be found the following statements of the rule in question, supported by abundant authority: conceal the truth, or had in any manner or form interfered with the due administration of justice in the court in which the case was pending, we would have no doubt of the right of the court, in which the case was pending, to proceed against him in the summary manner adopted by Judge Field in this case." "Where a decree has not been enrolled, or where it is subject to modification upon motion, or where the court might grant a rehearing, or where an appeal might be taken, or where the costs had not been taxed, or where no execution had issued, it not being in condition to issue execution, the case could not be said to have reached that stage where it could be said it was not pending in that court. Re Chadwick, 109 Mich. 588, 67 N. W. 1071; Fishback v. State, 131 Ind. 304, 30 N. E. 1088; Bloom v. Peo-date him and influence his testimony exple, 23 Colo. 416, 48 Pac. 519. For one to commit, as was done by the appellant in this case, an assault and battery upon the witness as a punishment for giving testimony against him in an action or criminal prosecution then pending, though in part disposed of, or as a means to intimi pected to be given in the future trial of an "A petition of which judgment has been action or criminal prosecution then pendfinally pronounced, but on which the ordering, is a criminal contempt, because such has not been drawn up, is a 'pending proceeding.' Ex parte Turner, 3 Mont. D. & De G. 523." conduct is as much an interference with the authority and dignity of the court, and an obstruction of justice, as would be the intimidation or bribery of a witness, or any contempt committed in the presence of the court. The evidence clearly proves appellant's guilt of such a contempt; and, this being true, it was within the power and jurisdiction of the court to proceed against him by rule and summarily try him, as was done in this case. It is equally manifest that the power of the court was inadequate to the infliction of such punishment as the contempt of appellant deserved. Therefore it was proper to submit the matter to the determination of a jury. As said in French v. Com. 30 Ky. L. Rep. 98, 97 S. W. 427: "We have in this state no statute defining contempt. There is a statute limiting the power of the court as to the infliction of In Melton v. Com. supra, Melton, a physician, in contemplation of a suit to be instituted by a party to recover damages for personal injuries sustained by the alleged negligence of another, pretended to treat the party in a professional way for the purpose of manufacturing evidence that would sustain the action that was soon thereafter brought, when he knew such party was not injured. We held that although such conduct upon his part was a common-law misdemeanor, because of its obstructing justice, for which he might have been proceeded against by warrant or indictment, he was not guilty of contempt, because the action in which he attempted to manufacture evidence was not an action pending in court. After defining the distinc-punishment for contempt; but, if in the tion between acts which constitute the common-law misdemeanor of obstructing justice and those which constitute criminal contempt, it is in the opinion said: opinion of the court the contempt is one demanding greater punishment than lies in its power to inflict, it may have a jury to hear the truth of the matter, and leave it to them to inflict such punishment as they may deem commensurate with the offense. As in any other case of trial by jury, their verdict will not be disturbed, unless flagrantly against the evidence, or the result of passion or prejudice. There is nothing here to indicate passion or prejudice on the part of the jury." The further contention of appellant that the court erred in instructing the jury is without merit. Instruction No. 1 appears "In thus speaking, we do not undervalue the importance of protecting courts or of keeping pure the administration of the law; nor do we think what we have said limits in any manner the power courts have always possessed to punish, as for contempt, persons who were guilty of contempt, as it has been always defined. When a court has full power and authority to protect its dignity, enforce its processes, discipline its of ficers, and punish those who would impede or bring into disrepute the administration to be the only one objected to. That inof justice in a pending case, it has all the struction, in substance, told the jury that, authority that is needed to be exercised in order to find the appellant guilty of the through contempt proceedings, and other contempt charged, they must believe from offenses should be left to be disposed of in the evidence, beyond a reasonable doubt, the ordinary way. If there had been a suit that the assault and battery committed pending in the Jefferson circuit court, and upon Cook was done to intimidate him as a Melton had attempted to manufacture evi- witness in the case then pending, or to pundence in this suit, or had endeavored to per-ish him for testifying in the case theresuade a witness to give false evidence or tofore recently tried. It is insisted for appellant that the alleged error in this instruction was in its advising the jury that they might find appellant guilty if his motive for committing the assault and battery was to punish Cook for testifying in the case just tried. Obviously this contention rests upon the ground that, if the assault was committed from the motive last mention, it would not constitute a contempt, in the meaning of the law. This we have already answered by stating in the opinion that, as the case tried must be regarded as pending in court at the time of the commission of the assault, the assault, if committed by way of punishment for the testimony given by Cook therein, was as much a contempt as if it had been committed for the purpose of intimidating Cook as a witness in a future trial to be had of the other indictment, which had been continued to the succeeding term of the court. It is also insisted for appellant that he did not actually know that Cook had been subpoenaed as a witness in the continued case. In our opinion it is not material whether appellant had knowledge of a subpœna having been served on Cook in that case. It is manifest that he knew Cook was a prospective witness in the continued case, as his name appears upon the indictment as a witness for the commonwealth, and appellant, being in court on that indictment, must be presumed to have knowledge of what it contained, not only as to the offense charged, but as to the witnesses for the commonwealth, whose names appear upon the back thereof. Moreover, as Cook was the most important witness for the commonwealth in the other two cases and bad testified in each, which was of course known to the appellant, who was himself present at each of the trials, it is reasonably certain that he knew of the importance of his testimony to the commonwealth in the continued case. ishment of crime and the enforcement of 3. The position of juror is not an office or employment within the rule that it is slanderous to impute unfitness to perform the duties of an office or employment. (February 25, 1915.) Libel and slander: imputing misconduct to judicial officer or juror. Appellant's final contention, that the punishment inflicted by the verdict is excessive, cannot be sustained. In view of the nature of the contempt committed by appellant į and the aggravating circumstances attend-Note. ing its commission, no reason is apparent for regarding the punishment inflicted by the jury greater than his conduct deserved. In French v. Com. supra, the judgment inflicting a fine of $5,000 upon the appellant was affirmed by this court. We find in this case nothing to indicate that the jury, in reaching a verdict, were influenced by passion or prejudice, and, in the absence of such a showing, no reason is apparent for disturbing the verdict. Every judge at all familiar with the conduct of criminal prosecutions in this state has seen that one of the chief difficulties in the way of the pun Generally. The purpose of this note is to consider what constitutes a libel or slander of a judicial officer in that capacity for which an action for damages may be maintained; and while a few cases of libel or slander not touching such person in his office have been included in this note, it is not intended to exhaust such cases. Neither is this note concerned with the question of criminal libel of such officer, in which connection see notes cited in §§ 6, 7, Contempt, Index to L.R.A. notes, 252. A PPEAL by plaintiff from a judgment of the Circuit Court for Pike County in defendant's favor in an action brought to recover damages for an alleged slander. Affirmed. The facts are stated in the opinion. Mr. J. E. Childers, for appellant: The language sued on was actionable per se. Spears v. McCoy, 155 Ky. 1, 49 L.R.A. (N.S.) 1033, 159 S. W. 610; Byers v. Martin, 2 Colo. 605, 25 Am. Rep. 755, 25 Cyc. 352. It imputes to plaintiff unfitness to perform the duties of an office and employment. If a party desires to plead privileged occasion he must admit speaking the words. Edwards v. Kevil, 133 Ky. 392, 28 L.R.A. (N.S.) 551, 134 Am. St. Rep. 463, 118 S. W. 273. The communication of litigants, counsel, and witnesses are conditionally privileged. Morgan v. Booth, 13 Bush. 482; Tanner v. Stevenson, 138 Ky. 578, 30 L.R.A. (N.S.) 200, 128 S. W. 878. Messrs. Hobson & Hobson, for appellee: The statements of counsel are absolutely privileged. Henderson v. Broomhead, 4 Hurlst. & N. 577, 28 L. J. Exch. N. S. 360, 5 Jur. N. S. 1175, 7 Week. Rep. 492; Munster v. Lamb, Kemper v. Fort, 123 Am. St. Rep. 650, L. R. 11 Q. B. Div. 588, 52 L. J. Q. B. N. S. 726, 49 L. T. N. S. 252, 32 Week. Rep. 248, note. For many valuable notes on the general subject of libel and slander, see "Libel and Slander," Index to L.R.A. Notes, 840. As regards language concerning one in office, the same general principles apply as to language concerning one in a trade. Language concerning one in office, which imputes to him a want of integrity or misfeasance in his office, or a want of capacity, generally, to fulfil the duties of his office, or which is calculated to diminish public confidence in him, or charges him with the breach of some public trust, is actionable. Spiering v. Andræ, infra. To say of a commissioner for the examination of witnesses that he has taken bribes to favor one of the parties is actionable. Moor v. Foster, Cro. Jac. 65. And in Lansing v. Carpenter, 9 Wis. 540, 76 Am. Dec. 281, the substance of the alleged libelous charge published in a newspaper was that it was expected that the plaintiff as court commissioner would discharge, habeas corpus, all persons who might be committed by the legislature for refusing to testify, merely to subserve the views of other parties, whose tool and toady the plaintiff was, and that the writer of the article considered him “a fit tool for such purposes," etc., and that "whatever he might do in the future, the past would warrant the depriving him of his office." Such imputations made against an officer, it was held, have natural tendency, so far as the influence of the press extends, to diminish public confidence in his official integrity, and thus injure him in the business of his office, and are actionable within the rule relating to words spoken of a man in his trade or profession. It is settled that an action for libel may be sustained for words published which tend to bring the plaintiff into public hatred, contempt, or ridicule, even though the same words spoken would not have been action able. Ibid. To accuse one in open court with having perverted justice is actionable. Seignior de la Ware v. Pawlet, F. Moore, 409. It does not clearly appear in this case who the plaintiff was. See Earle v. Johnson, 81 Minn. 472, 84 N. W. 332, holding that the alleged words charged an appraiser of real estate with crime, and were slanderous per se. Judge-libel. Quoting from Newell on Libel & Slander, the court in Dixon v. Chappell, infra, said: "Defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of an office, or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment, are actionable in themselves without proof of special damages." In Dixon v. Chappell, 133 Ky. 663, 118 S. W. 929, the court said: "In the article before us it is charged that justice has been outdone, overruled by sleight of hand; that it is a matter of self-exposure, self-ignorance, bad recollection, no bookkeeping, or downright graft on the part of the county officials; that when things go wrong the county judge has a very bad memory, and his graft continues to extract money from the taxpayers' pockets. The natural meaning of this is that the misuse of the county money is due to ignorance, bad recollection, no bookkeeping, or downright graft on the part of the county officials, and that the county judge has both a bad recollection, and by graft continues to extract money from the taxpayers' pockets. The word 'graft' has a well-defined popular meaning at this time. It means the fraudulent obtaining of public money unlawfully by the corruption of public officers. It is constantly so used in the daily press, and is thus defined in Clarkson's American Dictionary: ‘The act of anyone, especially an official or public employee, by which he procures money surreptitiously by virtue of his office or position.' 'Grafter' is thus defined: dishonest official.' The charge touches the county judge in his office. To charge an official with graft is to charge him with want of integrity. The article in question, if true, would necessarily destroy the respect of the people of Leslie county for the county judge. Its necessary tendency was to de 'A 47 J. P. 805, 7 Eng. Rul. Cas. 714; Sebree v. Thompson, 126 Ky. 223, 11 L.R.A. (N.S.) 723, 103 S. W. 374, 15 Ann. Cas. 770, 775, note; Tanner v. Stevenson, 138 Ky. 578, 30 L.R.A. (N.S.) 200, 128 S. W. 878. Under the rule of conditional privilege, statements of counsel which he believes to be pertinent are not actionable. Stewart v. Hall, 83 Ky. 375; Morgan V. Booth, 13 Bush, 480; Forbes v. Johnson, 11 B. Mon. 48; Gaines v. Etna Ins. Co. 104 Ky. 695, 47 S. W. 884; Monroe v. Davis, 118 Ky. 806, 82 S. W. 450; Kemper v. Fort, 219 Pa. 85, 13 L.R.A. (N.S.) 820, 123 Am. St. Rep. 623, 67 Atl. 991, 12 Ann. Cas. 1022. The words do not charge Smallwood with 339, 70 Pac. 216; Forward v. Adams, 7 any crime. grade him in public estimation, for no one could regard him as a capable and upright official who believed the statements of this article to be true. The publication was therefore actionable per se, and the circuit court erred in sustaining the demurrer to the petition." as A publication to the effect that an semblyman, a lawyer, passed a bill raising the salary of a county judge as the agent of the judge, and that the assemblyman was rewarded for such act by the principal by appointment as referee, etc., while not charging the judge with bribery within the legal definition of that crime, is calculated to degrade his character and impeach his integrity as a judge, and injure him in the public estimation, and is libelous. Hickey v. Corson Mfg. Co. 58 Misc. 70, 108 N. Y. Supp. 884, affirmed without opinion in 127 App. Div. 946, 111 N. Y. Supp. 1123. A publication susceptible of the innuendo that a judge correctly entered into partnership while holding offices of public trust, and thereby unlawfully acquired large sums of public money, is libelous. Higgins v. Walken, 17 Can. S. C. 225. A newspaper article referring to a county judge by name and as "Czar," and charging him with threatening the proprietor of the paper with personal violence, warning him that "his presence would not be tolerated around the official throne of the County Czar," and using language which would not do to print, and stating that the paper will not submit to the "tyranny and bulldozing methods of a self-constituted Czar without raising an objection;" that it could cite other instances equally unjust; and that the public has a right to demand courteous treatment from its public servants,-is libelous within art. 5595, Rev. Stat. 1911, defining a libel as "a defamation expressed in printing or writing, or by signs and pictures or drawings, tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt, or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of anyone, or to publish the Wend. 204; Allen v. Hillman, 12 Pick. 101; natural defects of anyone and thereby expose such person to public hatred, ridicule, or financial injury," as it tends to injure the reputation of such judge by exposing him to contempt and ridicule. Blum v. Kusenberger, Tex. Civ. App. 158 S. W. 779. A publication in the form of an affidavit directly charging the plaintiff in his judicial capacity with a wilful refusal to perform à legal duty, and indirectly charging that such refusal was from corrupt notices; and fairly charging a betrayal of confidential communications to an alleged criminal for the purpose of shielding him, and by insinuation charging that plaintiff was privy to a corrupt agreement, whereby, for a money consideration, protection was extended to law violators,-is defamatory and actionable. Lauder v. Jones, 13 N. D. 525, 101 N. W. 907. The method by which a public officer continues to retain his hold on a public office is as much a matter of public concern, as much subject to public criticism, as the method by which he originally obtained, or sought to obtain, the office. If he resorted to a dishonorable trick, it is proper to publish the fact. Everyone has a right to comment fairly, and with an honest purpose, on the conduct of public officials. And so of the conduct of a municipal judge. Wilcox v. Moore, 69 Minn. 49, 71 N. W. 917. In Royce v. Maloney, 58 Vt. 437, 5 Atl. 395, where it was alleged that the plaintiff's son was a lawyer, practising in the courts, and that the meaning of the words complained of was that the plaintiff was in copartnership with his son in the law business, receiving compensation from parties to suits in his court brought his son as attorney, "What the Gazette wants to know: When Judge Royce and his son will dissolve partnership?"-was held in the light of the prefatory averments to amount to a charge of misconduct in office, and so libelous if not true. A publication that charges a judge with being destitute of the capacity and attainments necessary for his station, or that he openly abandoned the common principles of Windsor v. Oliver, 41 Ga. 538; Dicken v. Shepherd, 22 Md. 399; Oram v. Franklin, 5 Blackf. 42; Edwards v. Howell, 32 N. C. (10 Ired. L.) 211; Newell, Slander, p. 175. No misstatement of facts is complained of; comment on admitted facts is not actionable. Macauley v. Elrod, 14 Ky. L. Rep. 525; Tharp v. Nolan, 119 Ky. 870, 84 S. W. 1168; 25 Cyc. 347, note 76; Davis v. Shepstone, L. R. 11 App. Cas. 190, 55 L. J. P. C. N. S. 51, 55 L. T. N. S. 1, 34 Week. Rep. 722, 50 J. P. 709; St. James Military Academy v. Gaiser, 28 L.R.A. 667, note; Sillars v. Collier, 151 Mass. 50, 6 L.R.A. 680, 23 N. E. 723. truth, or that he sold, directly or indirectly, the appointment of clerk, is libelous. Robbins v. Treadway, 2 J. J. Marsh, 540, 19 Am. Dec. 152. But opprobrious words spoken of a judge are not libelous. Ibid. A publication charging a judge with improprieties, which would be no cause of impeachment or address, is no more actionable than if made against a private citizen. Ibid. This is the law even of England. It must be so in this land of republican equality. Ibid. In Tappan v. Wilson, 7 Ohio, pt. 1, p. 191, it does not seem that the publication which was held not libelous was made concerning the plaintiff as judge. In Briggs v. Garrett, 111 Pa. 404, 56 Am. Rep. 274, 2 Atl. 513, the alleged libel was published concerning a judge as a candidate for re-election, and the case is concerned chiefly with the question, in what manner and to what extent the fitness of a candidate for a public office may be discussed by the people, whose votes may elect or defeat him. Ames v. Hazard, 6 R. I. 335, subsequent appeal in 8 R. I. 143, was an action for libel against the plaintiff in his office of chief justice of the supreme court of Rhode Island, and reporter of its decisions. The case, however, decides nothing peculiar to cases of the type now under consideration, being concerned with the sufficiency of a plea attempting to justify the alleged libel complained of. And see in the same connection Royce v. Maloney, 57 Vt. 325, 58 Vt. 437, 5 Atl. 393. And see also Harris v. Lawrence, 1 Tyler (Vt.) 156; Harris v. Huntington, 2 Tyler (Vt.) 129, 4 Am. Dec. 728; Culver v. Van Anden, 4 Abb. Pr. 375; Van Ness v. Hamilton, 19 Johns. 349; Perret v. New Orleans Times Newspaper, 25 La. Ann. 170; Turrill v. Dolloway, 17 Wend. 426, subsequent appeal in 26 Wend. 383. -slander. To say of one that he has been a corrupt judge and justice, and has taken bribes of many persons, is actionable. Pepper v. Gay, Lutw. pt. 2, p. 538. Carroll, J., delivered the opinion of the court: The plaintiff, who is the appellant here, brought suit against the defendant, now appellee, to recover damages for an alleged slander. The defendant is an attorney at law, and the petition charged that in the courthouse, while making the opening statement in a case, he falsely and maliciously spoke of and concerning the plaintiff the following words, to wit: "In this case the only question is whether a corporation can get justice in Pike county. No longer than yesterday I heard a case tried in this court of Carl Massy against the Allegheny Coke Company and John Fuller, in which the jury turned in a verdict under their oaths against the Allegheny Coke Company And words charging a judge with using undue influence and violating his oath, for which he ought to be removed from office, were held actionable in Hook v. Hackney, 16 Serg. & R. 385, without colloquium or innuendo. One said that my Lord Chief Baron cannot hear of one ear colloquio præhibito of his administration of justice; and it was adjudged actionable. Alleston v. Moor, Het. 167 (dictum). It would have been otherwise if they had said nothing of his justice. Ibid. And it seems that to say of an admiralty judge that a sentence was corruptly given by him is actionable. See Cæsar v. Curseny, Cro. Eliz. pt. 1, p. 305. Justice of peace-libel. A newspaper account describing what purported to be a scene between a justice of the peace and a prisoner, in which the justice, aroused to anger by the prisoner's disrespect, left the bench and violently assaulted the prisoner, was libelous per se. O'Leary v. New York News Pub. Co. 51 App. Div. 2, 64 N. Y. Supp. 327. Against the conclusion of the trial judge that the language of the publication was not so actionable, the court said: "The publication charged the plaintiff, while in the exercise of his functions as a justice of the peace, with having committed an assault upon a prisoner who stood arraigned before him. The fact that the prisoner had treated him with derision was no justification for a personal attack by the plaintiff, nor was such attack justified or excused by the fact that the prisoner started to leave the room. According to the article, the constable who had brought the prisoner to court was present throughout the entire altercation, and nothing is stated in the article disclosing the slightest necessity of any effort on the part of the justice to detain the prisoner. On the contrary, the action attributed to the plaintiff by this publication, if not palliated by facts which do not appear in the published statement, would warrant the removal of the justice from office. In slander, it is a general rule |