is claimed on behalf of the plaintiff, and I believe his counsel rest their case on that assertion, that the words were not uttered in the room where the meeting was held, but were spoken outside of the door to attorneys and to men who were not members of the board, or interested in the board directly. Now, whether the words were uttered outside of the door or inside does not determine necessarily whether they were privileged or not. There might be a meeting going on where the party would have the right to utter the words, if he chose to, to those who were interested in the subject, and there he might turn aside to some individual who was not interested, and utter the words to him without any justification for so doing; so that whether these men had passed the door or were still inside the room has little to do with the question. If the words were really addressed to an individual or individuals having no interest in the subject, and not to the meeting, nor to others who were concerned in the management of the road, they might be actionable or slanderous. Now, then, were the words uttered in the hall to Judge Slick and Mr. Johnson and Mr. Attlebury, and overheard by Mr. Peterson, slanderous? Strictly speaking, the words so uttered would not be privileged if then. spoken for the first time; but if the same words had been uttered in the meeting, or words to the same effect, embodying the charge of drunkenness against Mr. Broughton, so that the accusation became known to all present, in a way to be privileged, and then, as the parties were leaving the room, there was a repetition of the matter by Mr. McGrew to men who were present and heard the words first uttered, I would say that no action ought to be maintained for the repetition of the words to those who had already heard them when it was proper to utter them. It was a matter from which it could not be said any damage could result, because the parties had already heard it; especially if the second utterance occurred in a discussion between the defendant and these attorneys, who were controverting his statement made in the meeting. In determining, therefore, whether or not the utterance of the words to these attorneys is an actionable or slanderous utterance it is important for you to determine whether substantially the same charge had first been made in the meeting, and to the meeting, in a way to be privileged. If the charge had not been made to the meeting, and this was a voluntary utterance by the defendant to these attorneys, then, in my judg ment the words ought not to be held privileged, and I so instruct you; and you would be entitled to find for the plaintiff on account of what was thus voluntarily said to the attorneys, whether done inside the door or outside the door. If the defendant got the attorneys aside, or happened to be aside with them, and brought up for the first time the charge against Mr. Broughton, it was a slanderous and unjustifiable charge, which would support the action; but if it was a mere repetition, growing out of a discussion in respect to what he had said in the meeting on the same subject, then I think the privilege ought to be considered as covering the repetition of the words, and so instruct you. Many things have been said, gentlemen, about other questions,whether the road was in good condition; whether McGrew had cause for He seeking a change of management; and whether he was acting in good faith in regard to the interests of the road. Much has been said about getting control of the corporation, or organizing it in the interest of a scheme. All these things are remote in their bearing. The question for you, first and mainly, is whether McGrew uttered these words about the plaintiff, and whether he uttered them without justification. claims he did it justifiably in discharge of his duty to the board. The mere fact that he uttered them to the board would not necessarily be a justification. He must, of course, have done it in good faith. If he uttered the words to the board, and did not believe them to be true, there was for that, of course, no justification. If you find he did make the charge of drunkenness against Broughton as alleged, did he do it in good faith? He has testified, and much proof has been introduced in respect to the information that he had on the subject. If he had been told by creditable men of facts which fairly led him to believe, and entitled him to believe, there was something wrong in Broughton's conduct in this respect, he had the right to bring the matter up, and you may presume he did it in good faith unless the evidence shows the contrary. Of course, if the evidence convinces you that he did not have good cause to bring it forward, had not received information that would warrant a prudent man in bringing such a charge forward, you will say he did not act in good faith, and will not give him the benefit of the privilege to which otherwise he might be entitled. Every presumption is in favor of good faith if he had information on the subject that a reasonable man might have acted upon. If you find for the plaintiff, then the question arises, what damages will be proper? The action, as I have already explained to you, proceeds upon the theory that the injury has affected the plaintiff in his business. The mere charge of drunkenness is not an actionable injury, and is significant in this case, because the injury that you will consider will have reference to the effect of the slander upon the complainant's business and his business prospects, not upon his character as an individual in a community, because in that respect all men are affected alike by an accusation of drunkenness, and the law does not recognize it as good cause for an action except when it affects the man in his business or prospects of business, and therefore the jury, in determining the amount of damages to be awarded, must revert to that phase of the subject. Damages may be compensatory, and they may be vindictive or punitive. Punitive or vindictive damages are assessed, if at all, on the ground of public policy, and not on the ground that the plaintiff has any right to the money. In order to prevent a repetition of a wrong the jury may assess vindictive damages, in the way of punishment, which will go to the plaintiff because assessed in his suit, but not on the theory of compensating him, so much as of punishing the wrong-doer. Punitive damages, however, are not to be assessed unless the words were not only wrongful, but were uttered with actual malice on the part of the defendant; so that, unless the evidence shows to you that the defendant uttered the words with actual malice, ill will, or hatred towards the plaintiff, or with such clear want of ground for doing it as to warrant an inference of ill will or hatred, you will assess only compensatory damages. Compensatory damages are for the purpose of making whole the plaintiff for the injury done him, for the injury in respect to his business and business prospects that has actually arisen or is likely to arise, from the words uttered in the manner and at the time they were spoken. Of course, there is no fixed standard by which such damages can be measured. Characters have no price in the market. The extent of the injury must be determined from the evidence. The jury must exercise sound judgment and discretion. You have a right to consider all the circumstances in the case. If the slander was uttered under one set of circumstances it might have greater effect than if uttered under other circumstances, and when uttered to some persons it might do more harm than when uttered to others. In this case there is some evidence that there had been rumors of these things circulating in the community, rumors of charges of this kind, before McGrew uttered the words. If that is a fact, you have a right to take it into consideration. A man that starts a false report may be held to greater responsibility than a man who merely repeats or adds to the story. The fact that the defendant uttered the words on his own authority, or on the authority of others of whom he had heard the reports, may be taken into consideration. If he said these things on his own authority, claiming to know them himself, that would tend to give them greater weight and currency than if he professed merely to speak from rumors or information derived from others, indicating the source of his information. The character of the defendant himself, his standing in the community, is a matter which you may consider in determining the amount of damages. A man of high character, of known force and influence in the community, may injure another by talking about him more than a man of less character could do. So, on the other hand, the character of the party spoken about is a matter that may be taken into consideration. If he has a well-established character, that there is less likelihood of the slander hurting him, may be considered, whereas, if he was a new man starting in the effort to build up a reputation, the same slander might well cause more harm. You will consider the persons to whom the slanders were uttered, and the relation they occupied to the parties. These attorneys of the road were not in a position, as I have instructed you, to be treated as officers of the road, to whom such communications could be made as matter of privilege; yet, I think, if Mr. McGrew had gone to the attorneys of the road with the accusation against Mr. Broughton, and urged upon them to go to Mr. Jewett with the matter, I am not sure but that his action might have been privileged. It would certainly be a strong circumstance to rebut malice. Upon the circumstances as stated here, however, while I instruct you that if the words charged were uttered to these attorneys in the first instance, and not as a repetition of what was said in the meeting, they were not matters of strict privilege; yet the fact that these gentlemen were attorneys of this road, and had friendly relations to the officers, or to the plaintiff, you may consider in deter mining how much damage ought to be assessed. If these three gentle. men were the persons to whom these words were spoken, you can consider their relations to the plaintiff and the likelihood of words spoken to them concerning him reaching the public through their agency, and to what extent they would be likely to cause him injury. The plaintiff cannot claim damages for acts of his own or for the publicity given to the matter by the bringing of this suit, because that was brought of his own choice. It is for you, if you find for the plaintiff, to say upon all the facts and circumstances in proof what damages you think ought to be awarded, whether compensatory, or both compensatory and vindictive. TILGHMAN V. WERK et al. (Circuit Court, S. D. Ohio, W. D. August 30, 1889.) 1. PRACTICE IN CIVIL CASES-NUNC PRO TUNC ORDER. An application by respondents for a nunc pro tunc order dismissing complainant's petition to vacate a decree made in 1878, and for a rehearing, the application being based on an alleged action or opinion taken or expressed by the circuit judge by whom the petition was heard in 1884, will be refused where there was no final decision or judgment rendered, and no official record on which to base such an order, and nothing but the recollection of witnesses as to what the judge said about the case when not presiding in the court where the cause was pending. 2. BILL OF REVIEW-GROUNDS. An application for a bill of review will not be granted where no actual fraud is set up, and the affidavits on which the application is based show that no fraud in fact was practiced in obtaining the decree, and no error of law apparent on the face of the decree is either set up or relied on. 8. SAME-NEW MATTER. A change by the supreme court of its ruling on a question of law and fact does not constitute such new matter as will sustain a bill of review to vacate a decree of the circuit court pronounced before such change was made. 4. SAME. Neither will a bill of review be granted because the case was decided in the absence of counsel, where the means of knowledge as to the time of hearing was within reach of counsel, and no effort was made to deceive him by the opposite party, though the petitioner may have been misled by the negligence or misinformation received from his counsel, or of those to whom the counsel had intrusted the business. An application for a bill of review, made in 1889, on facts known by peti tioners in 1881, comes too late, even if the facts constituted a good ground for relief. In Equity. Application for leave to file bill of review. Francis T. Chambers and Perry & Jenny, for plaintiff. Harmon, Colston, Goldsmith & Hoadly and Paxton & Warrington, for defendants. JACKSON, J. The motions made herein by complainant and respondents should each be severally denied. 1. The motion of respondents for a nunc pro tunc order dismissing the complainant's application or petition to vacate the decree herein of April 9, 1878, and for a rehearing of the cause, based upon the alleged action or opinion taken or expressed by the circuit judge at Knoxville, Tenn., on the 29th day of July, 1884, when said petition was heard by him, should be refused, because that action or opinion of the circuit judge never assumed the form of the final decision or judgment of this court, wherein the cause was pending, because there is no official record or memoranda of this court on which to base or rest the nunc pro tunc order now applied for, and because it would be contrary to sound policy and destructive of that certainty and conclusivenes which should attend judicial action to base judgments and decrees upon the recollection of witnesses as to what the judge of a court may have said about a case when not presiding in the court where such cause is pending. Judicial action should not rest upon a foundation so unstable and insecure. The circuit judge may, undoubtedly, by consent of parties, hear a cause outside of the particular district in which it is pending, but the opinion or view he may express on such a hearing does not rise to the dignity or assume the force of a judgment of the court wherein the case is pending until some official notice or communication of the judge's opinion or decision is made or transmitted to the proper officer of such court, whose duty and function it is to enter or preserve some record of all judicial action taken or had therein. A judge's opinion when and while absent from the court over which he presides, in respect to matter or questions therein pending for decision, however called forth or expressed, falls short of being the judgment of such court. Judicial action is reached when the judge's opinion is expressed in, or conveyed in some authoritative manner to, the court wherein the controverted matter is pending. No judicial action such as will warrant the entry or granting of a nunc pro tunc order dismissing complainant's petition is shown in the present case. Furthermore, the parol testimony leaves some doubt as to what were the precise views and opinions of the circuit judge in respect to complainant's petition. Under such circumstances the respondents' motion could not be properly allowed. It is accordingly denied, with costs. 2. The complainant's petition filed July 27, 1881, to vacate the decree of April 9, 1878, and for a rehearing of the cause, should now be dismissed. This petition cannot be treated or regarded as an original bill in the nature of a bill of review, which lies only for fraud; and such fraud, as has been said by very eminent judicial authority in an English case, must be actual and positive, showing a mala mens,-a meditated and intentional contrivance to keep the opposite party and the court in ignorance of the real facts of the case, and thus obtain the decree. Patch v. Ward, L. R. 3 Ch. 203. No such fraud is set up or relied upon, and the affidavits in support of and against the petition clearly establish that no fraud in fact was practiced by respondents or their counsel in procuring said decree. Neither can this petition be treated as a bill of review to correct errors of law apparent on the face of said decree of April |