Appeal from the District Court, Fourteenth Judicial District, County of Placer.

The complaint averred that the plaintiff, and W. H. Kinder, and J. D. Pratt were Supervisors of Placer County; and that on the 4th day of April, 1870, said county was the owner of a large amount of the capital stock of the Central Pacific Bailroad Company of California; and that on said day the Legislature passed an Act authorizing said Supervisors to sell said stock, on such terms as they should deem expedient; and that on the 13th of April, 1870, the Supervisors sold the stock to D. O. Mills & Co., a banking firm of Sacramento; that on the 10th day of December, 1870, the defendant published in his paper (the Placer Herald) of, and concerning the plaintiff, as a Supervisor, these false and defamatory words:

“The Act, under which the Supervisors sold our railroad stock, passed at the last session of the Legislature, gave the Supervisors power to sell said stock upon such terms and conditions as shall be deemed expedient by said Board, thus taking away from any other officers of the county all voice in the matter, or even to touch or keep an account of the proceeds. Under this extraordinary power the Board did sell, and after they had had the two hundred and fifty thousand dollars counted out to them, they then made such terms and conditions that the money never reached the County Treasury. These terms were, that D. O. Mills & Co. should keep the two hundred and fifty thousand dollars four months, and with it buy up our bonds at a discount, and then pay over the bonds to the Supervisors as so much gold coin at par. Instead of the money being in the Treasury here, it never was inside of Placer County, for the Supervisors swapped it off in Sacramento, and a villainous swap it was. Two things appear plain; one is, ‘Who struck Billy Patterson?’ and the other is, ‘Who whipped the devil around the stump,’ and thereby made money?”

The complaint alleged that the defendant meant, in said article, to charge him with having, in the performance of his duties as Supervisor, corruptly made money and acquired illicit gains in the sale of the stock, and with having been bribed by D. O. Mills & Co.

In the answer, the defendant denied that he meant to charge the plaintiff, as alleged, or that the article would bear the construction given to it by the plaintiff.

The Court charged the jury as follows :

“It is not pretended that the article complained of charges the plaintiff in express terms with corruption in office, or with dishonesty in his official or private conduct, but it is averred that the defendant intended to so charge, and that it was understood by those who read it as so charging. Now this is the meaning assigned to the article by the plaintiff in his complaint, and it is for you to determine whether that is the true meaning of the'alleged libelous article.

“In order to determine this question you will read and consider the article itself, and also consider and weigh the evidence offered, for the purpose of illustrating the true and real meaning of the alleged libelous article. You are to read and understand the alleged libelous article according to the ordinary import of the language used.

“The article complained of commences by undertaking to give a brief history of the sale of Placer County’s railroad stock to D. O. Mills & Co. It states that the Supervisors, the plaintiff being one of them, after selling the stock to D. O. Mills & Co., and after having the money counted out to them, swapped it off for the bonds of Placer County; that swap or exchange is characterized as ‘villainous.’

“So far, then, there is no dispute as to whom the article referred. It no doubt states and means that the plaintiff and his associates (Supervisors) did exchange the purchase money for the county bonds; and if the article ended here, I apprehend that the plaintiff could not maintain this action. Beading it so far, and placing upon it that construction which the language would ordinarily impart, and understanding it according to the usual acceptation of the words employed, I would say that the article is not capable of bearing that construction placed upon it by the plaintiff—that is to say, it cannot be understood as charging the plaintiff with doing anything dishonest, or with corrupt motives. It amounts, in my judgment, to nothing more than a statement that the exchange of the money for the bonds was unwise, improvident, and disadvantageous to the County of Placer. It is true the transaction is called ‘a villainous swap,’ but I suppose no one reading the article down to and including those words could or would be justified in believing that it was intended to charge the plaintiff with corruption in office. The word ‘ villainous ” evidently was used to express the degree of improvidence or injudiciousness of the exchange, and not the- motives or inducements that led to it.

“ If the article, then, as I before stated, stopped here, this case would be free from difficulty; but it proceeds and closes with this sentence : ‘ Two things appear plain : one is, Who struck Billy Patterson ? and the other is, Who whipped the devil around the stump and thereby made money ? ’

“ By reference to the article itself it is clear that by Billy Patterson is not meant the plaintiff, but the author of a communication that appeared in the paper of the previous week; but to whom the words ‘ who whipped the devil around the stump and thereby made money,’ referred is not clear. The plaintiff avers in his complaint that by this language the defendant meant to charge him with corruption in office, with making illicit gain in the transaction referred to, and with being bribed by D. O. Hills & Co. to cheat and defraud the County of Placer, etc. This is denied by the defendant, who says that it refers to the County Auditor, who had charged his percentage on money that never was in the County Treasury, and with which he had never dealt and could not deal.

“Tour verdict then will depend upon the solution of the single question, what is the true meaning and construction of the article complained of ?

“From the article itself it appears that it was written in reply to one published in the Stars and Stripes of the week previous, in answer to a communication published in defendant’s paper on December third.

“The article complained of, then, seems to be but a continuation of a discussion commenced in the Herald of December third.

“In order to ascertain the true meaning and intent of the alleged libelous article, you will take into consideration the other two articles to which I have referred; and this I say to you because it is usual that discussions in relation to matters of public interest are carried on in the public newspapers ; and as there can be no libel unless the libelous matter is made public, and as in this case it is said to have been made public by the general circulation of the newspaper containing it, it must be presumed that those who read it must have read it in connection with the. other articles, of which this was a continuation; and as you are to place yourselves in the position of those who read it, you must read it with the same light, and then by your verdict say what construction the readers of this paper put upon the article claimed by the plaintiff to be libelous: and if, after this, you should believe that the article contains a charge of corruption in office against the plaintiff, and was so understood by those who read it, you will find for the plaintiff.

“But if, on the contrary, you should believe that article, taken in connection with the preceding ones, does not so charge the plaintiff, and cannot be understood as charging him with dishonesty or corruption in office, you will find for defendant.

“ It is my duiy to inform you that you are the sole judges of the facts; it is not my province to charge you as to them; and I have therefore endeavored to avoid any intimation upon them. If you should find for the plaintiff, you will assess the damages at such sum as you may think reasonable and proper.”

The other facts are stated in the opinion.