late cases are to the contrary. (McPherson v. Runyon, 41 Minn. 524; Smith v. Burrus, 106 Mo. 94.)

A corporation is liable for malicious persecution by an agent acting within the scope of his authority. (Bank of New South Wales v. Owston, 4 App. Cas. 270.) Malice is a question for the jury; probable cause a question of law for the court, when the facts are not in dispute; otherwise, a mixed question of law and fact. (Heyne v. Blair, 62 N. Y. 19; Thaule v. Krekeler, 81 N. Y. 428; Stewart v. Sonneborn, 98 U. S. 187.)

Discharge of the accused person by the magistrate before whom the complaint is made is held in some States to be prima facie evidence of want of probable cause. (Bigelow v. Sickles, 80 Wis. 98; Perry v. Sulier, 92 Mich. 72.) Some authorities are, however, to the contrary.

LIBEL AND SLANDER.

Pp. 193-221. Slander is divisible into slander per se, and slander with special damage. The latter requires proof of damage resulting from the defamation, in order to support an action; the former is actionable without such proof.

Of slander per se there are three forms: 1. Charge of a crime involving moral turpitude. (Young v. Miller, 3 Hill, 21.) This is the usual statement of the law in this country, though in some States it is declared that the crime must involve moral turpitude or be one "that would draw after it an infamous punishment." Recently, however, in Pennsylvania it has been held that the word "infamous" is used here in its popular, rather than in its technical legal sense; it is not, therefore, limited in its application to crimes that would make a witness legally infa

mous, viz., treason, felony and the crinen falsi, but includes many other offerses, the punishments for which would, in popular acceptation, be deemed to disgrace and dishonor a man. (Davis v. Carey, 141 Pa. 314.) In England it is slander to charge a man with any criminal offense, whether it involves moral turpitude or not. (Webb v. Beavan, 11 Q. B. D. 608.)

2. A charge of having certain contagious diseases, as leprosy or a venereal disease, but not of having had such diseases. A charge of having the itch or smallpox is not slander per se.

3. A charge tending to injure a man in his office, trade, occupation, profession, or employment. It must directly relate to the trade, profession, etc., and he must be engaged in his profession, etc., at the time of the alleged slander.

In slander with special damage, the damage must be pecuniary or temporal, and be the proximate consequence of the speaking of the words. (Chamberlain v. Boyd, 11 Q. B. D. 407; Terwilliger v. Wands, 17 N. Y. 54.)

As to slander of title, see Dodge v. Colby, 108 N. Y. 445.

For a definition of libel, see Bergmann v. Jones, 94 N. Y. 51.

For the distinction between "malice in law," and "malice in fact," see Clark v. Molyneux, 3 Q. B. D. 237, 247.

A plea of justification, i. e., that the charge is true, must be proved fully and completely, to avail as a defense. Formerly, if the evidence failed to prove it, this failure would enhance the damages. (Bush v. Prosser, 11 N. Y. 347); but, generally, nowadays, statutes have changed this rule and allow circumstances tending to prove the truth of the charge to be pleaded and proved by way of mitigating

the damages. Such is the case in New York. (Willover v. Hall, 72 N. Y. 36; N. Y. Code Civ. Pro. § 535.)

In civil actions for libel or slander the defamatory statement must be proved to have been published to one or more third persons; but in criminal cases of libel, it is a sufficient publication to make the charge known only to the man himself who is defamed. This is because it tends to provoke retaliation and so cause a breach of the peace; but the theory as to civil libel is that it must be a wrong done to a person's reputation.

In criminal libels the old maxim was "the greater the truth, the greater the libel," because it was considered that if the charge were true it would be more likely to provoke retaliation than if it were false, since in the latter case it might be disregarded as powerless to injure. But in modern times the truth is generally declared a defense in criminal cases of libel, but only if published from good motives and for justifiable ends. This is the rule in New York. But in civil cases the truth is always a defense, whatever be the motives of publication.

Whether a statement is a privileged communication is for the court to decide; the question of good faith and belief in the truth of the statement is for the jury. (Brooks v. Harrison, 91 N. Y. 83.)

As to communications between mere friends, see Byam v. Collins, 111 N. Y. 143. This case contains a valuable discussion of the doctrine of privileged communications. Other leading cases as to privileged communications are Howland v. Blake Mfg. Co., 156 Mass. 543; Hunt v. Gt. Nor. R. Co., [1891] 2 Q. B. 189; Stewart v. Bell, id. 341; Kimber v. Press Assn., [1893] 1 Q. B. 65.

The presence of third persons, when the communication is made, does not necessarily destroy the privilege, if the communication was made in the discharge of a legal, moral, or social duty. (Pittard v. Oliver, [1891] 1 Q. B. 474.)

Statements made in legislative or judicial proceedings are said to be absolutely privileged; that is, privileged even though made with actual malice. But most privileged communications are only conditionally privileged; that is, if actual malice be proved, the defamer is liable; otherwise, not.

If a mercantile agency in good faith communicates to such of its subscribers as have an interest in knowing, statements concerning the standing and credit of some business house, which turn out to be false, the communication is privileged. (Ormsby v. Douglass, 37 N. Y. 477; Sunderlin v. Bradstreet, 46 N.Y. 188.)

It has been recently held in England that a communication which would be privileged if sent to A, is still privileged if sent by mistake to B. (Tompson v. Dashwood, 11 Q. B. D. 43:)

A distinction is drawn in England and in many States between a false accusation against a public man and criticism of acts which in fact he has done; the latter is permitted, but not the former. This is the rule in New York. (Hamilton v. Eno, 81 N. Y. 116; see Upton v. Hume, 33 Pac. Rep'r [Oregon], 810.) But in some States words spoken without malice of a public man, with belief in their truth, and for the sole purpose of advising electors of what was believed upon reasonable grounds to be the true character of the public man, are privileged. (Bays v. Hunt, 60 Ia. 251; and see 31 Kan. 465; 49 Mich. 358.)

CHAS. F. BEACH, Jr.
ERNST FREUND,
JOHN M. GLOVER,
BRADFORD W. HITCHCOCK,
LOUIS C. LEDYARD,
ROBErt Sewell,
HOWARD A. TAYLOR,
SIMON STERNE,
S. C. T. Dodd,
J. BLEECKER Miller,
EUGENE D. HAWKINS,
DWIGHT ARven Jones,
FREDERIC F. HARTICH,
EDWARD E. SPRAGUE,
A. L. PINCOFFS,
STEWART CHAPLIN.
JOHN BROOKS LEAVITT,
ELIHU ROOT,
D. J. HOLDEN,
Alfred C. Pette,
JOHN D. LINDSAY,
HENRY MORRIS HAVILAND,
THOMAS G. SHEARMAN.

IN the address delivered by Rev. Anson J. Upson, as Chancellor of the University of the State of New York, at the last University Convocation held at Albany, the following fine tribute is paid to the great law teacher, whose method has been adopted in the New York Law School:

"This country has never known a better or more successful teacher of the law than the late Professor Theodore William Dwight of Columbia College. He was successful because he was not a mere lecturer, but trained his classes, using legal

text-books, comparing the views of one author with another in the recitationroom, illustrating principles by cases, discussing points with each student, using largely the seminar method. All this may have been undignified, quite unscholarly. A stately professor-shall I say a lazy professor-would have been disgusted with such drudgery. But our answer to all such frivolous objections is the fact that for nearly forty years the Dwight method of legal instruction was sanctioned by the legal profession as legitimate and the best, and approved by the verdict of the public as a most successful method.

"By the recitation system the student makes his knowledge of the subject emphatically his own. He discovers his own knowledge or ignorance, and the teacher discovers the knowledge or ignorance of his scholar and can help him, stimulate him. Listening to lectures only, he may carry with him his notes, but they are not truly his own, a part of himself. You remember the familiar story of the German student, who listened to university lectures for four years, taking full notes. On returning homeward, at the close of his course, with his notes in his trunk, he lost his trunk, and was compelled to return and repeat his university course. There may be no truth in the story, but I believe the truth of the principle it illustrates. So I still believe in frequent reviews and in examinations, oral and written."

It is an encouraging and hopeful sign to find the head of the Board of Regents -a board which has in its charge the educational interests of this great State of New York-speaking in such terms of praise of the "Dwight method" of instruction. It is most gratifying to have

the value and usefulness of this method appreciated in such a quarter. The Chancellor judges by the rule of sound reason that what has proved the best in the past is likely to prove the best also in the present.

In view of the strong recommendation for mercy and clemency accompanying the verdict of guilty against John Y. M'Kane, and in consideration of the more or less frequent expressions of sympathy for the "ballot corrupter of Coney Island," we feel called upon to make a protest against the unreasonable and excessive commiseration indulged in by many toward those convicted of crime.

This is getting to be a serious evil of the times, and unless some check is put upon it, we may expect in the near future to see a premium placed upon crime, and offenders against the law elevated to the position of heroes. It would seem that the more heinous and revolting the offense, the larger the number of those ready to sympathize. We do not refer to those honest people who believe the verdict to have been against the weight of evidence, but to those who, though fully persuaded of the guilt, still allow themselves to be carried away with compassion, simply because the unfortunate happens to be a man of some education, culture and refinement. These deluded sympathizers seem for the greater part to consist of women. This may be due to their more delicate and high-strung sensibilities, but be this as it may, and much as we may wish to appear chivalrous, we cannot bring ourselves to the point of forgiving and making excuses for a girl who can almost daily send letters, often accompanied with fresh-cut flowers, to an

utter stranger, who has been convicted of a most cold-blooded murder. This case is neither exaggerated nor over colored, but took place not many months ago in this city, and as we are informed is not of infrequent occurence.

Perhaps we make too prominent, and place too much stress upon the thoughtless conduct of a few foolish girls, but surely we can raise our voice against sensible and reasonable men who let their compassion go so far as to entirely blind them to the enormity of the offense.

Since the day that Foreman Sackett announced in open court the verdict against the "Coney Island boss," we have frequently heard men of undoubted integrity condoning his offense on the ground that he was not an ordinary uncultured and illiterate district leader or boss, but a man of position, and more or less refinement and learning.

Was there ever such an unreasonable and wilful waste of sympathy? We, at least, prefer to expend our compassion upon the unfortunates who have had none of the advantages that learning affords, and whose lot has always been cast among those whose ideas of integrity, to say the least, are not over clear.

We do not mean to hold ourselves out as discountenancing Christian charity, in the very broadest meaning of that expression, but we do most emphatically decry and protest against the ever growing tendency towards overweening sentimentality.

Judge Bartlett in addressing the M'Kane jury, after their verdict, said: "I desire to express my appreciation of the manner in which you have performed your duty. I believe that your verdict is the result of your deliberation of all the

evidence. I thank you for your labors, and in thanking you I believe that I voice the thanks of the entire community."

We believe that, with the exception of a few upholders and admirers of bossism, Judge Bartlett did voice the thanks, not only of the entire community, but also of all those who believe in the republican form of government, whose chief foundation and corner-stone is the free and pure use of the elective franchise.

BOOK REVIEWS.

HISTORY OF ELECTIONS IN THE AMERICAN COLONIES. By Cortlandt F. Bishop, Ph.D.

This book is one of a series of "Studies in History, Economics and Public Law," issued under the auspices of the faculty of Political Science in Columbia College. It takes up, first the topic of general elections in the colonies, and afterwards that of local elections, and as to each class exhibits the history of such elections, the qualifications required of electors, and the rules of law regulating the management of elections. The book exhibits extensive research, and will be found of special interest and value to students of our political history.

PRINCIPLES OF COMMON LAW PLEADING. By John J. McKelvey, LL.B. Baker, Voorhis & Co., New York.

This is an excellent manual upon the subject of common law pleading, and will prove especially serviceable to students who have little or no knowledge upon this

important branch of legal learning, and who desire some clear and elementary treatise to explain its difficulties and mysteries.

OF

CASPAR'S PRACTICAL CATALOGUE
LAW BOOKS. C. N. Caspar, Milwaukee,
Wis.

This, as the compiler says, is a "compact, but practically complete, list of standard legal works which are in vogue or in general use, stating their latest editions and which can now be supplied." The various subjects upon which legal treatises have been written are given in alphabetical order, and under each topic are given the titles of the text-books and works of reference which are in general use, with the date of the latest edition and the price. Thus, e. g., under the topic "Corporations" will be found a full list of the various treatises upon this subject. The catalogue contains, moreover, a list of the books which have been published in respect to the law and practice of special States; also a list of the various reports of the different States with their prices; also an index to treatises by the authors' names. From this description it will be apparent how valuable this little pamphlet catalogue is to the lawyer or law student. It enables him to learn at a glance what are the books relating to any particular topic. The price of the catalogue is 25 cents, but Mr. Caspar offers to send a copy to any subscriber to THE COUNSELLOR, free of charge, if the name of THE COUNSELLOR is mentioned in the request. His address is 437 East Water Street, Milwaukee.