author: Bradbury, J.

text:
    Black, Receiver v. Boyd.

      Jurisdiction in eqzáty—Actions for the recovery of money only— What are not—Appeals—fury trials—Practice.

    The equity jurisdiction of a court of common pleas, in matters of mutual and complicated accounts, is not abrogated by section 5130, Revised Statutes, which, provides that either party may demand a jury trial of “ issues of fact arising in actions for the recovery of money only.” Au action is not one for the recovery of money only, within the purview of the statute, where, to administer full and complete relief therein, it is necessary to invoke the equity powers of the court to adjust the accounts between the parties, and in such case either party may, by virtue of section 5226, of the Revised Statutes, appeal to the circuit court from the judgment of the court of common pleas.
    (Decided Jan. 24, 1893.)
    Error to the Circuit Court of Franklin county.
    The plaintiff in error began an action in the court of common pleas of Franklin county, and judgment in that court being rendered against him, he appealed the cause to the circuit court, where, upon motion by the defendant, it was dismissed on the ground that the action being one in which either party had a right to demand a jury trial, it was not appealable. To this order of dismissal the plaintiff in error excepted, and instituted proceedings in this court to obtain its reversal.

      Powell, Owen, Rickeits & Black, for plaintiff in error.
    1. Did the circuit court err in dismissing the appeal? If the parties did not have the right in the court of common pleas’ to demand a jury, then the case was appealable and the appeal was improperly dismissed.
    It will be seen, in the first place, that both parties regarded this case as one calling for the equitable jurisdiction' of the court, and consented to the exercise of such jurisdiction. The issue thus presented was clearly an equitable one. It was a case presenting questions with which legal remedies are held to be inadequate to deal, and therefore a suit in equity for an accounting proper. The case was thus brought within the rule where a court of equity alone can act, according to the best authorities upon equitable jurisdiction. The case presents circumstances of mutuality and great complication of accounts, for which a court of law could afford no adequate remedy, and with which a jury ■would be entirety incompetent to deal. Adam’s Eq. sec. 220; Pomeroy’s Eq. Jurs. (3rd Ed.) sec. 1421; Story’s Eq. Jur. sec. 459, notes; Marvin v. Brooks, 94 N. Y., 71; 1 Story’s Eq. Jurs. sec. 459, note 5.
    We claim this case came within the special cognizance of a court of equity, not only becarr.se there -were mutual accounts to be settled and adjusted between the parties, but because the account was so complicated that it could not be arranged in a court of law. Equity will take cognizance of an account if it is so complicated that it cannot be arranged, in a court of law. Paintup v. Mitchell, 17 Ga., 558; Story’s Eq. Jurs. sec. 445; Willard’s Eq. Jurs. 91; Pomeroy’s Eq. Jur. sec. 1421; Uhlman v. N. Y Life Ins. Co. 109 N: Y., 421; N. E. Ry. Co. v. Martin, 2 Phillips Ch., 758; Phillips v. Phillips, 9 Hare, 473; Taff Vale Ry. Co. v. Nixon, et al., House of Eord’s Cases, vol. 1, page 111; McIntosh v. Great Western Ry. Co., Bevins Rep. 34, 511; Pierce v. The Equitable Life Insurance Society, 12 N. E. Repr.; Massachusetts General Hospital v. State Mutual Life Ins. Co., 4 Gray 227; State of Arkansas v. Churchill et al., 48 Ark., 426; Ludlow v. Simond, 2 Caine’s Cases, 1; Rowland v. Entrekin, et al, 27 Ohio St., 47; Conrad v. Conrad, 38 Ohio St., 467; Ellsworth v. Holcomb, 28 Ohio St., 66; Converse v. Hawkins, 31 Ohio St., 209; Chapman v. Lee, 45 Ohio St., 356; Adam’s Equity, 479; Long v. Majestre, 1 Johnson’s Chancery Rep., 305; Columbus heirs v. U. S., 7 Peters, 625; Am. & Eng. Enc. of L., vol. 1, page 720; Atsdorf v. Reed, 45 Ohio St., 656; Ladd v. James, 10 Ohio St., 437; Fleming v. Kerkendall, 31 Ohio St., 568.

      Merrick & Tompkins, for defendant in error.
    The right to demand a jury trial, or the absence of such right in the case at bar, is to be determined by the nature of the case. If it makes an action at law, the right exists; if a proceeding in equity, the right does not exist. But the appeal to equity must either be substantial, ancillary to any possible action at law, or an indispensible pre-requisite to definite and ultimate relief, and not a mere incident, convenience or only partaking of the nature of equity. > Administrator v. Administrator, 46 Ohio St., 27; Dunn & Witt v. Kanmacher, et al., 26 Ohio St., 497. The nature of a case is to be ascertained by a study of the whole pleadings, and not of an abstraction thereof, or the prayer. Lee v. Chapman, 45 Ohio St., 356. Equity is invoked, as we understand the practice, and as all forms for petitions by writers on the subject indicate, when the defendant refuses to come to an accounting and holds back his books and papers where the plaintiff cannot see them, and not where the defendant is equally anxious with the plaintiff to have a settlement. For the purpose of illustrating this proposition let’s suppose that the -plaintiff omitted all reference to the four notes, and simply declared that there was a long and unsettled account between the bank and the defendant, and that the defendant refused to come to an accounting, and would not strike a difference in the accounts, and that the affairs of the bank must be wound up speedily, and Boyd made-no answer to this. Is there any doubt about equity taking hold and-the chancellor decreeing that Boyd must account? Now suppose that the defendant answered denying refusal, and declared his willingness to produce books and come to an account, and on the trial this was proved, is there any doubt about the petition being dismissed? If we are right in this, it follows irresistibly that the pleadings in this case do not make an accounting in equity.
    We insist that there was but one 'account consisting of money, credits and debits; that nothing entered into but money, and that the only ailment was, that we were entitled to credits that it failed to show. The accuracy of any entry on the books was never questioned, each item was admitted. on all sides, and the sole purpose of the hearing was to add items that had been omitted. There was no conflict, no counterclaim, no complexity; simply, if there was any trouble at all, a doubt existed as to the exact weight of proof. All of this any jury might have heard and disposed of. We, therefore, urge that there was nothing in the affairs of the bank and the defendant that called in the faintest voice upon equity for relief, or that in any degree demanded of the law that it should stand aside in this case. If there was no such demand, then equity must and will keep still, fpr its aid can never be invoked when there is an adequate remedy at law.
    Now we reach the question as to whether a jury could have been demanded, having considered the nature of the case, and the proceedings therein. “The right of trial by jury shall be inviolate,” and this right is never suspended or withheld unless it is manifest that justice is the better to be obtained by the intervention of equity. This goes without argument. Then, if from the pleadings- and the proceedings in this case, it is ascertained that either party, at any time, might have, as a matter of right, demanded a jury trial, the action is one at law. And in order to preserve or fix this right it is not necessary to exercise it. It is there, and it is to be Used or not, as the party wills. If he does not use it, that does not alter his right. The right is inherent. It will be remembered that the plaintiff sues upon four notes, as well as upon the account. His action was complete without the account. That being true, is not the nature of the action fixed? The declarations on the account neither add to nor subtract from the nature of the action. You may eliminate the fifth count, and the petition lacks nothing. It is entitled to be reduced to judgment, and therefore it stands on the law side-of the court, and, therefore, from its nature, the right to a jury trial exists.
    Clearly this is an action for the recovery of money only. No other kind of an order or judgment could be made, and no other relief could have been sought or allowed. Try it as you might, adopt whatever machinery you please, and the end would be the same. There would be a judgment for money from which, no appeal could lie. Our views of the law involved in this discussion we believe are supported by the following authorities: 23 Ohio St., 579; Averill Coal & Oil Co. v. Verner, 22 Ohio St., 372; 4 W. L. M. 153; Alsdorf v. Reed, 45 Ohio St., 653, 656; Administrator v. Administrator, 46 Ohio St., 27; Chapman v. Lee, 45 Ohio St., 356; Johnson v. Robinson, 7 Ohio, part 2, 63; Dunn & Witt v. Kanmacher, et al., 26 Ohio St., 497; Bugh v. Sturgeon, 41 Ohio St., 402.
   Bradbury, J.

The only question presented by the record is: Whether there was a right of appeal to the circuit court, from the judgment of the court of common pleas. This depends upon the nature and character of the relief sought. Gunsaullus v. Pettit, 46 Ohio St., 27. The petition of the plaintiff contained five causes of action; the first, second, third and fourth of which, were upon promissory notes, in respect to which no issue was taken. The fifth cause of action was as follows:

“For his fifth cause of action the said plaintiff says: “That the said Plain City Bank and the defendant, Daniel Boy^d, have had mutual dealings running through a period of at least ten years, and the Plain City Bank and the defendant have kept books of account touching said dealings, which accounts and the items thereof extend to a very large number, and that the aggregate of such items exceed the sum of $600,000.00. The said plaintiff and the said defendant have been trying to adjust said items of account, and to come to a settlement of the same, but they have been unable to adjust or settle their account for the reason that the said defendant claims that upon the adjustment and settlement of said accounts there is a balance of about $2,400.00 due him, and the said plaintiff claims that he is not authorized and is not empowered to settle and adjust said accounts until the same have been passed upon by the court, and he says it will be utterly impossible for the plaintiff and defendant to agree as to the correctness of said items of account, and to settle or adjust the same between themselves.

“The said plaintiff therefore prays, that the defendant may be ordered to come to an account touching the said items of account and the said matter, and that the court may order the reference of said accounts to a Master for the purpose of settling the same and ascertaining the exact condition óf the said account between the said parties, and that after an account has been had between said parties, that a judgment may be had between the parties in accordance with the facts so ascertained, and that said plaintiff may have all other and proper relief in the premises.”

To this cause of action the following answer was interposed :

“Now comes the said defendant, Daniel Boyd, and for answer herein says, that the allegations of said petition are substantially true, except as to the amount that he, defendant, claims is due him from the plaintiff. Just what that amount is, defendant is unable to state, but does claim that when the difference is struck between accounts of plaintiff and defendant a large amount will be found due him, defendant. For the reasons stated in petition, defendant joins in the prajmr for a master commissioner, and asks judgment in accordance with such master’s finding.”

No issue having been joined on either of the causes of action that were founded on the notes, the question may be considered as if thej' had not been included in the petition; and this, too, although had an issue been joined on either of them, such issue being triable by jury, would have drawn to it the trial of the whole action. Ladd v. James et at., 10 Ohio St., 437.

What is the nature and character of the relief that the plaintiff sought by this fifth cause of action, upon which the trial was had? It was not a recovery of money, for he claimed none by any of its allegations. Instead of this, he sought to ascertain what was due from him, as receiver, to the defendant. To attain this end fully and adequately, he asked for an accounting in equhy, and, to show his title to relief of that character, he set forth a long continued course of mutual dealing between the bank, for which he was acting, and the defendant, the great number of - items which the account contained, the large sum they aggregated, the attempts of himself and the defendant to settle and adjust the accounts, and their failure and inability to do so. No breach of contract was charged against the defendant, nor was he charged with the violation of any duty, except what may be implied from the averment that the parties were “utterly” unable to come to a settlement; and even in this connection there is no attempt' to show that the defendant Was not as anxious for a settlement of the account, and as diligent in his efforts to obtain one, as the plaintiff. The difficulty of adjusting the accounts did not arise, therefore, from the obstinacy or bad faith of either party, but was rather a consequence of the state of the accounts themselves.

These allegations, together with his prayer for relief, manifest his purpose to obtain an accounting in equity, and if they are not sufficient for that, they entitle him to no relief whatever.

Whether the relief sought is equitable in its nature, depends upon whether it is a kind that a court of equity can afford. 'If a court of equity has no jurisdiction in matters of account, founded solely on their magnitude, mutuality and complexity, then the relief sought by the plaintiff was not equitable in its character, and cannot become the predicate of an appeal. It therefore becomes necessary to consider this ground of equity jurisdiction.

The circumstances that will warrant a court of equity to assume jurisdiction in matters of account, have long been the subject of discussion by courts of the highest authority. Where the accounts are mutual, and complicated to a degree that makes their examination bj^ a jury difficult and unsatisfactory, equity will generally assume jurisdiction, though no rule of certain application can be laid down. The court should be satisfied of the inadequacy of proceedings at law to do justice between the parties. The doctrine is discussed, and the jurisdiction of equity, in the case of complicated mutual accounts, has been sustained by most, if not all, of the authors of the text books upon the subject of the jurisdiction of courts of equity. Story Eq. Jur. 459; Adams Eq. 222; Pomeroy’s Eq. sec. 1421.

The jurisdiction has been asserted and maintained by the courts of England. Northeastern Ry. Co. v. Martin, 2 Phillips Ch. 758, 762; The Taff Vale Ry. Co. v. Nixon et al., 1 House of Lords Cases, 116. And also by the courts of the American States. The decisions on the subject are numerous. In many of them discovery was sought also, but, even then, the main ground upon which the jurisdiction was sustained, was, often, the complicated condition of the accounts, while in other cases it was the sole ground of the action of the court. Hickman v. Stout, 2 Leigh, 6; Hay v. Marshall et al., 3 Hump. 623, The Governor et al. v. McEwen, 5 Humph. 241; Power v. Reeder, 9 Dana. (Ky.) 6; Heirs, etc. v. U. S., 7 Pet. 625; Post et al. v. Kimberly et al., 9 Johns. 470; Kirkman et al. v. Vanlier, 7 Ala. 217; State v. Churchill et al., 48 Ark. 426; Cummins v. White et al., 4 Blackf. 356.

In Johnson v. Wallace, 7 Ohio (pt. 2), 62, it was held that “courts of law cannot appoint a person to adjust long and disputed items of account in an action of assumpsit, without the consent of both parties.” The court, however, say, on page 63: “The difficulties arising in cases of this kind, however, may be avoided by a resort to a court of equity, which has concurrent jurisdiction with the courts of law, in cases of this description. Those long and perplexing accounts might then be referred to a competent master, and be far more satisfactorily adjusted.”

These, without further citation of authorities, satisfactorily establish the concurrent jurisdiction of courts of equity in matters of mutual and complex accounts, on the ground of the iuadequacjr of the remedy at law.

The relief sought by the plaintiff, therefore, was in its nature equitable. Section 5226, Revised Statutes, provides that an appeal may be taken to the circuit court from all judgments of the court of common pleas, in actions of which it had original jurisdiction, “if the right to demand a jury therein did not exist.” As, in causes of equitable jurisdiction, no right to a trial by a jury exists unless given by statute, it follows that the plaintiff had a right of appeal in this case if that right was not abrogated by statute.

Section 5130, Revised Statutes, provides that a jury may be demanded to try any “issues of fact arising in actions for the recovery of money only.” * * *

No real issue was joined between the parties; the plaintiff set forth the nature of the accounts and the inability of the parties to adjust them, adding that the defendant claimed that about $2,400.00 would be due to him (the defendant), when they should be settled, but neither admitting nor denying the claim; the defendant admitted all of the allegations of the plaintiff except that he claimed about $2,400, but does not state whether he claims more or less than that sum, simply saying in this connection that a large sum will be due him on an adjustment of the accounts, and joins in the prayer for the appointment of a master commissioner to adjust them. This absence of a distinct issue is, certainly, not a conclusive, perhaps not a very important, circumstance by which to test the right to appeal the cause; for, if the relief to which the parties were entitled was legal, as contradistinguished from equitable, the absence of-an appropriate issue would not give a right to an appeal. It is not to be entirely ignored, however, for, to some extent, it tends to give character to the relief sought. Was the action one for the recovery of money only, within the meaning of section 5130, of the Revised Statutes?

To what extent section 5130, Revised Statutes, abridges the equity jurisdiction of the court of common pleas, has not been settled. Causes of action clearly within its provisions are, of course, removed from the domain of equity. Statutes, however, that abrogate or abridge that jurisdiction, are to be strictly construed, and if the restrictive purpose is not clear it will not be extended by construction. 1 Pomeroy Eq. Jur., sections 182, 276-280.

The section under consideration—section 5130, Revised Statutes—does not, in terms, abolish the jurisdiction of equity in matters of account. The ground of that jurisdiction, it should be remembered, is the inadequacy of the remedy at law, while the remedy in equity is full, complete and easily applied. Therefore, an intention to utterly destroy this 'beneficial jurisdiction should not, by implication, be imputed to the legislature, unless that purpose clearly manifests itself. Of course, if the statute is irreconcilable with the continuance of the jurisdiction in equity, the statute must prevail. We do not think, however, that such irreconcilability exists. That the ultimate relief sought is a recovery of money, merely, is not conclusive that the action is one for the recovery of money only. Rowland v. Entrekin, 27 Ohio St., 47. In that action, so far as its object can be gathered from the facts as they appear in the report of the case, the plaintiff’s ultimate purpose rvas to recover a judgment for damages that he had sustained bjr being kept out of the possession of premises to which he was entitled by a defectively executed lease. To enable him to effect a recovery upon this lease, he was under the necessity of having it reformed by a court of equity. The right to an appeal was sustained, and, of course, upon the ground that the action was not for the recovery of money only. There the plaintiff’s necessity to have the instrument reformed gave character to the action. After the reformation had been accomplished, the question of the recovery was peculiarly one of law, for it involved simply an inquiry respecting unliquidated damages for a wrongful act.

In the case under consideration the necessity for the aid of a court of equity inhered in the cause of action itself, and continued until the amount due from one party to the other, was ascertained by an adjustment of every item of the account. The assistance of equity was invoked, because without that assistance the rights of the parties could not be ascertained with that fullness and certainty to which they were entitled.

In view of the rules fairly established by the authorities for construing statutes which are claimed to abridge or abolish, by implication, jurisdiction in equity, we do not think that section 5130, Revised Statutes, should be held to abrogate that jurisdiction in matters of account, where the remedy at law is inadequate. This conclusion does not conflict with the former decisions of this court, cited by counsel for defendant in error. Gunsaullus, adm'r v. Pettit, adm'r, 46 Ohio St., 27, was in substance an action for money had and received. On page 29, Minshall, J., characterizes the cause of action as follows: “The claim of the plaintiff below, when reduced to its substance, is, that the husband of his intestate received monies belonging to her, that he promised to hold and invest for her use.” Averill Coal & Oil Co. v. Verner, 22 Ohio St., 372, was an action on an account; no relief was prayed for except a money judgment, and no facts alleged to show the inadequacy of proceedings at law to determine the rights of the parties. Dunn & Witt v. Kanmacher & Stark et al., 26 Ohio St., 497, was an action to enforce the right of sub-contractors, under the Mechanics’ Eien law, which law provided that the remedy should be by “an action for money had and received.” S. & C. 834 (sec. 5).

Chapman v. Lee, 45 Ohio St., 357, seems, by implication, to recognize the jurisdiction of equity in matters of account, where it is necessary to full and adequate relief; for, in the second syllabus, it states as one of the grounds for denying the right of appeal, that an accounting in equity was not necessary to full and adequate relief. Conard v. Conard, 38 Ohio St., 467, clearly recognizes the jurisdiction of equity in matters of account, in an action by one co-tenant against another for rents and profits, under the act of May 13, 1868 (S. & S. 578). That statute authorizes a recovery by civil action “according to the justice and equity of the case.” The word “equity” was evident^ employed here in its broader sense, as being consonant to natural right, not in its technical sense for the purpose of conferring jurisdiction. The remedy given was a civil action, leaving its character—-whether legal or equitable—-to be determined by the nature of the relief that should be appropriate to the particular circumstances of each case. In that case (Conard v. Conard, supra) the ultimate relief sought was money only: This court, in sustaining the right of appeal, does not place that right upon the ground that the statute prescribed a suit in equity, but upon the ground that the record did not disclose an action for money only. The court says:

“A civil action in which neither party has a right to demand a trial by a jury may be appealed. The case made upon this record'is not an action for the recovery of money merely, but for an accounting according to the principles of equity, in which neither paity had a right of trial by jury.” Id. 468. The right to an accounting in equity was made the test that gave character to the action, and removed it from the category of those brought for the recovery of money’ only*.

Judgment reversed and cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Hirth v. Graham.

      justices of the Peace—Charges to jury, by—Reviewable on error— Statute of Frauds—Sale of standing timber within the.

    1. Instructions given to the jury by a justice of the peace, in the course of the trial of an action before him, are reviewable on . error.

      2. A sale of standing timber, whether or not the parties contemplate its immediate severance and removal by the vendee, is a contract , concerning an interest in lands, within the meaning of the Statute of frauds, and is voidable by either paity if not in writing.
    (Decided Jan. 24, 1893.)
    Error to the Circuit Court of Morrow county.
    The plaintiff in error recovered a judgment before a justice of the peace of Morrow county, which, upon error being brought to the court of common pleas, was affirmed. The case was then taken on error to the circuit court, where the judgments of the court of common pleas and of the justice were both reversed; whereupon this proceeding was instituted to reverse the judgment of the latter court and to re-instate and affirm the reversed judgments. The facts will be found in the opinion of the court.

      James H. Beebe, for plaintiff in error.
    After the (growing) trees are sold they become personal property, and may be sold by parol.' 3 Par. on Con. 31, 34.
    A similar question, and involving a reference to the Statute of Frauds, was decided as long ago as A. D. 1829, precisely in accordance with our claim, in the case of Smith v. Surman, 9 B. and C. 561. See also Whitmarsh v. Walker, 1 Met. 313; Mumford v. Whitney, 15 Wend. 380; Claflin v. Carpenter, 4 Metcalf 580; 1 Greenleaf on Ev. p. 347, sec. 271.

      Andrews & Simms, for defendant in error.
    1. We claim that 'the contract -was void and within the Statute of Frauds, not being in writing and being for real estate, and there being no memorandum thereof in writing. Revised Statutes, section 4198; Jones v. Shadrack, 21 Ohio St., 605; Lang v. White, 42 Ohio St., 61; Fortman v. Goepper, 14 Ohio St., 567; Devlin on Deeds, vol. 1, section 59, 60, 61; 61 Pa. St., 294; Bowers v. Bowers, 95 Pa. St., 477; Green v. Armstrong, 1 Denio, 550; Pierrepont v. Barnard, 6 N. Y., 292; Kilmore v. Howlett, 48 N. Y., 569; Slocum v. Seymour., 36 [N. J, L., 138; Owens v. Lawson, 46 Ind., 488; Armstrong v. Lewis, 73 Ind., 498.
    2. We claim that the justice of the peace had no jurisdiction of the subject matter at issue between the parties in this cause. Revised. Statutes, section 591.
   Bradbury, J.

The plaintiff in error brought an action before a justice of the peace to recover of the defendant in error damages alleged to have been sustained on account of the refusal of the latter to perform a contract by which he had sold to the plaintiff in error certain growing timber:

The defendant attempted to secure the dismissal of the action on the ground that the justice had no jurisdiction of an action for the breach of such a contract. Failing in this, and the action being tried to a jury, he requested the justice to instruct the jury “that if they find from the evidence that the trees about which this action is brought -were at the time of said alleged contract then growing upon the land of defendant, and that no note or contract or memorandum was made of the contract of sale was at the time made in writing the plaintiff cannot maintain this action, and y^our verdict should be for the defendant”; which instruction the justice refused to give, but on the contrary gave to them the following instructions on the subject: “This is an action for damage, not on the contract nor to enforce the same, and if y^ou find that a contract- was made verbal or otherwise and the defendant refused or failed to comply^ w-ith its terms the plaintiff is entitled to any damage you may find him to have sustained by way of such noncompliance.”

The defendant in error, wdio was also the defendant in the justice’s court, excepted, both, to the charge as given and to the refusal to charge as requested; the verdict and judgment being against him he embodied the charge as given, as well as that refused, in separate bills of exceptions, and brought the cause to the court of common pleas on error, where the judgment of the justice of 'the peace w"as affirmed; he thereupon brought error to the circuit court, where the judgments of the court of common pleas and that of the justice were both reversed, and it is to reverse this judgment of the circuit court and re-instate and affirm those of the court of common pleas and justice of the peace that this proceeding is pending.

Counsel for plaintiff in error contends that the record contains nothing to show that the trees which were the subject of the contract w’ere standing or growing, and that, therefore, it does not appear that the defendant was injured by the instructions given and refused. The record does not support this contention. During the trial three separate bills of exceptions w'ere taken, and when all of them are considered together, it clearly appears that evidence w'as given tending to prove that the trees, the subject of the contract, w*ere growing on the land at the time it was made, and that the contract w^as not evidenced by any note or memorandum in writing. The instruction refused, was, therefore, pertinent, and if it contained a sound legal proposition the refusal to give it in charge to the jury was prejudicial to the defendant. The court however not only refused to give the instructions requested by the defendant, but told the jury in substance that no written memorandum was necessary.

Great doubt exists in the minds of many eminent jurists whether, in this state, a justice of the peace is bound to instruct a jur}'1 at all; the code of civil procedure specifically imposes this duty upon the courts of common pleas (sec. 5190, Rev. Stat.), but is silent upon the subject as respects justices of the peace, unless by sec. 6705, Revised Statutes, the provisions of the code of civil procedure, respecting the duties of courts of common pleas in this particular, are made applicable to justices’ courts, which admits of grave doubts. The courts of last resort, in the states of Iowa and Nebraska, have held that a justice of the peace has no authority to instruct the jury on the trial of an action in his court. St. Joseph Manf. Co. v. Harrington, 53 Iowa, 380; Ives v. Norris, 13 Neb., 252. And it has been held in New York that the jury were the judges of the law as well as of the facts. McNeil v. Scoffield 3, Johns. 436; Trustees v. Thorne, 6 Hill, 326. The Supreme Court of Georgia holds that “The law does not require a justice of the peace to charge the jury at all, and it would seem best that he should not do so; but if he undertakes to instruct1 them, he must do so correctly.” * * Bendheim Bro hers & Co. v. Baldwin, 73 Ga., 594; Adams et al. v. Clark, 64 Ga., 648.

In Delaney v. Nagle, 16 Barb. (N. Y.) 96, the justice of the peace had been requested to give to the jury a pertinent and correct proposition of law; this he refused, saying: “that the jury had heard all the testimony and the arguments of counsel, and were the judges of the law and the evidence, and that the court had nothing more to say to them and would leave the matter for their consideration.” On appeal, the Supreme Court saj-: “The justice in this case, left the whole matter to the jury, law as well as fact. He did not, as the appellant’s counsel supposes, by implication, charge the converse of the defendant’s propositions. They were left unfettered, to decide both the law and the fact. We cannot say that they have decided wrong.”

There is strong ground to contend, in reason as well as upon authority, that a justice of the peace may deny a request to give in charge to a jury a sound and pertinent legal proposition; no such duty is specifically enjoined on him by any statute of this state; nor is he clothed with power to enforce his instructions by granting a new trial should the3T be disregarded by the jury. Neither does he usually possess legal knowledge superior to that of the jurors who he is requested to instruct.

. The opposite doctrine, however, is not without eminent authority in its favor. Judge Swan, in his valuable treatise for the guidance of justices of the peace, lays down the rule that a justice is bound to give to the jury proper instructions when so requested. Swan’s Treatise 183, 189. And the same view is taken by Judge Boynton in Kaufman v. Broughton, 31 Ohio St., 430. No authority, however, is cited by either of these eminent jurists in support of the proposition advanced by them, nor do either discuss it on principle, but seem to have taken it to be conceded as matter of course. The direct question has not heretofore been considered by this court, nor does it necessarily arise in the case under consideration; for the justice in this case did not merely decline to give an instruction which he had been requested to give, and then submit the evidence to the jury without any instructions whatever, but he actually gave them in charge a proposition substantially the converse of that which was requested. The highest courts of the states of Iowa and Nebraska hold that an instruction given by a justice of the peace to a jury is a mere nullity that they will not review. St. Joseph Manf. Co. v. Harrington, 53 Iowa, 380; Ives v. Norris, 13 Neb., 252. On the other hand, the doctrine in New York and Georgia is that, while a justice is not bound to instruct a jury, yet, if he does so, it must be done correctly. Bendheim Brothers Co. v. Baldwin, 73 Ga., 594; Adams et al. v. Clark, 64 Ga., 648; Delancy v. Nagle 16 Barb. (N. Y.), 96; Trustees v. Thorne, 6 Hill 326. The latter rule, we think, is the better one. Without passing upon the question of the duty of a justice of the peace, to give to the jury a sound and pertinent legal proposition when he is so requested, we hold that, if he does instruct them, whether pursuant to a request or not, he is bound to lay down the law correctly; for a jury are quite likely to respect the official character of the justice and be influenced by the instructions that he may give to them under the sanction of his office.

Whether a sale of growing trees, is the sale of an interest in or concerning land has long been a much controverted subject in the courts of England as well as in the courts of the several states of the Union. The question has been differently decided in different jurisdictions, and by different courts, or at different times by the same court within the same jurisdiction. The courts of England, particularly, have varied widely in their holdings on the subject.

Lord Mansfieed held that the sale of a crop of growing turnips was within this clause of the statute. Emmerson v. Heelis, 2 Taunt. 38, following the case of Waddington et al v. Bristow, et al. etc., 2 Bos. & Pul. 452, where the sale of a crop of growing hops was adjudged not to have been a sale of goods and chattels merely. And in Crosby v. Wads-worth, 6 East 601, the sale of growing grass was held to be a contract for the sale of an interest in or concerning land, Lord EelENBorough saying: “Upon the first of these questions” (whether this purchase of the growing crop be a contract or sale of lands, tenements or hereditaments, ©r any interest in or concerning them), “I think that the agreement stated, conferring, as it professes to do, an exclusive right to the vesture of the land during a limited time and for given purposes, is a contract or sale of an interest in, or at least, an interest concerning lands.” Id. 610.

Afterwards, in Teal v. Auty, 2 B. & B. 99, the court of common pleas held a contract for the sale of growing poles was a sale of an interest in or concerning lands. Many decisions have been announced b}r the English courts since the cases above noted were decided, the tender^ of which have been to greatly narrow the application of the fourth section of the Statute of Frauds to crops, or timber, growing upon land. Crops planted and raised annually by the hand of man are practically withdrawn from its operation, while the sale of other crops, and in some instances growing timber, also, are withdrawn from the statute, where, in the contemplation of the contracting parties, the subject of the contract is to be treated as a chattel. The latest declaration of the English courts upon this question, is that of the common pleas division of the high court of justice, in Marshall v. Green, 1 C. P. Div. 35, decided in 1875. The sjdlabus reads: “A sale of growing timber to be taken away as soon as possible b3'- the purchaser is not a contract or sale of land, or an3>- interest therein, within the fourth section of the Statute of Frauds.” This decision was rendered b3r the three justices who constituted the common pleas division of the high court of justice, Coeeridge, C. J., Brett and Grove, JJ., whose characters and attainments entitle it to great weight; yet, in view of the prior long period of unsettled professional and judicial opinion in England upon the question, that the court was not one of final resort, and that the decision has encountered adverse criticism from high author^7 (Benjamin on Sales, section 126, Ed. of 1892), it cannot be considered as finally settling the law of England on this subject.

The conflict among the American cases on the subject cannot be wholly reconciled. In Massachusetts, Maine, Mar3dand, -Kentucky and Connecticut, sales of growing trees to be presently cut and removed’b3r the vendee, are held not to be within the operation of the fourth section of the Statute of Frauds. Claflin et al. v. Carpenter, 4 Metc. (Mass.) 580; Nettleton v. Sikes, 8 Metc. (Mass.) 34; Bostwick v. Leach, 3 Day. (Conn.) 476; Erskine v. Plummer, 7 Me. 447; Cutler v. Pope, 13 Me., 377; Cain v. McGuire, etc., 13 B. Mon., 340; Byassee v. Reese, 4 Metc. (Ky.) 372; Smith v. Bryan, 5 Md. 141. In none of these cases except 4 Met. (Ky.) 373, and in 13 B. Mon. 340, had the vendor attempted to repudiate the contract, before the vendee had entered upon its execution, and the statement of facts in those two cases do not speak clearly upon this point. In the leading English case before cited, Marshall v. Green, 1 C. P. Div., 35, the vendee had also entered upon the work of felling the trees and had sold some of their tops before the vendor countermanded the sale. These cases, therefore, cannot be regarded as directly holding that a vendee, by parol, of growing timber to be presently felled and removed, may not repudiate the contract before anything is done under it; and this was the situation in which the parties to the case now under consideration stood when the contract was repudiated. Indeed, a late case in Massachusetts, Giles v. Simonds, 15 Gray, 441, holds that, “The owner of land, who has made a verbal contract for the sale of standing wood to be cut and severed from the freehold by the purchaser may at any time revoke the license which he thereby gives to the purchaser to enter on his land to cut and carry away the wood, so far as it relates to any wood not cut at the time of the revocation.”

The courts of most of the American states, however, that have considered the question, hold, expressly, that a sale of growing or standing timber is a contract concerning an interest in lands, and within the fourth section of the Statute of Frauds. Green v. Armstrong, 1 Denio, 550; Bishop v. Bishop, 1 Kernan, 123; Westbrook v. Eager, 1 Harr. (N. J.) 81; Buck v. Pickwell, 27 Vt. 157; Cool v. Box & Lumber Co., 87 Ind., 531; Terrell v. Frazier, 79 Ind., 473; Owens v. Lewis, 46 Ind., 488; Armstrong v. Lawson, 73 Ind. 498; Jackson v. Evans, 44 Mich., 510; Lyle v. Shinnebarger, 17 Mo. App., 66; Howe v. Batchelder, 49 N. H. 204; Putney v. Day, 6 N. H., 430; Bowers v. Bowers, 95 Pa. St., 477; Daniels v. Bailey, 43 Wis., 566; Lillie v. Dunbar, 62 Wis., 198; Knox v. Haralson, 2 Tenn. Ch., 232.

The question is now', for the first time, before this court for determination; and we are at liberty to adopt that rule on the subject, most conformable to sound reason. In all its other relations to the affairs of men, growing timber is regarded as an integral part of the land upon which it stands; it is not subject to levy and sale upon execution, as chattel property; it descends with the land to the heir, and passes to the vendor with the soil. Jones v. Timmons, 21 Ohio St., 596. Coal, petroleum, building-stone, and many other substances constituting integral parts of the land, have become articles of commerce, and easily detached and removed, and, when detached and removed, become personal property, as well as fallen timber; but no case is found in which it is suggested that sales of such substances, with a view to their immediate removal, would not be within the statute. Sales of growing timber are as likely to become the subjects of fraud and perjury, as are the other integral parts of the laud, and the question whether such sale is a sale of an interests in or concerning lands, should depend, not upon the intention of the parties, but upon the legal character of the subject of the contract, which, in the case of growing timber, is that of realty.

This rule has the additional merit of being clear, simple and of easy application, qualities entitled to substantial weight in choosing between conflicting principles.

Whether circumstances of part performance might require a modification of this rule, is not before the court and has not been considered.

Judgment affirmed.


author: Spear, C. J.

text:
    Gas Light & Coke Co. v. Columbus.

      Municipal corporations—Power and authority over streets—Gas companies, laying pipes therein, under grant from city, do so subject to power of city to change grades—No action for damages will lie, unless wantonness or negligence intervenes.

    1. The power to grade and improve streets is conferred upon municipal authorities for the public benefit. It is a continuing power, and is not exhausted bj’ the first exercise of it; nor 'can it, in the absence of statutory authority, be ceded nor bargained away; nor can one council, by its exercise, abridge the capacity of its successors to perform their duties in that behalf as the public interest may demand.’
    2. A gas company laying its pipes in the streets of a city, under a grant from the city, in conformity with an established grade, does so Subject to the right of the city to change the grade of the street whenever the necessities of the public require it, and, in the absence of wantonness or negligence on the part of the city, the company cannot maintain an action for damage occasioned by the necessity of taking up and relaying its pipes in order to accommodate them to the new grade.
    (Decided Jan. 24, 1893.)
    Error, to the Circuit Court of Franklin county.
    The plaintiff in error commenced the original action by the filing in the court of common pleas of its petition, as follows:
    ■ “ Thé plaintiff, The Columbus Gas Eight & Coke Company, is a corporation duly organized under the laws of this state, for the purpose of supplying gas for lighting the streets and public and private buildings of the city of Columbus. The defendant, the said city of Columbus, is a municipal corporation of this state, located in Franklin county and organized as a citj^ of the first grade of the second class.
    • “The plaintiff is, and, for more than thirt3' years last past has been, the owner of a certain easement or right in the public streets and alleys of the defendant, duly and for sundry valuable considerations granted b3r the defendant to the plaintiff, to-wit: The right to la3' and maintain its pipes
    in the said public streets and alle3rs for the purpose of conveying gas to the said cit3r and the citizens thereof.
    “In the exercise and enjoyment of said right, and in accordance with the terms and conditions of the same, the plaintiff, several years prior to the year A. D. 1887, for the purpose of conveying gas to the said city and the citizens thereof, laid in that part of Broad street (one of the public streets of said city), between Winner avenue and Reed avenue, and in conformity with the grade of said part of said street, which was then already established, a main-pipe and a service pipe, and continued to maintain and use said pipes for the purposes aforesaid, until, in the summer of 1887, the defendant changed the grade of said part of said street, excavated the ground and lowered the level thereof, and thereby interfered with plaintiff’s said pipes, necessitating the removal or abandonment of the same and the relaying by plaintiff, of pipes to conform to the new grade, to plaintiff’s damages in the sum. of $406.60, with accuring interest.
    “ Plaintiff filed its said claim for damages with the clerk of said city of Columbus, on the 24th day of January, A. D. 1888, but the same is still wholly unpaid.
    Wherefore plaintiff asks judgment against the defendant for the said sum of $406.60, with accruing interest.”
    To this pleading the city, by its solicitor, interposed a general demurrer, which, being overruled, the cause was tried, resulting in a judgment for plaintiff. The circuit court reversed the judgment, and ordered the cause remanded.

      R. H. Platt, for plaintiff in error.

      Paul Jones and Florizel Smith, for defendant in error.
   Spear, C. J.

The single question is as to the sufficiency of the petition. If that states a cause of action, the judgment of the circuit court should be reversed; if not, the opposite result follows.

It will be noted that there is no direct allegation that the grant from the city gave the company the right to maintain its pipes at any particular place in the street, nor at any prescribed depth beneath the surface. Nor is it averred that the action of the city was, in anjr way, wanton, nor that the change of the grade of the street was unnecessary; and the presumption is that the city acted, in that behalf, lawfully, and without negligence. Nor is it pretended that the city has denied the company’s right to maintain its pipes in Broad street. The dispute involves only the right to maintain them where first laid.

The company’s claim is that, while the consent of the city must first be obtained, the city having the right to make reasonable regulations as to the terms and conditions on which the company may occupy, yet, when the city has given its consent, lias made the grant, the right in the streets is in the nature of an easement which then belongs to the company by force of the statute, and the city cannot interfere with that right, save upon condition of awarding compensation for resulting damage.

It is freely, conceded that the company is a public agency. It is further conceded that the use of streets and alleys for gas pipes, through which gas is to be conducted for the use of the city and its people, is a recognized public use and purpose, and that the general right to so lay and maintain such conductors is created bj' statute. This is, however, upon condition of consent by the municipal authorities, and under such reasonable regulations as they may prescribe. And cities are specially authorized to provide for the laying down of gas pipes.

But, while all this is conceded, it must always be kept in mind that the primary use of the streets is not for the laying of gas pipes. That is but an incidental, a secondarjr, use. Above all other uses is the accommodation of the public travel. Our statute, sec. 2640, prescribes the city’s duty thus: “The council shall have the care, supervision and control of all public highways, streets, avenues, * * * within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance.”

This necessarily implies the duty, as well as the right, to grade, in order that the streets may be accessible, convenient, and in good repair. It also implies that the duty as well as the right is a continuing one. The duty is not to open the streets and put them in repair, but to keep them open and in repair. This matter of grading is not, necessarily, a single operation. The duty of exercising the power anew, therefore, follows the changing conditions and needs of the public. The power is a legislative one. It is to be enforced by ordinance. The council is to perform the duty, and it is elementary, we suppose, that the council cannot, in the exercise of legislative powers, bind its successors, unless authority from the state to do so is clearly indicated. The corporation cannot abridge its own legislative power.

It would follow from this that in prescribing regulations, or annexing conditions, by the city, to the exercise by a gas company, of a right in a street to enjoy the same for this secondary use, the council has not the authority to cede away, nor bargain away, the right of the city to perform its public duties, especially as to a primary use of its streets, nor to abridge the capacity of its successors to discharge those duties, unless some-express provision of statute is found to that effect, and that is not claimed.

The power to re-grade, and the duty of exercising the po-wer under proper conditions, being established, does liability for damage follow its exercise in such a case as the one at bar?

If it can be maintained that the company has acquired an easement giving it the right to continue its pipes at the particular place, in the street where they were placed, there would be strong reason for concluding that liability for damage would follow their disturbance by the pfocess of grading; otherwise, not.

It is insisted that the easement of the company, acquired by the grant from the city, is a right as substantial as that of an abutting owner, and that its right to compensation for interference with pipes laid in conformity with an established grade, is as well founded as that of an owner of abutting property to compensation for an interference arising in the same way.

There are some points of similarity between the two situations, but we think there are more differences. The street is often dedicated by the owner, or his predecessor in title, to public use, and if required by appropriation, he is liable to compulsory contribution for payment of land taken. By reason of owning the abutting land, he has a property right in the street itself, as much property as his lot. Under some circumstances, trees growing in the street in front of his lot are his property, and he may maintain them there, subject only to the free use of the street by the public. In case of abandonment the title to the middle of the highway itself, ordinarily, reverts to him. Among other rights is that of access to and from his premises, and where he has improved in conformity with an established grade, the damage occasioned by a material change of grade is immediate and often serious. A marked difference between the two rights is found in their origin. In no single particular does the land owner get any property right in the street from the city. No consideration of the city’s power is brought in question in estimating the character of the lot-owner’s right in the street. It inheres in the very ownership of the lot, as air incident to it.

None of these characteristics attach to the company's easement. In no sense is it the owner of land adjoining the highway. A fair construction of the petition makes of it no more than a naked right to place and keep its pipes somewhere in the street. And this, we think, is the extent of the council’s power. An ordinance to grant an exclusive right, or a perpetual right to occupy a particular part of the street, would be an attempt to bind succeeding councils as to their exercise of legislative power, and would, for reasons stated, be ineffectual. The grant by the city must be interpreted in the light of the right and duty of the city to re-grade, whenever in its judgment, the public interest demands, and whatever easement the gas company can receive, it must accept and enjoy in common with equivalent rights, which have been or may be acquired by other public agencies, rights of a like secondary character, and all must give way to the paramount duty of the city to care for the streets and keep them open, in repair, and convenient for the general public. This duty would be seriously interfered with if the city could not change the grade of its streets, save upon the condition that it should make compensation to every gas company, and water company, and telephone company, and electric light company, and street railway company, for inconvenience and expense thereby occasioned. All such agencies must be held to take their grants from the city upon the condition, implied where not expressed, that the city reserves the full, and unconditional power to make any reasonable change of grade, or other improvement, in its streets.

Attention has been called to some authorities which seem to give sanction to the company’s claim in this case. But we are impressed that they do not in this respect express the spirit of our statutes and decisions.

On the other hand, counsel for the city have cited authorities which support the conclusions here reached. See Dillon on Municipal Corporations, hie et ibi; Lewis on Em. Dom., § 107, 109; Goszler v. Georgetown, 6 Wheat., 593; Brenham v. Water Co. 20 Am. & Eng. Corp. Cases, 247; Aqueduct v. Brookline, 121 Mass., 5; In the matter of Deering, 93 N. Y., 361; Water Works v. Kansas City, 28 Fed. Rep. 921; Rockland Water Co. v. Rockland, 83 Me., 267.

We think the petition does not state a cause of action.

Judgment affirmed.


author: Williams, J.

text:
    The Post Publishing Co. v. Moloney.
    Libel— What is—Privileged publications— What are—Public officers.

    1. To print and publish of a person, that he “is said to have been in the work-house, and to have had a criminal record,” is libelous per se.

    2. Where the defense to an action for libel is, that the publication was privileged, and issue is joined upon the allegations of fact on which the alleged privilege depends, the issue is for the jury, and a refusal to instruct them that the publication was privileged, is not error.
    3. A report of a judicial proceeding, to be privileged, must be an accurate and impartial account of what actually occurred in the proceeding.
    4. While it is the right of the press, as it is of individuals, to freely criticize, and comment upon, the official action and conduct of a public officer, false and defamatory words spoken or published of him as an individual, are not privileged on the ground that they related to a matter of public interest, and were spoken or published in good faith.
    (Decided January 31, 1893.)

      Error to the Superior Court of Cincinnati.
    The petition in the action below, charges that the defendí ant, The Post Publishing Company, published in a newspaper called The Evening Post, having a large circulation in the city of Cincinnati, the following libel, of and concerning the plaintiff.
    “J. J. Moloney—meaning the plaintiff—a third policeman mentioned, is said to have been in the Work House and to have had a general criminal record.” Meaning thereby, as is alleged, “that the plaintiff had been guilty of a crime, had been convicted of the same and incarcerated in the Work Plouse of the city of Cincinnati, which is a prison; and, also, that the plaintiff had a record which showed that he had often committed crime-—-whereby plaintiff was injured in his reputation to his damage,” etc.
    The answer denies the publication of the libel, and contains a second defense which is as follows:
    “ Second—Defendant further says that it is true that it is engaged in publishing in the cit3r of Cincinnati the newspaper known as The Evening Post, a daily paper designed and intended for the publication of all news of a public character, and useful as a matter of public information, and for that purpose has emplo}red reporters, careful and diligent in the collection and verification of news, and enjoined and instructed bjr defendant’s managers to exercise ¿very care as to the truthfulness of matter furnished for publication, and to avoid and refrain from all unjust or malicious statements concerning persons, whether public officers or private individuals. Defendant further says that on or about January —-, 1886, a large body of leading and reputable citizens, known as the Committee of One Hundred, filed charges and specifications against the Board of Police Commissioners, with the Governor of the State of Ohio, and prayed that the Governor should order the removal of said Commissioners from their office upon said charges, which matter -was one of great public concern, in which the citizens of Cincinnati were deeply interested; that among other things constituting the ground of charge against the said Police Commissioners, was that they had appointed to the police sendee unfit persons, who had been accused or convicted of various crimes, which said charges and specifications had been printed and circulated in the daily press, and were matters of notoriety among the people of the community at large; that after the filing and publication of said charges, defendant, with a view of ascertaining and setting out the answer and defense of the said Police Commissioners to said charges, as matters likewise of public interest concerning the citizens of Cincinnati, sent their reporters to the office of said Commissioners for the purpose of obtaining information thereof, and as the result of their inquiries published an article in The Evening Post, setting forth the information which the said reporter had acquired as to such matters of defense, and among othefs, set out the fact that the said J. J. Moloney, plaintiff herein, and referred to in the said charges against the said Commissioners, and publication thereof in the newspapers, had been endorsed and recommended by prominent and leading citizens of Cincinnati for the place and position of policeman on the police force of said city, and upon such recommendation he had been appointed bjr the Police Commissioners; that the said statement contained in said charges, as. to the said plaintiff, were mentioned for the purpose of identifying the policeman referred to in said charges, and, having been so endorsed and recommended by such prominent and respectable citizens, as not only the vindication of the Commissioners, but as his vindication; that said publication as to plaintiff was not' intended or designed, and did not, in fact, endorse or approve of said charges; but, on the other hand, was designed, and such was the effect, to give the defense which was set up in support of his appointment to the position of policeman. Defendant further says that in such publication, which was actuated in good faith by a design and purpose of furnishing to the public, without malice or injustice, the situation and circumstances of a prosecutipn in "which the whole public were concerned, as a matter of news which the said defendant ought or might properly furnish to the people of said city, the said statement set out in said petition was contained, but the additional and explanatory statements of said article were omitted in said petition. Defendant further says that the statement contained and referred to in said petition was a matter of public notoriety, the publication of which in the said Evening Post did not add to the general knowledge thereof by the public.”
    All the allegations of that defense were controverted by reply, except the allegation that the defendant was engaged in publishing The Evening Post, in which the matter complained of appeared. The trial upon the issues joined, resulted in a verdict and judgment for the plaintiff. That judgment was affirmed in the general term of the Superior Court, from which error is prosecuted to this court.
    On the trial, a bill of exceptions was taken, which sets out the testimony, and charge' of the court. The errors assigned are: 1, the admission of incompetent evidence for the plaintiff; 2, the rejection of competent evidence offered by the defendant; 3, the refusal of the court to instruct the jury as requested by the defendant; and 4, the giving oí erroneous instructions to the jurjc These will be more particularly noticed in the opinion.

      Bateman & Harper, for plaintiff in error.
    I. The business, it was shown, belonged to his wife. Any damages, therefore, sustained by it, were damages sustained by her and not by him. An action for such damages could only be prosecuted in her name, under our law, and for her benefit. The injury sustained by him in consequence of the damage to his wife’s business would be damnum absque injuria.

    There is no allegation of special damage made in the petition, and, therefore, none could be proved. 1 Southerland on Damages, 763-6; 765, Note 3; 3 Southerland on Damages, 660; Dicken v. Shepherd, 22 Md., 399; 1 Bates Pleading, 524; Townsend on Slander, 594.
    II. The court excluded evidence of the defendant below tending to show the care that was known to have been pursued by the Committee of One Hundred in verifying the correctness of the list of policemen charged with having been convicts, etc., and its knowledge of that care, as the warrant which defendant had for believing the list and statements concerning it to be correct. If the publication was not a privileged one, defendant is entitled to the testimony in mitigation of damages. If it was a privileged one, plaintiff is entitled to the testimony by way of showing care and probable cause for making the statement. Reynolds v. Tucker, 6 Ohio St., 516.
    III. The court refused the charge asked for by the defendant, that the jury coiild take into consideration the circumstance that the libel complained of was a repetition, in good faith, of the charge made by the Committee of One Hundred, but, on the other hand, did charge the jury that they could not consider that fact even in mitigation of damages; “that it was immaterial whether the libelous matter was affirmed by the defendant or repeated by it upon the authority of- others.”
    Defendant was entitled to the benefit of this circumstance with the jury, for their consideration in mitigation of damages. Edwards v. Kansas City Times Company, 32 Fed. Rep., 814, 819; Townsend on Slander and Fibel, 352, S. 210 and 355, N. 5; Saunders v. Mills, 6 Bing., 213; Skinner v. Powers, 1 Wend., 451; Bennett v. Bennett, 6 C. and P., 588; Vandeveer v. Sutphin, 5 Ohio St., 293, .299; Haines v. Welling, 7 Ohio, 253; Liester v. Smith, 2 Root, 224; Romayne v. Duane, 3 Wash., C. C., 246; Howell v. Pioneer Press, S. C. Minnesota, 1876; Williams v. Greenwald, 3 Dana, 432; Davis v. Cutbush, 1 Fost. and F., 487.
    IV. The court charged the jury that the publication made was not a privileged one and refused the charges asked for by defendant that it was a privileged publication. What we claim in this case, is that the citizen has the same right of discussing, in good faith, the conduct of the public officer, that the members of a partnership have of discussing with each other the conduct of their clerks; that the members of an association have of discussing the administration of their affairs; that the stockholders of a corporation have of discussing the management of its business by their agents; and that their communications with each other with respect to that, if made in good faith and upon probable cause, cannot be questioned, either by civil or criminal action. This proposition is fully sustained by the principles upon which the courts have placed, in all cases, privileged communications.
    Townsend on Slander and Ribel, page 351, section 209; Starkie on Slander, 526, sec. 688; Cooley on Torts, 216; Blair v. Burroughs, 23 Raw Bulletin, 180 S. C.; Shurtleff v. Stephens, 51 Ver. 501; Barrows v. Bell, 7 Gray, 301; Farnsworth v. Storrs, 5 Cushing, 412; Bacon v. Railroad Company, 33 N. W. Rep., 180; King v. Patterson, 9 Atl. Rep., 705; George v. Goddard, 2 Fost. and F., 689; Palmer v. The City of Concord, 48 N. H. 211, 216; Smith v. Higgins, 16 Gray, 215; McIntyre v. McBean et al., 13 Up. Can. Q. B., 534; Harrison v. Bush, 5 El. & Bl., 344; Fairman v. Ives, 5 B. & Ald., 642; Tench v. G. W. Ry. Co., 32 Up. Can. Q. B., 452; Stockdale v. Hansard, 9 A. and E. 1; Lawress v. Anglo-Egyptian Cotton and Oil Co., L. R., 4 Q. B., 262; Press Company v. Stewart, 119 Pa. St., 584, 602; Briggs v. Barrett, 111 Pa. St., 404; Ex parte Steinman et al., 95 Pa. St., 220; Wasson v. Walters, L. R., 4 Q. B., 73: Marks v. Baker, 28 Minn., 162; Toogood v. Spyring, 1 Crom. M. and R. , 180; 2 Addison on Torts, 1091; Cooley on Torts, 217; Miner v. The Post and Tribune, 49 Mich., 358; Atkinson v. The Detroit Free Press, 46 Mich., 341; Dickinson v. The Detroit Free Press, 46 Mich., 341; State v. Burnham, 9 N. H., 41; Henwood v. Harrison, L. R. 7, C. P. 622; Terry v. Fellows, 21 La. An., 375; Timberlake v. The Gazette Company, 10 Ohio St., 548; Kane v. Mulvaney, Irish R. ( Com. Pl. ) 462; Harle v. Cathcrall, 14 L. T. ( N. S. ) 801; Turnbull v. Bird, 2 Fost. & Fin., 508; Davis v. Duncan, L. R. 9, C. P.; Purcell v. Sowler, 1. C. P.; Crane v. Waters, 10 Fed. Rep. 619.

      Gerard, Lampe & Stallo, and E. B. Molony, for defendant in error.
    I. The plaintiff below was a public official, serving as a policeman in the cit\' of Cincinnati, honestly, faithfully, and efficiently, when the publication complained of was written and published in the daify newspaper named in the petition. That said publication was wholly false, if not malicious, is not now denied.
    Now consider the first exception: that defendant in error, was permitted by the trial judge to introduce evidence tending to show injury to the boot and shoe business. Why does not that constitute a legitimate element of damage; he and his wife carried on the business together, she attending store while he was working at his trade of molder, and attending the store at night, both putting in their earnings.
    Why was not the plaintiff entitled to at least compensatory damages, if any at all, for loss of trade and subsequent insolvency, so far as the same is directly traceable to his failure in business, and this, too, without an allegation of special damage.
    Suppose, as has been said, Moloney pleaded no special damage other than that set out in the petition as to damage to his reputation; what does that mean? Damage to his reputation in his calling and walk in life. See Constitution of Ohio, art. 1, sec. 11.
    II. There is no doubt of the privilege of a citizen, editor, or newspaper writer, to “ speak, write, or publish his sentiments on all subjects; ” but this privilege is coupled with what might be termed a qualified inhibition, to-wit: “ That he shall be responsible for the abuse of the right. ”
    There is no pretense that the words spoken of plaintiff were true, but the subterfuge resorted to appears to be dual in its nature. First, that it was a case of mistaken identity; and second, that it was in any event a privileged communication, backed up and supported by this self-constituted committee of One Hundred.
    As to the first defense, it is only necessary to say that no effort was made to identify plaintiff below as the party legitimately charged with the offense and reputation imputed to him.
    What is a privileged communication? Is it one sown broadcast over the community, without respect at all to its truth?

      There is no question made by defendant below about the publication in defendant’s paper, of and concerning plaintiff, being libelous, per se', unless the same comes within the province of privileged communications. If it does not, then all the testimony under the pleadings as prepared present proof of damage to plaintiff’s business in a general way. Nothing more was attempted in the court below; nothing more is claimed here.'
    Where a libel is actionable, per se, no special damages need be alleged. Revised Statutes, sec. 5093.
    We take the rule of law to be, that if the one is assailed by a libel, per se, he or she need not plead special damages. The law imputes that to the transgressor. Cincinnati Gazette Co. v. R. M. Bishop, 7 Raw Bulletin, 60.
    There is no doubt but that the presumption of law is that anj'- libelous matter is both false and malicious, and that, therefore, upon the admission or proof of the publication, unless that presumption can be overthrown, damages, as a consequence, must be given and allowed. State v. Smily, 37 Ohio St., 30.
    Plaintiff in error saj^s, and upon this point we entirely agree with it, “that while the criticism of public officers is the right of the people, there is no right to make defamatory charges against such officers. ” But plaintiff .immediately proceeds to attempt an overthrow of this doctrine, the established law in Ohio, by saying it substantially destroys the privilege and its value, and leaves the citizen helpless against the officials. Cincinnati Gazette Co. v. Bishop, supra; Wahle v. Cincinnati Gazette, 4 Bull. 61; Fowler v. Chichester, 26 Ohio St., 9.
    With reference to the charge of the court, excepted to by defendant below, and the special charges asked and refused, we have to say in reply to them, that the observation of the trial judge “that it was immaterial whether the libelous matter.was affirmed by the defendant, or repeated by it-upon the authorit}'' of others,” was elicited by the query as to whether certain qualifying words should be considered in mitigation of damages.

      The refusal of the court upon this point, we respectfully submit, was not error, for it comes clearly within the reasoning and observation of Rex J. in the case last cited.
   Williams, J.

The evidence which the plaintiff in error claims was improperly admitted on the trial, was a statement made by the plaintiff, in the course of his examination as a witness, the substance of which is, that when the article complained of wTas published, his wife was carrying on, in a small way, the shoe and clothing business in the city of Cincinnati, but he did not know that the business was injured by the publication. The objection now made to the admissibility of that evidence is, that the petition contains no allegation of damage to the'plaintiff’s business, and injur j- to that of the wife, could not be made a ground of recovery bjr the plaintiff, if it were averred in the petition. No particular ground of objection was stated when the testimony was given; and the court admitted it, as shown by the bill of exceptions, “subject to instructions to the jury.” In regard to the damages which might be awarded the plaintiff, if the issues should be found in his favor, the court instructed the jury, that they should “take the plaintiff as he stood at the time of the publication, and consider its effect upon his reputation, and the consequences by way of injury, if any, as they appear from the evidence.”

The evidence to which the objection was made, afforded no basis for estimating injury to the -plaintiff’s business, or that of his wife, or for the assessment of damages on account of either. It was not incompetent, as tending to identify the plaintiff, and show his station in life, and positioii in the community of which he was a member; and, as it appears not to have been allowed any different effect, its admission does not, we think, justify the reversal of the judgment. Fowler v. Chichester, 26 Ohio St., 9.

The exclusion of evidence, which is assigned for error, consisted in sustaining an objection made by counsel for the plaintiff, during the ^examination of a witness called by the defendant. The witness testified that he had something to do “with the preparation of the list of persons—policemen —set out in the charges made to the governor against the police board.” Then, what occurred, including the objection, the action of the court upon it, and the exception thereto, was, as shown by the bill of exceptions, as follows;

Q. {By Mr. Bateman, counsel for defendant) Now, state with what care—or what means you adopted for the purpose of verifying the correctness of the charges made. A. Well, all I had to do with it was comparing the matter which came from the police court records and the committee of one hundred, for the preparation of these charges. First, there came to the committee, and through it to- Mr. McDofigall, just a pencil memorandum of charges against the various officers on the force; that is, a memorandum of the police court record of the charge. Then the committee • were not satisfied with that, and sent and had the police court clerk make out from the records certified copies of every indictment and charge.
“ (Objected to by counsel for plaintiff on the ground that plaintiffs name did not appear in the police court records, and that the testimony is therefore irrelevant.)
“Mr. Bateman—I wish to show the general care taken in the preparation of this list, and the mode in which it was prepared, and that the means adopted as to the correctness of the statement gave reasonable ground for believing that the statements were correct. That the committee of one hundred attempted to make a careful investigation of the matter, and enumerated this name among the balance.
“(Objection sustained; to which the defendant, by his counsel excepts.)”

The plaintiff in error complains, that by this action of the court, it was denied the right to show the care exercised by the committee in making up the list of policemen mentioned in the charges filed with the governor against the police board, which, it is contended, it was competent to prove, as it tended to show the good faith of the defendant, and thus establish that the publication complained of was privileged; or, if it did not have that effect, it was, at least,. proper evidence in mitigation of damages. It does not definitely appear to what particular statement of the witness, the objection was made. It was not interposed until after the witness had made the statement that the committee “had the police court clerk make out from the police court records certified copies of every indictment and charge.” And, as the objection is based upon the ground that “the plaintiff’s name did not appear in the police court record,” and no part of the testimony given was ruled out, it may be inferred, the objection was to evidence of the contents of the records, or of copies of them. However that may be, it appears from the bill of exceptions, that the witness was afterward re-called by the defendant, when his testimony proceeded as follows:

“ Q. (By Mr. Batemari) In view of the statement of Mr. McRae, I will put this question, supposing that the objection to the question has been somewhat changed by the testimony of McRae. I will ask you, Mr. Kemper, whether previously to the filing of the charges, careful examination was made to ascertain whether or not the charges as to the officers enumerated in the complaint filed with the governor were true; and if so, what steps were taken to verify the correctness of that list.
The Court—It has a connection. The objection is overruled and he may answer the question.
A. The question calls for what? (Stenographer reads question.) Well, I know that great care was taken in the preparation of that list, and the committee sent to the clerk of the police court, and had made a certified copy—
“Mr. Gerard—We demand that copy.
“ Q. Now, the question is what the committee did.
“Mr. Gerard—If your Honor please, there is no inference to be drawn here that Mr. Moloney is on that list.
Q. Is that list there? A. It is not in the office; I haven’t seen it for two years.
“ (Counsel 'for defendant objects to the testimony unless the list be furnished them, and upon the witness stating that it cannot be produced, the court rules that all reference to the list must be excluded from the testimonj'-.)
Q. You need not make any reference to the list, but what care and how much time was consumed, and who was employed in endeavoring to get a correct list ? A. I know that great care was taken to get a correct list, and to that end the police court clerk was employed to search the record of the police court and find from these records—
O. I don’t care for that, but how much time was consumed in verifying and ascertaining the correctness and justice of the statements in reference to the policemen ? A. As I said before, my recollection is the charges were in preparation three or four weeks, and I know they were very careful not to put any one in that list except those the charges against whom were good, and sustained by evidence they had searched for and obtained.
Q. They thought they had verified the correctness of the list before the}'— A. Filed the charges with the governor.”

Since the testimony as first given by the witness was not taken from the jury, and the defendant had the benefit of its subsequent repetition, with additions thereto, under the sanction of the court, precisely in what manner the defendant was prejudiced, in any degree, is not apparent.

The bill of exceptions discloses, that when the court had concluded its charge to the jury, the defendant presented to the court, the following special charges and asked that they be given to the jury:

“1. The matter to which the publication in question relates, is one of general public interest, as pertaining to the conduct and qualification of public officers, and is therefore what is known and denominated in the law as a privileged publication; and unless the plaintiff shall establish by competent evidence the existence of actual malice in its publication, the defendant will not be responsible.
“ 2. The jury are authorized, in determining the existence of malice or ill will in the publication, to look into all the circumstances in evidence tending to throw light upon the motive and purpose of the defendant in the publication.
“ 3. The discussion of public questions as affecting the management of public affairs and the conduct of public officers, is the right of the defendant, as it is of every citizen, and its motives in such discussion are presumed to be good until the contrary shall be shown; the burden of proving the existence of malice and bad faith rests upon the defendant. (?)
“ 1. The mere fact that it may have made, in course of such discussion, a mistake in fact or opinion, that may injuriously affect the reputation of an officer, raises no presumption of malice, either in fact or in law.
“5. To entitle the plaintiff to recover, the statement complained of must not only' be falsely, but must be maliciously made, and the mere fact that it was false raises no presumption that it was also malicious, but it devolves upon the plaintiff to prove the existence of actual malice or intent to injure plaintiff on part of the defendant in addition to proof of falsity of the statement.
“ 6. It is the right and duty- of the citizen to watch closely the management of government and the conduct of its officers, and to freely, fairly, and publicly discuss them, and he is not liable, in the absence of actual malice on his part, for any injury' to the reputation of a public officer resulting from statements of opinion or fact made in good faith and upon probable grounds of belief.
“ 7. The existence of charges against a public officer as to his fitness or conduct in office makes it both the right and duty' of the citizen to canvass and examine as to the truthfulness of the charges, and the necessary' measures of relief in case they' should be found to be true. The right to refer to such charges and state them, is involved necessarily in the right to discuss and examine them, both rights being subject always to the limitation that they shall be exercised without malice and in good faith.”

The court refused to give in charge the instructions re., quested, except the 2nd proposition which is as follows, to-wit: “The jury are authorized in determining the existence of malice or ill will in the publication, to look into all the circumstances in evidence tending to throw light upon the motive and purpose of the defendant in making it.” The instructions requested, it will be noticed, consist of a series of propositions, more or less dependent upon eadh other for their full meaning; and the court was requested to give them as a whole. .«Under the well settled rule, if any one of the series contains a proposition that is unsound, it was not error to refuse them all; and some of them, we think, were of that character. For instance, we do not understand it to be the law, as asserted by the first instruction requested, that because a publication containing libelous words relates to a question of public interest, it is therefore necessarily privileged, and casts lipón the plaintiff suing for the libel, the burden of proving actual malice, in order to recover. Whether it be privileged, or not, must depend upon the circumstances of the publication; as well as the language employed. Writers upon the subject, include all privileged publications within two classes; those which are absolutely privileged, and those in which the privilege is but qualified. There are not many of the first class, nor is it desirable there should be. They embrace such only, as are necessary to the efficiency of the public service, and the due administration of justice; and are confined to the business of legislative bodies, reports upon military affairs by officers to their superiors, and judicial proceedings. In such cases the privilege constitutes an absolute bar to the action. The immunity is afforded upon the ground, that it is to the public advantage that there should be no trammel upon the freedom of the conduct of public affairs. This privilege is expressly extended to proceedings of the General Assembly of the state, by the provision of the constitution, that the members “shall not be questioned elsewhere,” for “any speech or debate, in either house.” Publications having a qualified privilege are more numerous, and are those where the privilege arises out of the circumstances of the publication. Good faith in the publication, and the exercise of reasonable diligence to ascertain the truth of its statements are essential to the privilege, which is said to be qualified, because the plaintiff may recover, if actual malice be shown, notwithstanding the existence of the circumstances which would otherwise make the publication a privileged one. Included in this class, are the reports of judicial and legislative proceedings, and communications, which one person is under an obligation to make to another, or in the subject matter of which they have mutual interests. It is not contended that the publication in question was one of absolute privilege; and the facts which the defendant claims made it one of qualified privilege not appearing in the petition, it became necessary to plead them by way of defense. They were so pleaded in the second defense of the answer, and were put in issue by the reply; and being so in issue, it was not within the province of the court to instruct the jury, that the publication was privileged, without regard to what the proof before them might be, or how they might find upon those issues. Whether the facts which gave the publication the privileged character claimed for it, were established by the evidence, was a question for the jury; and they were so instructed. If the facts alleged in the answer were sufficient, in case they were proven, to establish the privilege claimed for the publication, an instruction that if the jury should find them to be true the publication was privileged, would have been unobjectionable. But, in the absence of such facts, the publication was libelous per se, and the plaintiff made out a prima facie case when the publication was proven, for the law presumes that it was false and malicious; and then, it was incumbent on the defendant to enter upon his defense; and so the court, not improperly, we think, charged the jury. The first of the series of instructions -requested, asked the court to assume that the publication related to a matter of public interest, and was therefore privileged; and, if given, would have required a verdict against the plaintiff, unless he proved actual malice on the part of the defendant, and thus relieved the defendant of the burden of proving any of the allegations of its answer, notwithstanding they were distinctly denied. By that instruction, the privilege of the publication is not made to depend upon the good faith of the party making it, or upon a reasonable belief in the truth of its statements, or upon any other fact than that it was of public interest; -while, by the sixth proposition of the series, the court was requested to instruct the jury that the publication was privileged, if made “ in good faith, and upon probable grounds of belief.” The jury could not well have followed both instructions. It is said, however, that the evidence given on the trial, rendered the instructions pertinent and proper. The publication which the plaintiff gave in evidence, containing the libellous matter complained of, omitting the names of persons, and statements concerning them that are not important, is as follows:

THEIR DEFENSE—The Police Commissiofiers will Shift their responsibilities to the Men who Endorsed and Recommended Unfit candidates for the Police.
“An unusual amount of business is just now absorbing the attention of the clerical force of the Police Department, and inquiry develops the fact that Clerk Bender and those under him are engaged in preparing the defense of the Police Commissioners to the charges brought against them by The Committee of One Hundred. The investigation will begin before Governor Foraker, February 3, and hence the bustle. The charges that the Commissioners have appointed unfit and improper men on the police force will be defended upon the basis that the appointments were made upon the requests and endorsements of prominent politicians and business men of the city. Upon these men it will be attempted to shift the responsibility for the re-appointment of the men who have brought disgrace and shame upon the entire police force. The extent and importance of this remarkable endorsement of notorious rogues and criminals bjr respectable and law abiding citizens, for guardians of the lives and property of the people, seems almost incredible, yet nevertheless, the records and petitions filed in the office of the Chief of Police substantiate it. The Commissioners will further claim that the pay of patrolmen— $61. per month—and their duties áre such that bankers, professional men, merchants, etc., can not afford to assume the duties for the compensation. As a consequence prop erty-holders and moneyed men avoid this method of making a livelihood. It is further claimed by the Commissioners that it is impossible for them to have a personal knowledge of every man who applies for a position on the force, and hence thejr. are bound to rely wholly or in part on the character and business standing of those citizens who accompany their official endorsements with importuning personal requests. The Commissioners further claim that when an officer was found incompetent for his place, either through drunkenness or arrogance, and was suspended by them for the same, they would be besieged immediately afterward by the man’s friends, who would both request and demand the reinstatement of the offender, and when a refusal was made, would go away maligning the Commission, and creating a public feeling against them. As examples of recommendations of policemen, alleged to be unfit by The Committee of One Hundred, are the following:
“ J. J. Moloney, a third policeman mentioned, is said to have been in the work-house, and to have had a general criminal record. He was endorsed by Wm. Goodheart, of the firm of Goodheart, Bros. & Co. Third street clothiers, and P. Gilligau.”

The charges agaimg: the Police Commissioners, which were filed with the Governor, by the committee referred to, previous to the publication, contained the statement that the Commissioners had appointed on the police force, and continued to appoint on the force, “a large number of men who are wholly unfit to act as police officers, some of whom are gamblers, some of whom have served terms in the workhouse, in the penitentiary, in the jail, have been inmates in the House of Refuge, some of whom have been keepers of houses of prostitution, and a large number of whom have been discharged by said Board for drunkenness and other offenses repeatedly committed, and have been reinstated notwithstanding said offences. Among the number who have thus been appointed on said force, and who are wholly unfit to occupy said positions, and -whose unfitness and character was known to said Commissioners at the time of their appointment, are the following:”—(Here follows a number of names, among them John J. Moloney.)

It was proven on the trial, that the plaintiff was a policeman of Cincinnati at the time of the publication, and had been for a long time prior thereto; that he' had never been in tlie workhouse, nor 'charged with any crime, or misconduct ; and that his general reputation was good. The evidence also tended to prove that the truth could have been easily ascertained b}' the employe of the defendant who wrote the article, upon proper inquiry, and that he had information of the facts before the article was published. The evidence was relevant to the issues joined by the pleadings, but not such, we think, as to make it error to refuse the instructions which the defendant requested the court to give in charge to the jury. If it be conceded that the inquiry instituted before the Governor, so far partook of the nature of a judicial investigation that a proper publication of the proceedings would be privileged, the privilege cannot be claimed for the article of which the plaintiff complains; for, to be within the protection of the rule, it is necessary that the publication contain an accurate and impartial report of what actually occured, without change or addition; while the publication in this case is not, nor does it purport to be, an answer, or paper presented or use^l in the proceeding, or the report of any step taken in its. progress; but is only what the writer supposed would be filed, and, as .the evidence tended to show, was an incorrect statement of the facts in his possession.

The real ground on which the alleged privilege is claimed in argument is, that inasmuch as the investigation of the conduct of the Police Commissioners was a matter of public concern in the city of Cincinnati, and the character of their appointees on the police force was incidentally involved, the defendant, so long as it was not actuated by malice, had the right to publish as an item of news, and in the public interest, any criticism, comment, or statement concerning the personal character and standing of the plaintiff, as well as his official action and conduct as a policeman. It is said in support of this position, that the press owes a duty to the public, to keep it informed about its public servants, to the end that abuses may be corrected, and the public welfare subserved; and, that the press, in the performance of that duty, is privileged to speak as freely of the private character of the person holding the office, as of his official conduct and character; that the right to so speak of the latter, includes the same liberty as to the former. It is not denied that the right goes to the extent of free and full comment and criticism on the official conduct of a public officer; and there are some cases which maintain the doctrine as broadly as claimed. These cases declare that one who offers his services to the public as an officer, thereby surrenders his private character to the public, and is deemed to consent to any imputation, however false .and defamatory, if made in good faith. We do not think the doctrine either sound or wholesome.' In our opinion, a person who enters upon a public office, or becomes a candidate for one, no more surrenders to the public his private character, than he does his private property. Remedy by due course of law, for injury to each, is secured by the same constitutional guaranty, and the one is no less inviolate than the other. To hold otherwise, would, in our judgment, drive reputable men from public positions, and fill their places with others having no regard for their reputation; and thus defeat the object of the rule contended for, and overturn the reason upon which it is sought to sustain it. That rule has not been generally adopted in this country. Hamilton v. Eno, 81 N. Y. 116; Lewis v. Few, 5 Johns. 1; Curtis v. Mussey, 6 Gray, 261; Barr v. Moore, 87 Penn. St. 385 ; Kimball v. Fernandy, 41 Wis. 329; Sweeny v. Baker, 13 W. Va. 158; Corn v. Wardwell, 136 Mass. 164; Negley v. Farmer, 60 Md. 158; State v. Schmitt, 49 N. J. L. 579; Rearich v. Wilcox, 81 Ill. 77. And the converse of it has hitherto obtained in this state. Seely v. Blair, Wright’s R. 358, 683.

The court instructed the jury that the use of the words “is said,” in the publication declared on, did not affect its libelous character; to which exception was taken by the defendant. No request was made to charge that the use of the words might go in mitigation of damages, and whether they might or not, is not a question before us; they certainly do not make the publication any the less actionable. Haines v. Welling, 7 Ohio, 253.

Other exceptions to the charge are disposed of by what has already been said, and the objections to others of the propositions embraced in the instructions requested by the defendant will be sufficiently apparent without further discussion of them. We find no error in the record, and the

Judgment is affirmed

Dickman and Minshale, JJ., dissent.