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and found in favor of John Fuller, which of insulting and slandering the jury that they knew to be wrong. That verdict was tried said case of Massy against the Alle. a travesty on justice and a shame and a gheny Coke Company; that said words disgrace to the community.”
were used by defendant in stating the case It was averred “that the plaintiff was, of Coleman against the Chesapeake & Ohio at the time the words were spoken, one of Railway, and had no relevancy to or place the regular jurors of the court, and, as in said case, and defendant purposely disuch, had been selected and sworn as re- gressed from said case to insult and slander quired by law to try the said case of Carl the jury that tried the Allegheny company Massy against the Allegheny Coke Com- | case.” pany and John Fuller, and, as such juror, And further averred: “That defendant had tried said case and returned a verdict meant to and did charge the plaintiff with against the said Allegheny Coke Company the crime of perjury, and further meant and for John Fuller; that this defendant as to charge that he had wilfully and knowan attorney at law represented said Alle ingly violated the oath that he had taken gheny Coke Company in said case, and, chaf- to try the issues joined and a true verdict ing under the defeat of client, made said render in said case, and had returned a verstatement for the express and only purpose dict which he knew to be wrong; that said that words not actionable in themselves are justice's office; that the attorney for the denot actionable when uttered of one in an fendant was sick for several days thereoffice, unless they touch him in his office. after, and unable to attend to business; that Kinney v. Nash, 3 N. Y. 177. This rule is judgment was rendered on the day the case invoked in behalf of the respondent in the was tried; that the affiant was deceived present action, although the defamatory thereby; and that by reason thereof, and by words complained of here were in writing the sickness of the attorney, the defendant Assuming that it applies to libel as well as was prevented from taking an appeal withslander, there are two reasons why it can- in the statutory time,-does not charge not aid the defendant here,-one is that the fraud and dishonesty upon the justice, and words published are actionable of them is not libelous per se. Murphy v. Nelson, selves, as relating to the plaintiff in his in. 94 Mich. 554, 54 N. W. 282. The court dividual as distinguished from his official said: “A judgment may in fact be a fraud character, for the reason that they charge upon the rights of the party against whom him with an offense against the criminal it is rendered, while the judicial officer law; to wit, an assault. The other is that rendering it may have acted in entire good they do 'touch him in his office,' and, if true, faith. It would certainly lead to strange would manifest his unfitness to hold it. results if litigants could not allege, in the We think that the language of the article pleadings and papers necessary to obtain republished by the defendant was actionable view of judgments, that such judgments per se, and that it was error to dismiss the
were in fact a fraud upon their rights, withcomplaint.”
out charging corruption and fraud upon the In Clifton v. Lange, 108 Iowa, 472, 79 N. judicial officers rendering them.” W. 276, a newspaper publication charging And where a paper was written for the plaintiff, a justice of the peace, with dis- purpose of preventing the reappointment of honesty in office, in helping in a "rotten and a justice of the peace to office, and stating infernal steal,” was conceded to be libelous that his general character and reputation and actionable per se.
were such as to make him unfit for such Such publication was not privileged as appointment, and there was reasonable and criticism of an official act of a public officer, probable cause for writing the said paper, for the reason that it contained an attack the plaintiff in an action of libel was not upon the private character of the plaintiff. entitled to recover. Clark v. Ford, 1 Hayw. Ibid.
& H. 6, Fed. Cas. No. 2,820. To write of a magistrate, that "as chair- In Miner v. Detroit Post & Tribune Co. man of a finance committee, he audited ac- 49 Mich. 358, 13 N. W. 773, where the alcounts containing items of upwards of £12,- leged libel consisted of reflections upon the 000 for the nominal purpose of furnishing plaintiff's conduct as a police justice,-the lodgings, plate, etc., for the judges, but substance of which was that when a comwhich expenditure was in reality to find ac- plaint had been filed in his court against commodation for the magistrates, as the a Chinaman, the justice, without the assent sheriff always found the judges suitable of the complainant, had inserted the name lodgings without putting the county to any of another and different Chinaman; that expense,” was held actionable in Adams v. though the evidence completely exonerated Meredew, 3 Younge & J. 219.
this second man, he was held for trial under But an affidavit filed, praying for leave heavy bonds; that such holding was an into appeal from a judgment rendered by a excusable outrage; that if the justice would justice of the peace, and alleging that the discharge his duty on the complaints for testimony was concluded after dark on the violations of the liquor and gambling laws, day of the trial; that thereupon the justice people would be more lenient in their judg. announced an adjournment, but for no ment of him, but instead of so doing he definite time; that all the parties left the turns upon a helpless Chinaman, who has
words were spoken in the courthouse and court, to go out of his way and assail in the in the presence of the court, the jurors, manner alleged a jury because they had, in and the bar, and a large crowd of people another case in which he was also engaged there assembled; that said words as an attorney, returned a verdict against spoken of plaintiff as a juror, an officer of his client, and, considering the place and the court, and were used to falsely leave circumstances under which the words were the impression on those who heard them spoken, it may well be admitted that they that plaintiff was a perjurer and had been were calculated to wound the feelings of false to his trust as an officer of the court; the plaintiff and subject him to at least that by reason of the use of said words by some measure of ridicule and reproach. defendant as aforesaid the plaintiff has suf- And we are also satisfied that appellee fered great disgrace, humiliation, and loss should not be protected in this assault on of character and reputation, to his great the jury by the law of qualified or absodamage."
lute privilege. The fact that he was This petition was dismissed on demurrer, attorney, and that the words complained of and the plaintiff is here on appeal.
were spoken in the course of an argument We think it was highly improper for the or statement he was making, do not furnish defendant, as an attorney and officer of the any excuse for his attack of the jury that no political influence,—the trial court ruled public detraction which has only abuse, or that so much of the defamatory article as the profit from abuse, for its object. Few related to the enforcement of the liquor and duties can be plainer than to challenge pubgambling laws was privileged, but that the lic attention to the official disregard of the imputations concerning the holding for trial principles which protect public and personal of the Chinaman were not. The appellate liberty. I know of nothing more likely to court, overruling this in an opinion by encourage the license of a dissolute press Cooley, J., said: “When a judge orders a than to establish the principle that the disman into confinement without a charge cussion of matters of general concern inagainst him, he deprives him of liberty volving public wrongs and the publication without due process of law; and in doing of personal scandal come under the same so violates the earliest and most important condemnation in the law; for this inevitably guaranty of constitutional freedom. When brings the law itself into contempt and crein a case where bail is of right, he demands ates public sentiment against its enforcesecurity in a sum which, considering the ment. If a law is to be efficiently enforced position in life and probable means and the approval of the people must attend its ability to give it, of the person accused, is penalties, and there must be some presumpaltogether beyond his power, the demand is tion at least that an act which it punishes unreasonable, and for that reason is repug. involves some elements of wrongdoing. If nant to a further provision of the Constitu- prima facie the punishment is as likely to tion, the importance of which is only second be inflicted for a right act as for a wrong to the other. There must be some great and act, the violation of law will not only be most serious defect in the administration of without sgrace, but the reckless libeler, the law when such things can take place, when ranked by the law in the same comand the matter is one which concerns every pany with respectable and public-spirited member of the political community; for if journalists, will shield himself to some exconstitutional principles fail to protect the tent behind their commendable public spirit, most humble of the people, they protect no and will find some protection for his license
The defendant contends that to call in the public opinion which condemns the public attention to what so vitally con law which it cannot respect.” cerns the public is matter of privilege; and Where the complaint in an action for libel that, by presumption of law, its motives in alleges that the libelous publication meant doing so must be deemed proper, and not not only to impute to the plaintiff corrupactuated by malice. The trial judge denied tion and official malfeasance on the trial of this claim altogether. In doing so he put the particular cause mentioned, in his action the case upon precisely the same footing on that occasion, but that it was habitual with publications which involve merely pri- for him to thus act in administering his vate gossip and scandal. The truth was al. judicial duties, evidence of how he acted lowed to be a defense, if made out, and so it on other occasions in administering his juwould have been if the injurious charge dicial duties is pertinent to so much of the which was published had been one in which charge as imputes to the plaintiff the the public was not concerned. If there is habitual abuse of his authority. Davis v. no difference in moral quality between the Lyon, 91 N. C. 444. publication of mere personal abuse and the Mix v. Woodward, 12 Conn. 262, is not rediscussion of matters of grave public con- garded as in point in this note, for it seems cern, then this judgment may be right, and that the plaintiff in that case was not a ju. should be affirmed. But it is very certain, dicial officer at the time of the alleged I think, that no declaration of this or any libel, which was to the alleged effect that other court can convince the common reason the plaintiff "was deprived of a two-penny that the distinction is not plain and palpa- justiceship for malpractice in packing a ble. Few wrongs can be greater than the jury.”
returned the verdict in another suit pending | 11 L.R.A. (N.S.) 723, 103 S. W. 374, 15 Ann. in the court. The privilege that protects Cas. 770, where the court, after setting an attorney extends only to speeches made down the privileges of an attorney, said he by him that are pertinent to the case in would not be protected if he availed himwhich he is engaged when the remarks are self “of his situation to gratify private made. It fortunately does not license him malice by uttering slanderous expressions, to go entirely out of the record and assail either against a party, witness, or third perother persons having no manner of connec- son, which have no relation to the cause or tion with the case in which he is employed. subject-matter of the inquiry.” To the same If it did, it would place in the power of effect are Morgan v. Booth, 13 Bush, 480; an attorney the right to malign at will Gaines v. Ætna Ins. Co. 104 Ky. 695 47 those who had incurred his displeasure, S. W. 884; Stewart v. Hall, 83 Ky. 375; and permit him to defame and scandalize Monroe v. Davis, 118 Ky, 806, 82 S. W. all who might come within the circle of 450. his enmity. The extent to which an attor- The words spoken not being privileged, ney is privileged from suit for slander and the remaining question is: Are they actionthe limitation upon this privilege are well | able? On behalf of the appellant it is in. stated in Sebree v. Thompson, 126 Ky. 223, sisted that they are actionable per se; or, if slander.
actionable, and are within both the reason
and the letter of the rule. The charge that Words spoken of a justice of the peace the plaintiff perjured himself in deciding the and characterizing him as "a damned fool suit referred to against the defendant, while of a justice” are actionable per se. Spier- it does not charge a technical perjury, does ing v. Andræ, 45 Wis. 330, 30 Am. Rep. 744. charge that the plaintiff violated his official The court said: “Certainly the language promissory oath. Gen. Stat. chap. 9, § 2. used by the defendant imputed a want of A charge of this nature is in itself actioncapacity and ability on the part of the able. Hopkins v. Beedle, 1 Caines, 347, 2 plaintiff to discharge properly the duties of Am. Dec. 191; Aston v. Blagrave, 1 Strange, his office, and was calculated, if believed by 617, 2 Ld. Raym. 1369; Rex v. Pocock, 2 his hearers, to diminish public confidence in Strange, 1157; Kent v. Pocock, 2 Strange, him as a justice. We are not yet prepared 1168; 3 Burn's J. P. 18th ed. 29. But the to say that the citizen, in the exercise of words spoken in this case go further. They his right to criticize the acts and qualifi- charge against the plaintiff not only a violacations of those holding office, may publicly tion of his official oath, but that the decision make false and malicious charges as to their was erroneous, contrary to all law and evihonesty, or their capacity to discharge the dence, and rendered against the defendant duties of the offices held by them. Though for spite. A decision of this character must the citizen has the right to criticize those in necessarily be corrupt and malicious. If office, and a just and truthful criticism may made by a justice of the peace in a case of be a wholesome corrective of abuses of of- which he had jurisdiction, it would constificial positions, such criticism should be tute an offense against public justice, for honest, and founded upon truth, and not which he would be liable to indictment and falsehood."
removal from office. 4 Bl. Com. 141; RusTo render words actionable per se, when sell, Crimes, 45, 135; People v.. Coon, 15 spoken in reference to the official character Wend. 277; Gen. Stat. chap. 91, § 8; chap. or action of a person holding an office of 9, § 2. The words, therefore, charge not only profit, it is not necessary that they should corruption and a want of integrity against import a crime, but it is sufficient if the plaintiff, but also a criminal offense.” they charge incapacity, or want of in
And in this case, where the language of tegrity or corruption in the officer. Gove the complaint was that the slanderous disv. Blethen, 21 Minn. 80, 18 Am. Rep. 380.
was "of and concerning the said The reason for this rule seems to be thus: plaintiff in the execution of his said office When an office is lucrative, words which re of justice of the peace, and of and concernflect upon the integrity or the capacity of ing a decision the plaintiff had then recently the officer render his tenure precarious, and made in a suit before him as such justice of are therefore a detriment in a pecuniary the peace, wherein one 0. P. Whitcomb was point of view. Ibid.
plaintiff and the said defendant was defendIn Gove v. Blethen, supra, the slander ant,” etc., it was held that the allegations complained of was in the following terms: of the complaint imported that the plain"Gove perjured himself in deciding the suit tiff as a justice of the peace had jurisdiction of Whitcomb against me. And I will be of the action mentioned therein, and, as such d-d if I will believe him under oath; for justice of the peace, had made the decision he has decided against me contrary to all referred to. law and evidence, and it is the G-dd-est The words, "partial justice," touch a juserroneous decision I ever saw any justice tice of the peace in his office and for them give, and it was a d-d outrage, and it was an action lies. Kemp v. Housgoe, Cro. Jac. done for spite.” The court said: “There 90. can be no doubt, we think, that the words And words charging a magistrate with stated in the complaint are in themselves 'having procured a person to take a false
not, they are actionable because spoken of actionable at all, or only actionable (b) on the appellee in respect to an office. proof of special damage.”
In Williamj v. Riddle, 145 Ky. 459, 36 Adopting this definition of actionable L.R.A. (N.S.) 974, 140 S. W. 661, Ann. Cas. words, we think it is apparent that the 1913B, 1151, it is said that "in the follow-words charged must come under the first ing cases only were words slanderous, or ac
class, or they cannot be treated as actiontionable per se: (1) Words falsely spoken the words spoken impute the commission of
able. Or, to put it in another way, unless imputing a commission of a crime involving morał turpitude, for which the party might the jurors, including the plaintiff
, might be
a crime involving moral turpitude for which be indicted and punished; (2) words im- indicted and punished, they do not furnish puting an infectious disease, likely to ex the basis for a suit for slander, although clude him from society; (3) words imput- we are quite sure that, if words were spoken ing unfitness to perform the duties of an generally of a jury or applied to a jury office or employment; (4) words prejudic-as a whole that did impute to the jury a ing him in his profession or trade; (5) violation of g 2256 of the statute, or the words tending to disinherit him. 'In all commission of some crime involving moral other cases spoken words are either (a) not' turpitude for which the individual members oath before him touch him in his office, and stealing sheep, to let the thief escape and are actionable. Chetwind v.' Meeston, Cro. keep him from jail, Marriner v. Cotton, F. Jac. 308.
Moore, 695. And see Hilliard v. Constable, It is actionable to say of a justice of the F. Moore, 418. peace in his official capacity
It is actionable to say of one who is a jus_“I have often been with Sir John Isham tice of the peace, deputy lieutenant of a for justice, but never could get any at his county, and a candidate for a seat in Parliahand but injustice, Isham v. York, Cro. ment, “He is a Jacobite, and for bringing in Car. 15;
the Prince of Wales, and Popery, to the de--that he is "half-eared” and “will only hear stroying of our nation.” How v. Prinne, on one side,” Masham v. Bridges, Cro. Car. 2 Ld. Raym. 812. 223;
To sustain an action for words spoken of -“Mr. Hassett did seek my life, and of. a magistrate which are not actionable per se, fered 10 shillings to the under sheriff to they must appear to have been spoken of impanel a special jury that might find me
him in his official character, and it is not guilty of the felony,” Bleverhassett v. Bas enough that they tend to injure him in his poole, Cro. Eliz. pt. 1, p. 313;
office. Van Tassel v. Capron, 1 Denio, 250, -"He is forsworn justice, and not fit to 43 Am. Dec. 667. The court said: “It is sit upon a bench,” and no colloquium is need the privilege of the vulgar to use coarse ed, for by the words themselves it appears and abusive language; and no action will they were spoken of the plaintiff in respect lie for calling a man such opprobrious of his office, Carn v. Osgood, 1 Lev. 280; names as liar, cheat, rascal, swindler, black
-“Thou are a false” or “a lewd justice," leg, and the like. Nor will such words be or “Thou dealest corruptly,” or “Thou dost actionable though spoken of one who holds not administer true justice,” Wright v.
an office, or exercises some trade or profesMorehouse, Cro. Eliz. pt. 1, p. 358;
sion, unless they are spoken of and touch that “he for malice and spleen did many him in his office or calling. It is not enough times wrest the law, and prevent justice to that the words may tend to injure him in serve his own turn, Beamond v. Hastings, his office or calling, unless they are spoken
of him in his official or business character." Cro. Jac. 240; —that he has given secret warning to a
Calling a magistrate a "damned black
leg," and charging him with being in a person against whom he has issued a warrant, that he might absent himself, Burton "combined company to cheat strangers,” is
not actionable where no official misconduct v. Tokin, Cro. Jac. 143;
or neglect of official duty is alleged against -"He is a knave, a busy knave, for
him. Ibid. searching after me, and I will make him give me satisfaction for plundering me,” | give information to a judgment plaintif in
Charging a magistrate with omitting to Prowse v. Wilcox, 3 Mod. 163;
his court, that his execution has not been re_"He makes use of the King's commis; turned in time, and that therefore he has sion to worry men out of their estates," a right of action against the constable, Newton v. Stubbs, 3 Mod. 71;
where it is not charged that he possessed _“Mr. Kent is a rogue,” Kent v. Pocock, such information, or was requested to make 2 Strange, 1168;
it, imputes no neglect of official duty, and -that he is a rascal, a villain, and a liar, is not actionable. Ibid. Aston v. Blagrave, 1 Strange, 617, 2 Ld. Speaking of a magistrate as "squire” in Raym. 1369;
using opprobrious words concerning him is —that he was privy to the theft of a mere descriptio personæ, and does not imhorse, Lassels v. Lassels, F. Moore, 401; port that the words are spoken of him in re
—that he received money of a thief who spect of office. Ibid. It means no more, the was apprehended and brought before him for court said, than would be signified by the
might be indicted and punished, an action decision he may render. He is not answer. would lie by any member of the jury, al. able to any other tribunal for his finding, though no one of them was designated by and the motives that influenced him cannot name in the spoken words. Levert v. Daily be made the subject of a criminal investiStates Pub. Co. 123 La. 594, 23 L.R.A. gation. 1 Bishop, New Crim. Law, § 462; (N.S.) 726, 131 Am. St. Rep. 356, 49 So. Yates v. Lansing, 5 Johns. 282. 206; Palmerlee v. Nottage, 119 Minn. 351, It is, however, provided in $ 2256 of the 42 L.R.A. (N.S.) 870, 138 N. W. 312; Kentucky Statutes that “if a juror in any Lathrop v. Sundberg, 55 Wash. 144, 25 case shall take or agree to take anything, L.R.A. (N.S.) 381, 104 Pac. 176.
directly or indirectly, to give or refrain The substance of the words spoken is from giving his verdict, or shall, from fathat the jury in the Allegheny Coke Com voritism or corrupt partiality, give or repany Case returned a verdict which they frain from giving his verdict, and shall be knew to be wrong. But these words, how thereof convicted, such juror shall not there. ever reprehensible, did not impute to the after serve on any jury, and shall be fined jury the commission of any offense for $100 and a sum equal to ten times the which they might be indicted and punished. amount received or agreed to be received.” So far as we are advised, except in the in- If, therefore, the words spoken had stance we will presently point out, a juror charged this jury with having taken or cannot be subjected to punishment for any agreed to take anything, directly or inuse of the plaintiff's baptismal name in was an accomplice in crime, or guilty of corthe same place.
rupt misconduct in office. Quinn v. Scott, The words, "Squire Oakley is a damned 22 Minn. 456, which
action for rogue," spoken of a magistrate not in his slander of a magistrate, with the following official capacity, are not actionable. Oakley words set forth in the complaint with proper v. Farrington, 1 Johns. Cas. 129, 1 Am. Dec. innuendoes: "There is no use bringing any 107.
horse thieves to this town, for the justice And see Lindsey v. Smith, 7 Johns. 359, is in the ring just as bad as any of them. where the words charged the magistrate I believe Quinn belongs to the gang of with having been "feed,” and stated that de- thieves. The justice is in the gang and infendant "could do nothing when the magis- terested with them,” etc. trate was in that way against him.”
An action for slander does not lie for Holding that the words, "He, one of our words charging a justice of the peace with little Chowan justices of the peace, was partiality and corruption in trying a cause taken up a few nights ago playing cards over which he has no jurisdiction. Oram v. with negro Quomana, in a rookery box, and Franklin, 5 Blackf. 42. Such language does committed to jail, and remained there until not defame him as an officer, for he is not next day 9 or 10 o'clock, and then was acting within his office. turned out and split for the country,” were To a declaration in slander charging that not actionable, the court in McGuire v. alleged slanderous words were spoken of the Blair, 4 N. C. (2 Car. Law Repos. 443) plaintiff in his office of justice of the peace, said: "The words stated in the declaration a plea in justification is insufficient which to have been spoken by the defendant are merely states that the defendant believed not in themselves actionable, as they impute the words to be true, when from their nature no crime which, if true, would subject the he must have known whether they were true plaintiff to infamous punishment. And it or false. Smith v. Johnson, 69 Vt. 231, 39 is not charged in the declaration that the Atl. 198. plaintiff was a justice, or that they were spoken of him in relation to his office.
Juror-libel. There must, therefore, be judgment for the defendant."
Words published in a newspaper tending Calling a justice of the peace "a basket to impeach the honesty and integrity of justice” was held not actionable in Kemp v. jurors in their office are libelous. Byers v. Housgoe, Cro. Jac. 90, on the ground that Martin, 2 Colo. 605, 25 Am. Rep. 755. "one may take presents of victuals without A publication denouncing a verdict as inoffense.”
famous, and declaring that “we cannot exIn Hollis v. Briscow, Cro. Jac. 58, it was press the contempt which should be felt for held not actionable to say of a magistrate these twelve men, who have thus not only that he “is a rascally villain and keeps a offended public opinion, but have done incompany of thieves and traitors to do mis- justice to their own oaths," was held in chief,” as, it seems, the words were subject Byers v. Martin, supra, to be directed to a favorable or reasonable contruction. against the jurors individually.
Gross incompetency in a magistrate is not And it cannot be claimed that such publiof itself evidence of official corruption or cation affects only the verdict of the jury, personal depravity; and when this fact or that it is directed against the jury as a alone appears, unaccompanied by any circum- body or class of men. Ibid. stances indicating an improper motive, no A publication charging that one acted corinference can be drawn that the magistrate ruptly as a juror, and perjured himself, is