Appeal from, the District Court of the Twelfth Judicial District, County of San Francisco.

This was an action for damages against the defendants for an alleged libel upon plaintiff, in his profession as a dentist. George W. Smiley, one of the defendants, applied to the plaintiff, Dr. II. II. Thrall, a dentist, to extract for him a tooth, which operation the latter undertook to perform. The tooth was a hack molar, of the lower jaw. The tooth was so situated that the dentist deemed it best to draw it inwardly j and in performing the operation, the instrument came in contact with the cutting edge of the two upper and projecting front teeth, by means whereof they were broken on the under and upper side. The immediate cause of the accident does not appear, as no one was in the room at the time, and there was no positive testimony on the subject. A few days after the extracting of the tooth, there appeared in the San Francisco Evening Bulletin of the twenty-fourth of June, 1857, the following card :

“Dr. H. H. Thrall, Dentist.—The public are hereby cautioned against employing the professional services of the above-named individual, whom I hereby denounce as a miserable bungler, and a disgrace on the profession he presumes to follow. “ George W". Smiley/’

This card was published daily for one week, and also another one, of like import, about the same period in the Alta California, a daily newspaper. Thomas Smiley, brother of George, aided and counseled his brother in the publication of the card, and took a great interest therein. Thrall then instituted this action, laying his damages at $10,00(1.

Thomas Smiley answered, denying the allegations in plaintiff’s complaint. George Smiley answered as follows : “ He admits that he wrote and procured to be published the two cards mentioned in the plaintiff's complaint in the several newspapers therein alleged, but he denies that he did so maliciously or with any other purpose than to warn the public of the true professional character of the plaintiff, and to prevent him from inflicting upon others in want of the assistance and professional services of a dentist, injuries of like character to those hereinafter stated to have been inflicted by said plaintiff upon this defendant.” The answer then avers that this defendant, being induced by the advertised card of plaintiff as a dentist, applied to him to have a tooth extracted, and “that plaintiff so managed the said operation that by reason of his want of skill he broke and mutilated two of the front teeth of the defendant, to his great pain and damage, by reason of which this defendant was obliged to have the teeth, so mutilated, tiled down, cut off and shortened," etc., “ all of which was occasioned by the professional carelessness and ignorance of the plaintiff.” The cards read in evidence were in the language of those set forth in the complaint, and the same which the defendant, George Smiley, admits to be true, excepting only a slight discrepancy of dates at the foot of one of the cards. The date of the card set forth in the second count of the complaint is the twenty-third of June, and that shown in evidence was the twenty-fourth of June. On the trial, on the examination of one of defendant’s witnesses, at a point in his testimony where he was describing the injury to the defendant's teeth, a diagram of the teeth was shown the witness, which he said was a correct representation of the broken teeth before and after they were injured, and which drawing the defendants’ counsel offered to exhibit to the jury. The Court refused to allow the same to be exhibited to the jury, and defendants excepted.

After the close of the testimony, the counsel of the defendants asked the Court to instruct the jury as follows :

“1. If the publication was made only for the purpose of giving notice to the community, and from good motives, and upon probable grounds, and reasons which you are satisfied from the evidence were good, and that there was good reason therefor, by reason of bad treatment to George Smiley, at the hands of the plaintiff, in performing the operation upon his teeth, and if you are satisfied that the defendants were not actuated by bad, malicious, or evil motives, but only to publish to the world what they believed to be the fact, the plaintiff can not recover.

“ 2. If the jury are satisfied that the plaintiff did do George Smiley an injury to his teeth, as alleged, in a bungling, grossty negligent, and unskillful manner, and the defendants were actuated only by good motives, they knowing that this plaintiff had acted in such an unskillful and grossly negligent manner, for the simple purpose of preventing other injuries of a like character being committed on other persons by the same party, the plaintiff can not recover; and

“ 3. In judging of the degree of skill of the plaintiff in this case, regard is to be had to the advanced state of the profession of dentists at the time, and if the plaintiff, in extracting the defendant’s tooth, could have used an instrument less objectionable than the one used, and such instrument was in common use among the profession, it is •prima fade evidence of a want of surgical skill on the part of the plaintiff in performing the operation.”

Which instructions the Court refused to give, and the defendants’ counsel excepted.

The Court instructed the jury that the answer of the defendant, George Smiley, did not amount to a justification of the alleged libel, as it did not aver the truth of the defamatory matter charged.

The plaintiff had judgment for §3,500. The defendants moved the Court for a new trial, and amongst other grounds alleged the following: first, misconduct of the jury in the progress of the trial; and, second, disqualification of one of the jurors. The facts necessary to understand the points here raised, appear in the opinion of the Court. The motion for a new trial was denied, and the defendants appealed to this Court.