charge instructed the jury that they might infer malice from the article in question. (The whole charge is reported in 43 Leg. Int. 46.) Verdict for plaintiff for $1200 and judgment thereon, whereupon the defendant took this writ, making forty-five assignments of error. The answer to the defendant's twelfth point above stated, and the instructions of the Court as to the question whether the publication was privileged, are the only material assignments. The rest related to the admission or rejection of evidence not material to the understanding of the Briggs v. Garrett, 17 WEEKLY NOTES, 129; 1 Amer. 404. McIntyre v. McBean, 13 U. C. Q. B. 534. Decker v. Gaylord, 35 Hun, 584. Hart v. Gumpach, L. R. 4 C. P. 439. When the matter is of public interest to the community this is sufficient to confer the privilege. Purcell v. Lawler, 1 C. P. D. 781. Privilege is the protection which the law throws over a citizen, who makes a defamatory publication, when his interests, or those of another, or of society itself, require that he should speak. Waller v. Locke, 45 L. T. R. N. S. 243. Thompson v. Dashwood, 12 Q. B. D. 43. The law does not imply malice in a privileged communication. Spill v. Maule, L. R. 4 Ex. 232. Lewis v. Herrick, 16 N. Y. 372. Laughton v. The Bishop, L. R. 4 P. C. 504. Clarke v. Molyneaux, 32 B. Div. 237. And cases cited in note in 3 F. & F. 619 to 809. The Pennsylvania cases are to the same effect. Gray v. Pentland, 4 S. & R. 420. Flitcroft v. Jenks, 3 Wharton, 158. Chapman v. Calder, 2 Harris, 365. Pittock v. O'Neill, 13 Smith, 253. Neeb v. Hope, 1 Amerman, 145. William W. Wiltbank (Benjamin Harris Brewster with him), for the defendant in error. They relied mainly upon the opinion of the Court below refusing a new trial (reported in 43 Leg. Int. 36). April 9, 1888. THE COURT. We have had the benefit of a re-argument in this case. It was ordered of our motion in view of the importance of the principles involved. A There are forty-five assignments of error. far less number would have covered all the points involved. They are interesting, however, as illustrative of the ingenuity of the learned counsel for the plaintiff in error. It would serve no good purpose to consider them in detail. It is sufficient to indicate briefly the principles upon which the case must be decided. The plaintiff brought an action on the case against the defendant below, the Press Company, Limited, to recover damages for the publication of an alleged libel in the "Press," a daily paper of the city of Philadelphia. The plaintiff had leased rooms in the vicinity of Thirteenth and Market streets, and fitted them up as a school for clerks, salesmen, and reporters, and he professed to be a teacher of short-hand writing, type-writing, and phono-scribing. The outside of his rooms appears to have been alluringly placarded with signs, and various devices in the way of circulars were scattered broadcast in the community calling attention to the merits of his system, and urging the young to engage with him as pupils. It must be conceded that some of these circulars were of a very extravagant nature. It so happened that the attention of the city editor of the Press was attracted by the peculiarity of the plaintiff's signs, and he detailed a reporter upon the staff of that paper to visit the establishment and ascertain its character. He did so, and the Press next day contained the report of the interview. It is this report which forms the subject of the alleged libel. The article is of considerable length, and as it will doubtless appear in the report of the case, is omitted here. The plaintiff claims it was a libel because it exposed him to ridicule, and was calculated to injure him in his business as a teacher. It is proper to say that he had sold his establishment to other parties prior to the publication complained of, reserving, however, a certain royalty, or payment per head, for each student under the new management. The parties to whom he sold do not appear to have been impressed with the thought that their business had been or would be injured by the article in question; at least they are not complaining, I him a quasi public character. Whether he was and may have regarded it as a "puff" of their a proper person to instruct the young, and whether school. The defendant filed what was substantially, though not perhaps in strict technical form, a plea of justification. It alleged that the article in the Press was a just and true account of the interview between its reporter and the plaintiff, and asked the Court to instruct the jury that "if they believe that the publication complained of is a fair and true account of an interview had between the plaintiff and Mr. Cooke, your verdict must be for the defendant." The Court declined to affirm this point, and herein we think the learned Judge erred. While the truth would not have been a defence to an indictment, the rule is otherwise in a civil suit for damages. This is horn-book law. For this error at least the judgment must be reversed. But there is a more serious difficulty underlying the plaintiff's case. A considerable number of the assignments of error raised the question in various ways whether the article was a privileged communication, and the Court was asked to say that in the absence of proof of actual malice there could be no recovery. The Court declined to say this, but on the contrary charged that the jury might infer malice from the article in question. We had occasion in Briggs v. Garrett (111 Pa. 404) to discuss at some length the question of privileged communications. I do not propose to go over the same ground again. It is suffi cient to refer to the conclusions arrived at in that case. It was there said that " a communication to be privileged must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. When so made, in good faith, the law does not imply malice from the communication itself as in the ordinary case of libel; actual malice must be proved before there can be a recovery. And whether a communication be privileged or not is a question for the Court, not the jury." Tested by this rule we are of opinion that the article in question is privileged, not absolutely, but in a qualified sense; in that sense, however, which makes it the duty of the Court to instruct the jury that it is privileged, and that because of such privilege no presumption of malice arises from the mere fact of publication, but malice must be proved as a fact in the cause before the plaintiff can recover. If we are asked why this article is so privileged I answer, because it was proper for public information. This plaintiff was holding himself out to the world as a teacher and guide of youth; he was seeking to attract them to his place by signs, placards, and advertisements, some of them at least of an extraordinary nature. This gave his school was a proper place for them to receive instruction, were matters of importance to the public, and the Press was in the strict line of its duty when it sought such information and gave it to the public. And if that information tended to show that the plaintiff was a charlatan and his system an imposture, the more need that the public, and especially parents and guardians, should be informed of it. Aside from this we do not regard the article as a libel. At most it is a harmless bit of pleasantry in which the reporter has succeeded in making himself somewhat ridiculous. The matter has been very much magnified and an importance attached to it which it does not deserve. An actionable libel cannot be created out of nothing. As the publication was privileged, and there was no proof of malice, the Court below should have given the jury binding instruction to find for the defendants. Judgment reversed. Opinion by PAXSON, J. TRUNKEY, J., absent. July '87, 209. English's Appeal. English v. Hager. C. K. Z. March 14, 1888. Practice- Opening judgments - The kind of evidence necessary to sustain the opening of a judgment. An order to open a judgment under the Act of April 4, 1887, is not a final judgment, and a plaintiff is only entitled to an appeal after the case has been heard and an adverse judgment entered thereon; he can then be heard, however, upon the preliminary question of the rights to open the judgment. A judgment should not be opened and evidence submitted to a jury unless there is sufficient evidence to justify a chancellor in finding that there was either fraud, accident or mistake in procuring the judgment note; especially in this case where the note was given in settlement of mutual accounts. Appeal by Amzi H. English, from a decree of the Common Pleas of Lycoming County, opening a judgment entered upon a judgment note. Also a writ of error to same court. Jacob Hager gave English a judgment note in settlement of their mutual accounts which English subsequently entered up. Hager then filed a petition praying that the judgment be opened and that he be let into a defence. The Court made absolute this rule, and subsequently the case came before a jury who found a verdict for defendant. The material facts of the case are set out in the opinion of the Supreme Court, infra. Plaintiff took an appeal from the order opening the judgment, and also took a writ of error specifying for error the submitting of the case to the jury. H. H. Martin (with him A. F. Martin), for appellant and plaintiff in error. The note was regular on its face, was supported by the oath of the plaintiff and corroborated by the oath of his daughter that she drew the note in the presence of defendant and he signed it without comment. This testimony cannot be set aside by the unsupported oath of defendant. Jackson v. Payne, 4 Amer. 67. To set aside a written instrument on the ground of fraud, the evidence must be clear, precise, and indubitable, and of that which occurred at the execution of the instrument. Cummins v. Hurlbutt, 11 Nor. 165. Knarr's Appeal, 19 WEEKLY NOTES, 531. the defendant was a farmer, and the judgment note in question was given in settlement of their mutual accounts. After the judgment was opened, the case went to trial, and the jury found a verdict in favor of the defendant. The plaintiff then appealed from the order opening the judgment and also took his writ of error to the jury trial. He assigned for error, first, the opening of the judgment, and second, submitting the case to the jury. This is in harmony with Citizens' Building and Loan Association v. Hoagland (87 Pa. 326) where it was held that where a judgment is opened under the Act of April 4, 1877, the plaintiff is not entitled to an appeal until the case has been heard and the judgment entered thereupon, setting it aside or lessening its amount. In other words, the order to open is not a final judgment. The plaintiff is now entitled to be heard upon the preliminary question of the right of the defendant to have the judgment opened. If it was error to open it upon the facts as they stood when the order was made, it was error to submit the case to the jury, and the trial goes for nothing. The proper rule in such cases will be found in (Knarr, Assignee, v. Elgren 19 WEEKLY Notes, P. D. Bricker and Robert P. Allen (with them John G. Reading, Jr.), for appellee and defen-531), where it was said by our brother TRUNKEY: dant in error. A defendant has a right to have opened a judgment confessed against him by virtue of a warrant of attorney when he promptly applies for the same and shows a legal or equitable defence. Wise's Appeal, 3 Out. 193. Kneedler's Appeal, 11 Nor. 428. Saunders's Appeal, 19 WEEKLY Notes, 507. "The judgment in this case should not have been opened, nor the evidence submitted to the jury. Until overcome by testimony, that if believed, ought to move a chancellor to decree that the writing is void, or should be reformed, because of forgery, fraud, or mistake, it must be suffered to stand, though the parties thereto so testify that, under the circumstances, it is difficult to avoid belief that one or the other has committed perjury." A careful examination of the depositions has Wernet's Appeal, 10 Norris, 319. "There is no room for any doubt or difference led us to the conclusion that it was error to open of opinion as to the kind and degree of proof this judgment. Confining ourselves to what necessary to sustain a defence, such as was inter- occurred at the time, we have the testimony of posed in this case. Our books are full of cases the plaintiff and his daughter that the judgment on this subject, some of the more recent of which was given in settlement of an amount then due are, McGinity v. McGinity (63 Pa. St. 38); Powelton Coal Co. v. McShain (75 Id. 238); Shugart v. Moore (78 Id. 469); Graver v. Scott (80 Id. 88); Lippincott v. Whitman (83 Id. 244); Greenawalt v. Kohne (84 Id. 369); Callan v. Lukens (89 Id. 134); Philips v. Meily (106 Id. 536); Spencer v. Colt (89 Id. 314); Brown et al. v. Morange (108 Id. 69); Walker v. France (112 Id. 203); Thomas v. Loose (18 WEEKLY NOTES, 366.)" STERRETT, J., in Thudium v. Yost, 20 WEEKLY April 9, 1888. THE COURT. This was an appeal by the plaintiff from an order of the Court below opening a judgment which he held against Jacob Hager. The plaintiff kept a country store; the plaintiff from the defendant as the result of their mutual dealings. The plaintiff says: "When Hager signed the note on January 24, 1885, there was no dispute between us about receipts, except about this buckwheat flour, which I allowed him credit for in order to have a settlement. There were no other conditions upon which the note was signed." The plaintiff is corroborated by his daughter, who was present and drew up the note in the presence of the parties. The defendant testified: "I went up to Jersey Shore; Mr. English was there in the store sitting by the stove. I says to Mr. English, we can't settle, for I lost my 1879 receipts. Then we got up and went around to his desk, on this lower side, then he, Mr. English says you can sign this note then, he says that will keep it open until you find your receipts. Then I signed the note. [judgment is reversed at the costs of the appellee; When I found the receipts I was to come up and and the judgment is re-instated with full force then we was to settle the note." There was a and effect. great deal of other testimony by defendant and his witnesses as to other matters both before and ENGLISH v. HAGER. W. M. S., Jr. March 22, 1888. Forepaugh et al. v. Baker. Negotiable notes-Affidavit of defence-Material facts of a statement drawn under the Act of May 25, 1887, must be traversed or denied in the affidavit of defence Holder for value. after the execution of the note. The greater April 9, 1888. THE COURT. We held in the part of it was irrelevant, and referred to trans-Appeal of Amzi H. English that it was error to actions about which there was no dispute or which open the judgment. It follows that it was error had been embraced in the settlement. Taken to submit the case to the jury. It is not necestogether, it was not sufficient to overcome the sary to repeat what was there said. prima facie evidence furnished by the note itself, Judgment reversed. supported as it was by the testimony of the plain- Opinions by PAXSON, J. tiff and his daughter. There was nothing in the TRUNKEY, J., absent. case to justify a chancellor in finding that there was either fraud, accident, or mistake in procuring the judgment note, and hence, there was Jan. '88, 165. nothing by which it could be reformed or set aside. Upon this question of the reformation of written instruments this Court has given no uncertain deliverances. In Philips v. Meily (106 Pa. 536), it is said: "It is only where a chancellor would reform the instrument that parol evidence is admissible to contradict it. It is true under our practice in Pennsylvania, it is accomplished through common law forms. But the fact remains that the defence set up is purely equitable, and the Judge ought not to submit the case to the jury unless the evidence is such that he would feel himself bound as a chancellor to reform the instrument. With our modification of the English rule, now too firmly embedded in our system to be disturbed, and our Act of Assembly which makes every defendant a competent witness, the principle above stated is about all there is left to preserve the sanctity and force of an instrument of writing, whether that instrument be a deed, which is the evidence of a man's title to his home, or an obligation for the payment of money." There was nothing new in this. It was but a repetition of what had been frequently said before and repeatedly since. The same principle will be found declared in Nicolls v. Mc Donald (101 Pa. 514); Smith v. Ins. Co. (103 Id. 177); North and West Branch Railway Company v. Swank (105 Id. 555); Cummins v. Hurlbutt (92 Id. 165); Morton v. Weaver (99 Id. 47); Jackson v. Payne (14 Id. 67). Especially are we not disposed to permit written instruments to be brushed aside upon insufficient evidence where such instrument is the result of a settlement between the parties. Where is has been procured by fraud, or there has been an accident or mistake in its creation, a chancellor will always relieve. Yet he will only do so when the evidence of the fraud, accident, or mistake is clear, precise, and indubitable. We have said this so often that it ought not to be necessary to repeat it. The order of the Court below opening the In an action of assumpsit on a promissory note, an affidavit of defence alleging that the notes were given to the payees without any value or consideration is of no effect in the absence of an explicit denial that the plaintiff is a bona fide holder for value without notice. An averment in an affidavit of defence that a note was transferred to plaintiff in order to avoid the above ment that plaintiff had knowledge of such alleged defence, amounts to nothing without a further averpurpose. note, in order to become a holder for value. An affidavit of defence that the note was given by one of defendants' firm after dissolution must further state that the holder had actual or constructive notice of the dissolution. Error to the Common Pleas No. 2, of Philadelphia County. Assumpsit, by Alfred G. Baker against John F. Forepaugh and J. Leaming Forepaugh, now or late trading as John F. Forepaugh & Son, on two certain promissory notes drawn to the order of Wm. M. Wilson & Co., and by them indorsed to plaintiff. Plaintiff filed his statement under the Act of May 25, 1887 (P. L. 271), to which the defendants filed the following affidavit of defence:— "J. Leaming Forepaugh, one of the abovenamed defendants, for himself and John F. Forepaugh, being duly sworn, says he has a just and true defence to the whole of plaintiff's claim of the following character and nature, to wit: That the notes, the subject of this suit, were given by your deponent in the names of John F. Forepaugh & Son to William M. Wilson & Co., at their request, without any value or consideration whatever. That said notes were given by deponent after the dissolution of said John F. | 482; Bunn v. Clark, 14 Pa. 476; Clark v. Forepaugh & Son, and that your deponent Fletcher, 96 Id. 416.) In the case last cited it believes that the same were transferred to Alfred is said: "When an ostensible or known member G. Baker without full value, for the purpose of avoiding the defence, which said deponent has to said notes against said William M. Wilson & Co. That said plaintiff, Alfred G. Baker, took the said notes after the insolvency and failure of John F. Forepaugh & Son, the makers, as appeared on said notes, and after the dissolution and failure of said William M. Wilson & Co., the drawees, as appeared on said notes. All of which facts the said deponent believes, and expects to be able to prove on the trial of this case, and further deponent saith not." of a co-partnership retires therefrom and wishes W. M. S., Jr. March 19, 1888. Pennsylvania Railroad Company v. Marchant. Plaintiff took a rule upon defendants to show William C. Mayne, for plaintiffs in error. April 9, 1888. THE COURT. In this action by the holder against the makers of two negotiable notes, the statement of plaintiff below, embodying everything that is required by the Civil Procedure Act of May 25, 1887 (P. L. 271), presents a clear prima facie case in his favor. The only question is, whether the Court below erred in holding that neither of the material averments of fact contained therein is traversed or denied by the affidavit of defence. We are clearly of opinion that it did not. The allegation that the notes were given to the payee "at their request without any value or consideration whatever," amounts to nothing, in the absence of an explicit denial that plaintiff was a bona fide holder for value without notice. The averment that defendants believe the notes " were transferred to Alfred G. Baker without full value for the purpose of avoiding the defence" they claim to have against the payees, is wholly insufficient, in that it is entirely consistent with the fact that the indorsee and holder, without knowledge of any such purpose, gave value for the notes. There is no averment, express or implied, that he had any knowledge of the alleged purpose; nor was it necessary, in order to become a holder for value, that he should give the full face value of the notes. There is no merit in the averment that the notes were given by one of the firm defendants after dissolution of their co-partnership. The affidavit of defence is silent as to notice, actual or constructive, of the dissolution. If plaintiff below had previous dealings with the firm he was entitled to personal notice; if not, notice by publication at least, was necessary. (Wilkinson v. Bank of Pennsylvania, 4 Whart. Constitutional law-Constitution of Pennsylvania, Art. XVI. § 8—Eminent domainRailroads-Consequential damages definedSmoke, cinders, noise, etc.-Damnum absque injuria. A 66 consequential" injury, for which damages may be recovered under section 8, Art. XVI. of the Constitution of Pennsylvania, is an injury to a man's property, the natural and necessary result of the construction or enlargement of its works by a corporation; an injury of such certain character that the damages therefor can be estimated and paid or secured in advance as provided in the Constitution. The word "injury" (or "injured") as used in the Constitution means such a legal wrong as would be For such injuries corporations and individuals now the subject of an action for damages at common law. stand upon the same plane of responsibility. A railroad company constructing and operating an elevated steam railroad in a city, upon property owned by it in fee simple fronting on one side of a street, is not liable under the provisions of Art. XVI., § 8, of the Constitution of Pennsylvania, or otherwise, for depreciation in the value of private property fronting upon the opposite side of the street (no part of which was taken or used in the erection or construction of the road), in consequence of the noise, smoke, cinders, dirt, and jarring necessarily resulting from the lawful operation of the railroad without negligence. cable only to such injuries as can be ascertained at The above provisions of the Constitution are applithe time the works are being constructed or enlarged. Individuals and corporations have the right to the lawful use and enjoyment of their own property, and if in the enjoyment of such right, without negligence or malice, an injury or loss occurs to another, it is damnum absque injuria. 472; 19 WEEKLY NOTES, 513, followed; and prior Penna. R. R. Co. v. Lippincott et al., 116 Pa. St. cases involving the construction of § 8, Art. XVI. of the Constitution, reviewed by PAXSON, J. Error to the Common Pleas No. 3, of Philadelphia County. |