Sweeney v. Baker 13 W. Va. 160

*184Green, PRESIDENT,

delivered the opinion of the Court:

jjefore considering directly the questions, involved in this case, I will briefly consider the rights and duties of the parties to this action, arising from their relations to each other.

Syllabus 7 The plaintiff was a candidate to represent the county of Ohio in the House of Delegates of the State of West Virginia; and the defendants were proprietors of the Wheeling Daily Register, a newspaper published in said county. A newspaper proprietor is just as liable, for what he publishes in his newspaper, as any other person; and he is liable in the same manner and to the same extent. The law takes no cognizance of newspapers; and there is no distinction between the publication by the proprietors of a newspaper, and a publication by any other person.

The terms “freedom of the press” and “ liberty of the press” have misled some to suppose, that the proprietors, of a newspaper had a right to publish that with impunity, for.the publication of which others would have been held responsible. But the proper signification of these phrases is, if so understood, misapprehended. The “liberty of the press” consists in a right, in the conductor of a newspaper, to print whatever he chooses without any previous license, but subject to be held responsible therefor to exactly the same extent, that any one else would be responsible for the publication.

In the case of Stebbins et al. adm’rs v. Merritt et al., 10 Cush. 25, the instruction given by the court below, and approved by the Supreme Court, was: “ It has been urged upon you, that conductors of the public press are entitled to peculiar indulgence, and have especial rights and privileges. The law recognizes no such peculiar rights, privileges, or claims to indulgence. They have no rights but such as are common to all. They havejust the same rights, that the rest of the community have, and no more. They have the right to publish the truth, but no *185ight to publish falsehoods to the injury of others with impunity.”

In Davidson v. Duncan, 7 El. & Bl. 231 (90 Eng. C. L.) Coldridge, J., says: “There is no difference in law, whether the publication is by the proprietor of a newspaper,.or by some one else. There is no legal duty on either to publish, what is injurious to another; and if any person does do so, he must defend himself on some legal ground.”

Syiimm:. n> But the fact, that one is a candidate for an office in the gift of the people, affords in many instances a legal excuse for publishing language concerning him as such candidate, for which publication there would be no legal excuse, if he did not occupy the position of such candidate, whether the publication be made by the proprietors' of a newspaper, or by a voter, or other person having an interest in the election. The conduct and actions ot ol such candidate may bo freely commented upon; his acts may be canvassed, and his conduct boldly censured. Nor is it materia], that such criticism of conduct should in the estimate of a jury be just. The right to criticise the action or conduct of the candidate is a right, on the part of the party making the publication, to judge himself of the justness of the criticism. If he was liable for damages in an action for libel for a publication criti-cising the conduct or action of such a candidate, if a jury should hold his criticism to be unjust, his right of criticism would be a delusion, a mere trap. The only limitation to the right of criticism of the «efe or conduct of a\ candidate for .an office in the gift of the people is, that \ the criticism bebona fide. As this right of criticism is confined to the acts or conduct of such candidate, whenever the facts, which constitute the act or conduct criti-cised, are not admitted, they must of course be proven. But as respects his person there is no such large privilege of criticism, though he be a candidate for such office.

Syn.,],us ,, Syllabus 8 This large privilege of criticism is confined to his acts. The publication of defamatory language, affecting his *186mora^ character, can never be justified on the ground, that it was published as a criticism. His talents and qualification mentally and physically for the office, he asks at the hands of the people, may be freely commented on in publications in a newspaper, and though such comments be harsh and unjust, no malice will be implied; for these are matters of opinion, of which the voters are the only judges ; but no one has a right by a publication to impute to such a candidate falsely crimes, or publish allegations affecting his character falsely.

In the Commonwealth v. Clapp, 4 Mass. 163, Chief Justice Parsons says : “ When any man shall consent to be a candidate for public office, conferred by the election of the people, he must be considered as putting his character in issue, so far as it may resjiect his fitness and qualifications for the office but he adds: “ The publication of falsehood and calumny against public officers, or candidates for public offices, is an offense most dangerous to the people, and deserves punishment, because the people may be deceived, and reject the best citizens, to their great injury, and it may be to the loss of their liberties.”

In Mayrant v. Richardson, 1 Nott. & M. (S. C.) 348, where the words, complained of, were spoken and written of a candidate for Congress, and were substantially, that his mind was so impaired and weakened by disease, that it could not be depended upon, though special damages were laid, yet the court held on demurrer, thatthe action could not be sustained, though the language used was false and malicious, though had the words used or letters written imputed a crime or moral delinquency, the action would have lain.

Justice Mott in delivering the opinion of the court says : “ When one becomes a candidate for public honors, he makes a property of himself for public investigation. All his pretensions become the proper subjects of enquiry and discussion. He makes himself a species of public property, into the qualities of which every one has a right to enquire, and of the fitness of *187which every one has a right to judge, and give his opinions. The ordeal of public scrutiny is many times a disagreeable and painful operation ; but it is the result of freedom of speech, which is a necessary attribute of free government; and the same may be said of freedom of the press.”

The authorities fully sustain the position, that a publication in a newspaper made either of a public officer or of a candidate seeking an office from the votes of the people, which imputes to him a crime or moral delinquency, is not a privileged publication, either absolute or conditional; but such a publication is per se actionable, the law imputing malice to the author or publisher. See Curtis v. Mussey et al., 6 Gray 281; Aldrich v. Press Printing Co., 9 Minn. 133; Seeley v. Blair, Wright (Ohio) 358, 683; Root v. King, 7 Cow. 613; King v. Root, 4 Wend. 113; Harwood v. Astley, 1 Bos. & Pul. N. S. 47; Duncombe v. Daniel, 8 C. & P. 222.

In most of these oases the distinction, I have drawn, between cases, where the libelous charges published against public officers elected by the people, or candidates for public office before the people, when they merely refer to the mental or physical condition of the party to fill the office, and cases where the libelous charge imputes crime or moral delinquency, is either not made at all, or but vaguely alluded to; but an examination of these will show, that in the particular case before the court, which was being commented upon, the libelous charge, which the court held was actionable per se, was in every case a charge imputing crime or moral "delinquency.

Thus in the case of Curtis v. Mussey et al., 6 Gray 373, the court say: “The want of actual interest, to vilify or libel the plaintiff, rendered the publication no less a libel, if such were the natural effect of the words published. There were passages in the publications, which appear on their face to be libelous, such as, the charge of legal Jesuitism; the companion to Pilate and Judas; the *188charge of prejudice and want of feeling; the assertion “that the decision of the commissioner was a partisan and ignoble act. The statements complained of were not privileged communications, and, as discussions upon a matter / of public interest, do not appear to be justified, because they charge the plaintiff with corrupt and improper motives, and because the answer did not aver their truth/’

It will be observed, that the court thus selected, as not privileged publications, such portions of the charge, as clearly impute moral delinquency, and tacitly recognize the distinction, I have drawn.

In the case of Aldrich v. Press Printing Co., 9 Minn. 138, it does not appear, what the charges published in a newspaper against the plaintiff wfere; but we may from the report fairly infer, that they were either direct charges of crimes, or imputed to him moral delinquency. The court say : “Freedom of the press and freedom of speech are equally protected by the Constitution. In this country almost all •offices are elective. The press does not possess any immunities, not shared by every individual. In every election the same, freedom of discussion of the merits and demerits of candidates is allowed to the press and people. Nor can it be said, that every hoxise-hold visitation, made by itinerant politicians, poisoning the minds of electors with libelous and scandalous charges against candidates, every public harangue, filled with similar matter, every club-room discussion, in which such charges are bandied about with licentious freedom and exaggeration, are privileged communications, and impose upon the injured party the necessity of proving, that they were uttered and published with express malice. We have never supposed, that the freedom of speech, even in this country, could legally be carried to such extent. Yet if such is the law, as to an article published in a public journal, there can be no good reason shown, why it does not extend to all channels of communication between man and man during the pending of an election. We think a public journal, or an indi*189vidual, who indulges in defamatory assertions about candidates for office, is equally liable for his acts with those, who commit the same offense against private individuals.”

I think it is obvious, that the defamatory assertions, alluded to in this opinion, are charges of crimes or imputations of moral delinquency.

In Seeley v. Blair, Wright (Ohio) 358, the charge was of perjury. The court say: “If one accuse another of crime, he is presumed to make a false accusation ; and malice is inferred from the falsehood. That the plaintiff was a candidate for office is no excuse for slandering him. We have no right to tell a lie of another, because he is a candidate for office, or is in office; though we may speak the truth of him, we have no right to bear false witness against our neighbor. It would subvert our government, to allow the promulgation of falsehood, which would drive from office men, who- regard character, and leave it only to those without any.” And in a suit between same parties, Wright (Ohio) 686 ; the charge was forgery. The court say: “As to the point urged that the plaintiff was a candidate for office, and the defendant an elector, I need only say, the relation of the parties to each other, or to the public, confers upon the defendant no right to utter falsehood and calumny. An elector may freely canvass the character and pretensions of officers and candidates; but he has no right to calumniate one, who is a candidate for office, with impunity. If the law sanctioned such a course, it would drive good men from the administration of public affairs, and throw our government into the hands of the worthless and profligate.”

The same judge pronounced this opinion in each of these cases; and it would not be a just inference from his' saying, that an “elector may freely canvass the character of a candidate,” that he could make allegations imputing moral delinquency on the one hand, or on the other it would not be just from his saying, “that the *190plaintiff: was a candidate for office is no excuse for slandering him/’ to infer, that every publication, made in reference to a candidate, though not reflecting on his moral character, would be regarded as libelous, which would be so held, if made with reference to a mere private person.

In the cases of Root v. King, 7 Cow. 613, and King v. Root, 4 Wend. 113, the publication in a newspaper was, that Lieutenant-Governor Loot, while presiding over the Senate, was disgustingly drunk; and that he was an habitual drunkard. The Chief Justice delivering the opinion of the court says, “ that malice is to be implied, and is inferrible, from the libelous character of the publication and its falsity. I fully subscribe to the doctrine of Chief Justice Parsons (4 Mass. B. 169) that when any man shall become a candidate for an elective office, he puts his character in issue in respect to his fitness and qualification for the office; that the publications of truth on that subject are not libelous ; and that the publications of falsehood against public officers or candidates deserve punishment. I know of no decision which goes the length of justifying unbounded slander on such occasions.”

In the same case, on an appeal to the court of errors* Chancellor Walworth says: “It is supposed by the counsel of the defendants, that an editor of a public paper may publish, what he pleases, of a candidate for public office with impunity, provided he satisfies the jury, he believed it to be true, or that he had no ill will against the person injured. Malice is said to be the gist of the action. But this certainly does not mean malice or ill will towards the individual, in the ordinary sense of the terra. If such were the case, an action would not lie against the proprietor of a paper for libel, published in his absence, or without his knowledge, but that such action would lie is settled law. Andres v. Wells, 7 Johns. 260. In ordinary cases of slander the term, maliciously, means intentionally and wrongfully. Malice is an im*191plication of law from the false and injurious nature of the charge.” And again : “It is however insisted, that this libel was a. privileged communication. If so, the defendants were under no obligation to prove the truth of the charge; and the party libeled had no right to recover, unless he established malice in fact, or showed, that the editors knew the charge to be false. The effect of such a doctrine would be deplorable. Instead of protecting, it would destroy, the freedom of the press, if it were understood, that an editor could publish, what he pleased, against candidates for office, without being answerable for the truth of such publication. No honest man could afford to be an editor; and no man, who had any character to lose, would be a candidate for office under such a construction of the law of libel. The only rule to adopt in such cases is to permit editors to publish, what they please, in relation to the character and qualifications of candidates for office, but holding them responsible for the truth of what they publish.”

This language would seem to put allegations, in reference to qualifications not involving character, upon the same footing as allegations imputing moral delinquency. And this may have been the view of Chancellor Wal-worth; but as the charge in the particular case, he was considering, was a charge, that the candidate was an habitual drunkard, which involves moral delinquency, it would not perhaps be right to give to the Chancellor’s language a larger moaning than, that an editor should be held responsible for the truth of such allegations.

In the case of Harwood v. Astley, 4. Bos. & Pul. 47, the words, which were the basis of a suit, were uttered against a candidate for Parliament, and were: “ Sir Jacob Astley is a scoundrel, a coward, a liar, an assassin and a murderer.” Sir James Mansfield, Chief Justice, says : “ It seems to be supposed, that the situation of a candidate lor Parliament is such, as to make it lawful for any man to say anything of him. To that proposition I cannot assent. It would be a strange doctrine indeed, *192that when a man stands for the most honorable position in the country, any person may accuse him of any imaginable crime with impunity. The particular situation of the plaintiff, cannot prevent the words from being actionable.” .

No inference can be drawn, that the court in this case would have held, that words asserting the mental or physical disqualifications of a candidate, though published and false, would have sustained an action.

In the case of Duncomb v. Daniel, 8 C. & P. 222, (34 Eng. C. L. R. 61) the basis of the action of libel was a letter published in a newspaper, charging a candidate for Parliament with cheating in two transactions named. Lord Denman, Chief Justice, said : “ It appears to me, the occasion did not justify the present publication. However large the privilege of electors may be, it is extravagant to suppose, that it can justify the publication to all the world of facts injurious to a person, who happens to -stand in the situation of a candidate. ” It seems to me but fair to interpret this language, in view of the facts of the case, as meaning “ injurious to the moral character of a candidate.”

These decisions are not, I think, when considering the facts of the cases, in which they were delivered, inconsistent with the proposition, I have stated, that a candidate for the suffrages of the people cannot complain, that his talents and qualifications mentally and physically for the office, he seeks, are commented on in the newspapers, even though these comments be ever so malicious and unjust. When he becomes such a candidate, all his pretensions become the proper subject of en-quiry and discussion, so far as his fitness for the office, either mentally or physically, is concerned. The public interest requires, that this discussion should be un-trammelled ; and that no one should be held liable for anything, he may publish concerning the fitness of such candidate, mentally or physically, for the office he seeks. For if his liability for publications.).!!- reference to such *193candidate’s fitness in these respects depended on the judgment of a jury, whether the publications were either true or free from malice, the public interest must suffer; as the apprehension, caused by such a liability, Avould prevent that free discussion of the fitness of candidates for popular suffrage, which is absolutely essential to the successful operation of a republican government. And the public interest further requires, that the conduct and acts of such a candidate be freely criticised in the newspapers, and that there shall be no liability incurred for such criticism, though it be ever so unjust, provided it be bona fide, and provided the facts constituting such acts or conduct criticised are proven to be true. But public policy forbids, that the moral character of such a candidate should be falsely assailed in the newspapers, or that he should be falsely charged by publications in newspapers with crimes. If the newspaper press was allowed to be licentious, the result would be, to drive from the control of newspapers all men of character, and to deter from seeking office all but the profligate and abandoned. Nor would the result be different, if a belief in the facts, on which such false and libelous allegations were based, was held to be a legal excuse for publications of this character against such candidates. To justify such a publication, it must be proven that the allegation is true in fact.

Applying this law to the case under consideration, as the declaration itself shows on its face, that when the alleged libels were published, the plaintiff was a candidate for popular suffrage in Ohio county, any allegations, which referred to his fitness for the office, he sought, mentally or physically, were privileged publications, and could not be the basis of a libel suit; nor any other allegations, which did not refer to his moral character, though they were ever so harsh and uncomplimentary.

The declaration contains several allegations of this character, which are complained of as libelous, such as “ the laboring men are taught to believe, that a certain *194candidate (meaning the plaintiff), who never did an honest day’s work, is their especial champion and friend,” “ a confessed ignoramus, he argues that intelligence should control the election (meaning thereby, that the plaintiff was publicly and confessedly known to be a man of great ignorance”) and “ the laboring men of Wheeling are asked to vote for a man, who never earned an honest penny, or did a stroke of labor in his life. Honest industry loathes such association. Vote for Pannell.”

These statements, published about a candidate for popular suffrage, are not libelous. They amount only to allegations, that he is an uneducated, lazy and ignorant man; and as such he is unfit to represent the people. Such allegations may be made about a candidate for such position, and are not rendered libelous by being expressed in coarse and harsh language. Such language may show ill will on the part of the publisher ; but such a publication, being absolutely privileged, its being inserted in a newspaper maliciously does not render it a legal basis for a libel suit.

' There are also other allegations in the declaration, which are not per se libelous, when published with reference to a candidate for such position; but which, explained by a proper inducement and accompanied by a suitable innuendo, would be libelous, such as these : “No man ih the community has any interest in seeing the county disgraced by sending a social leper to speak and act for her in public councils,” and “it is as much the duty of a citizen to vote against Jimswoeney to-day, as it would be to deodorize against the cholera.” This language charges, that the candidate is utterly unfit to be received into decent or polite society. If this unfitness was alleged to arise from his total want of education, his rude unpolished or vulgar manners, his disgusting and filthy mode of dressing, such allegations, published against a candidate for su’ch a position, would be absolutely privileged. They would be no assault on his moral character. His ignorance, stupidity, rudeness of manners *195or filthy habits of dross might be freely commented on; and whether allegations of this character were true or false, uttered maliciously or in good faith, they could not be the basis of a libel suit. On the other hand, the meaning to be attached to the words, he is a “social leper,” and the obnoxious word “deodorize,” as used above, may be, that his moral traits of character are such, as require his banishment from society. If there was an inducement and innuendo, which fairly interpreted would give this meaning to these phrases, then they would be libelous ; 'but unexplained, they are not, I think, libelous, when published against a candidate for such position.

But there are in the declaration charges of the publication by the defendants of a large number of allegations, which, though published against a candidate for such position, are unquestionably libelous, and not entitled to be considered privileged publications, absolute or conditional. They are violent assaults on his moral character, which, if untrue, which the law presumes them to be, unless the contrary is shown, are gross outrages, the publication of which would not be justified, though the publisher believed them to be true, and had probable cause for so believing. Such publications can only be justified by proof of their truth.

Such is the character of the following statements, published by the defendants: “ A professional gambler he preaches morality;” “ let the people of Ohio county not select a representative from the prize ring or gambling den;” “ the noble game of draw poker is a candidate for popular suffrage to day. It runs on the same ticket with the manly art of fist and skull;” “ as a political argument the fist of a bully and the kit of a gambler are not entirely satisfactory;” “ bidlies and blacklegs are supposccl-to.be an inevitable evil, the buzzards and body-snatchers of society;” “when the bully and the blackleg presents his personal and professional issue for approval at the polls, it is safe to be pre*196sumed, the intelligence and respectability of the oom-"munitywili decide it to his satisfaction;” “would you select a man to make lawsjwhom you would kick out of your house, and whom you wouldn’t trust in your ben coop?” “we are not disposed to believe, that Ohio county people are going to vote to-day for rowdyism and the pimpery of the faro bank“ if Jimswceney can be sent to Charleston, he might be induced to take a faro kit with him, and enliven the tedium of legislation with the ennobling diversion, which has brought such bright laurels to his brow ;” and “ not now, for the first time, do we summon the people of this county to cast their ballots against the boozing-ken, the sweat-cloth and the bagnio.”

These publications amount to charging, that the plaintiff was a professional gambler, a bully, a thief and a whoremaster. If this were true, these publications were entirely justifiable. Any citizen would have a perfect right, by such publications, to warn the people against electing to the legislature a man of such imfamous character. If the truth was not a complete justification of such a publication against a candidate for popular suffrage, our legislative halls might, and probably Avould, be filled with scoundrels of the lowest kind. The preservation of a republican government requires, that when a man of such character offers himself as a candidate for popular suffrage, any citizen, through the newspaper press, may expose the infamous character of the candidate, and thus avoid the imposition on the people of such men to office.

On the other hand a person, who publishes in a newspaper falsely, that a candidate for-such an office is a professional gambler, a bully, a thief and a whoremaster, ought to be severely punished. The fact, that the party is a candidate for an office to be bestowed by the votes of the people, so far from is being a justification for such falsehoods, makes the outrage greater. If^ published against a private person, not seeking such an.office, it is *197admittedly a great outrage, for which the law affords redress not only by civil action by the party injured, but also by indictment. But it such falsehoods are published against a candidate for popular suffrage, the outrage committed is still greater. If it were allowed by law to be done with impunity, it would be utterly destructive of a republican government. Who would be a candidate for office in such a government, if falsehoods of this infamous character could bo published against him ? None would be such candidates but abandoned men, who had no respect for their characters. And how intolerable would the government become, whose offices were filled by men of such character. The law, as well as the juries, must suppress such licentiousness of the press.

It is proper to say, that what I have said with reference to the right to publish certain remarks ip a newspaper relative to a candidate for an office, within the gift of the people, should be understood as confined to candidates for office to be elected by the people, and cannot be extended to candidates for an office, the appointment to which is made by a board of limited members, such as a city council. The right, to make unjust and false commentaries on the qualifications of a candidate for an office of this description, is much more limited. See Kren v. Bennett, 19 N. Y. 174.

It should also be remarked, that all, that I have said, has application only to the common law duties and rights of parties, and that it has no reference to the right of a party to bring a suit for any language or words, which from their usual construction and common acceptation, 'are construed as insults, and tend to violence and breach of the peace, as provided for by the second section of chapter 103 of the Code of West Virginia, page 545. A suit may be brought under this statute for any words, the plaintiff regards as insulting; and the jury alone are to say whether they are insulting, &c. No demurrer lying to the declaration, because the words are *198not regarded by the courts as insulting. But such words on a proper plea, showing that they were uttered on certain occasions, may he held privileged.

Some of the matter’s, alleged in the printed counts of the declaration, which are common law counts, and which are complained of as libelous, are, as we have seen, absolutely privileged communications under the facts, stated in the declaration, and therefore not libelous.

Syllabus 1 The appellants’ counsel therefore insist, that the circuit court ought to have sustained the demurrer to these counts. They insist, that the fifteen different allegations, complained of as libelous, in three counts, really constituted fifteen different counts in the declaration; and that the circuit court erred in not sustaining a demurrer to such of them as were not libelous. To sustain this position, they rely on the case of Cheatham v. Tillotson, 5 Johns. 430, and on the opinion of Senator Clinton, who expressed the views of a majority of the court in that case.

The declaration in that case was drawn in the form of a declaration having but one count. After setting forth several matters as libelous, the declaration proceeds to state, “ that in another part of the said newspaper, among other things, the libelous matter following of and concerning the plaintiff,” and then proceeded to set forth other language, which the court held was not libelous. The declaration is given in 2 Johns B. 64, and is not, I think, correctly stated in all respects by Senator Clinton.

After his xiot very accurate statement of the character of the declaratioix he proceeds: “A person may be libeled moi’e than once in the same publication. In declaring on a libel, so much of the libelous matter, as the plaintiff chooses to select, may be counted on. If the declaration states the whole libel, then thei’e is necessarily but one couixt; but if after selecting and setting it forth as libelous, he then proceeds to select another part, as distinctly libelous, it appears from his own showing *199that he alleges himself to be twice libeled, and claims damages in proportion to the enormity of the charges; ” and again : “the plaintiff dearly assigned two different gravamens, two substantive causes of complaint, two distinct libelous charges, and consequently two counts in substance and essence, though not in all respects artificially correct and conformable to the technical rules of pleading. It is no answer to this to say, that the second allegation of libelous matter ought to be considered as surplusage, and that as such it may be rejected, and will not vitiate the pleading. How a charge, which according to the innuendoes imputes to the plaintiff below bribery and corruption, can be considered as surplusage, T am a,t a loss to conceive. If the innuendoes be legitimately drawn” (which they were not) “the second matter, referred to as libelous, far exceeds in turpitude the first imputation; and much less can any matter be considered surplusage, which, according to the exposition, is a substantive, distinct, disconnected cause of action. The first count appears to me correctly stated; and the matter, it sets forth, is undoubtedly libelous. The second count is essentially defective and erroneous; and inasmuch as the plaintiff below has taken judgment generally, I am for reversal.” And with Senator Clinton a majority of the court concurred; but from these views all the judges, who constituted a part of the court, dissented; as appears from the statement of Savage, Chief Justice, in Rathburn v. Enigh, 6 Wend. 411, who also states, that the point, above made by Senator Clinton, was not. even made, when the case was,before the Supreme Court.

The dissenting views of the judges were set forth by an opinion delivered by the chancellor; he says : “ The plaintiff in error insists, that the declaration contains two counts: the declaration, after 'the usual averments, that the defendant in error sustained a fair reputation ; that he held the office of secretary; that the plaintiff in error,'with intent to injure him, published a libel in one part acccording to the tenor and effect following *200(setting forth some part of the libel), and in another part according to the tenor and effect following (setting forth other parts of the libel) concludes, by means of composing, writing, and publishing of which said false, scandalous libel, and libelous matter, hereinbefore set forth, the plaintiff (the defendant here) has been greatly injured,” &c.

If this declaration had detailed the whole libel, verbatim, in one connected description, no legal subtilty could possibly have severed the different parts: and yet the only difference is, that, in the former case, the whole would be spread on the record, as contained in one entire paper. In the present case the libel is alleged to contain, among other things, two distinct paragraphs, set forth in the declaration, which are complained of collectively, and not each separately, as to cause of injury. If there is only one count, and if a mere perusal of the declaration does not carry conviction to the mind, that the libel is not only a virulent one, but that it has a direct and unequivocal application to the defendant in error, I shall refrain, by any reasoning on the subject to endeavor to effect it. To me both appear clear and undoubted.”

An examination of the declaration as stated in 2 Johns. 64, satisfies me, that the chancellor correctly epitomized this declaration, and that an incorrect view of it was taken by Senator Clinton. The case as reported in 2 Johns. 63, andino Johns. 430, and especially what is said about it in the chancellor’s opinion would seem to indicate, that there was much hardship in the case against the defendant, which probably influenced the majority of the Senate to be for its reversal, and it Avas this, which gave rise to the ingenious,' but I think sophistical, views of Senator Clinton, Avhich, it seems, had never occurx’cd to the counsel in the cause, until it reached the Senate.

In the case before us each of the first two counts clearly shows on its face, that but one libSl is intended to be complained of in each count, and that different *201portions of this one libel are quoted by the plaintiff, and this being clearly the ease, even according to Senator Clinton's views they would, taken together, constitute but one count. The case before us differs from the New York case i'n this, that it may from the declaration in that case be inferred, that the libelous matter was contained in two separate articles published in one issue of the newspaper; but in the case before us no inference can be drawn from the declaration, that the various libelous matters, set forth in the first count, were not all in one and the same article published in the newspaper; and so of the various libelous matters contained in the second count. But if the contrary appeared, it would not make each of the libelous allegations, contained in the first and second counts, a distinct count. We must judge of what constitutes a count, by the frame of the declaration, if it contains matter only published at one time, and not by whether it appeared to have been published in one or more articles in the same newspaper. And all the libelous statements respecting the plaintiff, contained in one issue of a newspaper, may properly be joined in one count.

In the case of Alfred v. Farlow, 8 Ad. & E. N. S. 852 (55 English C. L.) it was decided, that different words used in one discourse, though stated separately, may properly bo included in one count in a declaration ; and if the declaration so includes them, they Avill not be construed, as constituting two counts.

In the case of Wakley v. Healy, 7 M. G. & S. 591, (62 English C. L.) the first count in the declaration Avas very similar to the declaration in the case before us, alleging, that the defendant published on a certain day a libel, one part of Avhich contained certain libelous language, quoting it, and then proceeding: “ and another part of Avhich libel contained the false, scandalous, malicious and defamatory matter folloAidng, quoting it. And it was held, that this constituted but one count; and these íavo allegations could properly be included in one count.

*202In the case of Hughes v. Rees, 4 M. & W. 206, Lord Abinger said: “ You may put into one count for libel and slander all words, spoken or written at one time; but I am not aware that you may put into one count matters published at different times •” and it was accordingly held, that there was more than one count in the declaration in that case, it appearing on the face of the declaration, that the matters complained of were published at different times.

There can be no doubt therefore, that the matters stated, in what is called the first count of the case before us, constituted but a single count, being published at one time ; and so the matters contained, in what is called the second count, being published at one time, properly constituted but one count. The first count contained the allegation, that the defendant published about the plaintiff this language: “ A professional gambler he preaches morality,” with the innuendo, meaning thereby he, the plaintiff, was a professional gambler. This was, as we have before shown, clearly libelous, and it is not vitiated by the allegations in other parts of this count of other matters, published at the same time, and complained of as libelous, because as we have seen, those other matters were not libelous; and such allegations in the declaration must be regarded as mere surplusage.

The second count contains numerous allegations, clearly libelous, and some, published at the same time, which are not libelous, and which must be regarded as mere sur-plusage. The third count being framed under our statute making insulting language libelous, is by the statute not liable to demurrer on the ground that the language used is not insulting; the jury and not the coui't is to judge on this qxiestion.

Syllabus 3. It is said however, that each of these counts is demur-able, because it is double, bringing into one count different charges, which ought to have been inserted in different counts. If this were so, it could not now be objected on demurrer. Duplicity in a declaration was *203at common law only ground for special demurrer. As a plaintiff had aright in one declaration to insert as many distinct charges of the same character in different counts, it is obvious, that the inserting these in one count would be a mere error of form, unless it could be shown, that the defendants could thereby suffer substantial injury.

This might be the case in England, in New York or in other States, where the rule is, that if there are several counts, and a verdict is entered generally on all the counts, and entire damages are given, if one count is bad, the judgment will be arrested and a venire ele novo awarded. See Hopkins v. Bendel, 1 Caines 347, Hughes v. Rees, 4 M. & W. 206. But this is not the law in Virginia or West Virginia. Our statute law expressly pro- ' viding : “when there are several counts, one of which is faulty, if entire damages are given, the verdict .sha ll be good.” E. C. of 1819, vol. 1, ch. 76, §27 p. 112; Code of W. Va. ch. 131 §13 p. 627. Here at least duplicity in a declaration is an error of form only; and it has been expressly decided in this State, a demurrer to a count in a declaration, because of'duplicity, ought not to be sustained ; as special demurrers exeept to pleas in abatement are abolished by §29 ch. 125 of Code of W. Va. See Mattie Coyle v. The B. & O. R. R. Co., 11 West Va. 64. See also Rennaird v. Jones, 9. Gratt. 184; King v. Howard, 1 Cush. 141; Smith’s adm’r v. Lloyd, 20 Gratt. 313.

~yllabus 2 Sy11abI1~ ii The inconvenience of the practice of so holding, urged by appellants’counsel, is more imaginary than real. If in one count a debt was claimed and damages for the conversion of property, the count would be bad, not however for 'duplicity, but for misjoinder of action. The declaration would be equally bad, if such claims were made in two diff~rent counts. Again the supposed difficulty, thrown in the way of the defense by permit.ting a count to be double, is also imaginary ; as the (IC-fendant may plead separately to either or both parts of the count. Again, the record fails in this case to show *204the filing of any demurrer. It is true, the clerk copies at the end of the record a certificate of Judge Melvii, that a demurrer had been filed and overruled, and that no entry of~it had been made by the, clerk. Tins certificate bears no date ; but it is probable, it was made after the term of the court, in which final judgment was entered, as the certificate states, that it was made, at the instance of the defendants against the protest of the plaintiff, to have such effect, as the Court of Appeals may deem it entitled to. But assuming that this certificate was made and signed by the judge, while the cause was pending in his court, ancT while he would have had, at least under some circumstances, a right to have had the record corrected by the clerk's entering on the record book the filing of the demurrer, and the overruling of it by the court, still it would be impossible to regard this mernoranduni, as the equivalent of such an amendment. The record book itself must show, what pleadings have been filed, and what has been the action of the court upon them ; and if the clerk omits to enter tile filing of a pleading, or the action of the court on it, the court has, under some circumstances at least time power, pending the suit, to h~vc such entry made on the order book nune pro tune. But the record has not been so corrected in this case. The record 1)00k still fails to show the filing of a demurrer at any time ; and to this record hook alone can we look to ascertain, whether a demurrer was filed. The memorandum of the judge is in no manner referred to on the record book, and cannot be considered as a part of the record in time case, though the clerk (10e5 certify, that it is a transcript of a paper in the cause. See White v. Toncray, 9 Leigh 347; Morissett's case, 6 Gratt. 673; Canningham v. Mitchell, 4 Rand. 189; Bowyer v. Chestnut, Leigh 44; Suydam v. Williamson, 20 How. (U. S.) 439; Young v. The State, 23 Ohio St. 578; Reed v. Gardner, 17 Wall. 409.

The next enquiry is, as to whether the defenses made, or offered to be made, in this case were proper to he al *205lowed in tbe manner, in which they were proposed. To comprehend these questions, it is proper to consider the law generally in reference to libel suits; and then apply this law to the present case. Much controversy of a very bitter character existed for centuries, whether the truth of the written paper, on which an indictment for libel was based, could be given in evidence. In the celebrated case of The People v. Croswell, 3 Johns. Ca. 338, the whole subject is discussed at great length, and the court was equally divided on this question.

Syllabus 4 In a civil suit for libel at common law, though at one time doubted, it has been well established, that the truth of the matter published is a complete defense. The publication of the truth so far as liability to a civil suit is concerned, is at common law absolutely privileged. But, while this is admitted to have been the common law, the justice and expediency of this rule was not generally, much less universally, conceded. Thus Lord Brougham in his evidence report to the House of Lords on libel &e. July, 1843, says ; “I am quite clear, that the truth ought not to be made decisive (or a defense) either in civil or criminal proceedings; for cases may be put, when the truth, instead pf being a justification, would not even be any mitigation, nay when it would be an aggravation

As an example of a case of this description we may put the maliciously ridiculing, by publication in a newspaper, a man, without any justifiable end, by exposing his physical or mental defects, and bringing him into public ridicule and contempt. At common law no civil suit would lie for such a libel, if what was^'stated in the publication could be proven to be true. On the other hand it is obvious, that in a great majority of cases, when the publication truthfully assailed a party’s moral character, the truth of the publication ought to be a complete bar to any civil suit.

Where the action or count is based upon our statute, allowing an action to be brought for insulting words, spoken or written, the Virginia courts, prior to the pas*206sage of the Code of Virginia of 1849, were divided in opinion, whether, under the plea of not guilty, the truth of the words spoken or written might not be given in evidence under the general issue in mitigation of damages ; but the court held, that the truth of the allegations could not, in a suit for insulting words under the statute, be pleaded in bar of the action. Moseley v. Moss, 6 Gratt. 534; Brooks v. Calloway, 12 Leigh 466. The majority of the court held, that the truth of the allegation in a suit for insulting words, based on the statute, might be given in evidence under the general issue in mitigation of damages, because the truth of such allegation, under the statute, could not be pleaded in bar; and as it was proper, it should be in some way permitted to be brought before a jury, it ought therefore to be allowed to be proved under the general issue, though it could not be so proved upon a suit at common law for libel. But in the Code of 1849, a provision was inserted, that “in any action for defamation the defendant may justify by alleging and proving, that the words spoken or written were true.” Code of Virginia, ch. 176, §44, which statute is still in force in this State, except so far as it has been modified by our Constitution. See Code of W. Va. ch. 130 §47, p. 625.

The Court of Appeals of Virginia, Hogue v. Wilmoth, 16 Gratt. 80, construed this statute, as changing the law theretofore existing in Virginia, and as permitting to be filed, as a plea in bar of an action for insulting words spoken or written, their truth, thus putting on the same footing in this respecta common law and a statutory action for libel. But the court in that case saw the gross injustice, which would be done the plaintiff by such a* state of the law, and intimated, that, while this was the law generally, the court might in some way, not defined, restrain the defendant in such a defense, where instead of its being a bar, or even a mitigation of the offense, it-was an aggravation, as in-the case of “allusions to personal defects, family misfortunes, and the like.”

*207This being the state of our law, the first Constitution of this State provided, that In prosecutions and civil suits for libel the truth may be given in evidence; and if it should appear to the jury, that the matter, charged as libelous, is true, and was published with good motives and justifiable ends, the verdict shall be for the defendant;” and this provision is contained in our present Constitution. See Art. 3 sec. 8, Con. of 1872. Its purpose is apparently to settle the bitter controversy, which had existed on the question, whether in a criminal prosecution for libel the truth of the libelous allegations was a bar to the proceedings; and to have it determined, that it should not be so always, but only when the libelous allegations were published with good motives and for justifiable ends; and to put upon exactly the same footing both common law suits for libel and statutory suits for libel in the publication of insulting words.

Syllabus 4 The truth is a bar to either of these actions, provided the publication was made with a good motive and justifiable ends, and not otherwise. At common law, in actions of libel under a plea of not guilty the defendant could not of course have given in evidence the truth of the libelous allegations, as bar to the action; nor was he, according to the best authorities, under the plea of not guilty permitted to prove the truth of the allegation in mitigation of damages; for if allowed so to do, the plaintiff would be taken by surprise. If the defendant intended to roly on the truth of the allegations as a defense, he was required to plead such justification specially in bar of the action. And such, I apprehend, was the law, when this constitutional provision was adopted, in reference to statutory suits for words spoken or written, which were insulting. For though before 1850 it wasl as we have seen, questioned, whether under the genera issue the truth might not be given in evidence in mitigation of damages, but the ground for supposing it might be, was, that before that time it could not be pleaded in justification; but as this was changed by the Code of *2081849, it would seem, that after that it would have been -held, that the statutory and common law action would in thesé respects stand on the same footing.

Judge Baldwin in the case of Moseley v. Moss, 6 Gratt. 542, assigns one of the reasons why under the plea of not guilty the truth of the words spoken or written could not be given in mitigation of damages. It is : if the facts tending to prove the truth of the charge were admitted under the general issue in mitigation of damages, it would be impossible to draw the line, and stop short of actual conviction. Facts tending to prove the plaintiff’s guilt are of course proper under the plea of justification ; and if the defendant has also put in the general issue, there is no reason, why, when before the jury, they may not be considered by them in mitigation of damages; and it has been so held in Chalmers v. Shankell, 6 Car. & P. 475; Welmet v. Harmer, 8 Car. & P. 695; Thomas v. Dunaway, 30 Ill. 373; Sloan v. Petrie, 15 Ill. 425; Raymer v. Kinney, 14 Ohio St. N. S. 283; McAllester v. Sibley, 25 Me. 474; Moorehead v. Jones, 2 B. Mon. 212.

Syllabus 4 There are some authorities in conflict with these; but the rule, above .laid down, seems to me to be sustained by the weight of authority and by reason. These and other authorities lay down the rule, which seems to me correct, that if a plea of justification is filed, and is entirely or very slightly sustained by evidence, the filing of such a plea is an aggravation of the damages, the jury should find under the plea of not guilty; but if the evidence is strong to sustain the plea of justification, though it fails to establish fully this defense, yet it would certainly tend to show a less degree of malice on the part of the plaintiff in uttering the words or publishing the libel, and should therefore be regarded asa mitigation of the damages. But this has been denied; and it has been held, that such a plea should always be regarded as an aggravation, or that it should have no effect either in mitigating or aggravating the damages in *209any case. See Shoulty v. Miller, 1 Carter (Md.). 544 But these decisions are not, we think, in accord with the weight oí authorities or reason.

Syllilbus 11U Another and still stronger reason, why the truth of the allegations ought not to be given in evidence under the general issue, is, that this truth can be only established by proving specific facts to establish a general allegation libelous in its character; and if they could be proven under the general plea of not guilty, the plain-, tiff would be surprised at the trial, not knowing, what particular facts the defendant Avould offer to prove; if the plea of justification is put in, the law did not permit the defendant to allege generally, that a general libelous allegation as laid in the declaration was true, but required him to set forth the particular facts, which justified the general libelous allegation, so as to afford the defendant a fair opportunity to contradict the plea by evidence at the trial, and also that the court may see, whether the defendant was justified, in what he published. Torrey v. Field, 10 Vt. 353; Wachter v. Quenzer, 29 N. Y. 547; Fry v. Bennet, 5 Sandf. 54.

SylUhus 1 1 This being the established law, when our Constitution was adopted, it seems obvious from the very wording of the 8th section of article 3, of the Constitution, of 187-2, that it was -not intended to change the rule, that the truth of the libelous allegation could not be given in evidence under the general issue. Its language is : “ In prosecutions ancf civil suits for libei the truth may be given in evidence ; and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the verdict should'be for the defendant.” As the verdict is to be, if the truth and proper motives and ends are proven, for the defendants, it is obvious, that the evidence was to remain, as it had been, receivable under the plea of justification only ; for, if it were receivable under the plea of not guilty, it is obvious, that it would only be in mitigation of damages; and therefore the verdict would have to be for the plaintiff.

*210Syllabus 4 IX It seems to me equally obvious, that'tbe constitutional provision, was not intended to change the rule, that, if the charge is general, the defendant could not in his plea of justification allege generally, that the charge was true, but must specify the particular facts, which show the general charge to be true. The constitutional provision does not on its face purport to affect or change the rules of pleading, but only permits certain evidence to be given, as I understand it, under proper pleas, framed according to established rules. The object of the constitutional provision was, in all actions of libel, common law or statutory, or prosecutions for libel, to permit the truth to be given in evidence,-if proper pleas were filed, and provided the publication was made with proper motives and justifiable ends. The question, when the truth could be given in evidence, had been a snbject of controversy, and when it had been admitted as a defense, it had been admitted without reference, to whether it had been published with good motives or lor justifiable ends ; and hence the necessity for such constitutional provision, for the law prior thereto was unsettled to a considerable extent, and on points, on which it was settled, it Avas generally admitted, that it was unjustly settled, as it Avas proper to permit, the motives of the defendants in publishing the libel to be considered by the jury, even though the publication was true. But the rules' of pleading, Avhich AAe haArn stated, Avere in themselves just and gave general satisfaction; and there Avas no necessity for a change in them ; and the constitutional provision on its face does not purport to change them. They can not therefore be regarded as changed, except so far as the change in the laAv necessitates a change of them according to the general rules of pleading.

In the case of Wachter v. Quenzer, 29 N. Y. 552, 553, it 'appears, that by the Code of New York it is pro Added,‘'‘that the defendant may allege both the truth of the matter charged, and any mitigating circumstances.” Yet it A\Tas held, that the truth of the matter charged, if the libelous *211matter was a general charge, could not under this statute be alleged generally, but only in the common law mode,' by alleging the particular facts, which showed the truth of the general charge, so as to afford the defendant an opportunity of controverting the plea by evidence at the tidal.

To apply the law, as above stated, to the present case, it is obvious, that the court did not err in the rejection of the first, second and third special pleas first offered. They simply alleged, that the matters charged in the several counts as libelous were true, and were published by the defendants with good motives, and for justifiable ends. These pleas violated a well established rule of «pleading, in being too general; and this rule of pleading has not been changed by the constitutional provision before referred to.

Nor did the court err, in rejecting the fourth sjxeeial plea, subsequently offered. This plea was a justification of the allegation in the first count of the declaration, that the plaintiff was ‘fix confessed ignoramus.” The declaration showed, that the plaintiff was a candidate for office in the gift of the people; and the defendants, newspaper editors. And we have seen that for such a publication, under these circumstances, no action could be brought, whether it were true or false. It was therefore mere surplusage; and a plea tendering an issue, whether it were true or false, tendered an immaterial issue. The plea should therefore have'been rejected for this reason alone, even had it been otherwise unobject-tionable. Had the charge, that the plaintiff was a “confessed ignorqmus,” been made in the third count, which was filed under the statute, making insulting words actionable, they could not have been treated as surplusage, and a proper plea of justification, setting out that the plaintiff' was a candidate for popular suffrage, and the defendants were newspaper editors, and therefore justified in the publication, ought to have been received; because, as insulting words, the publication, that he was *212an ignoramus, would have been actionable, as no demurer could be filed to raise a question, whether the words used were insulting. But, as I understand our statute, as it is now worded, any plea of justification, which was good to a common law action of libel, is good in this statutory action, Avhether it be the truth of the publication, and that it Avas made Avith good motiAms and justifiable ends, or Avhether it be facts, that shoAV the occasion, on Avhich it Avas published, Avas absolutely or conditionally privileged. But the first count not being based on the statute, it was bound to set out such a charge as constitutes a defamation at common law. See Hogue v. Wilmoth, 16 Gratt. 80. In this count therefore the charge, he is “ a confessed ignoramus,” being, under the facts stated in the declaration, not actionable, it Avas sur-plusage.

The vieAvs, above expressed Avith reference to defenses to the statutory action being no\v admissible, Avhencver they Avould be admissible in a common laAv action of libel, seems to be deducible from the change in the wording of the statute, made in the Code of 1850, which left out the Avords in the former laAv, “ that no -plea or exception should preclude the jury from passing on the Avords,” and from the casp of Hogue v. Wilmoth, 16 Gratt. 86.

It maybe here observed, that Judge Baldwin in Moseley v. Moss, 6 Gratt. 545, said : “ Whether a party, aggrieved by a common law defamation, may Avaive proceedings upon it as such, and elect to treat it, asan insult under the statute, is a question of much interest, Avhich I Avill not consider; ” and again : “ If the defamation be Avritten, a further question may arise, Avhether the statute, applies to insults in writing.”

Syllabus 5 The third count, in the declaration in the case before us, fairly raises both these questions, suggested by Judge BaldAvin; and, it seems to me clear, they must both be answered in the affirmative. The statute in its language is broad enough to cover Avords, actionable at common *213law, and written words of defamation. All insulting words, which tend to violence and a breach of the peace, are made actionable. They do not cease to be insulting words, because they charge the party with a crime; nor do they cease to be insulting, because the words are written and published. On the contrary, these added qualities render them more insulting, and make them tend more to a breach oí the peace. They come within both the spirit and words of the statute. The appellants’ counsel, in their able and exhaustive argument, do not rely on these points, suggested by Judge Baldwin; and T infer, that they properly regarded it as clear, that both of Judge Baldwin’s questions must be answered affirmatively ; and that the third count was not for these reasons defective.

The special pleas, which were received, are not liable to the objection, that caused the rejection of the three special pleas first offered: that the truth of the libelous charges were pleaded in too general a manner. Nor was it any fault in these pleas to fail to assert, that the libelous charges justified were published with good motives and justifiable ends. The declaration on its face showed, that if these libelous charges were true, they must have been published with, what the law conclusively presumes were good motives and tor justifiable ends. If this had not appeared on the face of the declaration, the pleas would have- been defective, if they failed to show this. Nor would it, for the reasons already stated, have been sufficient, in such a case, to have pleaded generally, after setting out the facts specially, which showed the truth of the allegations, to have said in general terms, that they were published with good motives and for justifiable ends. They ought, in such case to be good, to have set oiit the fact, that the plaintiff was a candidate for popular suffrage, or such other facts, as showed their motive in the publication to be good, and their ends justifiable. It seems to me, however, that the rule of .pleading, which requires the party pleading to confess the previous matter, *214and avoid it, or traverse it, was not properly observed. "See Starkie on Slander and Libel, side page 383, §482 bnt of course the appellants cannot object to their own pleas, which were received by the court.

Syllabus 12 The appellee insists, that, as no bill of exceptions was filed to the four pleas, which were rejected by the court, none of the pleas can be looked at by this court, as they constitute no part of the record, and they could only be made a part of the record by a formal bill of exceptions, to sustain which position they refer to White v. Toncray, 9 Leigh 347; Morrissett’s ease, 6 Gratt. 673; and in addition thereto we may refer to the case of Herrington v. Harkins’s adm’r, 1 Rob. 591.

These cases all differ from the case before us in this, that in all of them the record did not show, that the rejection of the pleas were excepted to by the defendants. In each of them not only was no bill of exceptions filed, but no entry was made on the order book, that the defendants objected, or excepted to the action of the court in rejecting their pleas. But in the case before us the order book expressly states, when these pleas were rejected, the defendants’ exception to the ruling of the court in rejecting them.

The syllabus in White v. Toncray, 9 Leigh 347, correctly states the point decided in that case thus: “ Pleas tendered by a defendant in an action at law, and rejected by the court, are not a part of thelrecord, unless made so by bill of exceptions to. the rejection of them, or by order of the court, that they shall be made so.” And this decision has been very properly approved by the subsequent decisions both in Virginia and West Virginia. See Hart v. The Baltimore and Ohio Railroad Company, 6 W. Va. 336.

It is true Judge Tucker in his opinion in the case of White v. Toncray, 9 Leigh 347, would seem to think, that a formal bill of exceptions was necessary, if the defendant wanted the rejection of his plea reviewed. His reasons are, first, that the rejected plea may be identified, and second, that in the formal bill of *215exceptions the court might have an opportunity for assigning its reasons for the rejection of the plea.

There seems to me but little force in either of these reasons. The clerk by his certificate has to identify the pleas, actually filed; and Judge Tucker admits, that if the court on its order book directs the rejected plea to be made a part of the record, it thereby becomes a part of the record, and it must then of course be identified by the certificate of the clerk, unless it is contended, that the court can only make an order, directing a rejected plea to be made a part of the record by copying the plea on the record book, which I can hardly imagine any one could suppose to be necessary. There especially seems no objection to the court entering an order, directing a rejected plea to be made a part of the recoid, leaving the plea to be identified by the clerk’s certificate, as other pleas are, when we consider, that practically, even when a bill of exceptions is formally taken, the rejected plea is still only identified by the clerk’s certificate, as it is not usually incorporated in the bill of exceptions, but only referred to by its number, leaving the clerk to identify the plea, intended to be referred to.

The second reason seems to me still more unsatisfactory, if considered asa reason for requiring a bill of exceptions to be filed in every case. It may be a very good reason for requiring a bill of exceptions in certain cases. If, for instance (assuming that the court has a discretion in permitting a plea in bar to be filed at any time, before the jury is sworn, which may perhaps be questioned) a plea was tendered at a time, that in the opinion of'the court it would be unjust to the plaintiff to permit it to be filed, because the case had been called for trial for instance, the court might then very properly refuse to permit an order to be made, that the rejected plea be made a part of the record, and the rejection of it entered on the order book as excepted to by the defendant, and direct, that it should be only made a part of the record by the filing of a formal bill of exceptions, *216in which the facts not of record, on which the court might base its action, and the •objection to the rejection of the plea might be set forth at large. But ordinarily the record itself shows all the facts, necessary to determine, whether a plea is properly rejected, when the rejected plea is ordered to be made a part of the record, as usually the only reason tor rejecting it is, that the plea is bad on its face, or, if it be a plea in abatement, that it is offered too late, the time when it is offered being always shown by the record. If then there be no special reason in a particular case, why a- rejected plea should not be ordered to bo made a part of the record, and exception to its rejection be entered on the record book, I can see no reason why a court ought not to be permitted in its discretion so to do ; or why it should be uselessly required in every case, to have a formal bill of exceptions written out and signed. And this is, I think, the decision in White v. Toncray, 9 Leigh 347, and the subsequent Virginia cases, and also in Hart v. B. & O. R. R. Co., 6 W. Va. 336.

It is true, Judge Haymond in the last case in delivering his opinion does in effect adopt the reasoning of Judge Tucker, which I think is unsound. But, as in that case the motion was to reject or more properly strike out a plea, already filed, and no entry was made on the record book, that the defendants excepted to the action of the court in rejecting the plea, the court very properly held, that no objection to the rejection of the plea could be made for the first time in this court. This decision was not properly based on the fact, that no bill of exceptions was filed, but on the fact, that no bill of exceptions was filed and no entry made on the record book, that the defendant objected to the rejection of its ¡ilea. The decision is simply, that this objection must appear to have been made in the court below, either by bill of exceptions, or otherwise, and this did not appear in any manner.

Assuming'therefore, that under the decision in White v. Toncray, 9 Leigh 347, a court may order a rejected *217plea to be made a part of the record, by a simple order to that effect on its order book, and then permit it to further appear by the order, that the defendants excepted to its rejection, and that the plea and exception were then both parts of the record, I am of the opinion, that this has been substantially done in this case. It is true, there is no formal entry, that the rejected pleas shall be made a part of the record; still when the court makes the order, that the pleas are rejected, and the rejection of them is excepted to by the defendants, such entry could be made by the court, only to give to the defendants the power, to have reviewed the decision of the court in rejecting the pleas. Of course this purpose of the court would be idle, unless the plea was thereby intended to be made a part of the record. For of course no exception could be taken, to what constituted no part of the record. And, it docs seem to me, we would be too technical, if an entry, which the court, who made it, considered and must have considered as the equivalent of an order directing, the rejected plea to be made a part of the record, should be disregarded, simply because it did not say in express words, the rejected plea is ordered to bo made a part of the record.

I am therefore of opinion, that when the order book shows, that a pica was offered and rejected, and that the defendants excepted or objected to the action of the court in rejecting the plea, such entry is equivalent to an order of the court, making the rejected pica a part of the record, and the Appellate Court can look at it, and consider the propriety of the order rejecting it; and I' have accordingly done so in this case. I am confirmed in this opinion by the last paragraph of chapter 131, section 9, page 627 of the Code of West Virginia, which is an addition, there made for the first time. “ Without excepting thereto,” in this paragraph, I interpret, “without filing a bill of exceptions,” as it is added to the section, allowing a party to file a bill of exceptions.

*218Syllabus 15 *217The appellants’ counsel insist, that the record does not *218show, that any replications were filed to any of the special pleas ; and that no judgment could therefore be properly rendered on the verdict. The record book, after stating the filing of the special pleas, proceeds: “ And thereupon the plaintiff, by his counsel, replies generally to each of the special pleas, filed in this actionT It is true, no such written replications appear in the record, which, it is insisted, is necessary. The usual practice is, not to write out a general replication, but simply to note it on the record book, as was done in this case. And if this is done without objection, after verdict, it has always been regarded as sufficient.

This practice, long established, has been approved by the Court of Appeals of "Virginia, they declining to consider, on an appeal, such an objection, made in this court for the first time. It is questionable, whether it ought to be regarded as error, for which a case would be reversed, even if objection had been made in the court below. See Ellett v. Vaughan, 6 Call 77; Gallego v. Moore, 4 Munf. 60.

Syllabus 14 Again it is insisted, that it was an error to swear the jury, to try the issue, as the record states was done in this case, when there were several issues made, and which ought to have been tried. The verdict of'the jury was responsive to all the issues ; and therefore, as this court decided in Baylor v. The Baltimore and Ohio Railroad Company, 9 W. Va. 281, the misprision, in charging the jury to try the issue, is immaterial. The same has been frequently held both 'in this State and in Virginia. See Mackey v. Fuqua et al., 3 Call 19.

Syllabus 13 The only remaining question, to be considered, is, did the court err in refusing to grant a new trial, or to arrest the judgment. It is claimed, that the motion in arrest of judgment was an admission, that there is a verdict, to which no objection can be made, and that it therefore supersedes the motion for a new trial, which ought not therefore to be considered by this Court. See Philpot v. Page, 4 B. & C. 160 (10 English C. L.) The question *219would have been presented, if tbe motion for a new trial bad been made after "the motion in arrest of judgment bad been decided, as in that case; but the two motions were here made simultaneously; and both acted on at the same time ; and both overruled.

In the case of Sims v. Alderson, 8 Leigh 479, the two motions were made simultaneously, as in this case. The court below sustained the motion in arrest of judgment, but did not act upon the motion for a new trial. The Court of Appeals reversed the judgment of the court below on the motion in arrest of judgment, and entered up judgment for the plaintiff, declining to send the cause back for the circuit court to act on the motion for a new trial, as it would be mischievous in the extreme for the circuit court or county court to act on a motion for a new trial, and to sign a bill of exceptions, setting forth the facts, after a lapse of years, and especially, as in one of these courts the application for a new trial would have to be made before a court, composed of different justices than those, who tried the case.

In this case no such difficulty exists, as the court below at the same time acted on both motions, refused them and signed a bill of exceptions certifying the facts. It is obvious, that on this state of facts the court in Sims v. Alderson, 8 Leigh 488, would have reviewed the action of the circuit court on both motions. And itseems to me clear, that the motion in arrest of judgment, made simultaneously with a motion for a new trial, was not to be regarded as admitting, that there is no objection to the verdict, as, at the same time he moved to arrest the judgment,,he protests against the verdict as objectionable. We shall therefore review the action of the court on both of these simultaneous motions.

It is earnestly insisted by the appellants’ counsel, that the true and only measure of damages in a suit of this character, as in all other suits for torts, is the actual pecuniary loss, which the plaintiff has sustained by reason of the wrong done; and that though courts have often *220said, that in cases of this (iharacter the jury may prop-eiiy give vindictive damages, as a punishment to the defendant, that is punitive damages, damages beyond the injury actually sustained, for the sake of the example, that such is not the law. Wo are earnestly invoked to disregard these often expressed views of the ablest jurists, as contrary to fundamental principles, and as confounding the broad line, always to be kept in view, which divides civil and criminal proceedings.

While no authorities are referred to by appellants’ counsel, and none can be found to sustain his extreme view, that the plaintiff in such an action is only entitled to nominal damages, unless there be evidence of actual pecuniary injury, coupled with the proof of malicious intent, yet highly respectable jurists have insisted, that what is strictly called punitive damages ought in no civil case to be given; and the damages awarded the plaintiff should be only the damages, sustained by him through the defendant’s wrong. But those, who entertain these views, are careful to say, that by the damages, sustained by the plaintiff, they do not mean the amount, to which his estate has been diminished by the wrong, that is the pecuniary loss, as the phrase is generally understood ; but there is to be included in the damages, sustained by the plaintiff, full compensation for his mental and bodily suffering directly consequent on the wrong; and that, while the loss to his estate, his pecuniary loss, may be a mere trifle, the loss resulting from bodily suffering or mental agony may be very great.

As the court gave no instruction to the jury in this case, I do not deem it necessary to express any opinion, as to which of these views expresses most correctly the measure of damages in such a case. As the verdict of the jury ought not, in my judgment, to be set aside, and a new trial awarded by this court, because the damages allowed by the jury were excessive, whether we regard one or the other as the proper rule for measuring the damages. Which ever rule is adopted, it is obvious, that *221n a suit-, of the character of the case before us, the amount of damages is necessarily a subject for the exercise of a-sound discretion by the jury, which discretion, from the very nature of the case, it is impossible for the court to control.

No exact standard can possibly be laid down, by which to ascertain the amount oí damages in such a case. It is impossible to lay down any rule, by which, what is a just compensation for mental suffering, can be measured. It must be left to a jury to determine from all the circumstances of the particular case. The proper compensation for mental suffering and apnoyance in such a case is a matter of opinion, based on the facts proven in the case. It cannot be the subject of direct testimony. A witness would not be allowed to testify, what was the injury resulting from such mental suffering; for it would necessarily be only an opinion ; and the witness, so testifying, would be simply assuming the province of the jury, and determining the amount of damages, which should be awarded the plaintiff. Opinions must, from the very nature of the case, differ very greatly on such a question.

This being the case, there is almost universally, in such eases, no direct evidence of the damage, sustained by the plaintiff. And in very few cases has it been suggested, that, when the libelous allegations have been proven, or admitted to have been published by the defendant without justifiable excuse, it was incumbent on him, before he could ask a verdict for substantial damages, to prove by direct testimony such damages. When such suggestion has been made, as it has been in this case by counsel, it has always been promptly disposed of by deciding, that in such a case no actual damage need be proven, to entitled a plaintiff to recover substantial damages, such damages as, on the facts proven, the jury believe ho is entitled to recover.

Thus in Tripp v. Thomas, 3 B. & C. 427, (10 Eng. C. L. B..) in action for slander for words imputing subornation *222°f perjury, the defendant suffered judgment by default. On the execution of the writ of enquiry, as to the amount of the plaintiffs’damage, he offered no evidence whatever ; yet the jury assessed his damages at forty pounds. This verdict of the jury was sought to be set aside, on the ground that the jury could only give nominal damages, in the absence of all evidence to fix the amount; but the court refused to set aside the verdict, holding that it was unnecessary to introduce any such evidence.

So the case of Sanderson v. Caldwell, 45 N. Y. 398, was an action for libel, published by defendants in the Sunday Mercury. The plaintiff was a lawyer and a candidate for the Assembly; the libelous article was published two days before the election, and was as follows: “Elnathan L. Sanderson, extra-radical candidate for Assembly, did a good thing in his sober moments, in the way of collecting soldiers’ claims against the gov-enment for a fearful percentage. The blood-money, he got from the "boys in blue,’ is supposed to be a big thing, and may elect him tc the Assembly on the ‘loyal’ ticket, although the soldiers and sailors are in full force against him.” No proof of loss, damage, or injury to the plaintiff, professional or otherwise, was given , and no proof of actual malice was made. The verdict of the jury was for $5,000.00damages; and judgment was rendered thereon. The judgment was affirmed, the court saying:

“The exception to the refusal of the court to charge, that there being no proofs of malice other than that, which is implied from the publication of the article, the jury might find a verdict for nominal damages, and that such a verdict would be a vindication, was not well taken. The defendant did not attempt to justify the libel, nor were there any circumstances mitigating it, unless the fact, that the plaintiff at the time was a candidate for office, maybe considered in the nature of mitigation. The plaintiff was entitled to be compensated for the injury to his reputation, caused by the wrongful publication. His *223character was not impeached. In such a case, a nominal verdict would have been a denial of justice; and the court was not bound to assent to the suggestion of the defendant, that such a verdict might be given. Nor would such a verdict have been a vindication of the plaintiff. It would have established that the charge was false ; but at the same time it would have left it to be inferred, that the plaintiff had no character to lose.”

This case strongly resembles the ca&e before us, I cannot better express my views of the impropriety of the rendition of a verdict in this ease for nominal damages, than by adopting the above quotation from the opinion of the court in that case. The allegations, complained of as published against the plaintiff in this case, were much more damaging to the plaintiffs character. The same pretended excuse for the publication existed in that case, as in this: that the plaintiff was a candidate tor the Legislature. In that case, as in this, no proof of loss, damage or injury to the plaintiff was given, except such as the jury had a right to infer from the fact, that the publication was made. In that case no proof of actual malice was made. In the case before us this actual malice is further proven by other libelous publications against the plaintiff, made prior to this one by the defendants. In that case as in this the plaintiff's character was unimpeached by any evidence.

There is however one marked difference between the cases. In that case there was no attempt by the defendant to justify. In this case the defendants filed six special pleas, j ustifying most of the libelous charges published against the plaintiff, and alleging numerous facts, which if they had been proven to be true, would have shown, that the plaintiff was a man of degraded habits and character. These pleas were never withdrawn; but the counsel for the defendants in his opening speech “called attention to these special pleas, recapitulated to the jury the allegations of these pleas, and insisted, that such allegations would be proved by evidence.” And *224yet the defendants introduced no evidence to prove them to impeach the plaintiff’s character. This, as the case already cited shows, was an aggravation of the original wrongs complained of .in the declaration. It justified the jury in giving larger damages, than they would otherwise have given.

In addition to the authorities already cited, the following cases may be referred to, as showing, that the filing of these pleas, the entire failure to produce any evidencie to sustain them, and these remarks made by the counsel on behalf of the defendants, might properly be regarded by the jury as proving malice, and as an aggravation of damages. Richardson v. Roberts, 23 Ga. 221; Smith v. Wyman, 16 Me. (4 Shipley) 14; Fero v. Ruscoe, 4 Com. (N. Y.) 165; Updegreve v. Zimmerman, 13 Penn, (1 Harris) 620; Robinson v. Drummond, 24 Ala. 174; Beasly v. Meigs, 16 Ill. 139; Wilson v. Notions, 5 Yerg. 211; Doss v. Jones, 5 How. (Miss.) 158.

Under these circumstances of aggravation the verdict in the present case was more moderate than in the case of Sanderson v. Caldwell, 45 N. Y. 399.

Syllabus 16 A'new trial in such a case ought not to be granted, especially by the Court of Appeals, unless the damages assessed by the jury are so enormous as to furnish evidence of prejudice, partiality, passion, or corruption on the part of the jury. Spencer v. McMasters et ux, 16 Ill. 405; Coleman v. Southwick, 9 Johns. 51; Southwick v. Stevens, 10 Johns. 444; Treanon v. Donahoe, 9 Cush. 228; Moody v. Baker, 5 Cow. 351; Highmore v. Harrington, 3 J. Scott N. S. 143 (91 Eng. C. L. R.); Gilbert v. Burthenshaw, 1 Cow. R. 230; Neal v. Lewis, 2 Bay (S. C.) 204.

The various authorities, cited on this point by the appellants’ counsel, have been carefully examined and considered by me. They are generally cases for other torts than libel and slander : and in nearly all of them, where new trials were granted, there were facts proven, which ought to have mitigated the damages. But little light on this subject can be gained from an exami*225nation of decided cases, as might be anticipated, the circumstances surrounding each case, and the infinite diversity of torts render the cases so unlike, as to furnish no guide. All that can be done is, to deduce from the cases some general principles as our guide; and this we have endeavored to do.

The principle, I have deduced, as above stated, when applied to this case, leads my mind to the conclusion, that it is not a case, which justifies this Court in reversing the action of the court below, and granting a new trial, because of the excessive damages, allowed by the jury. The amount of the damages furnishes to my mind no evidence, that the jury in assessing them wore; in-fiuenced l>3 passion, partiality, corruption or prejudice.

Nor do the affidavits in the case show such misconduct on the part of any of the jury, as would have justified the circuit court, on that account, to have set aside the verdict and awarded a new trial. The evidence on this question in the record is of a very unsatisfactory character* The Acts of 1872, chapter 47, §23, provide: “That the court shall, on motion of either party in any suit, examine on oath any person, who is called as a juror therein, to know whether he is a qualified juror, or related to either party, or had any interest in the cause, or is sensible of any bias or prejudice therein; and a party, objecting to the juror, may introduce any other competent evidence in support of the objection, and if it shall appear, that such person is not a qualified juror, or does not stand indifferent in the cause, another shall be called and placed in his stead; and in every case the plaintiff and defendant may challenge four jurors peremptorily.”

The jury were sworn on Monday the 15 th day of May, 1876. The affidavit of Justice Schultz, the principel witness for the defendants on their application for a new trial, was made only one week afterwards. At that time there must have been a large number of persons, who could have proven clearly and positively, whether *226or not the defendants-, under the provision of the Acts of ' the Legislature had called on the court to examine the juror, Saunders, to know, whether he was sensible of any bias or prejudice in the case; and if he had been so examined, there could have been no difficulty in proving clearly, what his answers were to such enquires. Yet this was not done. No witness speaks on this subject at all, except one of the defendants, James B. Taney; and he 'only speaks of it in his affidavit in this vague manner: “The affiant and the other defendants supposed him to be a fair and impartial juror, from the fact of his being examined under oath touching his fitness as a juror; and they had no other belief in relation to said juror until after the trial of this cause.”

Justice Schultz in his affidavit says, that on the same day, that the juror, Saunders, was sworn on the jury, he said to him on this subject: “I don’t seethe reason, why the judge did not ask me, whether I had formed an opinion.” And Stroble in his affidavit, made fifteen days after the jury was sworn, says, that in the conversation with Justice Schultz, after the verdict was rendered, the juror, Saunders, said: “That the judge had not asked him, whether his mind was made up or not. In reply Squire Schultz asked him, if the judge did not ask him, if he was biased or prejudiced. Saunders said he did not, or if he did, he (Saunders) did not hear it, or he did not understand it.” And yet Justice Schultz, though he made two affidavits at different times, does not in either of them say, that any question was asked, at the time the juror, Saunders, rvas sworn, whether he was biased or prejudiced. If any such question was asked of the juror, Saunders, and he answered, that he stood indifferent in the cause, the conduct of Justice Schultz on the occasion would have been most reprehensible, if it be true, that the juror Saunders had really said to him only two days before, “that they could not use him in that case, as he had his mind made up on that subject, or words to that effect.” If this had been so, it would have been strange in*227deed, when Saunders swore he was indifferent in the cause, and if he did so swear, that Justice Schultz did not then inform the counsel for the defendants, who were but a few feet from him, that this oath of Saunders was false, as he had told him otherwise but two days before. I cannot believe that Justice Schultz would have sat by, and seen, the juror, Saunders, make this false oath, and take his seat on the jury without mentioning it to the counsel in the cause, that he was unfit to sit on the jury. It is more just to Justice Schultz to believe, that when he kept silent in reference to this juror, it was, because he did'not suppose him then unfit to sit upon the jury.

Fairness to all the witnesses induces me to believe, that the real facts were, that there was a conversation between the juror, Saunders, and Justice Schultz in his office, two days before Saunders was sworn as'a juror, in reference to some work, he wanted Saunders to do for him; and that in this conversation something was said about this case, and the probability of Saunders, who was of the regular jury panel, being called to be one of the jurors in the trial of the case, which was expected to be called on the Monday following, two days sub-secpient, this being Saturday. I believe this, because it was sworn to by Justice Schultz and his constable, Combs, and because the juror, Saunders, admits this conversation, though he has no recollection, that this particular case was mentioned in the conversation.

But I do not believe, that in this conversation Saunders said, that he could not sit on the jury in this case, because his mind was made up. I do not believe this, because the juror, Saunders, positively denies it on oath. And if this wore the fact, we could only consider this denial as deliberate perjury. It is impossible to explain this denial, by supposing he had forgotten,, that he had said this, because he swears “he did not know anything about the nature of the suit then, nor until he was sworn on the jury, and did not; make up his mind upon‘it, till'the case was given to the jury.” And if this be not true, *228he must have sworn deliberately to a falsehood. The ’ probability is, that, in this conversation on Saturday, something was said about the trial of this case, expected to be commenced on the following Monday; but that there was no expression by the juror, Saunders, of any decided opinion oh the merits of the case; and what was said made no decided impression on the-mind of Justice Schulte or his constable, Combs; and when a week after-wards they swore, that Saunders had then said, he had made up his mind, and"could not sit as a juror, they had forgotten, exactly what had been said, or what impression it made on their minds at the time.

I am forced to this conclusion by the conduct of Justice; Schultz, when Saunders was sworn as a juror only two days afterwards. His conduct can only be.explained, consistently with his honesty, by believing, that nothing which was said in this conversation on Saturday, had then left on his mind the impression, that the juror, Saunders, had made up his mind on the merits of the case, and was unfit to sit as a juror. If this had -been really so, Justice Schulte’s conduct in not telling the parties of it, when Saunders was about being swprn as a juror, but keeping it to himself till after the verdict, would have been fraudulent and dishonest. I prefer to believe, that he was thus .silent, when Saunders was sworn as a juror, because he had then no impression on his mind, that Saunders was unfit to sit on the jury, and that when he swore otherwise some weeks afterwards, it was because the impression made on his mind by the conversation, being slight, had passed away.

I do not consider, that the statement made by Saunders after the trial, that he valued his reputation at $6,000,000.00, as at all material. He says, he said it jocularly, and the remark was obviously of that character. The affidavit of White, that the juror Peppers had said, “that had it not been for the fact that Johnston and Taney were defendants, the jury would have found a much larger verdict than they did, or words to that effect,” is *229obviously no ground for setting aside the verdict; and it has not been even relied on by counsel for the appellants in this Court.

The affidavits of Saunders and of James B. Taney, one of the defendants, show clearly, that the juror, Saunders, had no prejudice of any kind against any of the defendants ; and that he was entirely unacquainted with any of them. He obviously did not want to sit on the jury, as he wanted, while the case was going on, to be at work for Justice Schultz ; and if he had been really unfit to sit on the jury, no reason is disclosed by the' records for his concealing at the time, that he was called as a juror, the fact, that he had made up his mind, and was therefore unfit to be a juror. I conclude that such was not the fact; and of course his sitting on the jury was no ground for setting aside the verdict.

Numerous decisions in other States are referred to by counsel. I have examined them’ all. They show, that in some of the States the courts arc much more liberal in setting aside verdicts for disqualifications in one of the jurors, than they are in this State, or in Virginia. But in none of them, do I suppose, that in such a case as the present the court would set aside a verdict, upon the facts proven in this case. Certain it is, that the decisions of the Court of Appeals of ’Virginia and of this State show clearly, that the verdict in such a case as this ought not to be set aside on such ground. There is nothing on the record, which shows, that the defendants liave been prejudiced by Saunders being-on the jury. It is- true, James B. Taney in his affidavit does say, “affiant is informed and believes that the defendants have been prejudiced in the trial of said cause by said Saunders being on said jury.” But, who gave him this information, or what information he had received, on which he bases this belief does not appear; and I presume that he bases this belief on the affidavits in the cause, or information of the facts, contained in these affidavits; and they justify no such belief.

*230Syllabus 17 The decisions in Virginia and West Virginia show, ' that here the courts regard with extreme jealousy, all attempts to set aside- verdicts on the ground of objections to jurors, existing before they were sworn. Here a verdict will not be set aside ['for any such cause, unless it appears to have operated, so as to inflict injustice. See Smith’s ease, 2 Va. Ca. 51; Poore’s case, 2 Va. Ca. 474; Kennedy’s ease, 2 Va. Ca. 510; Proton’s case, 2 Va. Ca. 516; Hughes’s case, 5 Rand. 55; Jones’s case, 1 Leigh 598; Hartstock’s case, 2 Gratt. 564; Heath’s case, 1 Rob. R. 735; Curran’s ease, 7 Gratt. 609; Dilworth’s ease, 12 Gratt. 689; Bristow's case, 15 Gratt. 634; Thompson v. Updegraff et al., 3 W. Va. 629; State v. McDonald, 9 W. Va. 456; Zickafoose v. Kuykendall, 12 W. Va. 23.

In the case of The State v. McDonald, “ one Chamberlain, a member of the jury for the trial of the prisoner, was a member of the grand jury that framed the indictment ; and this fact was not known to the prisoner or his counsel until after the verdict was rendered. This juror stated on his voir dire that he had made up, and expressed no opinion, as to guilt or innocence of the prisoner, and that he had not been on the grand jury, that found the indictment, thus showing himself to be a qualified juror. After the verdict was rendered, the fact, that Chamberlain had been on the grand jury, was discovered. The State made no attempt to explain the reason, why the juror so acted or swore; but as it did not appear, that his, Chamberlain’s, serving on the jury caused injustice to be done to the prisoner,” this court, oven in this case, felt compelled by the current of Virginia cases, rendered before our separation, and therefore binding on us as authorities, to refuse a new trial, asked on this state of facts.

Certainly in that case far stronger reasons for asking a new trial existed, than in this. Here the evidence does not satisfy my mind, that the juror had at any time before the trial formed or expressed a decided opinion on the merits of the case. There the juror had unquestion*231ably formed an opinion after bearing tbe evidence on oath, or part at least of it, and had also stated, that lie had not done so, when called upon to answer on his voir dire, as a juror. It is obvious, that if any respect is to be paid to the Virginia decisions or to the decisions of our court, wo must hold, that the circuit court did not err in refusing a new trial in this case, because of the supposed unfitness of Saunders as a juror.

On the question, whether the circuit court ought not to have arrested the judgment, wo have already considered all the grounds, on which such arrest could be urged; and find no reason for reversing the action of the circuit court, in refusing to arrest the judgment.

We have considered all the assignments of error, alleged in the petition for the appeal, or in the argument of counsel. It was argued by appellee’s counsel, that we ought not to consider any error, urged in the argument, which had not been assigned in the petition for the appeal; and numerous decisions of other States are cited to sustain this position. The Constitution of this State.- of 1872, Article 8, § 5, provides: “ When a judgment or decree is reversed, or affirmed by the Supreme Court of Appeals, every point, fairly arising upon the record of the case, shall be considered and decided.” Under this provision it has been our constant practice to consider all points, fairly arising upon the record, whether assigned in the petition for an appeal or not, and we have followed this practice in this case.

There being no error in the record, for which the judgment of the circuit court of Ohio county of July 18, 1876, should bo reversed, it must be affirmed ; and the defendant in error must recover of the plaintiffs in error his costs expended in this court, and damages according to law.

The other judges concurred.

JUDGMENT AFFIRMED.