and found in favor of John Fuller, which they knew to be wrong. That verdict was a travesty on justice and a shame and a disgrace to the community."

of insulting and slandering the jury that tried said case of Massy against the Allegheny Coke Company; that said words were used by defendant in stating the case of Coleman against the Chesapeake & Ohio Railway, and had no relevancy to or place in said case, and defendant purposely digressed from said case to insult and slander the jury that tried the Allegheny company

that words not actionable in themselves are not actionable when uttered of one in an office, unless they touch him in his office. Kinney v. Nash, 3 N. Y. 177. This rule is invoked in behalf of the respondent in the present action, although the defamatory words complained of here were in writing. Assuming that it applies to libel as well as slander, there are two reasons why it cannot aid the defendant here,-one is that the words published are actionable of them selves, as relating to the plaintiff in his individual as distinguished from his official character, for the reason that they charge him with an offense against the criminal law; to wit, an assault. The other is that they do 'touch him in his office,' and, if true, would manifest his unfitness to hold it. We think that the language of the article published by the defendant was actionable per se, and that it was error to dismiss the complaint."

In Clifton v. Lange, 108 Iowa, 472, 79 N. W. 276, a newspaper publication charging plaintiff, a justice of the peace, with dishonesty in office, in helping in a "rotten and infernal steal," was conceded to be libelous and actionable per se.

Such publication was not privileged as criticism of an official act of a public officer, for the reason that it contained an attack upon the private character of the plaintiff. Ibid.

To write of a magistrate, that "as chairman of a finance committee, he audited accounts containing items of upwards of £12,000 for the nominal purpose of furnishing lodgings, plate, etc., for the judges, but which expenditure was in reality to find accommodation for the magistrates, as the sheriff always found the judges suitable lodgings without putting the county to any expense," was held actionable in Adams v. Meredew, 3 Younge & J. 219.

But an affidavit filed, praying for leave to appeal from a judgment rendered by a justice of the peace, and alleging that the testimony was concluded after dark on the day of the trial; that thereupon the justice announced an adjournment, but for definite time; that all the parties left the

no

justice's office; that the attorney for the defendant was sick for several days thereafter, and unable to attend to business; that judgment was rendered on the day the case was tried; that the affiant was deceived thereby; and that by reason thereof, and by the sickness of the attorney, the defendant was prevented from taking an appeal within the statutory time,-does not charge fraud and dishonesty upon the justice, and is not libelous per se. Murphy v. Nelson, 94 Mich. 554, 54 N. W. 282. The court said: "A judgment may in fact be a fraud upon the rights of the party against whom it is rendered, while the judicial officer rendering it may have acted in entire good faith. It would certainly lead to strange results if litigants could not allege, in the pleadings and papers necessary to obtain review of judgments, that such judgments were in fact a fraud upon their rights, without charging corruption and fraud upon the judicial officers rendering them."

And where a paper was written for the purpose of preventing the reappointment of a justice of the peace to office, and stating that his general character and reputation were such as to make him unfit for such appointment, and there was reasonable and probable cause for writing the said paper, the plaintiff in an action of libel was not entitled to recover. Clark v. Ford, 1 Hayw. & H. 6, Fed. Cas. No. 2,820.

In Miner v. Detroit Post & Tribune Co. 49 Mich. 358, 13 N. W. 773, where the alleged libel consisted of reflections upon the plaintiff's conduct as a police justice,-the substance of which was that when a complaint had been filed in his court against a Chinaman, the justice, without the assent of the complainant, had inserted the name of another and different Chinaman; that though the evidence completely exonerated this second man, he was held for trial under heavy bonds; that such holding was an inexcusable outrage; that if the justice would discharge his duty on the complaints for violations of the liquor and gambling laws, people would be more lenient in their judg ment of him, but instead of so doing he turns upon a helpless Chinaman, who has

another case in which he was also engaged as an attorney, returned a verdict against his client, and, considering the place and circumstances under which the words were spoken, it may well be admitted that they were calculated to wound the feelings of the plaintiff and subject him to at least some measure of ridicule and reproach.

This petition was dismissed on demurrer, and the plaintiff is here on appeal.

We think it was highly improper for the defendant, as an attorney and officer of the

no political influence, the trial court ruled that so much of the defamatory article as related to the enforcement of the liquor and gambling laws was privileged, but that the imputations concerning the holding for trial of the Chinaman were not. The appellate court, overruling this in an opinion by Cooley, J., said: "When a judge orders a man into confinement without a charge against him, he deprives him of liberty without due process of law; and in doing so violates the earliest and most important guaranty of constitutional freedom. When in a case where bail is of right, he demands security in a sum which, considering the position in life and probable means and ability to give it, of the person accused, is altogether beyond his power, the demand is unreasonable, and for that reason is repugnant to a further provision of the Constitution, the importance of which is only second to the other. There must be some great and most serious defect in the administration of the law when such things can take place, and the matter is one which concerns every member of the political community; for if constitutional principles fail to protect the most humble of the people, they protect no

one.

The defendant contends that to call public attention to what so vitally concerns the public is matter of privilege; and that, by presumption of law, its motives in doing so must be deemed proper, and not actuated by malice. The trial judge denied this claim altogether. In doing so he put the case upon precisely the same footing with publications which involve merely private gossip and scandal. The truth was allowed to be a defense, if made out, and so it would have been if the injurious charge which was published had been one in which the public was not concerned. If there is no difference in moral quality between the publication of mere personal abuse and the discussion of matters of grave public concern, then this judgment may be right, and should be affirmed. But it is very certain, I think, that no declaration of this or any other court can convince the common reason that the distinction is not plain and palpable. Few wrongs can be greater than the

And we are also satisfied that appellee should not be protected in this assault on the jury by the law of qualified or absolute privilege. The fact that he was an attorney, and that the words complained of were spoken in the course of an argument or statement he was making, do not furnish any excuse for his attack of the jury that public detraction which has only abuse, or the profit from abuse, for its object. Few duties can be plainer than to challenge public attention to the official disregard of the principles which protect public and personal liberty. I know of nothing more likely to encourage the license of a dissolute press than to establish the principle that the discussion of matters of general concern involving public wrongs and the publication of personal scandal come under the same condemnation in the law; for this inevitably brings the law itself into contempt and creates public sentiment against its enforcement. If a law is to be efficiently enforced the approval of the people must attend its penalties, and there must be some presumption at least that an act which it punishes involves some elements of wrongdoing. If prima facie the punishment is as likely to be inflicted for a right act as for a wrong act, the violation of law will not only be without disgrace, but the reckless libeler, when ranked by the law in the same company with respectable and public-spirited journalists, will shield himself to some extent behind their commendable public spirit, and will find some protection for his license in the public opinion which condemns the law which it cannot respect."

Where the complaint in an action for libel alleges that the libelous publication meant not only to impute to the plaintiff corruption and official malfeasance on the trial of the particular cause mentioned, in his action on that occasion, but that it was habitual for him to thus act in administering his judicial duties, evidence of how he acted on other occasions in administering his judicial duties is pertinent to so much of the charge as imputes to the plaintiff the habitual abuse of his authority. Davis v. Lyon, 91 N. C. 444.

Mix v. Woodward, 12 Conn. 262, is not regarded as in point in this note, for it seems that the plaintiff in that case was not a judicial officer at the time of the alleged libel, which was to the alleged effect that the plaintiff "was deprived of a two-penny justiceship for malpractice in packing a jury."

In Williamз v. Riddle, 145 Ky. 459, 36 L.R.A. (N.S.) 974, 140 S. W. 661, Ann. Cas. 1913B, 1151, it is said that "in the following cases only were words slanderous, or actionable per se: (1) Words falsely spoken imputing a commission of a crime involving moral turpitude, for which the party might be indicted and punished; (2) words imputing an infectious disease, likely to exclude him from society; (3) words imputing unfitness to perform the duties of an office or employment; (4) words prejudicing him in his profession or trade; (5) words tending to disinherit him. 'In all other cases spoken words are either (a) not oath before him touch him in his office, and are actionable. Chetwind v. Meeston, Cro. Jac. 308.

It is actionable to say of a justice of the peace in his official capacity

-"I have often been with Sir John Isham for justice, but never could get any at his hand but injustice," Isham v. York, Cro. Car. 15;

-that he is "half-eared" and "will only hear on one side," Masham v. Bridges, Cro. Car. 223;

-"Mr. Hassett did seek my life, and offered 10 shillings to the under sheriff to impanel a special jury that might find me guilty of the felony," Blever hassett v. Baspoole, Cro. Eliz. pt. 1, p. 313;

-"He is forsworn justice, and not fit to sit upon a bench," and no colloquium is needed, for by the words themselves it appears they were spoken of the plaintiff in respect of his office, Carn v. Osgood, 1 Lev. 280;

"Thou are a false" or "a lewd justice," or "Thou dealest corruptly," or "Thou dost not administer true justice," Wright v. Morehouse, Cro. Eliz. pt. 1, p. 358;

-that "he for malice and spleen did many times wrest the law, and prevent justice to serve his own turn," Beamond v. Hastings,

Cro. Jac. 240;

-that he has given secret warning to a person against whom he has issued a warrant, that he might absent himself, Burton v. Tokin, Cro. Jac. 143;

"He is a knave, a busy knave, for searching after me, and I will make him give me satisfaction for plundering me," Prowse v. Wilcox, 3 Mod. 163;

-"He makes use of the King's commission to worry men out of their estates," Newton v. Stubbs, 3 Mod. 71;

"Mr. Kent is a rogue," Kent v. Pocock, 2 Strange, 1168;

-that he is a rascal, a villain, and a liar, Aston v. Blagrave, 1 Strange, 617, 2 Ld. Raym. 1369;

-that he was privy to the theft of a horse, Lassels v. Lassels, F. Moore, 401; -that he received money of a thief who was apprehended and brought before him for

proof of special damage.""

Adopting this definition of actionable words, we think it is apparent that the words charged must come under the first class, or they cannot be treated as actionable. Or, to put it in another way, unless the words spoken impute the commission of the jurors, including the plaintiff, might be a crime involving moral turpitude for which indicted and punished, they do not furnish the basis for a suit for slander, although we are quite sure that, if words were spoken generally of a jury or applied to a jury as a whole that did impute to the jury a violation of § 2256 of the statute, or the commission of some crime involving moral turpitude for which the individual members stealing sheep, to let the thief escape and keep him from jail, Marriner v. Cotton, F. Moore, 695. And see Hilliard v. Constable, F. Moore, 418.

It is actionable to say of one who is a justice of the peace, deputy lieutenant of a county, and a candidate for a seat in Parliament, "He is a Jacobite, and for bringing in the Prince of Wales, and Popery, to the destroying of our nation." How v. Prinne, 2 Ld. Raym. 812.

To sustain an 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. Van Tassel v. Capron, 1 Denio, 250, 43 Am. Dec. 667. The court said: "It is the privilege of the vulgar to use coarse and abusive language; and no action will man such opprobrious lie for calling a 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."

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. Ibid.

Charging a 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 make it, imputes no neglect of official duty, and is not actionable. Ibid.

Speaking of a 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 office. Ibid. It means no more, the court said, than would be signified by the