SHATTUC V. M'ARTHUR.
It is contended in support of the assignment that if the preference in favor of Bates & Barrett was illegally made, it was a mistake, within the meaning of the assignment law of the state, that ought not to vitiate the assignment. The statute (section 1697, Rev. St. Wis.) provides that within a prescribed time after the execution of an assignment the assignor sball make and file an inventory of his assets and a list of his creditors, etc.; that a failure to make and file such inventory and list shall render such assignment void; and then de. clares that "no mistake therein shall invalidate such assignment or affect the right of any creditor." The supreme court of the state, in Farwell v. Gundry, 52 Wis. 268, S. C. 9 N. W. Rep. 11, held that this includes mista.kes of law; and so it is urged that if the preference in question was unauthorized by the statute, it was but a mistake of law to make it, and ought not, therefore, to vitiate the assignment. But this position is wholly untenable, because the preference is declared in the assignment itself; it is an integral part of that instrument, and it is to be observed that the mistake spoken of in the statute is a mistake in the inventory of assets and list of creditors, which are not part of the instrument of assignment, but are made and filed as steps in the statutory course of procedure subsequent to the execution of the assignment. On the whole, the conclusion must be that the preference in favor of Bates & Barrett was illegal, and invalidated the assignment as to the plaintiff creditors; and they will have judgment against the garnishee defendant for the amount of their demand.
and another. l
October 1, 1885.)
(Oircuit Oourt, E. D. Missouri.
LIBRL-STATElIfENT CAI,CUI,ATED 'ro BRING INTO CONTEMPT.
A written or printed statement. calculated to expose a person to the con. tempt of honorable men is libelous. .
SAME-ACCUSING GENERAL PASSENGER AGENT OF DIVIDING COMMISSIONS WITH LOCAl, TICKET AGENTS.
A statement that a general passenger agent of a railroad company," has grown rich by making his local ticket. agents, or some of them, divide their commissions wit.h him," held to come within the rule.
SAME-REASONABLE GROUNDS TO BI'LIEVE STA'l'EMENT TUUE.
It is no defense to a suit for libel that the defendant. had reasonable grounds to believe t.hat his statement was true, but it may be shown in mitigation of damages.
Provocation may be shown in a libel suit.in mit.igation of damages; but it is no defense.
PRACTICE-UNLIQUIDATED OVER ANSWER.
In a suit for unliquidated damages judgment cannot be entered over an an· swer disclosing no defense but stating matters in mitigation.
Reported by Benj. F. Rex, Esq., of the St. Louis bar. See note at end of case.
Motion for J uc1gment on the Anawer.
Krli,m J; Jones and Garland Palla·rd, for plaintiff. Dyer, Lee d; Ellis, for defendants. BREWER, J., (orally.) This oase is for libel, and $50,000 damages are olaimed. It is insisted that the answer oontains no defense, and
that, therefore, plaintiff is entHled to judgment over the answer. Teohnioally, I think his motion oannot be sustained unless the plaintiff is willing to take simply a judgment for nominal damages, whioh I suggested to him, and which is not desired. A judgment is the final determination of the rights of the parties. If an action is on a oon· traot where the damages are liquidated and oertain, and no defense is set up in the answer, then, doubtless, suoh a motion would prevail, and the oourt would enter judgment for the amount due, as disolosed by the petition. But where the damages are unliquidated and uncertain, then, although a good cause of action be stated in the petition, and no defense disclosed by the answer, still the damages, being unliquidated, must be assessed upon inquiry, and until they are determined no judgment can be entered. I might stop here; but, as counsel have discussed the merits of'the pleadings, perhaps it may not be improper to go fudher and say how they impress me. The libel charged is this: that "Mr. Shattuc [the plaintiff] has grown rich by making his local ticket agents, [meaning the local ticket agents of the Ohio & Mississippi Railway,] or some of them, divide their commissions with him." The petition alleges that Mr. Shattuo is the general passenger agent of such railway company. Now, even with the explanation tendered in the answer as to the meaning and general understanding of that charge, I think it is libelous. It may be true, as stated, that, to the general knowledge of the public, the local ticket agents are paid salaries by their employer, the railroad oompany, for all work done for it, and that beyond that, with the tacit approval of their employer, they are in the habit of selling tickets for other companies on commission, and that all that was meant, or understood to be meant, was that this plaintiff shared those commissions; and although suoh a charge is not of an unlawful act, yet it is one that it seems to me exposes the plaintiff to the con,tempt of honorable men, and thus comes within the definition of libel. The suggestion is not that by some arrangement between the company (the employer) and the various ticket agents (the employes) a part of the plaintiff's compensation should be derived from the sums thus received by these sub.agents, but it is that he "has grown rich by making them divide their commissions." The idea conveyed,the natural understanding of. the words,-was that the plaintiff in some way used his official position and oontrol over those sub·agents to compel a division of the moneys which they had earned. Now, I think no honorable man would approve of such conduct as that. The man that is burdened with a charge of that kind is plaoed before the world exposed to the oontempt of honorable men. Take a similar instance.
We all know that in the management of Pullman sleepers the porters are permitted to receive gratuities from passengers for the little s,ervices that they render. If any local superintendent should coerce the porters to divide those little gratuities with him, shpuld make their hirmg con!litioned upon their dividing those gratuities, it would not be illegal, but yet I think every honorable man would feel that it was discreditable; and so in this matter, when you charge that a general agent coerces local agents to divide sums which they have earned by their services, it seems to me you are charging upon him that which exposes him to general contempt. The anBwer, I think counsel practically concede, makes no defense to the action. While there is a general denial, yet it subsequently admits the publication. It does not justify it,-does not say that the charge is true,-but it sets up a series of matters which are merely matters in mitigation. It alloYS that the defendant had reasonable grounds to believe that the charge was true. Concede that; that may go in mitigation of damages, but certainly that is no defense. A man may have reasonable grounds to believe that one of the judges of this court is corrupt in office. If he makes flo direct charge to that effect, his belief does not make it true, or any the less a libel. It may go to the jury, and influence them in mitigating damages which should be awarded against him. So, when this charge, libelous in its nature, is made against a general passenger agent, it is no defense to the action that the party believed it to be true, and so did not act through malice. It goes only in mitigation of damages. So the fact that the plaintiff had made prior newspaper charges against the defendant is no defense. I do not understand that you can defend one tort by proving a counter-tort. You cannot defeat an action for one libel by proof that prior to that time the plaintiff himself libeled the defendant. This answer, so far as all tbe charges that are said to have been made by the plaintiff are concerned, is not of matters germane or kindred thereto, or in explanation or refutation' of them, but is a distinct charge of an independent matter; and, while provocation may be shown in mitigation of damages, yet only in mitigation. Now, it would be idle to strike out this answer, because, although it sets up nothing but matters in mitigation of damages, yet if it was stricken out and inquiry had before a jury as though no answer were filed, these matters could be offered in evidence; and so it would be purely a work of supererogation to go through the form of striking out the answer. The motion for judgment over the answer will be overruled.
NOTE. Slander and Libel-Actionable Word". 1. WORDS ACTIONABLE PER BE. Any article that holds a person up to scom and ridicule, contempt, and execration, or imputeR or implies the commission of a crime not openly charged, is. Crocker v. Hadley, 1 N. E. Rep. 734; Bradley v. Cramer, 18 N. W. Rep. 268. The fact that the article is in a foreign language does not prevent it being actionable per Be. Kimm v. Steketee, 12 N. W. Rep. 177.
Words intended to expose a person to public contempt, hatred, and ridicule, and to deprive him of the benefit of public confidence and social intercourse, are actionable per se, Call v. Larabee, 14 N. W. Rep. 237; such as circulating han.d-bills a !,erson with larceny is actionable per se, Bowe v. Rogers, 7 N. W. Rep. 547; charging a Illan with a "hog," is. Solverson v. Peterson, 25 N. W. Rep.l4. Accusing a married wOlllan of being a prostitute, Klewin v. Bauman, 10 N. W. Rep. 398; or charging that" sheis slow-poisoning her husband," Campbell v. Campbell, 11 N.'V. Rep. 450; words charging commission of an indictable felony or misdemeanor, West v. Hanrahan, 10 N. 'V. Hep. 415; Geary v. Bennett, ld. 602. But charging one with" bearing down" when defendant's stock was weighed, and" lifting up" when plaintiff's was weighed, are not actionable lmless it he also charged that plaintiff was weigh-master, or in some way interested. Wilkin v. Tharp, 8 N. W. Rep. 467. And it has been held that charging a person with having sworn falsely in a lawsuit is not. Schmidt v. Witherick, 12 N. W. Itep. 448. A publication in newspaper falsely charging one with the commission of crime, is. People v. Detroit Post & Tribune Co., 20 N. W. Itep. 528. And a publication in writiw(, though not charging a public offense, is nevertheless libelous if it falsely and maliciously tends to produce such an impression. Bradley Y. Cramer, 18 N. W. Rep. 268. And where a railroad company, through its superintendent, assigns as a reason for the discharge of an employe a criminal act, it is actionable. Bacon v. Michigan Cent. R. Co., 21 N. W. Rep. 324. (1) Words Resper:ting Busin-ss Men and MlJT'chants. Words which impute to a merchant a want of credit or responsibility, or insolvency, past, present, or fnture, are. Newell v. How, 17 N. W. Rep. 383. Every publication in writing or in print, which charges upon or imputes to a merchant or business man insolvency or bankruptcy, or conduct which would prejudice him in his business or trade, or be injurious to his standing and credit as a merchant orbnsiness nian, is. Erber v. Dun, 12 1>'ed. Rep. 526. An article in print, depreciating a merchant's or tradesman's wares, and charging him with counterfeiting genuine articles and their labels, is. Kimm v. Steketee, 12 N. W. Rep. 177. Where a bank cashier returned draft sent for collection with these written words, "We retnrn nnpaid draft, [describing it;] he [drawee] pays no attention to notices," in action against the cashier for libel it was held that the words do not impute to plaintiff (drawee) any want of integrity, and are not actionable per se. Platto v. Geilfuss, 2 N. W. Rep. 1135.
(2) Words Regarding Projessional Men. Defamatory words spoken or written of one in his profession are actionable PIJT' se. Pratt v. Pioneer Press Co., 20 N. W. Rep. 87. (a) Regarding Lawyers. Charging an attorney with ., betraying and selling innocence in a court of justice," is. Ludwig v. Cramer, 10 N. W. Rep. 81. (b) Regarding Physicians. Where the words employed in a publication in a newspaper, in stating the conduct of a physician in a particular case, only impnte to him such norance or want of skill as IS compatible with the ordinary or general knowledge and skill in the same profession, they are not actionable per se,. but where they are such as fairly impute to him gross ignorance and unskillfulness in such matters as men of ordinary knowledgp and skill in the profession should know and do, then they necessarily tend to bring such physician into public hatred, ridicule, or professional disrepute, and ,ire actionable plJT'se. Ganvreau v. Superior Publishing Co.. 22 N. W. Rep. 726. Publishing in a newspaper, in the" want" column, the words, "Wanted, E. B. Zier, M. D., to pay a drng-bill," are llOt actionable per se, Zier v. Hoflin, 21 N. W. Rep. 862; but may become so from the circumstances under which they are published. ·Woodling v. Knickerbocker, 17 N. W. Rep. 387; Zier v. Hoflin, 21 N. W. Rep. 862. (c) Regarding Newspaper Men. Falsely charging an editor with being drunk may be. State v. Mayberry,6 Pac. Itcp. 553. Charging a publisher wiLh being a party to a secret conclave, in which he, the publisher, sold the support and advocacy of his said newspaper to a certain corporation for a large sum of money, is actionable PIJT' se. Fitch v. De Young, 5 Pac. Rep. 364. (3) Words Respecting PUblic Officers and candidates jor PUblic Offices. A charge of embezzlement, made in good faith against a treasurer of city or county, who is a candi'date for re-election, is not actionable PIJT' se. Marks v. Baker, 9 N. W. Rep. 678. A puhlication which charges that a person, while formerly holdiug the office of sealer of weights and measures, and inspector of scales, for a certain city, "tampered with" or "doctored " such weights, measures, and scales for the purpose of increasing the fees of his office, is actionable PIJT' se. Eviston v. Cramer, 3 N. W. Rep. 392. (4) Words Spoken or Written by Mercantile Agencies. A statement made in good faith by a mercantile agency to one of its subscribers, interested in' the information, respecting the respomibility and business standing of a merchant, is not actionable per se. Erber v. Dun, 12 Fed. Rep. 526; Trussell v. Scarlett, 18 Fed. Rep. 214. But statements made respecting the business or character of a merchant in the" daily notification sheets" sent out'to the subscribers of a mercantile agency, irrespective of their interest therein, are. Erber v. DUll, 12 Fed. Rep. 526.
SHATTUC V. !>1'ARTHUR.
(5) Malice, Hatred, Ill- Vlill, etc. Willful publication of injurious statements lnvolveg the desill;n to produce whatever injury must necessarily follow, and when done purposely, knowingly, and for no good purpose,ois not justifiable, and itis malicious in the sight of the law, even if done without any personal ill-will, and actionable. v. Scripps, 17 N. W. Rep. 815; Maclean v. Scripps, 18 N. W. Rep. 209. A false and injurious publication in a public journal" for sensation and increase of circulation" is, in a legal sense, malicious. Maclean v. Scripps, 18 N. W. Rep. 209. A communication otherwise privile,ged, if made with malice in fact, or through hatred, ill-will, and a malicious de,sign to injure, is not privileged, and is actionable. Erber v. Dun, 12 Fed. Rep. 526. 'W1lere a person prints and circulates a statement which imputes to a merchant or other busincss man conduct which is injurious to his character and standing as a mercllallt or business man, it is a libel, and implies malice. Locke v. Bradstreet Co., 2:3 Fed. Rep. 771. (6) Construction. In determining whether words are actionable per Be they are to be taken in the sense in which they would naturally be understood by those who heard or read them. Campbell v. Campbell, 11 N. W. Rep. 456; Bradley v. Cramer, 18 N. W. Rep. 268. Innuendo canuot enlarge the meaning of words in publication, but merely POillt out their application of facts previously alleged. Bradley v. Cramer, 18 N. W. Rep. 268. 2. PRIVILEGED COMMUNICA'fIONS. The rule is that a commulllication ,made in good faith, upon any subject-matter in which the person communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty, is privileged. Marks v. Baker, W. Rep. 678. A communication is privileged, within the rule, when good faith in answer to one having an interest in the information sought; and it privileged, if volunteered, when the party to whom it is made has an interest in it, and such party stands in such relation to him as to make it a reasonable duty, or at least propel', that he should ,give the information. Crane v. Waters, 10 Fed. Rep. Dun, · 12 Fed. Rep. 526; Locke v. Bradstreet Co., 22 Fed. Rep. 771. Where the SUbject-matter of the communication is one of public interest in the community of which the parties to the suit are members, it is sufficient to make the communication priVileged. Marks v. Raker, 9 N. W. Rep. 678. Written information as to the standing of a merchant or business man, furnisl)eJ by a mercantile agency to its subscribers voluntarily, or in answer to inquiries fr011l them, is a privileged communication. Locke v. Bradstreet Co., 22 Fed. Rep. 771. , A corporation carrying on the business of a mercantile agency is not exempt from legal responsibility, and is subject to the same rules of law as other persons who have It just occasion for making statements which are charged to be libelons. Locke v. :j3l'adstreet Co., 22 Fed. Rep. 771. Where, in publishing an article which tends to injure a merchant or bnsiness man, as snch, the author or publisher acf.f>d in the bonafide discharge of a public or private duty, legal or moral. or in the prosecution of his own rights and interests, that which is communicated in writing, under such circumstances, is a privileged communication, unless actuated by malice. Locke v. Bra.d8treet Co., 22 Fed. Rep. 771. False charges, made with improper motives or express malice, are never, privileged. Eviston v. Cramer, 3 N. W. Rep. 392; Weiman v. Mabie, 8 N. W. Rep. 71; Locke v. Bradstreet Co., 22 Fed. Rep. 771. Statements made to a prosecuting attorney, whose office and duty is to preseHt and prosecute all crimes and offenses. are privileged. Vogel v. Gruaz, 4 Sup. Ct. Rep. 12. So, also. t;10SI' made in affidavits to pleadings and papers used in a court of justice are "privileged, provided they are not irrelevant and impertinent. Hart v. Baxter. 10 N. W. ReI', 198. And the statements contained in an affidavit presented to a superintendent of schools for the purpose of preventing a tcacher's license being granted to a particular person, charging such person with improper conduct, are privileged. Weiman v. Mabie, 8 N. W. Rep. 71. Public writers and speakers may discuss men and measures in speaking of matters of public interest, provided only they do so in good faith. Crane v. Waters, 10 Fed. Rep. 619. Publication and circulation of an article, although not true, in good faith. among voters, to inform them of the character of a candidate for a pnblic office. and enable them to vote more intelligently, is privileged. State v. Balch, 2 Pac. Rep. 609. 'Whether an alleged libel is within the protection afforded to a privileged communication is a question of law. Locke v. Bradstreet Co., 22 Fed. Rep. 771. It is for thejury to determine whether a privileged communication is defamatory and actuated by malice. Id. St. Minn. JM. M. KERR.
UNITED STAT.uS 'V.
October 12, 1885.'
(Oircuit Oourt, D. New JerBey.
INTERNAL REVENUE-NOTES USED 'FOR CIRCULATION AS MONEY.
In an action under section 19 of the act of February 8, 1875, (18 St. 311,) In orderto render the defendant liable it must be shown '.hat he intended to.put his notes in circulation as money,and paid them out for that purpose, but in showing such intention, his declarations when he paid out the notes is not the only proper evidence thereof, and it is not error to instruct the jury that paying out the noles, knowing that they would be used and circulated as money. is evidence from which they may infer the intention to pay them out for that purpose.
SAM&-AssESSMENT 011' TAXES BY COMMISSIONER BEFORE SUIT.
In such an actio" recovery may be had without an assessment of the taxes by the commissioner of internal revenue.
SAME-AMOUNT 011' N OTEIl.
That the notes were under the amount of one dollar each will not prevent their being taxable.
SAME-NoTEB REISSUED TAXABLE.
Where the notes when taken up are reissued, every such iRsue is a new issue thereof, lind becomes a part of the amount of the notes so used for circulaLion. and Subject to the tax.
In A8sumpsit. A. Q. Keasbey, U. S. Dist. Atty., for the United States. S. H. Grey, for defendant. BRADLEY, ,Justice. A writ of error to the district court has been brought by each party in this case. The plaintiff recovered a judge ment for $463.31, Qut, being dissatisfied with the smallness of the amount, brought its writ to procure a reversal on that ground. The defendant brought his writ for a reversal of the entire judgment. The action was by the United States to recover taxes alleged to be due from the defendant and his former partner, constituting the firm of Warrick & Stanger, for using and paying out their notes as currency. The tax was claimed under and by virtue of the nineteenth section of the act entitled "An act to amend existing customs and internal revenue laws, and for other purposes," approved February 8, 1875, (18 St. 311,) which section is as follows: "That every person, firm, association, other than national bank associations, and every corporatioll, state bank, or state banking association, shall pay a tax of ten per centum on the amount of their own notes used for circulation and paid out by them." Warrick & Stanger were glass manufacturers at Glassboro, Gloucester county, New Jeraey, and in 1877 and subsequent years issued their notes in variolls amonnts from five cents to five dollars each, in payment of wages due to their hands, which notes were in the following form;