circuit court upon this important question, but should hold that the privilege extends to statements of fact as well as comment.

The argument is this: Privileged communications comprehend all bona fide statements in performance of any duty, whether legal, moral, or social, even though of imperfect obligation, when made with a fair and reasonable purpose of protecting the interest of the person making them, or the interest of the person to whom they are made. Townsh. Sland. & L. § 209. It is of the deepest interest to the public that they should know facts showing that a candidate for office is unfit to be chosen. Therefore, every one who has reasonable ground for believing, and does believe, that such a candidate has committed disgraceful acts affecting his fitness for the office he seeks, should have the right to give the public the benefit of his information, without making himself liable in damages for untrue statements, unless malice is shown. Though of imperfect obligation, it is said to be the highest duty of the daily newspaper to keep the public informed of facts concerning those who are seeking their suffrages and confidence. Can it be possible, it is asked, that public policy will make privileged an unfounded charge of dishonesty or criminality against one seeking private service, when made to the private individual with whom service is sought, and yet will not extend the same protection to him who in good faith informs the public of charges against applicants for service with them? Is it not, at least, as important that the high functions of public office should be well discharged, as that those in private service should be faithful and honest?

The a fortiori step in this reasoning is only apparent.

real. The existence and extent of privilege in communications are determined by balancing the needs and good of society against the right of an individual to enjoy a good reputation when he has done nothing which ought to injure it. The privilege should always cease where the sacrifice of the individual right becomes so great that the public good to be derived from it is outweighed. Where conditional privilege is extended to cover a statement of disgraceful fact to a master concerning a servant or one applying for service, the privilege covers a bona fide statement, on reasonable ground, to the master only, and the injury done to the servant's reputation is with the master only. This is the extent of the sacrifice which the rule compels the servant to suffer in what was thought to be, when the rule became law, a most important interest of society. But, if the privi lege is to extend to cases like that at bar, then a man who offers himself as a candidate must submit uncomplainingly to the loss of his reputation, not with a single person or a small class of persons, but with every member of the public, whenever an untrue charge of disgraceful conduct is made against him, if only his accuser honestly believes the charge upon reasonable ground. We think that not only is such a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good.

We are aware that public officers and candidates for public office are often corrupt, when it is impossible to make legal proof thereof,

and of course it would be well if the public could be given to know, in such a case, what lies hidden by concealment and perjury from judicial investigation. But the danger that honorable and worthy men may be driven from politics and public service by allowing too great latitude in attacks upon their characters outweighs any benefit that might occasionally accrue to the public from charges of corruption that are true in fact, but are incapable of legal proof. The freedom of the press is not in danger from the enforcement of the rule we uphold. No one reading the newspaper of the present day can be impressed with the idea that statements of fact concerning public men, and charges against them, are unduly guarded or restricted; and yet the rule complained of is the law in many of the states of the Union and in England.

This

In Davis v. Shepstone, 11 App. Cas. 187, Lord Chancellor Herschell delivered the judgment of the judicial committee of the privy council in an appeal from a judgment for libel recovered in the supreme court of Natal. The plaintiff below was a resident commissioner of Great Britain in Zululand, and the alleged libel charged him with having committed unprovoked and altogether indefensible assaults upon certain Zulu chiefs. The publication was made in the colony of Natal, where the conduct of the resident commissioner in Zululand was of great public interest. It was claimed that the article was conditionally privileged, and that the plaintiff ought to have succeeded only on proof of express malice. claim was denied. The lord chancellor thus stated the law: "There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or approved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. In the present case the appellants, in the passages which were complained of as libelous, charged the respondent, as now appears, without foundation, with having been guilty of specific acts of misconduct, and then proceeded, on the assumption that the charges were true, to comment upon his proceedings in language in the highest degree offensive and injurious. Not only so, but they themselves vouched for the statements by asserting that, though some doubt had been thrown upon the truth of the story, the closest investigation would prove it to be correct. In their lordships' opinion there is no warrant for the doctrine that defamatory matter thus published is regarded by the law as the subject of any privilege."

Other English cases laying down the same doctrine are Campbell v. Spottiswoode, 3 Fost. & F. 421, 432, affirmed 3 Best & S. 769, and Popham v. Pickburn, 7 Hurl. & N. 891, 898. The latest American case, and the most satisfactory, is that of Burt v. Newspaper Co., 154 Mass. 238, 242, 28 N. E. 1, where Justice Holmes discusses the ques tion, and quotes with approval the foregoing passage from the judg ment in Davis v. Shepstone. Other American cases approving the same rule are Smith v. Burrus, 106 Mo. 94, 101, 16 S. W. 881; Wheaton v. Beecher, 66 Mich. 307, 33 N. W. 503; Bronson v. Bruce, 59 Mich. 467, 26 N. W. 671; Brewer v. Weakley, 2 Overt. 99; Sweeney v. Baker, 13 W. Va. 183; Hamilton v. Eno, 81 N. Y. 126; Rearick v.

Wilcox, 81 Ill. 77; Negley v. Farrow, 60 Md. 158, 176; Jones v. Townsend, 21 Fla. 431, 451; Banner Pub. Co. v. State, 16 Lea, 176; Publishing Co. v. Moloney, (Ohio,) 33 N. E. 921; Seely v. Blair, Wright, (Ohio,) 358, 683; Wilson v. Fitch, 41 Cal. 383; Edwards v. Publishing Co., (Cal.) 34 Pac. 128; State v. Schmitt, 49 N. J. Law, 579, 586, 9 Atl. 774; Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760.

In Publishing Co. v. Moloney, supra, the supreme court of Ohio say, with reference to the doctrine that statements of fact should be regarded as privileged when made concerning a candidate for an office, as follows:

"We do not think the doctrine either sound or wholesome. In our opinion, a person who enters upon a public office, or becomes a candidate for one, no more surrenders to the public his private character than he does his private property. Remedy, by due course of law, for injury to each, is se cured by the same constitutional guaranty, and the one is no less inviolable than the other. To hold otherwise would, in our judgment, drive reputable men from public positions, and fill their places with others having no regard for their reputation, and thus defeat the purpose of the rule contended for. and overturn the reason upon which it is sought to sustain it. That rule has not been generally adopted in this country, and the converse of it has hitherto obtained in this state."

The view we have taken of the main question makes it unneces sary for us to consider whether the privilege claimed could extend. in any event, to statements concerning Hallam published two weeks after he ceased to be a candidate, and made to a public none of whom was a voter or a citizen of the congressional district in which Hallam had offered himself as a candidate.

Having examined the record and the assignments of error with much care, we find no error prejudicial to the defendant below, and therefore affirm the judgment of the circuit court, with costs.

WINNIPISIOGEE PAPER CO. v. NEW HAMPSHIRE LAND CO. et al. (Circuit Court, D. New Hampshire. December 11, 1893.)

No. 372 Law.

1. DEED-DESCRIPTION-SUFFICIENCY.

Under the rule that that is certain which can be made certain, a description bounding a grant by the northern line of a prior grant is sufficiently definite, if referred to under circumstances making it a controlling call, although said northern line has never been marked upon the ground.

2. SAME-CONSTRUCTION AND EFFECT.

Where a line is described as running south to the "northwest corner of Burton; thence westerly along the northern line of Waterville,"-both parties assuming that the northeast corner of Waterville is at the northwest corner of Burton,-but it afterwards turns out that the Waterville corner and north line are a substantial distance further south, the grant only goes to the Burton corner, and the southern boundary must be run westerly therefrom, and parallel with the north line of Waterville, thus excluding the intervening territory. Land Co. v. Saunders, 103 U. S. 316, distinguished.

8. SAME-RECORD-ADDITIONS TO.

The addition, to the record or copy of a deed, of a map or plan which was not on the original, for the purpose of making the claim of the

grantee more specific, but without any fraudulent intent, or purpose to make it appear as part of the original deed, does not render the grant inoperative.

4. SAME-CONSTRUCTION.

A quitclaim by the state to "the said A. and others claiming under T." carries the entire title to A., when it does not appear that any "others" were then claiming title to the lands, or afterwards accepted the grant. 5. WRIT OF ENTRY-DEFENSES-FORFEITURE.

A forfeiture accruing to the state as against its grantee may be waived, and is not available to one not claiming intervening rights.

6. PUBLIC LANDS-STATE GRANTS.

If one of a number of grantees of the state reject the grant, but the others accept it, and pay the consideration for the whole tract, including his share, they take title to the whole. Corbett v. Norcross, 35 N. H. 99.

7. SAME-EJECTMENT-ESTOPPEL.

The fact that the state's grantees, in making their survey, by mistake locate a line so as to exclude part of the grant, does not prevent them from afterwards claiming to the true line.

8. WRIT OF ENTRY-EVIDENCE-DEEDS-COPIES.

Office copies of deeds not in the chain of title of either party, and offered by defendant for the purpose of showing title in a third party, are not admissible, without proof of search for the originals. Wells v. Iron Co., 48 N. H. 491, followed.

9. ADVERSE POSSESSION-WILD LANDS.

Adverse possession under color of title, sufficient to create possessory title, may be established in New Hampshire, in the case of wild lands, by showing surveys, prosecutions for trespass, depositions in perpetuam, grants, and payment of taxes.

At Law. Writ of entry. Plea, nul disseisin. Jury waived, and trial by the court, under the statute. Findings and judgment for plaintiff.

F. N. Parsons, L. G. Leach, and E. B. S. Sanborn, for plaintiff. Streeter, Walker & Chase and D. C. & C. C. Saunders, for defendants.

ALDRICH, District Judge. The land in question is situated in Grafton county, and between the town of Albany on the east, the Hatch & Cleves grant on the west, the town of Waterville on the south, and an alleged spotted line on the north, running from the northwest corner of Albany west to Hatch & Cleves' grant, and is 8 or 9 miles in length, and about 300 rods in width. The case is one of large importance, involving in its consideration a great number of exhibits and a vast amount of documentary and oral evidence.

Albany was chartered in 1776, and was then, and for a long time, known as Burton. Hatch & Cleves' grant was granted in 1811, and has always been known as "Hatch & Cleves' Grant." Waterville was granted in 1818, and was then, and for a long time thereafter, called the "Gillis & Foss Grant." Elkins' grant, under which the defendants claim title, was granted in 1830, and has always been known as the "Elkins Grant." Allen's grant, under which the plaintiff claims in part, was a provisional grant made in 1839, and in substance was a release of the state's interest in all ungranted lands, if any, between Elkins' grant and the north line of Waterville. Waterville and Albany join, and the west line of Albany extends something like 300 rods further north than the east line of Waterville.