one of fact, material to the issue.. It was therefore legitimately and strictly, ,the subject of review on motion for a new trial. But the bill in its stating part further proceeds as follows: "Furthermore, then and there. upon the trial of said issue. your orator. among other things, claimed title in hilllself under and by virtue of a sheriff's sale on judgmeritand execution; in the case of The Butler Paper Company v. Frank Ke'rting and the Chicago Lithographing Company, all of which dUly appeared from the records and files of the court wherein said jndg;ment was rendered; and it became and was, under the rulings of the presiding judge, a material question on said issue and trial whether this execution levy prior to the sale was abandoned by the judgment creditor; and whether said sale thus regularlyappeating. ofreoord was fictitious or bona jlde. and consequently whether the title 'of said Kerting. if any he ever had, ·to the property above referred .to· had become: extil1guished. by such sale: and thereupon the said Kerting, devising and wiekedlyintetlding to cause and procure a verdict to pass for hitn,:didthenand there, by his own corporal oath, and that of the president· of the jUdgment creditor;. conspiring and· conniving with him for that purpose, falsely, willfuJly,andicorruptlydepose and give evidence. and thus made it to appear in substance and effect, that said levy was withdrawn and that, no sale an ,execution was' in fact made, and no money as }m;gJp1ited by:the record. and that. the pretended ,proceedings were tmt\:J, an,din .thereturn. of the as to his levy and. sale WaB,tr,ue. in every parti<luJar and in conformity to the facts as theyoccurte<l and transpired at the, th;ne;,so that all rJght, title, and in.terest of ,said F'rank Ketting. any interest he' ever had; 'Were fully extingUished by such sale,' and, acquired by your orator:" What stated of preceding allegations of the bill applies with equal force t() this. If it was question, on the trial of the suit at law whether, the execution levJ:, ,referred to, which was one of the sources of complainant's title, wasabandoried by the Butler Paper Company, and whether was fictitious or bona fide, then the was compelled .t()meet that question with testimony, as an issue of fact in the case. The plaintiff in the suit at law, it seems, attacked the sale. It therefore devolved'upon the defendant in the case to defend and maintain the, sale. If his evidence was insufficient, or was overbornl;l by testimony him, that is not ground for relief in equity. ,'rhe issue was one involying title. Both had to meet it; and, as stated, even if false testimony was aMuced on one side in maintaiBing the issue, that does not give the complainant a footing in equity to:avoid the verdict and judgment. Again, this was a matter had been reviewable by:tt!e trial court. If it were shown done tq one side by false f1:o/earing on the part of the other, or that the defeated party ba.r!, bElen surprised, and therefore had not been able to mee,t such: fa}.se tef1timony, it was .within the power of the. court to set and grant a new trial. aside The bill fl,lrtlwrproceeds: , "And at the time of foreclosnre of said chatfo,r severalmonths;tbereafter, your orator bad no possession tel mortgage. or control. 0,1' actual or.'constructive; over the greater portion of the goods and cbattelssafq.,to have been taken and carried away by your orator;tlJat'tbe color.gririder; 'varnish-machine, paper-cutter and labelS, and
COTZlIAUSEN V. KERTING.
the work in process of execution, were then held as claimed by third parties, strangers to your orator, in manner following. to-wit: The color-grinder, varnish-machine, and two bundles of labels, containing about twenty-five hundre!} s1;leets, had been seized and taken, and were then held, under a writ of attachment against said Frank Kerting at the suit of one Otto Waltersdorf, and were afterwards, to-Wit, on the twenty-first of October, 1880, sold on execution to satisfy the claim of said Waltersdorf, amounting to $165, more or less, and purchased from him, said Waltersdorf, under date of October 22'; 1880, for the sum of $137.43, then to him in hand paid; that t.he papercutter was held by Goodwillie, Wyman & Co., who bad themselves of S&n)e because Rerting di,d not comply with the tenns of a conditional sale under ,which he had acqUired possession, and had paid but aninsignificant amount on account of the putchase money thereof; that said paper-cutter did not come under the control of )'our orator until on or about October 30, 1880, when be bought the same from the above finn in.consideration of $200. to them in hand paid; that the work in process of exe.cution was assigned by. said Frank KeJ;ting himself, on or about September 20, 1880, to onedf the preas, hands. for;thepurpose of haVing the same finished, and the net proceeds thereof applied'to the payment of wages then due to the employes of the shop; thattbe and wood-cuts referred to as baving been takena.nd ried awa"ne.ver came to the hands or knOWledge of your orator,untU sey-eral years thereafter, when a box containing tbe Bame was found by exp.ployes of the shop, stored away on the top of a stone-rack, upon discovery whllreof the same were at once tendered to said Kerting, who, however, refused to receive the same; that no chromos, views, or anything of the kind,have come to the possession of your orator, unJE\ss it be intermixed with mortgaged goods of the same kind and character, and that no use of any such stuff was ever made by your orator, because utterly worthless. and of no Commercial value; that all of t,hese facts,matters. and things. were well known to Frank Kerting, but that then and there, upon said trial, and when all of the above mattera were material to the issue, the .said Kerting. devising and Wickedly intending to cause and procure a verdict to pass for him, 'did make it falsely and fraudulently appear, by his oath and testimony, and the testimonyiof said Otto Waltersdorf, then conspiring and connivmg with him for toot purpose, that the execution sale of the color-grinder, varnish-machine, and labels, in the case of Waltersdorf v. Kerting, was fraudulent and void, for the reason that the judgment debt was collected and paid between the time of the levy and the.execution sale; tl:!-atthe said Frank had absolute title to the paper-cutter, and that the sale of the same had not been conditional as claimed and asserted'on the defense; that he, said Kerting, had not disposed of any of the goods, chattels; ano. things said to have been t,hus wrongfully taken, carried away, and converted by your orator, and that said property was of large value; whereas, in truth and in fact, the judgment of said Waltersdorf had not peen paid, the paper-cutter was conditionally bought, and only twenty or twenty-five per cent. paid thereon, the press-work had been assigned as aforesaid, arid the interest of the said Kerting in and to the entire property, if any he individually owned, was but nominal, and not worth to exceed, in the aggregate, fifty dollars,-all of which said Kerting well knew as aforesaid." It would be but repetition of what the court has held in its comments upon other allegations in the bill, to point out the reasons why these averments pre!!ent no grounds for a court of equity to interfere with the suit on the judgment. The issues were all such as might legitimately arise in the Illinois suit, and those issues, as they are set out in this bill, Cl\n-
" FEDERAL REPORTER.
not be litigated over again 'here. I repeat that the complainant's rem.., edy for the alleged wrongs dOllehim was in the Murt that tried the case. It would be, most' anomalous, and' open the door to perpetual controver· sies, if a court of chancery 'Were to put its strong hand upon judgments at law, and say that they shall not be enforced, where it can be made to appear that, in a trial at law resulting in judgment, perjury was committed by witnesses sworn in behalf of the successful party. For such wrong the injured party is not without remedy, but his remedy is in the court that had original cognizance of the controversy. Counsel in argument laid mucb stress upon certain allegations in the bill to tbe effect that the alleged false testimony was given in pursuance of a combination or conspiracy between Kerting and other parties, and it was insisted that', .therefore, the fraud, complained of was not remedia· blein the court where the Case was tried. I am wholly unable to see bow the allegation that the alleged false testimony wasgiven in pursu· 8uce of such a combination as is charged, adds any weight to tbe averments that the parties testified falsely, and that, therefqre, an unjust verdict was rendered.· The wrong done, if any, consisted in the alleged false swearingupon'the'questions of fact in issue between the parties. TheresultcomplMned of must have been brought about, not by any pre· vious conspiracy, but by the false testimony, if any, given on the trial. A conspiracy ,w:Hhout an overt actcpmmitted in pursuance of it, is harm. less. Upon the allegations of the bill it must be considered that the al· leged injury to the complainant resulted from the false swearing or perjury., That is the gist of the fraud which is set up in the bill. Strip. ping the pleading its verbiage, it consists of the charge that the verdict in the suit atlaw,wa.s obtained, by false swearing on the part of Kerting, and two in hishehalf. It does not help the compla:inant's case to state, as he has done, that the alleged, fraud and perjury were not anticipated' by him when he entered upon the trial of the action, because is simply stating a case of surprise, from which, if "\Yell; founded, the trial court could relieve him. 'It is alleged in the bill, that, under the practice. of the federal court in lllinois, the, issue on the trial of the case was not such that the complainant could fairly or reasonably anticipate that the plea of title in himself,'acqrtired from-third parties on execution and private sale, would might be avoided iIi rebuttal by. testimony of the false nature and ch/tracter referre4. to, and that he had no reason and opportunity to anticipate or meet such false and fraudulent statements. If the defendant in ,his plea in that case set. up title to the property in he must have known that, in an action of trespass, that title couldQe attacked; and, in any event, it is clear that the power of the trial court to protect the complainarit' against any such wrongs as are complained of in this bill was adequate,. and it is not for; this .court to .say th,at such power 'would not bavebeen exercised upon sufficient and pr,oper grounds shown. To stay the suit at law, and to now go into an investigation of the matters set up in the bill, would Qe, ill my judgment, equivalent to re-
opening the very law, equity side of.the court, ,would be. equi.valent tograpjing in equity a, new trial of a suit trie4.aHaw. This cannotQe tolerated. On tqe whole, am of the opinion that the, bill does not state a case entitling the complainant to the relief. he seeks, and therefore that the should be sustained, and t4e bill dismissed.
(Circuit Court, No IJ.l11inoiB. February
The word "crank" has no necessary defamatory meaning; and for a paper. to publish an item that a certain pamphlet, written bI a lawyer who W,QS ,also the author of a text-book on the law of patents, was the effusion of . a, i,s not without a charge in t!?-e de.claration of the alleged defamatory meanmg of the word by an approprIate mnuendo, and an aver, ,merit and, proof of special damage. 4,charge in ,the declaration that the purpose of the publication in applying the term" crank" to the plaintiff was "to impute to him sundry qualities, aims,' and highly inconsistent with usefulness as a lawyer, or as an author, " is not an appropriate averment or innuendo that the word was used .. in adebmatorysens6, ,and the declaration is bad on demurrer.
LxBEL AND SLANDER-WHAT
3. SAME-SPECIAL DAMAGE;
The mere statement in the declaration 'that the plaintiff, by reason of being thus called a "crank, " had been deprived of divers gr, e"at earnings in his profession, and had lost royalties on the sales of his book, is too vague and inliefinlte to serve as an averInent of special damage, and the declaration is bad on general demurrer. ' ' ,Whether or not the character of a pamphlet alleged by the defendant to be the "effusion of a crank" warranted the application of that term to the plaintiff. fila matter of justification to be pleaded and proved by the defendant, and the declaration is not demurrable for failing to set the pamphlet out.
At Law. Action to recover damages for a A. H.Walker, for himself. A. S. Trude, for defendant.
BLODGETT, J. This is a demurrer to a declaration filed by the plaintiff in this case. ThedeclaratioIl-avers, in substance, that plaintiff is, and has been for several years paSt, a lawyer by profession, and the author of a text-book uppn the law of patents,and also the author of a pam"The Bribery Case and the United States Senate;" tl;1/lt defendant, intending to cause.itto be suspected and believed that plaintiff Ii man of crude, ill dig,ested, ill considered, and wild ideas and aims, and to be supposed to be witp.out skill, tact, adequateinformation, or common sense, on the fourth day of September, 1886, in this district" did wrongfully, falsely, and maliciously cause to be composed, and pubJished, on the editorial page of the Chicago Tribune of