Skellie vs. James.

test between creditors of the husband on the one hand, and the wife on the other, where a fraud is charged, and where the wife sets up a secret contract between herself and her husband, as was done in this case, the jury should be instructed to scan the transaction closely, and that the bona fides thereof must be clearly established, and not that "perhaps" they might look into it "a little more closely."

If there ever was a case in which the jury should have had positive and stringent instructions in regard to their scrutiny of the conduct of the husband and wife, this is such a case. It seems to us that the evidence in this record discloses that this pretended contract was made for the deliberate purpose of defrauding creditors. It is claimed by the husband and wife that, in the year 1868, he borrowed from her $180, and in 1870, he borrowed $500. The contract between them was that he was to speculate in this property, and when he bought the land he was to take the title in his own name, and when he bought personal property he was to do the same, and all the profits he made were to be hers, and all the losses were to be his. He was also to pay her interest on the money, he claiming that the rate of interest he was to pay her was twelve and a half per cent., and she claiming that it was seven per cent. Between the time he borrowed the money and the time he made this deed to his wife, under which she claimed this land, $680 had increased to more than $4,000. The taking of these titles in his own name enabled him to obtain credit, and perhaps Skellie, this plaintiff, sold him goods on the faith of this very property to which he had the title, and which he transferred to his wife after incurring this debt to Skellie. We think, therefore, that under this state of facts, the judge should not have qualified the rule above referred to, but should

Johnson vs. The Bradstreet Company.

have instructed the jury to closely examine the transaction, and should have further instructed that the bona fides of these transactions must be clearly established. For a fair and full discussion of this principle, see the case of Booher vs. Worrill, 57 Ga. 235.

2. It is also claimed, in the motion for a new trial, that the court refused to compel counsel for the claimant to testify in the case. We hardly think that the counsel, when he declined to testify, brought himself within the provisions of the act of 1887 (acts 1887, p. 30.) He did not say that he acquired the knowledge from his client by virtue of his relations as attorney, or by reason of the anticipated employment of him as attorney. In order to render him incompetent to testify under this act, he must have acquired his knowledge from his client by virtue of his relations as attorney, or by reason of the anticipated employment of him as attorney. If he acquires the knowledge in any other manner, he is both competent and compellable to testify.

Judgment reversed.

JOHNSON vs. THE BRADSTREET COMPANY.*

Where a plea of justification is made to an action for libel, the defendant is entitled to open and conclude the argument, though it also plead and rely upon the plea of the general issue; and this is true, though the declaration allege special damages.

October 22, 1888.

Libel. Pleadings. Justification. Practice. Before Judge VAN EPPS. City court of Atlanta. March term, 1888.

James Johnson sued the Bradstreet Company for

*BLECKLEY, C. J., did not preside in this case, because of sickness.

Johnson vs. The Bradstreet Company.

$5,000, alleging that it is a corporation which keeps on file at its various offices in the United States, or pretends so to keep, and furnishes or pretends to furnish, to all persons who pay therefor, information as to the worth and character of all persons engaged in mercantile pursuits. Also that it had damaged him in the sum of $5,000 by falsely and maliciously uttering and publishing of and concerning him, on the 1st of December, 1884, and at divers other times, the following false and malicious words:

"Johnson, Jas., groc.; given trust deed for $4,600; his habits are not good, and some caution is deemed advisable in extending credit. 12-31-4."

Also the following false, malicious and defamatory words:

"Johnson, Jas., groc., .Atlanta, Fulton county, Geo. Call add'. Has given a deed of his store property to Sam'l W. Goode for consideration of $600. It is thought that this is for borrowed money. His habits are still unimproved, and it is not thought that he can continue long unless he does change; and caution is advised. Dec. 31, 1884."

These words were published in print and writing and furnished to and circulated among many different persons, especially among merchants and others with whom plaintiff had business relations, he being a retail grocer. The words were false and malicious, tended to injure and did injure the reputation of plaintiff as a man and a merchant, and tended to expose and did expose him to public contempt and ridicule.

By amendment, he alleged that the defendant had been stubbornly litigious in regard to the case, and asked for counsel's fees. He further asked that $200 be allowed him as special damages, for that, on account of the matter set forth in the declaration, he was unable to purchase goods as he did formerly, and incurred such special damages in being compelled to raise the

Johnson vs. The Bradstreet Company.

cash before he could buy goods, and to buy from new parties.

In addition to the plea of the general issue, the defendant pleaded "that the plaintiff ought not to have and maintain his action, because the words by said plaintiff charged to have been published of and concerning him by this defendant, were true in fact."

Under the evidence and the court's charge, the jury found for the plaintiff $5,000. A new trial was granted, on motion of the defendant, and plaintiff excepted.

ARNOLD & ARNOLD, T. P. WESTMORELAND and JAMES L. MAYSON, for plaintiff.

CANDLER, THOMSON & CANDLER and N. J. & T. A HAMMOND, for defendant.

BLANDFORD, Justice.

Johnson recovered damages against the Bradstreet Company, on account of a libel which he alleged had been written and published concerning him. The Bradstreet Company moved for a new trial on several grounds, but mainly upon the ground that the court. erred in refusing to allow them to open and conclude the case to the jury. They contended that inasmuch as they had pleaded justification, they were entitled to the opening and conclusion. The court granted a new trial, and granted it, we presume, mainly upon this ground; because the other grounds of the motion appear to have nothing in them. The plaintiff excepted to the grant of a new trial, and brought the case to this court. for review. He contends that the defendant having pleaded the general issue, and having kept that plea in this case, as well as the plea of justification, he (plaintiff) was therefore entitled to open and conclude to the

Johnson vs. The Bradstreet Company.

jury. We do not agree with the plaintiff in this. It is true that under the Statute of Anne, which allowed contradictory pleas to be pleaded, the courts of England have held, and it has also been held in this country, that where both the general issue and justification are pleaded, the plea of justification does not amount to an admission; and hence the plaintiff does not lose his right to open and conclude. But under our code the law has been changed. It says (code, $3051,) that where justification is pleaded, the defendant "shall be entitled to all the privileges of one holding the affirmative of the issue." And it seems from some of the decisions of this court, notably that in the case of Ransone vs. Christian, 49 Ga. 491, that it does not make any difference at what stage the plea of justification comes in; the defendant assumes the burden of proving his plea, and if he fails to prove it certain consequences attach to it, and therefore he is entitled to open and conclude the case to the jury. It may appear illogical-it does to my mind. -to allow a party to open and conclude to the jury who denies the plaintiff's right of action; but the plea of justification is an admission on the part of defendants that they wrote and published the words as alleged in the declaration. Damages followed from this act. It is true the declaration alleged certain special damages, but that would not make any difference as to the right of the defendant to open and conclude. In the present case, I would remark, the special damages alleged do not appear to us to be recoverable. So while this case has been tried twice, we are reluctantly compelled to affirm the judgment of the court below granting a new trial. Judgment affirmed.