade, unless they touch him in his office," etc.: Action upon the case for Defa., D. 27. This doctrine was fully approved in Doyley v. Roberts, 3 Bing. N. Cas. 835, where it was said of an attorney, that "he has defrauded his creditors, and has been horsewhipped off the course at Doncaster.' The jury found that the words had a tendency to injure the plaintiff morally and professionally; but they also found that the words were not spoken of him in his business of an attorney. And for that reason the court ordered a nonsuit. Tindal, C. J., said, the words, though spoken of an attorney, do not touch him in his profession, any more than they would touch a person in any other trade or profession. In Dole v. Van Rensselaer, 1 Johns. Cas. 330, the words were spoken of the plaintiff in his office of sheriff, and affected him in his official character.

Now what is this case? The words do not charge the plaintiff with doing any act whatever-either good or bad-as a justice of the peace. Nor do they impute to him the neglect or refusal to perform any duty incumbent upon him as such officer. Saying that "there is a combined company here to cheat strangers, and Squire Van Tassel has a hand in it," does not impute this misconduct to him as a magistrate; but only as a man. "Squire" is merely a description of the person. It means no more than would be signified by the use of the plaintiff's baptismal name in the same place. In Oakley v. Farrington, 1 Johns. Cas. 129 [1 Am. Dec. 107], the plaintiff was a justice of the peace, and the words were: "Squire Oakley is a damned rogue;" and yet it was held that the action would not lie, because the words did not relate to his official character or conduct.

What official delinquency is charged upon the plaintiff? The words are: "I don't see why Squire Van Tassel did not tell me that the execution had not been returned in time, so that I could sue the constable and his bail." It can hardly be said that these words impute the neglect of any moral or social duty; for it is not charged that the plaintiff had ever been requested to give information on the subject, or that there had been any opportunity to give it. Indeed, it does not appear that the plaintiff had any information to impart. But if the words contain an implied censure on the plaintiff as a man, they do not touch him

in his official character. They do not impute to him the neglect of any duty pertaining to, or imposed by his office. The word "squire" in this connection means no more than it did when speaking of the "combined company to cheat strangers." It is merely a descriptio persona. I do not see how this action can be maintained.

Judgment for defendant.

Slander of ONE IN HIS OFFICE OR BUSINESS: See Oakley v. Farrington, 1 Am. Dec. 107; Hoyle v. Young, Id. 446, and note; McMillan v. Birch, 2 Id. 426; Lewis v. Hawley, Id. 121; Brewer v. Weakley, 5 Id. 656; Elliot v. Ailsberry, Id. 631; Chaddock v. Briggs, 7 Id. 137; Burtch v. Nickerson, 8 Id. 390; Mayrant v. Richardson, 9 Id. 707. As applied to one in a professional or official character, language that is claimed to be actionable per se must "touch him" in that profession or office: Gunning v. Appleton, 58 How. Pr. 475; Kinney v. Nash, 3 N. Y. 178. And words to be actionable as affecting the plaintiff's business must charge some delinquency in connection with the business: Ireland v. McGarvish, 1 Sandf. 158. Any charge affecting his character in such business is actionable, but if spoken of him individually, and not in connection with his business, is not actionable: Fowles v. Bowen, 30 N. Y. 24. Thus where the words import a charge of selling a sick hog, but it is not averred that the hog had been killed and the meat sold by the plaintiff, they are not actionable without proof of special damage: Stevens v. Hartwell, 11 Meto. 548. All citing the principal case as authority.

CLARK V. MARSIGLIA.

[1 DENIO, 817.]

EMPLOYER MAY COUNTERMAND ORDER FOR WORK which he has employed another to do before the work is finished, and though the latter can recover his damages for the breach of contract, including a reasonable recompense for labor done and materials furnished and such further damages as may be legally assessed for such breach, he can not go on with the work against the employer's wish, and recover the compensation originally agreed on.

ASSUMPSIT in the common pleas for work, labor, and materials in cleaning and repairing pictures. Plea, non assumpsit. It · appeared that the defendant employed the plaintiff to do the work for an agreed price, but countermanded the order before the work was finished. The plaintiff, however, went on and finished the work and demanded the price agreed on, claiming that the defendant could not countermand the order after the work was begun. The court instructed the jury to the same effect against the defendant's objection. Verdict and judgment for the plaintiff accordingly, and the defendant brought error on exceptions to the instructions.

C. P. Kirkland, for the plaintiff in error, stopped by the court. A. Taber, for the defendant in error.

By COURT. The question does not arise as to the right of the defendant below to take away these pictures, upon which the plaintiff had performed some labor, without payment for what he had done, and his damages for the violation of the contract, and upon that point we express no opinion. The plaintiff was allowed to recover as though there had been no countermand of the order; and in this the court erred. The defendant, by requiring the plaintiff to stop work upon the paintings, violated his contract, and thereby incurred a liability to pay such damages as the plaintiff should sustain. Such damages would include a recompense for the labor done and materials used, and such further sum in damages as might, upon legal principles, be assessed for the breach of the contract: but the plaintiff had no right, by obstinately persisting in the work, to make the penalty upon the defendant greater than it would otherwise have been.

To hold that one who employs another to do a piece of work is bound to suffer it to be done at all events, would sometimes lead to great injustice. A man may hire another to labor for a year, and within the year his situation may be such as to render the work entirely useless to him. The party employed can not persist in working, though he is entitled to the damages consequent upon his disappointment. So if one hires another to build a house, and subsequent events put it out of his power to pay for it, it is commendable in him to stop the work, and pay for what has been done and the damages sustained by the contractor. He may be under a necessity to change his residence; but upon the rule contended for, he would be obliged to have a house which he did not need and could not use. In all such cases the just claims of the party employed are satisfied when he is fully recompensed for his part performance and indemnified for his loss in respect to the part left unexecuted; and to persist in accumulating a larger demand, is not consistent with good faith towards the employer. The judgment must be reversed, and a venire de novo awarded.

Judgment reversed.

EMPLOYER HAS POWER TO ORDER DISCONTINUANCE OF WORK which he has contracted with, or employed, another to perform, at any time, subject to proper compensation in damages to the employee, and the latter can not then go on with the work and recover the contract price: Owen v. Frink, 24 Cal. 178; Lord v. Thomas, 64 N. Y. 110, citing the principal case on this