discharged from the judgment, and a sale under it thereafter would be void.

The court also charged the jury in substance that the consent of W. R. Morrison to the surrender of the cattle was necessary in order that such surrender might work a discharge of Chowning, the surety. We are not prepared to say that a surety may not surrender property for which he is bound upon a bond of this character, even in opposition to the will of the principal, if the surety is able to deliver the possession to the sheriff. It is, however, unnecessary to decide that question in this case, because it does not lie in the mouth of Willis and Brother to raise the question of want of Morrison's consent, if it appears from the evidence that the property was actually delivered to the sheriff, or delivered to him upon the range in the same manner as it was levied upon, and was subsequently sold by the sheriff under an execution against Byars and the proceeds paid over to Willis and Brother, as we understand the evidence to strongly indicate if not to establish beyond dispute.

Because the court erred in the charge complained of, the judgment of the district court was rightly reversed by the court of civil appeals, but that court erred in giving judgment for Chowning for the land in controversy. It is therefore ordered that the judgment of the court of civil appeals, in so far as it renders judgment against P. J. Willis and Brother in favor of Chowning, be reversed and set aside, and that, in so far as the judgment of said court reverses the judgment of the district court, the same be affirmed, and that this cause be remanded to the district court for further trial in accordance herewith. It is ordered that P. J. Willis and Brother pay the costs in the court of civil appeals and that the defendant H. Chowning pay the costs of this court.

SURETYSHIP-DEATH OF PRINCIPAL DEBTOR.-The failure on the part of the creditor to present his claim to the administrator of the principal debtor within the statutory time after the grant of letters does not discharge the sureties of such principal, nor affect creditors' rights to proceed against them: Minter v. Branch Bank, 23 Ala. 762; 58 Am. Dec. 315; Johnson v. Planters' Bank, 4 Smedes & M. 165; 43 Am. Dec. 480. See, also, Bull v. Coe, 77 Cal. 54; 11 Am. St. Rep. 235, and note.

LIMITATIONS OF ACTIONS-SURETYSHIP.-The statute of limitations begins to run against a surety who, having paid the debt of the principal, seeks to recover from him what he was compelled to pay for him, not from the time when the principal debtor became liable, but only from the time when the surety actually paid the cred. itor: Extended note to Scott v. Nichols, 61 Am. Dec. 504. See monographic note to Gross v. Davis, 10 Am. St. Rep. 641; Hammon v. My. ers, 30 Tex. 375; 94 Am. Dec. 322. Also, Ashby v. Johnston, 23 Ark. 163; 79 Am. Dec. 102.

APPEAL BONDS-LIABILITY OF SURETIES.-The controlling principle which, in the absence of other considerations, determines the liability of one who executes an appeal bond, is, as in the case of other contracts of suretyship, that he is entitled to stand upon the express terms of his contract: Monographic note to Howell v. Alma Milling Co., 38 Am. St. Rep. 702-719, on the liability of sureties on appeal bonds.

INSTRUCTIONS-WEIGHT OF EVIDENCE.-In a civil case, it is error to instruct the jury that there must be sufficient evidence to "convince their minds of any fact necessary to be shown." The weight of evidence or preponderance of probability is sufficient to establish a fact in a civil case: Murphy v. Waterhouse, 113 Cal. 467; 54 Am. St. Rep. 365, and note.

ATTORNEY AND CLIENT-IMPLIED POWERS OF ATTORNEY. An attorney at law regularly retained in a cause has very large, if not exclusive, power and authority in the management and prosecution of the suit, in all matters that affect the remedy merely, and not the cause of action itself: Extended note to Commissioners ▼. Younger, 87 Am. Dec. 166. See, also, monographie note to Clark v. Randall, 78 Am. Dec. 256-265, on powers of attorneys at law.

CASES

IN THE

SUPREME COURT

or

WISCONSIN.

BUCKSTAFF V. HICKS.

[94 WISCONSIN, 34.]

LIBEL IN PROCEEDINGS BEFORE A CITY COUNCIL.-A report of the proceedings of a city council including the remarks made by a person there in attendance, if libelous, is not privileged, if there is no law requiring the publication of such report or remarks.

LIBEL, WHEN NOT PRIVILEGED.-The publication of libelous remarks made by a person in attendance before a meeting of a city council is neither qualifiedly nor conditionally privileged, where it is not made by one who owes a duty, or has an interest in the subject matter, to one to whom the duty is owing or to one who has a corresponding interest.

LIBEL. THE PUBLICATION OF LIBELOUS REMARKS MADE AT A MEETING OF THE CITY COUNCIL by a member of one branch of the state legislature explaining why a proposed municipal charter had not been enacted by such legislature and accusing a member of another branch of drunkenness is not privileged, especially if the newspaper containing such publication has a general circulation beyond the limits of the municipality.

JURY TRIAL, HARMLESS ERROR IN REFUSING INSTRUCTIONS.-A refusal of the court, on a trial for libel, to instruct the jury that if the article published was a fair and accurate account of the remarks made by the person to whom they were attributed, this may be considered in mitigation of damages, is not erroneous, if the plaintiff had waived all claim for punitive damages, and the jury had been so instructed.

LIBEL.-AN INSTRUCTION to a jury, on the trial of an action for libel, that in estimating damages they may consider the plaintiff's injured feelings and tarnished reputation, taking into account the nature of the imputation, the extent of its publicity, the character, condition, and influence of the parties, and all the surrounding circumstances, is not incorrect, nor is it susceptible of the construction that it authorizes the jury to take into consideration the wealth of the defendant.

Action for the libel of plaintiff by publishing in a newspaper what purported to be a report of a meeting of the city council of Oshkosh. The plaintiff was, at the time, a member of the state senate, representing that city and some adjacent territory in the same county. At the meeting a Mr. Pratt, representing the same constituency in the house of representatives, attempted to explain why a proposed charter of the municipality had not been enacted. He attributed its failure to the defendant, and said, "It was a bad state of affairs when a man like him, who was four-fifths of the time in a state of intoxication, could dictate to the common council what the character of the amendments should be." There was a conflict of testimony as to whether the meeting before which these remarks were made was a meeting of the common council and whether the assemblyman charged the plaintiff with intoxication. Verdict for the plaintiff, and the defendant appealed.

Hume, Oellerich & Jackson, for the appellant.

F. W. Houghton and Bouck & Hilton, for the respondent. 38 WINSLOW, J. The publication complained of was libelous if not privileged, and this is the controlling question on this appeal. A verdict for the plaintiff was directed; hence it must be assumed that Assemblyman Pratt actually made the remarks attributed to him, and that he made them at a meeting of the common council, there being competent evidence before the jury tending to prove both of these facts. Proceeding upon this assumption, the question whether the publication of the defamatory words was privileged will be considered.

The proceedings of legislative bodies, of courts, and of military and naval tribunals are privileged. In these cases the privilege is said to be absolute, and, though this may not be strictly accurate, it is unnecessary at present to discuss the question, because the publication in issue does not fall within this class. The second class of privileged publications or communications is said to be conditionally privileged from the fact that the privi lege depends upon the good faith of the party making the defamatory publication. Cases of conditional or qualified privilege may be divided into three general classes, viz: 1. Fair reports of the proceedings of courts and legislative bodies; 2. Where the defendant, in good faith, in the performance of a duty, makes a communication to another to whom he owes the duty; 3. Where one who has an interest in the subject makes a communication relating thereto to another having a corresponding interest.

It is certain that the publication in question is not the report communication made, or claimed to have been made, by Mr. "legislative body," in this connection, has not been extended to cover a city council meeting: Newell on Defamation, Slander, and Libel, 559; Odgers on Libel and Slander, 260. Doubtless, an official report of a city council meeting required to be published by law in the official city paper would be privileged; but that is not the present case. The report before us was not an official report. No official report of the meeting was ever made or published. The article in question was a mere voluntary report, published as an item of news; hence it cannot be protected as an official report of a council meeting probably would be, nor does the fact that the newspaper was in fact the official paper of the city cut any figure.

The publication, then, not being privileged as a report of the proceedings of a legislative or judicial body, the question arises whether it falls under either of the other two classes of publications above named which are entitled to a qualified or conditional privilege. The cardinal principle with reference to these last-named publications or communications 40 is, that they must be made in good faith, by one who owes a duty or has an interest in the subject matter, to one to whom the duty is owing, or to one who has a corresponding interest. Now, as to the original communication made, or claimed to have been made, by Mr. Pratt to the common council, it might plausibly be claimed under the foregoing definitions that, if made in good faith by him believing it to be true, it was privileged. The council had proposed certain amendments to the city charter, and sent them to the legislature for action; and Mr. Pratt was explaining to the council the reason, as he understood it, why they failed to be acted upon by the senate. It can easily be seen that the argument in favor of the privilege in such a case would be worthy of very serious consideration. But the publication of those remarks to the world is an entirely different matter. The remarks were made by the city's representative in the assembly to the city's representatives in the council, purporting to give information as to the conduct of the representative of the city in the senate with reference to the passage of charter amendments. Now, conceding that such remarks made in good faith were privileged, the privilege did not extend to their publication to the world. Mr. Pratt could not have had his remarks printed and circulated over the state or in adjoining counties, and take refuge behind the fact that he first communicated them to the council, and that such communication was privileged, and hence