WINSLOW, C. J.

[1] A number of errors in the charge of the court are alleged, but it seems to us that we can attain greater clarity by treating the case abstractly and stating the general principles applicable, than by taking up the alleged errors in detail.

The occasion was one of conditional privilege. The plaintiff was a candidate for the office of county judge, a position where integrity, incorruptibility, and judicial ability are absolute essentials. By his candidacy he placed his character in these respects before the people for consideration and discussion. One voter might in good faith and without malice place before other voters fair criticism of or comment upon the plaintiff's acts in these respects without liability, but he could not make libelous statements of fact which were false any more than he could if no such candidacy existed, nor could he indulge in insult or contemptuous phrase. A local newspaper might do the same things and no more. But while the privilege is thus confined to fair comment or criticism upon facts the comment may doubtless be caustic and severe if the facts warrant it. Such has been the position of this court in the case of criticism of public officers. Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111; Williams v. Hicks Co., 159 Wis. 90, 150 N. W. 183; Leuch v. Berger et al., 155 N. W. 148 (present term). The same rule has also been applied to publications concerning candidates. Ingalls v. Morrissey, 154 Wis. 632, 143 N. W. 681, Ann. Cas. 1915D, 899.

[2] It is recognized that there is a disagreement in the authorities on the question whether false statements concerning candidates for office made without malice and in good faith are priv ileged. In some jurisdictions it is held that all matters true or false having a bearing on the fitness of a candidate may be published without liability if it be shown that they were published without malice in good faith, and in the honest belief that the facts stated were true. Briggs v. Garrett, 111 Pa. 404, 2 Atl. 513, 56 Am. Rep. 274; Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281, 20 L. R. A. (N. S.) 361, 130 Am. St. Rep. 390. We deem the other view, however, to be supported not only by our own decisions, but by the better reason and by the great weight of authority in other courts. Newell, Slander and Libel (3d Ed.) §§ 633636; 25 Cyc. 402-405, and notes; Post Pub. Co. v. Hallam, 59 Fed. 530, 8 C. C. A. 201.

[3] We do not overlook sections 94-17 and 94-38 of chapter 650, Laws of 1911 (now section 12.17, Statutes 1915), which provide that no person shall knowingly publish any false statement in relation to a candidate intended or tending to affect the voting at any primary or election, and also provide for the punishment of such an act criminally by fine or imprisonment or both. We do not, however, see in these provisions any purpose to change the established principles of law which respect to privilege in a civil action. One of these principles, as we have seen, is that the conditional privilege as regards a public officer or candidate for public office does not extend to false statements of fact. The statutory provisions cited seem intended to add to, rather than to subtract from, the penalties which may follow the publication of false and libelous statements of fact regarding candidates for public office.

[4] It is true that in certain classes of cases the law of conditional privilege will protect one who makes an entirely false charge, as, for instance, one who communicates to an officer of the law a charge of crime against another, in good faith, believing it to be true, and acting simply from a sense of public duty. Joseph v. Baars, 142 Wis. 390, 125 N. W. 913, 135 Am. St. Rep. 1076. The reason for this is very plain, and it is equally apparent that it is not present in such cases as the one before us

[5-7] Now in the present case the first ques tion for the jury was what meaning the article carried to the readers of the paper. In view of the political conditions in the state in 1910 and at the time of the publication as shown by the evidence, did this article convey

the idea to the readers of the paper (1) that the plaintiff received and took part in the unlawful distribution of a part of a political corruption fund in the primary campaign of 1910, or (2) that he sold his political influence and surrendered his honest belief for money in that campaign? If it carried these ideas or either of them, it was libelous unless proven to be true. If, however, it simply conveyed the idea that the plaintiff received and distributed in lawful ways a part of a large political campaign fund and that he received money for political labor and influence exerted in lawful ways and not contrary to his honest convictions, the article was not libelous in these two respects. In judging of the meaning of any given part of the article, the whole article is, of course, to be considered.

[8] The propositions just referred to are really the only statements of fact in the article, but there is a comment upon them which stands upon an entirely different basis, and that is the thinly veiled comparison of the plaintiff to Judas Iscariot. This is not a statement of fact but a comment or criticism. It likens the plaintiff, not to an ordinary turncoat, but to the man who, in the estimation of the Christian world, committed the greatest crime in history by selling the life of his divine Master for money.

It requires no argument to prove that this is a jibe, a contemptuous insult, and not fair criticism of any type; hence it is not privileged. Curtis v. Mussey, 6 Gray (Mass.) 261. Being libelous on its face, the only question to be submitted to the jury in connection with it is the question of the amount of damages. Thus the defense of conditional privilege drops entirely out of the case.

[9] Returning now to the consideration of the questions arising with regard to the statements of fact first herein discussed, if the jury find those statements not to carry a libelous meaning they also drop out of the case; but, in case the jury find that they carry the libelous meaning above referred to, the question will then arise: Are they, or is either of them, substantially true? This question, however, will only arise in case justification is properly pleaded, which it seems is not the case at present.

[10] It is doubtless true that, in order to be a complete defense, a justification must be as broad as the libel, and that an allegation of the truth of a part of the facts alleged in the libel can operate only as a partial defense. In the present case the defendants are compelled to admit that the plaintiff did not in

county, and hence that he did not receive or disburse $387.67 as charged, but $185.67 at the most. Thus it is evident that they cannot plead that the entire sum named in the article was received and disbursed but only a part thereof. Ordinarily this would only be a plea in mitigation of damages, but in a case like the present it would be a plea of justification. The rule is that the substance of the charge only need be proven true. Nehrling v. Herold Co., 112 Wis. 538-567, 88 N. W. 614; Conner v. Standard Pub. Co., 183 Mass. 474, 67 N. E. 596. The material substance of the statement in question (if it be held by the jury to convey a libelous meaning) is that money was received and disbursed by the plaintiff for corrupt and unlawful political purposes, not that precisely $385.67 was so received and disbursed. The quality of the act does not depend upon the amount so long as the amount is substantial and not trivial. It is really immaterial whether it was $50 or $385.67. So if it be shown by the defendants that a substantial sum was so received and disbursed, though that sum be much less than $385.67, they will have shown a justification as to the supposed libelous statement under consideration. There was testimony in the case tending to support the defendants' contention in this regard; but, inasmuch as there must be a new trial of the case, we forbear to comment upon it.

[11] While there was no law in 1909 limiting the amount which would be legally spent by candidates for public office (the first law on that subject being chapter 650, Laws of 1911; Stats. 1913, §§ 94-1 to 94-38), there were many ways in which money could be corruptly and unlawfully used. While men might doubtless be hired to do lawful political labor, it was unlawful to buy votes, either directly or indirectly under pretense of paying for work or by the use of other subterfuges; it was, with certain exceptions, unlawful for any person to pay or agree to pay money to secure the nomination of a state senator or assemblyman unless the person making the promise or payment was a bona fide resident of the district; and it was necessarily unlawful to use such moneys for such purposes if collected. R. S. 1898, § 4543b. Whether there were other unlawful and corrupt uses to which money could be put in 1909 it is unnecessary now to consider. Similar considerations apply to the supposed charge that the plaintiff sold his political influence for money. The question of the amount of money is entirely immaterial if the fact itself be shown.

We do not deem it necessary to review the charge of the court at length. It contained

at least two vital errors which render a new trial necessary, viz.: (1) It did not inform the jury that the comparison to Judas was libelous as matter of law and not privileged; and (2) it told the jury in substance that if the statements were made in good faith and in honest belief in their truth they were privileged whether true or false.

Judgment reversed, and action remanded for a new trial.

SIEBECKER, J., took no part.

NOTE.-The Bounds of Legitimate Criticism of a Public Officer or of a Candidate for Public Office. The instant case announces what seems to us a singular principle of law, viz.: that a criticism in which a comparison is used that amounts to a contemptuous insult, is libel, though the facts upon which the comparison is based may be true, and this it holds as matter of law. Here it is said there was a "thinly veiled comparison of the plaintiff to Judas Iscariot," and "it requires no argument to prove that this is a jibe, a contemptuous and not fair criticism of any type; hence it is not privileged."

There is cited for this principle, Curtis v. Mussey, 6 Gray (Mass.) 261, but I do not see that this case in anywise supports it. That case was a criticism of a decision by a commissioner of the Circuit Court of the United States. The court said: "There were passages in the publication which appeared on their face to be libelous, such as the charge of 'legal Jesuitism,' the comparison to Pilate and Judas, the charges of prejudice and want of feeling and the assertion that the decision of plaintiff as commissioner was a partisan and ignoble act. The statements complained of were not privileged communications, and as discussions upon a matter of public interest did not appear to be justified, because they charged the plaintiff with corrupt and improper motives, and the answer did not aver their truth." But it is not said, that had the truth of the facts charged been pleaded, such strong language in the way of description of what they amounted to would have been held libelous.

In Hanow v. Jackson Patriot Co., 98 Mich. 506, 57 N. W. 734, plaintiff was referred to of being guilty of a "dirty Jew trick," and this was not even considered as among the statements that were libelous per se, but it might be considered as part of the entire publication read in evidence for the purpose of explaining the parts which were libelous per se. The petition had five counts, each of which was based on the use of this language.

In Hollenbeck v. Hall, 103 Iowa 214, 72 N. W. 518, 39 L. R. A. 734, 64 Am. St. Rep. 175, the alleged libel consisted in a written statement that a debtor "having no other defense, he cowardly shrinks behind that of statutory limitation. Such a course is not exactly in accordance with our idea of strict integrity." It was said in holding that it contained nothing libelous, that: "The characterization of the acts is based entirely on the assumption that the conduct of the plaintiff in availing himself of the defense was not honest and in accord with their standard of integrity. The spirit and purpose of the letter may well be said to indicate an element of character quite as inconsistent with the Golden

Rule as that which permits omissions in the matter of pecuniary obligations." It was based on facts which either supported or negatived its conclusion, and it was no harm to state those facts.

In Zier v. Hofflin, 33 Minn. 66, 21 N. W. 862, 53 Am. Rep. 9, there was a false publication in the way of an advertisement in a newspaper by defendant that plaintiff was wanted to pay his room rent "and not go deadheading in this way." These words were held not defamatory on their face, but as they were intended and used, and, being false, they might become libelous. It is thus seen that to call one a deadhead added nothing to alleging dishonesty in the way of an epithet.

There is to be found a great abundance of authority as to what words are libelous per se and what are not, but very little as to the precise question here involved. Why, however, language which merely expresses an opinion as to what a stated course of conduct amounts to, in the opinion of the writer or publisher of a libel, should be considered any more than amplification of the statement on which it purports to be based I cannot see. If this amplification is the expression of a proper conclusion, how does it hurt, but, if it expresses an unwarranted conclusion, it carries its own antidote. If the statement of facts comes under a privilege of informing voters of the character of a candidate appealing for votes, it may be true that expletory language may show malice, but independently of this, they cannot be considered statements of fact. Otherwise it would be to draw a distinction not sound. If a statement showing criminal or corrupt conduct is set forth, denunciation of that is not denunciation of him who is guilty of the conduct, and to say of one so guilty that he does not deserve support or his conduct is infamous, nevertheless it is only a statement purely impersonal in character. It refers back, necessarily, to the statement of facts. It often has been ruled that just criticism should relate to acts and not to persons. But this does not mean, that in form it must so refer. If it in effect does it, this ought to be sufficient. C.

ITEMS OF PROFESSIONAL

INTEREST.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

QUESTION No. 99.

Annulment of marriage; Employment-Acceptance of joint retainer, or of contribution to fees, from persons having common interest in result-not disapproved.-X, a woman, marries A. She then marries B, who is ignorant of her previous marriage to A. She then secures a decree of divorce from A and marries C. B desires annulment because of X's incompetency to contract the marriage with him. C, in order to remove the marriage to B as an apparent obstacle to the legality of his own marriage relation, is willing to contribute to

the expenses and counsel fees of B in procuring an annulment decree.

In the opinion of the Committee, would there be impropriety in a lawyer accepting a retainer from B to procure an annulment decree, with the knowledge that C is contributing to his compensation, or a joint retainer from B and C to procure such decree for B?

Answer No. 99. In the opinion of the Committee, the lawyer in question might with entire propriety advise both B and C as to the legality of B's marriage with X and might with propriety accept a fee from each for such advice. There seems, therefore, to be no reason why, if he is retained by B to have that marriage annuled, he could not accept a retainer to which C contributes. It is to the interest of C, to whom X is now married, to have her prior marriage to B annuled; and on the facts stated a clear case for such annulment in favor of B seems to be made out-it being assumed that the marriage of X to A was valid and was in full force at the date of her marriage ceremony with B. The doubt in the mind of the inquirer arises, we assume, from an apprehension that some suspicion of collusion might attach to the suit, as C would be supposed to be acting in the interest of his wife, the defendant in the action. But such apprehension, we think, is groundless. X could, we think, maintain the action of annulment as well as B, and we do not see why the husband of X might not with propriety bear a part or even the whole of the expense of a suit, no matter by whom instituted, which will serve to remove an apparent impediment to his own marriage.

QUESTION No. 102.

sum

Collections; relation to court; relation to client-Furnishing client with blank monses subscribed by attorney, to facilitate collections-disapproved.-Since the adoption of the new Municipal Court Code (N. Y. Laws 1915, ch. 279, § 19), which authorizes the issuance of summonses by attorneys at law, it is stated that some attorneys have permitted their clients to print blank summonses in large numbers, subscribed with the attorney's name, and to furnish their collectors with a pad of such printed summonses, so that the collector may fill the blank and leave a copy of such summons with any customer who refuses payment. In the opinion of the Committee, is such practice improper?

Answer No. 102.-In the opinion of the Committee, the practice is unprofessional and illegal. An attorney should not delegate any professional function or power to his client. (See Matter of Rothschild, 140 A. D. 583; 1st Dept., 1910.)

HUMOR OF THE LAW.

Counsel-How do you know this night letter was forged by a man and not written by the woman whose name is signed to it?

Expert-Because it contains just forty-eight words, and a woman would have used two more to get her money's worth.-American Legal News.

There was no doubt about it, Michael Muldoon had lost his £5 note. How, then, was he to get back to Dublin?

But, sure, the London police would find it for him? Into a station marched Michael and

told his sad story to the sergeant. The officer was inclined to be sympathetic. "I suppose you wrote down the number of the note?"

"And Oi did that, sorr!" said Mike, proudly. "And what is the number, then?"

And isn't that just what I don't know myself?"

"But you said you wrote it down!" exclaimed the officer, testily.

"That's the worst of it. I wrote it on the back of the note!"-Answers.

The Japanese are quick at repartee; their wit is keen and tempered, and they can often administer a perfect snub in brief, terse form. In illustration of this there may be cited the following instance:

There was being tried in a court a case involving the possession and ownership of a piece of property. The litigants were brothers. The holder, who was clearly not the rightful owner, had assaulted and ejected his brother and was protesting his right to defend his claim.

The examining magistrate listened very patiently to him until he closed with the words, "Even a cur may bark at his own gate." Then the judge quaintly voiced the judgment, as if stating an abstract point of law-"A dog that has no gate bites at his own risk."-Washington Star.