¶1Motion is made for a rehearing in this case upon grounds which will be noticed briefly.
¶2I. It is said that to meet the testimony that the letter the plaintiff was charged with having written was his, “he or his friends prepared a number of witnesses to testify in his behalf by furnishing them with what purported to be specimens of his handwriting. Prom these specimens, which they refused to produce, the witnesses thus prepared, testified that they knew his handwriting, and that the letter was not *252his. The defendant’s counsel, on the hearing, urged the impropriety of this practice, and insisted that it was ground for reversal.” And ic is complained that in neither of the opinions was the point noticed.
¶3This Court reviews the rulings of the trial courts so far as they have been specifically objected to. Questions of propriety in the conduct of parties, which have not been brought to the notice of the court below and ruled upon, are not in this Court grounds for a reversal. If any witness in the trial court testified to the plaintiff’s handwriting without being shown to have knowledge of it, it must be assumed that the trial court on motion would have struck out his evidence. If it was shown that he knew the handwriting, the evidence must stand for what it was worth. But if counsel could convince the jury that the witnesses had been “ prepared,” as he claims was the case, it is not likely their evidence would have received much attention.
¶4II. It is complained that the Court took no notice of the exception taken to'the evidence of an expert, who testified that a letter like the one in dispute could be built up from specimens in the hands of a skillful writer. The question which called for the evidence, it is said, was a hypothetical question, and as there had been no evidence that any one had specimens of the plaintiff’s handwriting, there was no foundation laid for asking it. The Court did not consider the objection well grounded in fact, and do not now. There was considerable evidence by witnesses who had seen and possessed specimens of the plaintiff’s handwriting, and his profession and public position would render it probable that many other persons must have had them. No member of the Court had any doubt of the question being allowable, and the ruling complained of was passed by without notice as being so obviously correct as to call for no special mention.
¶5ITT. Two requests for instructions by the defendant, which are said to involve “ all that is valuable in the privileges of the press,” were not specifically given, namely: First, whether in cases where the publication was priv*253ileged, and where it is conceded the plaintiff must prove falsehood and malice, malice may be inferred from falsenood in the absence of any evidence that the defendant knew the publication to be false; second, whether there was any evidence in the case to prove malice. Whether the trial court was right or wrong in not giving these instructions has not, it is said, been decided by this Court.
¶6No court has gone further than has this in upholding the privileges of the press, and very few so far. If there has, by oversight or otherwise, been any failure to recognize and support them in this case, the Court would be prompt to make the correction on its attention being called to the need for it. But there has been no such failure. It is true, there was no-evidence in the case of a malicious purpose on the part of the defendant to injure the plaintiff, but there were proofs from which the jury might infer that the publication was made in entire disregard of the plaintiff’s rights, and from interested motives. The jury drew this inference, and returned a special finding that the publication was made, not-from any motive upon which the defendant was privileged to act, but for “ sensation and increase of circulation.” A false and injurious publication made in a public journal for sensation and increase of circulation is unquestionably in a legal sense malicious. The finding therefore rendered the question whether malice in any other sense might be inferred .from the falsity of the publication entirely immaterial. Neither in morals nor in law is the mercenary publication more defensible than if the purpose were to defame and injure. But in respect to the proof of malice the charge of the trial judge could scarcely have been made more favorable to the defendant than it was. He told the jury over and over again that, the article being privileged, the plaintiff must show “that the accusation contained in the article is untruethat he must “ convince them by a. preponderance of testimonythat it must be “ the kind of testimony which the plaintiff is called upon to produce to the satisfaction of the jurythat “ the article is privileged,*: it is for the plaintiff to remove the privilege, not only by *254showing that the article was untrue, but by proving that it was meant to injurethat if “the plaintiff has failed to prove the untruth of the article, and the maliciousness with which it was published, then, the article being privileged, there would have to be a verdict for the defendant.” The jury could not have failed to understand from the charge that the plaintiff was not at liberty to stop with proof of falsity, but that he mmst give further proof before the jury could be asked to infer malice. The trial judge appears to have been particularly careful and anxious to see that the defendant’s privilege, if he had kept within it, should be preserved to him.
¶7IY. A number of special questions were submitted to the jury, and the judge in submitting them said: “Your answers to these questions must agree with your general verdict. If you should find a verdict for the plaintiff and your answer was really for the opposite party, your answers to the questions will overrule the general verdict, so that you must be careful and try to answer those questions intelligently, and have no conflict between your general and your special findings.” This instruction is said to be erroneous because it leaves the jury to find a general verdict, and then requires them to make their answers to the special questions conform to it; whereas their duty is first to answer the questions, and then give such general verdict as the answer would require. It is quite probable that the trial judge was a little careless in the use of language in this part of his charge, but if counsel considered it liable to mislead, it is to be supposed they would have called attention to it at the time that the judge might make proper correction before the jury retired. That was not done, and the time for making complaint was suffered to go by. Further than this we deem it important only to refer to People v. Murray, post, p. 289 decided at the last term of this Court,’ where a similar objection- was considered and overruled.
¶8Y. The point is now made that one of the members of this Court, who was also one of the majority ml deciding the case, ought not to have participated in the decision, for *255the reason that his son is a member of the partnership of attorneys who were attorneys of record for the plaintiff in bringing the suit. In support of the position, a number of ■cases are cited in which it has been decided that a judge ■cannot sit in a cause in which he has a personal interest, or where he is nearly related to one of the parties. They have no relevancy to the point made, and the point itself presents no question of law. IIow little there is to it in fact, will be apparent when it is stated that neither the son nor his partner ever took any part in the proceedings in this Court, ■or ever appeared before us in the case, and that the record in this Court upon which the case was decided showed very conclusively that the management of the' case in the trial ■court had been in other hands.
¶9YI. The majority opinion in this case was drawn up at the request and under the assignment of the then Chief Justice, after full and careful examination by him of the record, and under an undoubting conviction that the rulings •of the trial judge had been eminently fair to the defendant, and in entire accord with- the previous decisions which this Court had made in protection of the just liberties of the press. The opinion was restricted to a succinct statement cf the conclusions of the Court on such legal questions pre. sented as seemed either novel or disputable, and did not at all digress from them. The record showed that the twelve neighbors of these parties to whom they submitted their controversy and the vindication of their conduct respectively, had begun their investigation of the facts with all presumptions favoring the defendant, and continuing it on this understanding throughout, had closed it with the verdict that the publication complained of was without legal excuse. The judgment which followed was the judgment' of the law, resulting from necessity from the facts thus conclusively determined.
¶10The motion for a reargument of the case will be denied.
¶11Motion for rehearing in this case is based upon two grounds:
¶12*256First. That all the points raised by appellant in the ease were not passed upon by the members of the Court. This is a mistake; full consultation was had upon all the points made, and patient, careful consideration given to each by every member of the Court.
¶13But to be more specific: under the first ground relied upon by counsel for the motion, it is claimed: 1st. Witnesses who had recently seen the handwriting of plaintiff made were permitted to testify that the Brenton letter was not in the handwriting of the plaintiff, against the objection of defendant’s counsel, and that the question thus raised is not passed upon in either opinion filed. All these witnesses testified that they were well acquainted with the handwriting of the plaintiff from knowledge derived from other sources. This made their testimony competent; its weight was for the jury, and the testimony could not be excluded. 2d. An expert was permitted to give his opinion on the part of the plaintiff that a letter might be built up by a skillful penman closely resembling the handwriting of the plaintiff, and this was thought to be incompetent on the ground that it presupposed a hypothesis not in the case. The testimony was not of a character likely to injure, but the defendant’s witness, Ames, had testified substantially that he did not think it possible for a person to produce the Brenton letter, resembling so closely the Wardle letter, and the plaintiff’s testimony did no more than rebut this, and I think was proper. 3d. The third point under the first ground relates to the vital questions in the case, which were the subject of much discussion among the members of the court; and I have nothing to add to the opinion I have already filed in the case upon those subjects. 4th. The practice of submitting specific questions with the judge’s charge, to be answered by the jury, and the duty of the trial judge in submitting the same, has several times been before the Court. There is a difference of opinion among its members upon this question. I have heretofore given my views upon the subject as applied to this case, and do not desire to add anything further.
¶14*257While it must be regarded as -the imperative duty of the Court to consider and pass upon any point properly raised and presented for discussion by counsel in every case, I do not, think it useful, necessary or desirable that every question raised should be discussed in the opinion. The amount of business required to be done by the Court and the interest of litigants forbid such a practice.
¶15The second ground relied upon by defendant’s counsel raises no question of law, and need not be considered.
¶16The motion should be denied.
¶17Inasmuch as I was not a member of this Court when this cause was heard, I had intended to take no part in the determination of this motion; but the retirement of one of the judges, and the refusal of another to sit or take part in the decision, seems to render it necessary for me to examine the case and form an opinion of its merits.
¶18Accordingly, I have considered the brief and argument submitted by the counsel for the defendant, and upon investigation of the record and consultation with my brethren, I am satisfied that all errors alleged to have been committed by the trial court, prejudicial to the defendant, were fully considered and passed upon by them, and I therefore concur with my brothers Cooley and Sherwood in the conclusion reached that the motion for rehearing should be denied.
¶19did not sit on the hearing of this motion, or participate in its decision.