made by one on the other. This practice should be stopped, even if the grand jury has to investigate the matter."

J. S. & W. T. Davidson and W. T. Gary, for the plaintiff in error.

M. P. Foster, for the defendant in error.

495 LUMPKIN, J. At common law it was not necessary that written or printed defamatory words should charge a crime in order to make them actionable, but it was sufficient if they tended to bring a man into public hatred, contempt, or ridicule: McGregor v. Thwaites, 3 Barn. & C. 33. "Scandalous matter is not necessary to make a libel; it is enough if the defendant induces an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous": Crop v. Tilney, 3 Salk. 226. And it has with great reason and justice been said that: "Written slander is necessarily attended with such deliberation, and its publication is so well calculated to produce permanent mischief that an action may be maintained for the publication of written words when it could not be maintained for the publication of the same words by mere oral discourse": See 13 Am. & Eng. Ency. of Law, 289-300, where the subject is discussed at length. The definition of libel recognized at common law has been adopted by statute in this state. "A libel is a false and malicious defamation of another expressed in print, or writing, or pictures, or signs, tending to injure the reputation of an individual, and exposing him to public hatred, contempt, or ridicule": Code, sec. 2974.

To one holding public office there is especial reason for affording protection against the malicious and insidious thrusts of the traducer. As a servant of the people it is essential that he should enjoy their fullest confidence, respect, and esteem. Those intrusted with the performance of official duties should be pure, upright, 496 conscientious, and painstaking; and public policy demands that they should be unembarrassed by false and unfounded expressions of distrust and contempt on the part of those they serve. An upright and faithful public servant sustains special damage by reason of a defamatory publication which attacks his official character. And this is said to be true, "whether the office be merely confidential and honorary, or be productive of emolument": Folkard's Starkie on Slander and Libel, sec. 89. "As regards language concerning one in office, the

.

same general principles apply as to language concerning one in trade. Language concerning one in office which imputes to him a want of integrity, or misfeasance in his office, or a want of capacity generally to fulfill the duties of his office, or which is calculated to diminish public confidence in him, or charges him with the breach of some public trust, is actionable": Townshend on Slander and Libel, sec. 196. "It is libelous to impute to any one holding an office that he has been guilty of improper conduct in that office, or has been actuated by wicked, corrupt, or selfish motives, or is incompetent for the post": Newell on Defamation, Slander, and Libel, 69. The American and English Encyclopedia of Law, volume 13, page 309, also employs the identical language just quoted, and cites numerous decisions: See, specially, Gove v. Blethen, 21 Minn. 80; 18 Am. Rep. 380. Illustrations of the application of the doctrine are numerous. It is libelous to denominate a magistrate as "a damned fool of a justice": Spiering v. Andrae, 45 Wis. 330; 30 Am. Rep. 744; or to say he perjured himself in deciding a suit, "and it is the g-d d- d erroneous decision I ever saw any justice give, and it was a d- -d outrage, and it was done for spite": Gove v. Blethen, 21 Minn. 80; 18 Am. Rep. 380; or to say a judge lacked capacity, "had abandoned the common principles of truth," and "had made the office of clerk a subject of private negotiation between men to whom 497 he was under personal obligations, and endeavored to cancel those debts by a barter of office": Robbins v. Treadway, 2 J. J. Marsh. 540; 19 Am. Dec. 152; or to otherwise charge a judicial officer with gross impropriety, misconduct, or corruption: In the Matter of Moore, 63 N. C. 397; Royce v. Maloney, 58 Vt. 437. The same is true as to a state senator: Wilson v. Noonan, 23 Wis. 105; and it is actionable to speak of a member of Congress as "a fawning sycophant, a misrepresentative in Congress, and a groveling office-seeker," who had "abandoned his post in Congress in pursuit of an office": Thomas v. Croswell, 7 Johns. 265; 5 Am. Dec. 269. "It is libelous to publish of one in his capacity of a juror that he agreed with another juror to stake the decision of the amount of damages to be given in a cause then under their consideration upon a game of draughts": Commonwealth v. Wright, 1 Cush. 46; or to denounce a verdict as infamous, and express contempt for the men who served as jurors, charging them with having "done injustice to their

own oaths": Byers v. Martin, 2 Col. 605; 25 Am. Rep. 755. So, too, it is libelous to charge that a county attorney, "purely out of political fear," neglected to prosecute a certain person suspected of having committed a criminal offense: Larrabee v. Minnesota Tribune Co., 36 Minn. 141; or to publish that a village marshal permits gambling to be "carried on before his very eyes," and is guilty of inattention to duty and misconduct in the matter of making arrests: Hay v. Reid, 85 Mich. 296. Various other instances may readily be found by reference to the text-books above cited.

The plaintiff in the present case was a constable. He alleges in his declaration that the meaning and intent of the newspaper publication complained of was to falsely and maliciously charge him with the questionable practice of attending the daily sessions of the recorder's court of the city of Augusta, for the purpose of 498 soliciting business for the magistrate's court of which he was constable; and to specially charge that in a given instance he was guilty of official misconduct in inducing a certain named prisoner to apply for and have issued a warrant against another "in a matter which had undergone investigation that day in said recorder's court, and been fully and finally determined so far as any necessity existed," there being no legal excuse or justification for the issuing of such warrant, and it being advised and brought about by the plaintiff "for the evil and corrupt motive of increasing his fees as such constable." Certainly, the article published in defendant's newspaper may be said to easily bear this construction; and that it is clearly libelous to falsely and willfully charge that a public officer, with the corrupt and sordid motive of personal gain, prostitutes the legitimate functions of his office, appears to us to be beyond question. Indeed, such has been the express ruling by the courts of last resort both in Michigan and in Wisconsin. In Bourreseau v. Detroit Evening Journal Co., 63 Mich. 425, 6 Am. St. Rep. 320, the publication charged that a deputy sheriff, illegally and without justification, and solely with the view of increasing his fees, hung around the highways and arrested men whose only offense was that they were poor and ragged. In Eviston v. Cramer, 47 Wis. 659, the article pub lished, while making no express charge of official misconduct, contained the innuendo that the plaintiff, while acting as "official sealer of weights and measures, and as inspector of scales," "made a practice of 'tampering' with such weights

and scales for the purpose of increasing the fees of his office." In passing upon a demurrer which had been filed to the action, the court said: "Now that such statements are prima facie prejudicial to plaintiff, calculated to degrade him in public estimation, and bring him into public hatred and contempt, seems too 499 plain for discussion." We agree with Mr. Justice Cole who delivered the opinion in that case.

It is insisted, however, that the publication in question was privileged. Under the allegations of the plaintiff's declaration this contention cannot be maintained. Freedom of the press is, indeed, a matter of great public moment and concern, but the willful abuse of this liberty will not be tolerated. by a court of justice; and, if either the publisher of a newspaper or any private person abuses the right to publicly express his sentiments on any subject through the columns of a newspaper, he must defend himself upon the same legal ground: 13 Am. & Eng. Ency. of Law, 316. "The conduct of public officers is open to public criticism, but the imputation of bad motives or of criminal offenses, unless there is so much ground for the imputation that a jury shall find some foundation for belief in them, is not such criticism. The publication must be strictly privileged, and have some probable cause": Neeb v. Hope, 111 Pa. St. 145. The plaintiff alleges, in substance, that the publication complained of was a false and malicious defamation, willfully intended to injure him both in his individual and in his official capacity, and that neither the author of the article nor the publishers of the newspaper, had any reason to believe, or did in fact believe that the libelous charge made against him was true Whether or not there was probable cause for the belief on the part of the defendant that the information received by it was entirely reliable and trustworthy, and whether it acted in perfect good faith, or published the article willfully and maliciously with the intent alleged, were questions of fact which the jury alone could pass upon: Pearce v. Bower, 72 Ga. 243. The trial judge properly overruled the demurrer filed to the plaintiff's declaration.

Judgment affirmed.

LIBEL OF PUBLIC OFFICER.—It is libelous per se to impute to a person in his official character incapacity or any kind of fraud, dishonesty, or misconduct: Cotulla v. Kerr, 74 Tex. 89; 15 Am. St. Rep. 819. This question will be found fully discussed in the extended notes to McAllister v. Detroit

Free Press Co., 15 Am. St. Rep. 349, and Jones v. Townsend, 58 Am. Rep. 685.

LIBEL-Province of judge and jury in prosecutions for: See the extended notes to State v. Syphrett, 13 Am. St. Rep. 625, and Van Vechten v. Hopkina 4 Am. Dec. 351.

BALKCOM V. EMPIRE LUMBER COMPANY.

[91 GEORGIA, 651.]

MECHANICS' LIENS-WAIVER OF.-The receipt by a laborer of a draft upon his debtor for the amount of wages due him is not a waiver of his lien for such wages, and the fact that he indorses and negotiates the draft for value does not constitute such waiver, provided he regains posses. sion and control of the draft from his indorsee, takes the necessary steps in due time to enforce his lien, and offers to surrender the draft to the debtor or to the court at the time of the trial.

MECHANICS' LIENS-EFFECT OF TAKING SECURITY.-The indorsement of a draft received by a laborer for his wages is canceled and title restored to him for the purpose of enforcing his lien for the wages by delivery of possession, and control of the draft to him by his indorsee. MECHANIC'S LIEN FOR PRICE OF STANDING TIMBER. -Standing timber is realty, and, under a statute giving persons furnishing sawmills with timber a lien upon the mill and its products, no lien can be maintained for the price of standing timber purchased by the owner of such mill. MECHANICS' LIENS-LOGS FURNISHED SAWMILL-Under a statute giving persons furnishing sawmills with timber a lien upon the mill and its products no lien can be maintained for the contract price due a contractor for cutting standing timber belonging to the mill-owner, and for hauling and delivering the logs at the mill.

MECHANICS' LIENS-MACHINERY FURNISHED SAWMILL.-Under a statute giving a lien upon a sawmill and its products to any one furnishing such mill with "timber, logs, provisions, or any other thing necessary to carry on the work of sawmills," no lien can be maintained against a sawmill by a person furnishing it with machinery, hardware, implements, and tools. Such things are not ejusdem generis with the things enumerated in the statute.

MECHANICS' LIENS-OIL CONSUMED IN SAWMILL.-Under a statute giving a lien upon a sawmill and its products to any one furnishing such mill with "timber, logs, provisions, or any other thing necessary to carry on the work of sawmills," a lien may be maintained for lubricating oil furnished a lumber company owning and operating such mill.

ACTION to enforce liens. The articles referred to in the opinion as being designated in paragraph (b) of the second headnote consisted of saws, belting, globe valves, pinions, couplings, bolts, chains, nails, screws, gauges, augers, files, wrenches, axehandles, and ropes.

De Lacy & Bishop, for the plaintiffs in error.

C. Estes, Hill, Harris & Birch, and J. L. Hopkins & Son, for the defendant in error.