Syllabus. Opinion of the Court. JOSHUA L. MARSH et al. v. CITY OF CHICAGO. 1. SPECIAL ASSESSMENTS-application for judgment by one unauthorized. Since the adoption of the new constitution the collector of the city of Chicago is not authorized to apply for judgment to enforce the collection of special assessments by the city. 2. SAME-notice of application-certificate of publication. When the certificate of the publication of notice of an application for judgment upon special assessments fails to state the date of the last paper containing the same, it is fatally defective. APPEAL from the Superior Court of Cook County. Messrs. SPAFFORD, MCDAID & WILSON, for the appellants. Per CURIAM: In this case the application for judgment was made at the March term, 1871, of the superior court, by the city collector. He was not authorized to make such application after the adoption of the new constitution, Hills v. Chicago, 60 Ill. 86, and the judgment must for this reason be reversed. The certificates of publication of notices are defective, in that they fail to state the date of the last paper containing the same. Andrews v. City of Chicago, 57 Ill. 239. Judgment reversed and cause remanded. Judgment reversed. 62b 115 JACOB ZUCKERMAN v. ADOLF SONNENSCHEIN. 1. SLANDER MALICE. The law implies malice from the publication of actionable words, but this implication may be explained and rebutted by the circumstances. 41a 543 62 115 Case 2 107a 1486] 62 115 Case 2 113a 2450 113a 2451 Syllabus. Opinion of the Court. 2. SAME. In a suit for slander it is error to instruct the jury that if the defendant used words imputing a crime, they must find for plaintiff, when the words were spoken under circumstances tending to show a want of malice. In such case the intent of the publication should be left to the jury under the proof. 3. SAME-MALICE. When words imputing the commission of a crime are used by the defendant merely for the purpose of translating the language of another from the German into the English language at the request and for the information of an attorney at law in a matter of business, the law will not infer malice in the defendant. Under such circumstances the use of the words may properly come within the range of privileged communications. If there was malice in fact it must be left to the jury to be found from the evidence. APPEAL from the Superior Court of Cook County; the Hon. WM. A. PORTER, Judge, presiding. The facts sufficiently appear in the opinion of the Court. Mr. ADOLPH MOSES, for the appellant. Mr. GEORGE W. BRANDT, for the appellee. Mr. JUSTICE THORNTON delivered the opinion of the Court: The slanderous words charged are: "He is a robber;" "he is a thief;" "he is a forger;" "he gets notes for ten dollars, and changes them to one hundred dollars." Some of the words are actionable per se; and the law implies malice from the publication of actionable words. This implication, however, may be explained and rebutted by the circumstances. Brandt, an attorney, had a note for collection against appellant's father. The father and son were both Germans; and the father was unable to converse in the English language. They were together in Brandt's office, at his request, to talk about the note. The slanderous words were then used in the hearing of Brandt, Higby and Hoffman, all attorneys at law, in the same office. The plaintiff in the suit below obtained his information of Opinion of the Court. the speaking of the slanderous words from Brandt, who was the attorney in the suit. It was error to instruct the jury, that if the defendant used words imputing a crime, they must find for plaintiff. The instruction asked by defendant, that if he did not intend imputing a crime by the speaking of the words, he was not guilty, should not have been modified by the court. The intent of the publication should have been submitted to the jury under the proof. The evidence is not satisfactory that appellant spoke the words in any other manner than as a translation from the German into the English language, at the solicitation of Brandt. The conversation about the note, and the publication of the slander charged, were at the same time. If the words were used by appellant merely for the purpose of translating from the German into English, and at the request, and for the information of the attorney, then they might be excusable on account of the cause of publication. There would then be no malice in law; and the malice, in fact, should be determined by the jury. The use of the words might properly come within the range of privileged communications. In McKee v. Ingalls, 4 Scam. 30, the slanderous words. "You are a thief. If you have got money you stole were: it." The general issue only was pleaded; and the court sustained the following instruction as correct: "That if the jury believe, from the testimony, that Ingalls, at the time he called McKee a thief, did not intend to impute felony to him, the words are not actionable, and they must find for the defendant." The controlling consideration is the quo animo. Cummerford v. McAvoy, 15 Ill. 311. In the case of Read v. Ambridge, 6 C. & P. 308, the words were: "He is the most blasted thief in the world, and ought to have been hung, etc.;" "he is a bloody thief;" "he robbed Mrs. Read." DENMAN, C. J., in summing up, told the jury: "that the Syllabus. first question for their consideration was, whether they thought the words showed an intention to impute felony." Words standing alone may import malice, and indicate a wicked intent. Surround them with the circumstances under which they were spoken, and the malice disappears. The judgment is reversed, and the cause remanded. 1. APPEARANCE—by attorney, presumption. When an attorney enters the appearance of a party to a suit, it will be presumed that he had authority; but the presumption is not conclusive, and may be rebutted if done in apt time. 2. SAME. The practice does not require a written retainer, and, as it would be a breach of professional duty in an attorney to enter an appearance without authority, until overcome by proof, it will be presumed that it was proper and authorized. 3. SAME--vacation of judgment. In a suit against several where it appeared that the attorney for the defendant served with process, entered the appearance of the other defendants not served, without any authority whatever, and where such defendants, at the same term, after judgment against them appeared and asked to have the judgment against them set aside, and a new trial granted, and showed a valid defense: Held, that it was error to refuse the motion. 4. It is a principle that lies at the foundation of the administration of justice in all courts and tribunals, that a party to be concluded must be afforded an opportunity of being heard. 5. POWER OF COURT over record. During the term the record of the court may be altered, changed, or amended as justice may require; and the court may vacate a judgment, and let in parties not served to defend. APPEAL from the Circuit Court of Cook County; the Hon. JOHN G. ROGERS, Judge, presiding. The opinion states the case. Opinion of the Court. Messrs. HARDY & HERRICK, for the appellants. Messrs. E. & A. VAN BUREN, for the appellee. Mr. JUSTICE. WALKER delivered the opinion of the Court: This was an action of debt brought by Fischer for the use of Fritz, on a bond given by Leslie and the other defendants on the appointment of Leslie as deputy sheriff of Cook County. The breach assigned was a failure to pay over moneys collected on an execution in favor of Fritz. The case was tried by the court and a jury, when a verdict was found in favor of plaintiff for debt $10,000, and damages $804, for which judgment was rendered, the debt to be satisfied by the payment of the damages. A motion was entered to set aside the judgment, and for a new trial, upon the ground, amongst others, that defendants Leslie, Dewey, and Farrier, had not been served with process, and that they had not authorized any person to enter their appearance. The motion was overruled, and the defendants bring the record to this court and ask a reversal. When an attorney enters the appearance of a party to a suit, it will be presumed that he had authority. But the presumption is liable to be rebutted if done in apt time. It is not conclusive, but may be overcome by proper testimony. The practice does not require a written retainer, and as it would be a breach of professional duty in an attorney to enter an appearance without authority, until overcome by proof, we must presume that it was proper and authorized. But in this case there was a number of affidavits filed and witnesses examined to disprove authority given, and to prove that the attorney who filed the plea acted within the scope of his authority. Leslie swears he was never served with process, and had no knowledge that such a suit had been brought, until the cause was actually called for trial and the jury was impaneled; that he never employed Hooper, or any member of his firm; that he never authorized them to file pleas for him, and did not know such pleas had been filed, until the cause was called for trial; that he |