of the election, and calculated to demoralize the party, and consign two of its candidates to certain defeat. As the organ of its party it was the duty of the Post to do its utmost, and at once to remedy the mischief, and it was with this view alone, and not with any desire to injure Mr. Moore personally, that this article was written.

Plaintiff's counsel, Mr. Moore being on the stand, asked the witness if he had seen articles of the same tenor and character in the Post subsequent to the one declared on as libellous in the next ten days or two weeks. Objected to as incompetent and irrelevant, and also on the ground that the best evidence of publication was the newspaper itself. Objection overruled and evidence admitted. Exception. Witness answered the question in the affirmative. Mr. Barr afterwards, when called for the defence, contradicted this assertion, stating that there were no subsequent publications of like tenor and effect as the one in question, nor in any way confirmatory of it, excepting one or two communications and answers thereto, denying Mr. Moore's right as chairman of the county committee to interfere in city elections.

The plaintiff presented, inter alia, the following point: (2)That the publication charged in the declaration is libellous per se." Affirmed. Defendants presented, inter alia, the following points:

(3) That if the jury believe from the evidence the plaintiff was chairman of the Democratic county committee, and as such caused to be published in the Leader the card given in evidence, his acts, conduct, and publication of said card in that capacity were proper subjects for public information, and open to criticism by defendants as editors and publishers of The Post; and if the jury further finds from the evidence that the defendants without malice, in fact from good motives, and with probable cause to believe the charges contained in the alleged libellous article were true, published the same, such publication is in law privileged, and plaintiff cannot recover. Refused.

(6) That if the jury believe, from all the evidence in the case, that the defendants published the articles contained in The Post given in evidence without malice in fact, or personal hatred towards the plaintiff, and had probable cause to believe he had, under certain circumstances of suspicion, induced by his acts, conduct, and authorship of the card published in the Leader, violated his duty as chairman of the Democratic county committee, and by reason of his conduct as aforesaid, had placed himself in a position to warrant the belief in the mind of a cautious person that he was guilty of the acts charged against him in said article published by them, there should be no recovery by the plaintiff. Refused.

(9) If the Court should be of opinion, from all the evidence in this case, that an indictment would lie against the defendant for the publication of the alleged libellous article, then by reason thereof vindictive damages cannot be awarded by the jury. Refused.

(11) That as matter of law, under all the evidence in this case, vindictive or exemplary damages cannot be given by the jury, the evidence not showing a case warranting the jury to find the same. Refused.


The Court charged the jury, inter alia, as follows: "Whilst it may be justly claimed that the publication of the plaintiff's article was, under the circumstances, well calculated to provoke a swift and sharp reply in terms calculated to counteract its real or supposed evil effect, the publication complained of goes beyond this, and assails the personal character of the plaintiff in a way that was uncalled for. . . . Accordingly we are asked in this case to say that the article complained of is libellous, and we instruct you as matter of law that it is. It cannot be regarded as a privileged communication, its publication cannot be justified or excused, and inasmuch as its tendency was to injure the reputation of the plaintiff, we are of opinion it is libellous and actionable, and that your verdict should be in favor of the plaintiff. The amount which he is entitled to recover is a matter solely for your determination under the evidence before you. . . . While compensation simply is ordinarily the measure of damages in libel, there are cases in which vindictive or exemplary damages are justifiable and proper. Where the evidence shows that the wrongful act complained of was accompanied by circumstances of aggravation, where there has been express, wanton, or unmitigated malice on the part of the wrongdoer, the jury may, in assessing damages, go beyond simply compensation to the injured party, and in addition thereto give such exemplary damages as the circumstances of the case may appear to warrant." "Whether the present is a case in which you should give exemplary or vindictive damages or not, we are not called on to express or intimate any opinion."

Verdict and judgment for plaintiff for $3000. Defendants took this writ, assigning for error the admission of the evidence objected to, the answers to points, and the portions of the charge given above.

John H. Hampton and R. M. Gibson (with them John Dalzell, H. W. Wier, S. Schoyer, Jr., L. C. Schoyer, and A. K. McClure), for plaintiff in error.

The political character of the controversy distinguishes it from ordinary cases of libel. There is no instance where damages have been given in our courts for the publication during a heated campaign of what was only a political lampoon,

especially where the party claiming damages was the first to assault the adversary. The case brings up the question, how far writers may spread before the public the acts, conduct, and opinions of persons, who, though not public officers strictly, yet occupy positions which bring them in direct contact with the public.

Art. 1. Sec. 7 of the Constitution seems to recognize this classification. It declares: "No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers, or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury." This clause has recently been construed in several cases before the Quarter Sessions of Philadelphia to be an extension of the privilege of the press beyond public officers properly so called to all those who assume to act in a public capacity, draw public attention, and put themselves in a relation to the community that a private citizen does not. It was ruled that those occupying such positions are subject to fair report and criticism, and those who speak of them are held only to an abuse of the privilege they are entitled to enjoy under the clause.

Commonwealth v. McClure, 3 WEEKLY NOTES, 58.
Commonwealth v. Taggart, Q. S. of Philadelphia Co.,
1878 (unreported).
Commonwealth v. World, Id.

If a party sought to be charged with damages in an action for libel can successfully bring himself within the requirement of the section, and prove what will acquit him on an indictment, this ought to entitle him to a verdict in the civil court. There cannot in principle be any reason why there should be one rule in the criminal court where he is indicted and another in the civil court, the libel charged being the same in

the indictment and the declaration.

Moore voluntarily subjected himself to public scrutiny by his card, published over his name as a leader of his party. He sought to influence public opinion, and the Court should have charged as requested, that if defendants published their reply, not maliciously or negligently, there could be no recovery.

Kinyon v. Palmer, 18 Iowa, 377

Edwards v. Chandler, 14 Michigan, 475.
Detroit Daily Post v. McArthur, 16 Michigan, 484.
Kelly v. Sherlock, Law Rep., 1 Qu. B. 656.
Kelly v. Tinling, Id. 699.

an indictment will lie for an alleged libellous article, vindictive damages cannot be awarded. Austin v. Wilson, 4 Cushing, 273.

If a person in a public capacity so misbehaves himself as to create a belief that he is acting contrary to his duty, he cannot recover damages from those who, without malice, publish what they believe of him.

As a matter of law the Court was bound to instruct the jury whether the case was one for vindictive damages or not.

Rose v. Story, 1 Barr, 197.

Amer v. Longstreth, 10 Barr, 148.
Forsyth v. Palmer, 2 Harris, 96.
Seely v. Alden, 11 Sm. 302.
Stanfield v. Phillips, 28 Sm 75.

It was clearly error to allow plaintiff to testify that other articles of the same tenor and character had been published by defendant without producing the newspaper containing them. The memory of an interested witness is not to be taken for that which is written or printed, especially when the very language used is to be construed by the Court.

T. M. Marshall and M. Swartzwelder, con


That the Court was right in ruling this publication a libel per se, see—

Pittock v. O'Niell, 13 Sm. 253, and cases therein cited.

It cannot be necessary to cite authority that the fact of a citizen occupying political prominence is no excuse for the publication of falsehood against his private and professional character.

A libel may be defined to be any malicious publication, written, printed, or painted, which by words or signs tends to expose a person to contempt, ridicule, hatred, or degradation of character. (Runkle v. Myer et al., 3 Yeates, 518; McCorkle v. Binns, 5 Binn. 340; Pittock v. O'Niell, 13 P. F. Smith, 258.) In 1st Amer. Lead. Cases, 116, after citing many English and American cases, the learned authors say: "Upon a consideration of the various cases on the subject, we may conclude that any publication inju

Chapman v. Calder, 2 Harris, 365.

It has been ruled in Massachusetts that, where rious to the social character of another, and not

Nov. 18, 1878. THE COURT. This was an action to recover damages for the publication by the plaintiffs in error of an alleged libellous article. It appeared in the daily newspaper of which they were the editors and proprietors. The plea admits the publication, and without averring any fact therein charged to be true, substantially claims, that, inasmuch as the defendant in error was Chairman of the County Committee of the Democratic party, his acts in such capacity were a proper subject for investigation and information, and, as their article was in answer to a certain publication made by him, the alleged libellous article was proper for publication, and therefore they had a right to publish it. The first assignment of error is to the Court having instructed the jury that the publication of the article charged in the declaration was libellous per se. Did the Court err in so instructing?

shown to be true, or to have been justifiably | tion for the fierce onslaught made upon him. It made, is actionable as a false and malicious libel." goes far beyond answering, refuting, and deny Passing then to the publication complained of, ing everything averred or intimated in the publi we find it reads, "AN IMPOSTOR. A man who cation made by him. His publication proclaimed resides in Allegheny City, named W. D. Moore, to the Democrats of the city of Pittsburgh that and who subscribes himself as Chairman of the their candidate for Controller was ineligible to Democratic County Committee, appeared in yes- that office under the city ordinances, and that at terday's Sunday papers in a card addressed to the a late preceding election for the office of State Democratic voters of the city of Pittsburgh, for Treasurer he had actively and openly supported the writing of which he was paid a fee by the the opposition candidate, and opposed the nomiRing, and the publication of which was paid for nee of his own party, and he notified the Demoout of the corruption fund of the McCarthy-crats of Allegheny City that they had no DemoMcGee-Snodgrass Ring; in which the impudent cratic candidate for Mayor, nor was any man impostor attempts to dictate to the Democratic running who was entitled by the usages of the voters of this city. This man, Moore, is in the party to call himself their representative. Alpay of the Ring, and the fact does not surprise though this publication may have been in bad us in the least, when we reflect that he has de- taste or even unjustifiable towards his party, and scended from the high calling of a clergyman to towards the one candidate nominated, and the the recognized champion, and professional de- other adopted and supported by it, yet it did fender of prostitutes and the lowest grades of not necessarily reflect on the moral character or criminals who throng the audience halls of our integrity of either of them. police and criminal courts, and he seems to follow his profession solely for the purpose of making money, and his opinions are moulded by the extent of his client's means to pay. The money of the Ring, the money of the prostitute, and the money of the libertine and burglar is all alike to him, if he is only intent on making money. Does the man Moore fancy that because he has bartered himself away, that he has sold and transferred a single Democrat in fee simple to the Ring robbers?"

It needs no labored argument to prove that this language tended to expose the defendant in error to contempt, hatred, and degradation of character. He is thereby charged with corrupt and mercenary acts as Chairman of the County Committee, with being the recognized champion of prostitutes and the lowest grades of criminals; and substantially that his professional opinions, as an attorney of the courts, are not given with integrity and good faith, but are moulded and prostituted according to the amount of money he receives therefor. It impliedly charges a wicked and corrupt disregard of his official oath to behave "with all good fidelity as well to the Court as to the client.' "It also strikes at his integrity as a man and tends to degrade his social standing as a citizen. It would be difficult to charge a more disreputable course of conduct or to present a darker picture of professional character. The learned Judge was clearly right in holding the publication of the article charged in the declaration to be libellous per se.

If the answer of the plaintiffs in error had kept within the bounds of truth, if by their plea they had averred the truthfulness of the facts which they alleged, and sustained that plea by evidence, a different case would be presented. They put in no such plea. They gave no evidence to sustain their allegations, nor could they, under the pleadings. Practically they admitted the charges made in their publication to be untrue. Although they were false in fact, yet it is urged that the article was so far a privileged communication, as to protect the publishers thereof against this action. To support this position they invoke the aid of Art. 1. Sec. 7, of the Constitution of 1874 which declares "no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury.


In answer, we say this clause refers only to attempted "conviction" in a "prosecution," and in no wise applies to a civil action to recover damages. It would be a clear perversion of language to extend it to any case other than a "prosecution" in which a "conviction" is sought. It manifestly refers to the trial on an indictment for a libel.

The liberty of the press should at all times be justly guarded and protected; but so should the reputation of an individual against calumny. The The defendant in error was not a candidate for right of each is too valuable to be encroached on any office. Conceding his action as Chairman by the other. Hence another part of the section of the Democratic County Committee to have just cited declared "the free communication of been a proper subject for an organ of his party thoughts and opinions is one of the invaluable to investigate and criticize with considerable rights of man, and every citizen may freely freedom, yet that fact affords no legal justifica- speak, write, or print on any subject, being re

sponsible for the abuse of that liberty. Thus it | lating to damages that calls for correction. The appears this right or liberty is not one of un- fact that an indictment may be sustained does limited license; but it is restrained by a legal not preclude the jury from giving vindictive responsibility. damages. When the Act is both a public and a private wrong, the public and the person aggrieved each has a distinct and concurrrent re(Foster v. Comth., 8 W. & S. 77.) If the party aggrieved makes out a case which justly calls for vindictive damages, his right thereto cannot be defeated by the fact that the plaintiffs in error may be punished for an injury to the public.

The high esteem in which reputation is held and the protecting care which the organic law has thrown around it, are expressed in the first sec-medy. tion of the Declaration of Rights. It declares "all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness." Thus reputation and property are put on the same high ground. The fundamental law affirms the same inherent and indefeasible right in all men to protect the one as fully as the other.

This language in the Declaration of Rights naturally flows from the doctrine of the common law. The natural right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. The security of his reputation or good name from the arts of detraction and slander are rights to which every man is entitled by reason and natural justice. The reason given is that without this "it is impossible to have the perfect enjoyment of any other right or advantage." (1 Blackstone Com. 134.) The right to protect reputation being inherent in man and being indefeasible, it cannot be annulled by legislative action. A good reputation is too valuable to admit of its being falsely assailed without the law giving some redress to the person injured. The general liberty of the press must be construed in subordination to the right of any person calumniated thereby to hold it responsible for an abuse of that liberty. It follows that the article published by the plaintiffs in error was not privileged, and having failed to establish its truthfulness, they are liable in damages.

With one exception we find no error in the record. That error is found in the bill of exceptions, and is covered by the second assignment to the evidence. The learned Judge erred in permitting the witness to testify that articles of the same tenor and character were afterwards published in the paper of the plaintiffs in error, without producing those articles, or giving any valid reason for their non-production. The best evidence of their contents was not given. No ground was laid for the admission of secondary evidence. Nor was the error cured by the fact that one of the plaintiffs in error afterwards testified that no such articles were published. The evidence was given for the purpose of swelling the damages. If true, such was its natural effect. How far it influenced the amount of the verdict we have no means of ascertaining. It is sufficient for us to say that it may have increased the amount. For this error, and for this alone, evidently made in the hurry of the trial, the judgment must be reversed.

Judgment reversed and a venire facias de novo awarded.

Opinion by MERCUR, J.

[See Commonwealth v. McClure, 3 WEEKLY NOTES, 58; Struthers v. The Evening Bulletin, Id. 215.]

Although malice is a necessary ingredient in Oct. & Nov. '78, 169. slander and libel, yet it must be understood in its legal signification. In its common acceptation malice means ill-will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse, aud therefore every utterance or publication having the other qualities of slander or libel, if it be wilful and unauthorized, is in law malicious. Legal malice alone is sufficient to support an action. If the words are actionable in themselves, as we have shown them to be in this case, and not privileged, the publication of them is sufficient evidence of legal malice. (I Am. Lead. Cases, 192.) The falsity of the publication creates an implication of malice. (Farley v. Ranck, 3 W. & S. 554.)

We see nothing in the several assignments re

Nov. 25, 1878. McCrickart v. The City of Pittsburgh.

Taxes-Payment of when no legal obligation exists-Protest or notice of intention to reclaim necessary in order to recover back-Under what circumstances a voluntary payment cannot be recovered.

Where there is no mistake, or fraud, a voluntary payment cannot be recovered back on the mere ground that

the one party was under no obligation to pay and the other had no right to receive.

order to recover taxes paid by a person upon whom there Protest or notice of intention to reclaim is necessary in was no legal obligation to pay.

A bill in equity filed by one resident to have an act of incorporation declared void can have no effect as notice or claim by the other residents not represented in the bill.

Error to the Common Pleas No. 1, of Allegheny County.

Case, by Samuel McCrickart, for himself and in trust for ninety-three others, against the city of Pittsburgh, to recover back certain taxes paid by them to the city. The parties agreed upon a case stated in the nature of a special verdict, the material facts thereof being substantially as follows:

The Court (STOWE, P. J.), being of opinion that the plaintiff and those he represented were not entitled to recover any portion of the taxes paid by them, entered judgment in favor of defendant. The plaintiff thereupon took this writ, assigning for error the entry of said judgment.

S. Schoyer, Jr., and C. H. Kloman, for plain

tiff in error.

another jurisdiction and another taxing power. The persons so taxed could not have any benefit in any way by the application of their money for any other municipal purpose.

Amesbury Mfg Co. v. The Inhabitants of Amesbury, 17 Mass. 461.

On May 12, 1873, in pursuance of an Act of Assembly of May 10, 1871 (P. L. 718), the Councils of the city of Pittsburgh passed an ordinance annexing a portion of Wilkins Township as a part of the city of Pittsburgh, to be known as the Thirty-seventh Ward. A bill in equity was filed November 29, 1873, by James Kelly, a resident of said ward, alleging that the above-mentioned ordinance of incorporation was irregular and void. During the pendency of this bill, in February, 1874, the general tax levy was made by the city and assessed, inter alia, upon the property and the persons, residents within the said portion of Wilkins Township. The city treasurer gave notice in the official newspapers of the city of this assessment, and that five per cent. deduction would be allowed for payments on or before August 1, 1874, and ten per cent. addition after that time. Some of the persons represented by the plaintiff paid their taxes into the city treasurer's office on or before August 1, 1874. The others paid their taxes to the ward collector, to whom warrants had been issued for that purpose. The questions arising in the equity suit having been decided in the Common Pleas in favor of the plaintiff, an appeal was taken (Pittsburgh's Appeal, 29 Sm. 317), and the Supreme Court, affirming the decree of the Court below, decided that the ordinance of incorporation was null, void, and of no

Hospital v. Philadelphia Co., 12 Harris, 229. Thos. S. Bigelow, city solicitor, contra. The city having in good faith assumed jurisdiction, levied, collected, and expended the taxes for the ordinary purposes of the municipal government without any protest or notice of intention to reclaim on the part of any of the effect, and that a writ of injunction issue against plaintiffs, they are now precluded from a recovthe city, perpetually restraining it from exercisery of the amount of taxes paid under such ciring any corporate or municipal authority in pursuance of said ordinance.


The taxes paid by these plaintiffs, whether paid voluntarily or involuntarily, with or without protest, cannot be retained by the city, because the city was a wrongdoer and trespasser from the very beginning; there was a tota. want of any authority whatever to tax. The persons and property, upon whom and which the tax was assessed, were not and never had been subject to its jurisdiction, and were at the time subject to

Hubbard v. Brainard, 35 Conn. 567.
Louisville v. Henning, I Bush (Ky.), 381.

The City of Covington v. Powell, 2 Met. (Ky.) 226.
Beckert v. City of Allegheny, 4 WEEKLY NOTES, 530.
Breed v. City of Allegheny, 6 Id. 168.
Wilson v. City of Allegheny, 29 Sm. 272.

Mayor, &c., of Jersey City v. Riker, 38 N. J. L. 225. because the treasurer's notice contains such a But none of these payments were voluntary, threat, that it, together with the tax laws, makes the payment compulsory. The notice and tax laws warn the tax-payer of additions, and also laws warn the tax-payer of additions, and also that non-payment will be followed by warrants to collectors.

Preston v. Boston, 12 Pick. 13.

Boston Water Power Co. v. Boston, 9 Met. 199. Payment of taxes to a collector, who has a tax bill and warrant in the form prescribed by law, is to be regarded as compulsory. A warrant of distress is in the nature of an execution against a person where there has been no judgment and no opportunity to plead or answer, and he may fairly assume that if he refuses to pay, payment will be insisted on, and that on pain of immediate arrest or seizure of goods.

Atwell v. Zeluff, 26 Mich. 118.

County Commissioners v. Parker, 7 Minn. 273.
Lincoln v. Worcester, 8 Cush. 60.

Taylor v. Board of Health, 7 Casey, 73.

Borough of Allentown v. Saeger, 8 Harris, 421. The bill filed by James Kelly was in his own behalf, and as he is not interested in the result of this case, it has no applicability.

Nov. 25, 1878. THE COURT. Had the plaintiff and those whom he represents paid their taxes under protest or with notice that they would reclaim them, they might have had some ground to stand upon. But as it was the city had a right to consider the money as their own and deal with it accordingly, just as an individual would under similar circumstances. Where there is no mistake or fraud a voluntary payment cannot be recovered back on the mere ground that the one party was under no obligation to pay and the other had no right to receive. Taylor v. The Board of Health (7 Casey, 73), and

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