and the indictment must undertake, or profess to do so, by the use of appropriate language. The excepted cases occur whenever a publication of this character is so obscene as to render it improper that it should appear on the record; and, then, the statement of the contents may be omitted altogether, and a description thereof substituted; but in this case a reason for the omission must appear in the indictment by proper averments." See, also, State v. Harmon, 23 Tex. 232; State v. Brown, 1 Williams (Vt.), 619.

LEASES FOR YEARS RENEWABLE FOREVER.

Though the distinction between real and personal property is, ordinarily, a very obvious one, yet there are circumstances under which it becomes a question of the greatest nicety whether a given article falls within the one class or the other. This is notably so in case of questions arising under the law of fixtures. So, also, although it is usually perfectly obvious that a lease of realty for years is personal property, yet when we come to consider the case of so-called perpetual leases, leases for ninety-nine years renewable forever, it becomes difficult to say why they are not real property..

The test by which to determine whether an estate in land is realty or personalty is the certainty or uncertainty of its duration. An estate for a term uncertain, no matter how short, is realty; and although originally leases could not be made for a term to endure beyond a generation, forty years, Coke Litt. 45b, 46a, Theobalds v. Duffoy, 9 Mod. 101, yet it is now settled that a lease of land for a term certain, of no matter how many years duration, is good, and is but a chattel. This distinction between real and personal estate in land, based on the certainty or uncertainty of the duration of the tenure, is essentially a feudal one, made arbitrarily, on no principle save that of caste, at a time when only the warrior was thought worthy to own land, and the husbandman, who merely tilled instead of killed, could hold nothing higher than an estate for years-a chattel. But even if this test of certainty or uncertainty of the duration of the term, founded as it is on feudal distinctions, is to be retained in this country, yet when it is applied to the case of a lease for

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ninety-nine years renewable forever, it fails to show it personalty, for it is difficult to imagine anything more uncertain than the length of time that such a lease may endure. Such a lease has both of the essential qualities which distinguish real from personal property; immobility of the subject matter, and a legal indeterminate duration of estate. 2 Black. 385. Speaking of a lease for two thousand years, Lord Mansfield says, 1 Cowper, 599: 'No man holds such a lease as a lease," and the Supreme Court of Massachusetts, speaking of one for nine hundred and ninety-nine years, in Montague v. Smith, 13 Mass. 396, say, that it is to all imaginable purposes a fee clogged with a ground rent.” These were only leases for a long term, but a term certain; and when we come to take such a lease and add to it the elements of uncertainty of duration of the term by making it renewable forever, why should it not be so viewed as to make it technically, as well as practically, a fee granted upon fee farm rents? Such fees, though not common, have been recognized in the law of this country. Adams v. Bucklin, 7 Pick. 121; Alexander v. Warrance, 17 Mo. 228; Farley v. Craig, 6 Halst, 262; Wartenby v. Moran, 3 Call, 491; Scott v. Lunt, 7 Peters, 596; Van Rensselaer v. Hays, 19 N. Y. 68; Wallace v. Harmstad, 44 Penn. St. 492; and leases granted to endure " as long as wood grows, and water runs,' have been declared to pass the fee subject to a rent charge. Arms v. Burt, 1 Vt. 303; Stevens v. Dewing, 2 Vt. 411.

Indeed, it would seem that unless a lease for ninety-nine years renewable forever is held to be a fee subject to a ground rent, it can not be sustained at all, and must be void within the doctrine against perpetuities. The rules against perpetuities apply to leases, 1 Washburn on Real Prop. 439, and such a lease has been held within them, and void, in Morrison v. Rossignol, 5 Cal. 64. In granting such a leasehold, the lessor either grants an entire estate which may endure forever, or he grants an estate for ninety-nine years with the covenant to renew it, to grant another just like it, at the expiration of every ninety-nine years, to the end of time. If every renewal is not the creation of a new estate, then the original estate granted is one in perpetuity, subject to a condition subsequent that it shall determine if the holder shall fail to do either of two

things, namely: elect to renew at the end of any ninety-nine years, or pay the rent; a base fee, perhaps, but still an estate in land which may endure forever, and, therefore, a fee. If each renewal is the creation of a new estate, then the covenant to renew forever is void, as it is for the creation of a series of estates, one of which must, in time, certainly take effect beyond the period of "a life or lives in being and twenty-one years after."

That such a lease is practically a fee is patent, and the objections against holding it technically something else are

numerous.

Thus, if the holder of one of these leases, to all imaginable purposes a fee, were to die out of the state where the land lies, it would, as to distribution, be governed, not by the lex loci rei sitæ, but by the lex fori. In leases of this kind, the lessee's estate usually becomes the really beneficial and valuable one, as compared with the estate of the lessor; but if the lessee should, by any mischance, have the life estate in the reversion cast upon him, as by curtesy, the leasehold, the estate most worth having, would be merged in it. 1 Washburn on Real Prop., 465. Lord Bacon remarks, Law Tracts, 331, that "it is the common byword of the law, that the law favoreth three things; life, liberty and dower;" but if such a lease is a chattel, then unless widows are by statute made dowable of such estates, they can be deprived of their dower altogether. All that is necessary is, that when a man buys land, instead of taking a fee, he should, while paying the price of one, take a lease for ninety-nine years, renewable forever at the annual rent, say of a peppercorn; then holding a chattel he would have all the benefit of a fee, relieved of the burden of dower. By the same means the laws of descent could be evaded. Again, any owner of land could grant it to a beggar, taking back a lease renewable forever at a nominal rent. Now in cases of leases for years the lessor is liable for the taxes. Taylor on Land. and Ten., § 341. But if an estate is thus held, the lessor's personal responsibility for taxes would amount to nothing, and if the land were offered for sale for taxes, as it never would yield anything, no one would buy it, and it would eventually be forfeited to the state. That is to say, unless the leasehold was made realty for purposes of taxation, the land would simply be exempt. The same reasons which

exist for making judgments liens on land without a levy, exist to make them liens on such leaseholds; and the same reasons of convenience and safety, which make recording desirable when lands are sold, require it in case of the assignment of such a lease.

These are probably some of the reasons which led to the passage of the statutes found in many of the states some making leases which have more than a certain number of years to run, realty, as in Massachusetts, others declaring leases renewable forever to be real estate for certain purposes, as in Ohio. In the latter state permanent leaseholds are, by statute, made real estate for purposes of descent and distribution, of sales on execution, and judgment liens. But in passing upon their nature, the courts have gone beyond the terms of the statute, and have declared them real estate for all purposes. In Murdock v. Reed, 1 Disney 274, a husband was held to be entitled to curtesy in the perpetual leasehold lands of his wife, though the estate by curtesy comes neither by descent nor on distribution. In Loring v. Melendy, 11 Ohio 355, the court say: "To withdraw permanent leasehold estates from their anomalous position between chattels and realty, and by calling them what in truth they are, lands, we relieve them from all doubt as to the principles and laws which shall control them, and assign to them a certain and fixed place in the law. A permanent leasehold estate is not a chattel, but is, in truth, land carrying the fee. Such is the nature of the estate, and so it has been considered and treated in the legislation of our state. We, therefore, declare that permanent leasehold estates are lands, subject to all the rules and laws which attach to land for all purposes.'

to the payment of the money. In form merely is it a chattel; it is in fact an estate in fee."

Since, therefore, by holding such leaseholds. to be personalty, the laws relating to dower, curtesy and taxation of land, can be evaded; since the policy of making judgments liens on land, and requiring conveyances of land to be recorded, applies with equal force to such leases, and, above all, since they possess the two indispensible qualities of realty, immobility of the subject matter, and an indeterminate duration of estate, it is submitted that such leaseholds are, in fact, as well as in form, technically, as well as practically, real estate, estates in fee. G. H. W.

1. LIBEL-GENERAL ISSUE-EVIDENCE-In an action for libel, where the defendant pleads the general issue and does not justify, evidence tending to prove the truth of the charge or of circumstances which, in the popular mind, tend to cast suspicion upon the plaintiff is inadmissible. But where defendant offered evidence showing that the plaintiff was an estimable young woman, and that two letters purporting to have been written by two respectable citizens of the town where she lived were received through the post-office by defendant, which letters were forgeries, and thereby he was imposed upon and induced to print the charges therein contained; that no one had ever heard of the charges until then, but on the contrary they excited universal indignation, which the trial court rejected: Held, error, as the proof offered did not fall within the above rule. CRAIG, SCOTT and SHELDON, J.J., dissenting.

2. LIBEL-DAMAGES WEALTH AND STANDING OF DEFENDANT.-An instruction that in fixing the amount of damages to be awarded as compensation to plaintiff for the injury she has sustained, "the wealth and standing of defendant might properly be considered," is improper. Per BREESE, J.

3. "THERE IS A CLEAR DISTINCTION between a publication of a slanderous matter in a newspaper as matter of news, and the publication of slanderous matter upon the personal truthfulness and responsibility of the defendant." Per BREESE, J.

BREESE. J., delivered the opinion of the court: In the case of Regnier v. Cabot, 2 Gilm, 38, this court, apparently with great care, laid down, as a rule of law, in actions of this kind, "that where a defendant does not justify he may mitigate

damages in two ways only-first, by showing the general bad character of the plaintiff; and, second, by showing any circumstances which tend to disprove malice, but do not tend to prove the truth of the charge." Before that time it had been a question whether, under the general issue, the defendant could be permitted to show specific facts, which tend to cast suspicion of guilt upon the plaintiff, upon which (it is there said), there had been a conflict of authority. The authorities in other states and in England were, in that case, examined, and the rule with its qualifications was laid down, as stated above. In an earlier case, Young v. Bennett, 4 Scam. 46, it had been decided, where defendant had pleaded the general issue to the whole declaration, and justified as to part of the counts, that it is not competent to prove in mitigation of damages "that a particular rumor prevailed in the neighborhood that plaintiff was guilty of the charge." In Sheahan v. Collins, 20 Ill. 328, the rule laid down in Cabot's case, supra, was again laid down and applied. That action was for libel, and it was then held incompetent to show that the libelous article had appeared in another newspaper in the city shortly before its publication by the defendants. The qualification to the proposition that defendant, in such case, "may prove any circumstances which tend to rebut malice," is that if such circumstances tend to prove the truth of the charges expressed in the slander or libel, the proof must be rejected, This qualification excludes not only such circumstances as the law recognizes as competent evidence tending to prove the truth of the charge, but all circumstances which, in the popular mind, tend to cast suspicion of guilt upon the plaintiff.

There can be no question that the proof offered in the case at bar and hereinafter mentioned, tends to rebut the inference of actual malice in the defendant. The turpitude of the publication of matter believed to be true is plainly of a character much less malignant than that of the publication of the same matter when known to be false, and less than the publication of the same matter without any reason to suppose it to be true. The proof offered plainly did tend, in some degree, to rebut malice. It tended to reduce the offense of defendant from that of vindictive, virulent malice, or that of utter recklessness, to that of a want of proper care in ascertaining the truth before publication. It was, therefore, competent, unless it be excluded by the qualification to the rule.

The question in this case is, did the proof so offered tend to cast suspicion of guilt upon the plaintiff? If so, it was properly rejected by the circuit court; if not, it ought to have been admitted. The substance of what defendant offered to show to the jury was, that plaintiff was a worthy and estimable young woman, living in Rockford, Illinois, and that two letters purporting to be written by two respectable citizens of Rockford were forged by some unknown person and sent through the post-office to defendant in Chicago, and that defendant was thereby imposed upon and induced

to publish the libelous article at the time, supposing the charge to be true, and that no one in Rockford had ever heard a suspicion of the purity of plaintiff until the publication of defendant, and that the publication excited universal indignation. Does this statement tend in the slightest degree to excite in the minds of the jury, the bystanders or the public a suspicion of the probability of guilt on the part of the plaintiff-we think not. On the contrary, it furnishes a vindication of her purity more complete than could any verdict of a jury— saying merely, "she was innocent and the publication malicious." The proof here offered differs from the case of an attempt to prove that rumors in support of the charge were in circulation before the publication, and from the case where it was proposed merely to prove that a like charge had been published in another journal. Proof that prior rumors existed, or that a prior publication of a charge had been made in another journal, would tend to excite in the minds of the jury a suspicion against the purity of plaintiff, and would tend to cast additional reproach upon the plaintiff. That would be simply a repetition of the slander with no accompanying antidote to neutralize the virus. In fact a statement by a defendant that rumors were prevalent against the chastity of a woman, or that an article charging impurity upon her had been published in a public journal, would constitute of itself ground for another action. Not 80 with the statement offered to be proved in this case. The publication of the statement offered in proof could not be made the subject of action by the plaintiff, for it in no way suggests to the mind a suspicion of impurity in her. In many cases the application of this rule of exclusion may be difficult. It may not be easy at all times to distinguish between that which is free from the suggestion of guilt in plaintiff and that which is not. The propriety of this exclusion of some matters, though they may seem to rebut malice, seems to rest upon the idea, that while the law will allow a guilty defendant to mitigate, if he can, the degree of his guilt, this is a privilege which must not be exercised, if to do so involves the necessity of casting reproach upon an innocent plaintiff who has done no wrong. The proof on this point offered in this case, taken as a whole, tended in no degree to cast additional reproach upon the plaintiff, and ought to have been admitted.

The sixth instruction for plaintiff was improperly given-it in substance says to the jury that in fixing the amount of damages to be awarded as compensation to the plaintiff for the injury she has sustained, "the wealth and standing of the defendant" might properly be considered. It is not perceived how the injury actually done to the plaintiff by the publication of this libel could be affected either by the wealth or standing of Wilbur F. Storey. This is not a slander uttered personally by the defendant, nor is the libelous matter contained in any communication having the sanction of his name. The extent of the circulation of the newspaper of defendant, and the character and standing of that newspaper for fairness, justice and truth might well be considered upon

that question. The wealth of the publisher might be great and his social standing high, and yet the paper might be of such character as to exert but little influence upon the public mind. On the other hand the publisher might be insolvent, and his position in society very low, and yet the paper might be very attractive and have a very large circulation and enjoy the confidence of the public to such a degree for justice and truth, that statements in its columns might carry great weight. There is a clear distinction between a publication of slanderous matter in a newspaper as a matter of news, and the publication of slanderous matter upon the personal truthfulness and responsibility of the defendant. Again, the injury actually suffered in no sense is to be measured by the wealth of the defendant. It must be observed that this instruction does not relate to vindictive or punitive damages, but solely to compensatory damages. For the errors stated the judgment must be reversed and the cause remanded.

Reversed and remanded. CRAIG, J.,
WALKER, J.

dissenting.

I concur in this opinion, so far as it holds that the forged letters should have been admitted in evidence in mitigation of damages, but not as to what is said in regard to the instruction. SCOTT, J., dissenting.

The libel, published in defendant's newspaper was a great wrong to the character of plaintiff. Its publication can not be justified or palliated for any reason or for any cause. It was not legitimate news fit for publication, and, if defendant wished to permit the scandalous matter to appear in the columns of his paper, he ought, in justice to the parties accused, to have first ascertained whether it was true or false, which he could have done in a few hours by the use of the telegraph. Not to do so shows a reckless disregard of the rights and feelings of innocent parties that might be affected by the publication of such defamatory matter. That part of the opinion by Mr. Justice Breese, which condemns an instruction given for plaintiff, is not concurred in by any four members of the court, and hence the views expressed have no sanction from the court. The only cause for reversing the judgment, which has the sanction of a majority of the court, is that the court below erred in excluding from the jury certain letters received, which it is said, contain the substance of the libelous publication. The fact that such letters were received was proven, and that the article published was based on them was also proven, and that was all defendant was entitled to prove in that connection. No other legitimate use could be made of the letters, and, indeed, the rulings of the court in that respect were quite favorable to defendant. It must be conceded that, under the former decisions of this court, if the signatures to the letters were genuine, or there had been no signature at all to them. such letters would not have been admissible in evidence. If they would tend to prove anything, it would be the truth of the libel, and that is not allowable under the plea of not guilty. How the fact the

signatures to the letters may be forgeries, can change the rule of law on this subject, is to me inexplicible. The introduction and reading of such letters, had the court permitted it, to the jury, in the presence of the court, would have been simply a repetition of the libel. Conceding the signatures to the letters were forgeries, the contents were nevertheless libelous and defamatory in the highest degree. Believing there is no error in the record, the judgment ought to be affirmed.

SHELDON, J., concurring with SCOTT, J.

PLAINTIFF below was negotiating, at Portland, Me., with defendant below, a railroad company, for the introduction on its road of a patent car-coupling, and was requested by defendant to go to Montreal and see one of its officers there, defendant agreeing to pay his expenses. He was given a pass directing conductors to pass him from Portland to Montreal. The pass contained this condition: "The person accepting this free ticket in consideration thereof assumes all risk of all accidents, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person or for any loss or injury to the property of the passenger using the ticket. If presented by any other person than the individual named therein, the conductor will take up this ticket and collect fare." While traveling from Portland to Montreal, on this pass, on one of defendant's trains, plaintiff was injured by defendant's negligence. Held, 1. That plaintiff was carried for hire, in pursuance of an agreement, and not as a gratuitous passenger; 2. That it was not competent for defendant to stipulate against liability for its own negligence in such a case, and it was liable for the injury.

In error to the Circuit Court of the United States for the District of Maine. The facts appear in the opinion.

Mr. Justice BRADLEY delivered the opinion of court:

This was an action on the case for negligence, brought to recover damages for injuries received by the plaintiff (now defendant in error) whilst a passenger in the defendant's cars. The plaintiff, being owner of a patented car-coupling, was negotiating with the defendant at Portland, Maine, for its adoption and use by the latter; and was requested by the defendant to go to Montreal to see the superintendent of its car department in relation to the matter, the defendant offering to pay his expenses. The plaintiff consented to do this, and in pursuance of the arrangement, he was furnished with a pass to carry him in the defendant's cars. This pass was in the usual form of free passes, thus: "Pass Mr. Stevens from Portland to Montreal," and signed by the proper officer. On its back was the following printed indorsement:

"The person accepting this free ticket in consideration thereof assumes all risk of all accidents, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person, or for any loss or injury to the property of the passenger using the ticket. If presented by any other person than the individual named therein, the conductor will take up this ticket and collect fare."

The plaintiff testified that he put the pass into his pocket without looking at it, and the jury found specially that he did not read the indorsement previous to the accident, and did not know what was indorsed upon it. He had been a railroad conductor, however, and had seen many free passes, some with a statement on the back, others without.

During the passage from Portland to Montreal, the car in which the plaintiff was riding ran off the track and was precipitated down an embankment, and the plaintiff was much injured. The direct cause of the accident, according to the proof, was that at the place where it occurred, and for some considerable distance in each direction, the bolts had been broken off the fish-plates which hold the ends of the rails together, so that many of these plates had fallen off on each side, leaving the rails without lateral support. The consequence was that the track spread, and the cars ran off as before stated. There was also evidence that at this place the track was made of old rails patched up.

The above facts appeared on the plaintiff's case, and the defendant offered no evidence, but requested the court to instruct the jury as follows:

1. That if the plaintiff, at the time of sustain g the injury, was traveling under and by virtue of he pass produced in evidence in the case, he was traveling upon the conditions annexed to it.

2. That if the plaintiff, at the time of sustaining the injury, was traveling under and by virtue of the pass produced in evidence in the case, the defendants are not liable.

3. That if the plaintiff, at the time of sustaining the injury, was traveling as a free passenger, the defendants are not liable.

4. That if the plaintiff, at the time of sustaining the injury, was traveling as a gratuitous passenger, without any consideration to the defendants for his transportation, the defendants are not liable.

The court refused these instructions as inapplicable to the evidence produced, and instructed the jury as follows, viz:

That if the jury find that in May, 1873, the plaintiff was interested in a car-coupling, which had been used on the cars of the defendant since I ecember previous, and that the officers of the company were desirous that the plaintiff should meet them at Montreal, to arrange about the use of such couplings on their cars by defendant, and they agreed with him to pay his expenses if he would come to Montreal, and he agreed so to do, and took passage on defendant's cars, and was by the reckless misconduct and negligence of the defendant, and without negligence on his part, injured whilst thus a passenger in defendant's car, the de