
    Joshua Dial, Administrator of David Dial, v. Alfred Holter.
    Words spoken of. another, charging him with maliciously removing the cornerstone of lands, are, per se, actionable.
    When a defendant to a count for libel pleads that the charges against the plaintiff were preferred without malice, to a church of which both parties were members, for the purpose of bringing plaintiff to trial on such charges, before a committee of the church, according to the usage and discipline thereof, a replication reaffirming the defendant’s malice in making the publications was properly held sufficient on demurrer to such replication, although it did not aver want of probable cause on the part of defendant to make the charges.
    Where a defendant in an action for libel and slander, after the finding of a verdict against him in the court of common pleas, files, during the same term, and in compliance with the rules of the court, motions for a new trial and in arrest of judgment, and afterward dies, and the motions are continued to another term for hearing, the court may, if such motions be overruled, enter a judgment nunc pro tunc upon the verdict, as of the term in which, it was found.
    
      *In error to the district court of Clermont county.'
    Alfred Holter sued David Dial, in the court of common pleas, for libel and slander.
    
    The first count of the declaration charges that Dial wrote and published of Holter, that he knowingly and maliciously removed a. corner-stone of O’Bannon and Taylor’s survey — that he had been guilty of falsehoods, and that he had committed an assault and battery on Benjamin Hammett.
    The second count alleges that the defendant verbally charged the plaintiff with willfully, maliciously, and knowingly plowing up the-corner-stone, and of willfully and maliciously removing the cornerstone of J. O’Bannon’s survey, and that he ought to be indicted and punished for so doing.
    To the first count the defendant pleaded that he and Holter were members of the Methodist Episcopal Church, and that, without the-malice imputed to him in the declaration, he did exhibit to the branch of said church of which they were members, according to the usage and discipline thereof, the several charges and specifications against the said Holter, for the purpose of bringing him to a trial on said charges before a committee of said church, according to the usage and discipline thereof, and that afterward the same came on for trial before a committee of said church and was then and there tried; and that this is the same matter charged against said Dial in said first count, etc.
    To the second count defendant pleaded justification.
    The plaintiff replied to the first plea that the said Dial, for the-, purpose of harassing, defaming, and injuring him, the said Holter, did willfully and maliciously exhibit to said church, said charges and specifications in said plea mentioned, etc.
    *A special demurrer was filed to this replication: 1. Because it does not admit nor deny that the parties were members of the said church, and that the charges were preferred according to the discipline; 2. It does not deny probable cause on the part of said Dial to prefer said charges; 3. It does not answer the whole of the plea.
    ■ This demurrer was overruled; when the defendant rejoined “ that the said Dial, for-the purpose-of harassing, defaming, and injuring him. the said Holter, did not willfully and maliciously exhibit to said church said charges and specifications, in the replications mentioned.”
    
      The cause was submitted to a jury on the 18th of November, 1848, and a verdict returned for the plaintiff for $500j on which the court rendered judgment; but the defendant, after the entry, and at the same terra, filed motions for a new trial and i n arrest of j udgment. No disposition was made of these motions, at the said November term, but a general order of continuance, of cases not disposed of, was made upon the journal and carried the motions over to March term, 1849.
    On the 4th of December, 1848, and before the adjournment of the court at which the verdict was returned and judgment rendered, David Dial died, and Joshua Dial was appointed his administrator. At the March term of the court, 1849, a suggestion of the death of Dial and of the appointment of an administrator, was made. The latter thereupon moved the court to strike out the entry of the judgment of the November term, because it was entered while the motions for new trial and in arrest were pending, and because the said David Dial had departed this life. The court overruled this motion and would not permit Joshua Dial to bo made party to the proceedings. The motions for a new trial and in arrest were declared abated by the death of Dial, and therefore overruled.
    *A writ of error was jn-osecuted in the Supreme Court of [231 the county to the ruling of the common pleas on the above motions, and at the May derm, 1850, the judgment was reversed, because the court below had refused to allow the administrator to enter an appearance for the deceased, and to be heard on said motions, and the cause remanded to the common pleas.
    At the July term, 1850, of the common pleas, Joshua Dial was made a party to the suit, and the motions were then heard and overruled, and a judgment entered against the' administrator for the amount of the verdict.
    A second writ of error was prosecuted by the administrator, and the last judgment reversed, on the ground that it was given against him as administrator, and the cause was again remanded to the ‘common pleas.
    At the November term, 1851, the court of common pleas made the following order in the case:
    “ It is now here considered by the court that the said Alfred Holter recover of said defendant, David Dial, the said sum of $500, the damages assessed by the jury aforesaid, at the said November term of this court in the year 1848, and also, his costs herein expended; ■■and it is further ordered and adjudged that this judgment shall ¡stand for and be considered as the judgment of this court rendered ¡as of and at the November term of this court in the year 1848.”
    A third writ of error was sued out of the district court of the ■county, in 1853, to the last judgment, but that court affirmed it.
    This petition is filed to reverse the judgment of affirmance of ■the district court.
    It is assigned for error:
    1. That the court of common pleas erred in rendering a judg-' ¡raent nunc pro tunc.
    
    *2. In not declaring said action abated by the death of David Dial.
    3. In overruling the demurrer to the replication.
    4. The second count of the declaration is not sufficient to maintain the action, and the verdict is general upon both counts.
    
      John Jolliffe, for plaintiff in error, argued:
    I. The courts of Ohio have no power to enter judgments nunc pro tunc.
    
    Such judgments are contrary to the whole policy of this state-.as the legislature has settled that policy by statutory provisions.
    The whole power of the courts in Ohio to enter judgment is derived from the statutes of the state.
    There, is no statute that authorizes judgments nunc pro tunc.
    
    II. No such judgment as this is, could be rendered at common law in England.
    
      Nunc pro tunc judgments' could be entered where no judgment had been entered, in certain cases, and where the entry did not ■contradict the entry of a previous term. Farrell v. Tipper, Latch’s Cases, 88; Crisp v. The Mayor and Commonalty of Berwickupon-Tweed, 1 Leving 252; 1 Mod. 37.
    III. The case abated by the death of David Dial. Ireland v. Champeny, 4 Taunt. 884; Cro. Cas. 509; Cowly and wife v. Poulton and wife, Hobart, 129a, (Williams’ ed.); The King v. Dryden, Gibbs, and others, Cro. Cas. 574; 1 Bac. Abr. (Bouvier’s ed.) 15; Swan’s Stat. of Ohio, 667, sec. 80; Weston v. James, 1 Salkeld, 48; Griffith v. Williams, 1 Crompton & Jarvis, 43; Graham on New Trials, 609; 44 Ohio L., sec. 2, of Act of March 12, 1848.
    IT. The replication to the first plea to the first count of the ^declaration was insufficient, because it did not aver “ want [333 ■of probable cause,” as well as malice.
    The court erred in overruling the demurrer to said replication. Gray v. Pentland, 2 Serg. & R. 23; Thorp v. Blanchard, 5 Johns. 508; Vandergee v. McGregor, 12 Wend. 545; Fairman v. Ives, 5 Barn. & Ald. 642; O’Donaghue v. McGovern, 23 Wend. 26; White v. Nichols, 3 How. U. S. 266, 276, 289, 291.
    Y. The plea avers that the publication was made to the church only for discipline. Its exhibition there for that purpose is not actionable. Rex v. Bailie, 2 Esp. Nisi Prius (Gould’s ed.), 91; King v. Hart, 1 Wm. Black. 386; 1 Term, 130.
    VI. The second count is for verbal slander. ’ The words are not actionable. See 1 Hare & Wall. Amer. Lead. Cas. 120, 121, referring to Holt v. Schofield, 6 Term, 690; Hall v. Mellern, 8 Dowling & Ryland, 140; Shaeffer v. Kinster, 1 Binn. 537-541; Pratt v. Price, 11 Wend. 127; Watson v. Humpton, 2 Bibb, 310; Stafford v. Green, 1 Johns. 505; Ward v. Clark, 2 Johns. 10; Arbell v. Witt, 2 Nott & McCord, 364; Young v. Miller, 3 Hill, 21; State v. Burroughs, 2 Halst. 426.
    YII. The administrator was not made a party to this case.
    
      Thurman, and Fishbach & Swing, for defendant in error.
    
      Thurman, for defendant in error, argued :
    I. The first count is good — the law being, that any malicious publication of printed or written matter, tending to bring an individual into disgrace or ridicule, is, if untrue, libelous, and per se actionable. Watson v. Trask, 6 Ohio, 531; Tappan v. Wilson, 7 Ohio (pt. 1), 190, 193; Newbraugh v. Curry, Wright, 97; White v. *Nichols, 3 How. U. S. 266; Woodburn v. Miller, Cheves, 194. [234
    II. Being sufficient, it would sustain the verdict and judgment, even were the second count bad — the law in Ohio being, by force •of our statutes, that a single good count will support a general verdict in a civil case. Johnson v. Mullin, 12 Ohio, 10; Swearinger v. Bank of Mount Pleasant, 13 Ohio, 208.
    III. The second count is good. That the defamatory words laid in it are actionable, per se, was expressly decided in Young v. Miller, 3 Hill, 21, and Todd v. Rough, 10 S. & R. 18.
    That they are so upon principle is clear. There are all the elements which any court holds to be necessary to constitute actionable words in themselves, and more than the current of authority requires; for they import the commission of an indictable offense, involving moral turpitude, calculated to disgrace the offender, and punishable corporally. Swan’s Stat. 286, sec. 16; Baker v. Pierce, 6 Mod. 23; Button v. Heyward, 8 Mod. 24; Mayne v. Digle, Freeman, 46; 1 Starkie on Slander (ed. of 1852), 40, margin; Ib. 43, margin; Brooker v. Coffin, 5 Johns. 188; Andreas et ux. v. Koppenhæfer, 3 S. & R. 255; Ludlow v. McCuer, 1 Harrison (N. J.), 12 Gage v. Shelton, 3 Rich. (S. C.) 242; Perdue v. Burnett, Minor (Ala.), 138; Miller v. Parish, 8 Pick. 383; Woodbury v. Thompson, 2 N. H. 194; Frisbie v. Fowler, 2 Conn. 707; 1 Starkie on Slander, 28, 29, margin; 2 Sid. 21; Walton v. Singleton, 7 S. & R. 449; Morris v. Barkley, 1 Littell, 64; Phillips v. Wiley, 2 Ib. 153; Gibbs v. Dewey, 5 Cow. 351; Gearly v. Ashley, 4 Har. & J. 314; Bush v. Prosser, 13 Barb. 221.
    The count is sufficiently certain — certainty to a common intent in general being all that is required.
    IT. The replication of July 17, 1848, to the first plea to the first count is sufficient.
    *An express admission of the church membership of the-parties, and that the charges were preferred in the way of church discipline, is not necessary in the replication. Color is given to these allegations of the plea, which is enough. Traversable matters-not denied are confessed, and a formal confession is unnecessary. Stephen on Pleading, 199, 200, 202, 203, 217.
    The replication does answer the whole of the plea.
    It is not necessary that the replication should deny the existence-of probable cause. For:
    1. Probable cause is no defense, in cases like this, if the defendant, in making the publication, was actuated by express malice.
    There is but one class of cases in which probable cause protects-a malicious libeler, to wit, cases in which the libelous charge is-made in the ordinary and proper course of judicial proceedings.
    Thorn v. Blanchard, 5 Johns. 508, seemed to establish another class, to wit, memorials for removal from office, but the clear weight of authority is now against that decision.
    But in cases like the present — although there is some loose language in the books — the well-settled rule is this :
    In the absence of express malice, the existence of probable causer coupled with an occasion which makes the libel a privileged communication, will rebut the ordinary legal presumption of malice, and defeat the action. But if the plaintiff can show that the publication was expressly malicious, the action will lie, notwithstanding the existence of probable cause. White v. Nichols, 3 How. U. S. 266; Gray v. Pentland, 2 S. & R. 23; Vanderzee v. McGregor, 12 Wend. 545; O’Donaghue v. McGovern, 23 Wend. 30; The King v. Baillie, 21 State Tr. 67; Hodgson v. Scarlett, 1 B. & Ald. 247; 1 Starkie on Slander, chap. 13; 2 Chitty’s Pl. (8 Am. ed.) 630a, note k.
    
    *In the King v. Hart, 1 Wm. Bla. 385; and Fairman v. Ives, [236 7 Eng. Com. Law, 220, cited by Mr. Jolliffe, there was no proof of ■express malice, nor any question whether probable cause is or is not a substantive ground of defense.
    Again, where want of probable cause is essential to the right of action, the party aggrieved can not bring an ordinary action for libel, but must bring a special action on the case, and aver not merely the publication, but also the occasion and manner of it, and both malice and want of probable cause. 1 Starkie on Slander, chap. 12, 276.
    But in case of privileged communications, like the present, it has never been doubted that the ordinary action and declaration for libel are sufficient; and no precedent can be found of such a declaration with an averment and want of probable cause. 2 Starkie on Slander, appendix; 2 Chitty’s Pl. 630a, 641&, 641f. White v. Nichols, supra.
    
    In averring malice, it is never necessary to employ the term, •“express malice.” “Malice” or “maliciously” includes all kinds of malice.
    If the authorities are conflicting — the question being of common ■law — the court will incline to prefer the decision of the Supreme Court of the United States in White v. Nichols; because such a rule of preference tends to produce uniformity of decision; Carlisle v. Wishart, 11 Ohio, 191; Treon v. Brown, 14 Ohio, 488.
    2. Were probable cause a substantive ground of defense, it should have been averred in the plea. But there is no such averment. It matters not, therefore, whether the replication is good or not — a bad replication being good enough for a bad plea. For the publication was prima facie libelous, and the burden of averment •and proof of the contrary lay upon the defendant. Gray v. Pentland, supra; O’Donaghue v. McGovern, supra.
    
    3. The plea amounts to the general issue, and. is therefore bad. 287] *And this defect is reached by the special demurrer to the replication. O’Donaghue v. McGovern, supra.
    
    Y. The absence of a joinder in demurrer is no ground for reversing a judgment. A joinder is a mere acceptance of the issue of law tendered by the demurrer. But that issue must be accepted — hence-the joinder is a mere idle formality. Stephen on Pleading, 55, 56.
    Even in error, although there is an option to plead or join, if no-answer to the assignment of errors be filed, the case will be considered as if the common joinder were filed. Wells v. Martin, 1 Ohio St. 388.
    Besides, the objection is removed by statute, and the joinder might be filed even now. 2 Curwen, 211, 1059, 1060; Taylor v. Browder, 1 Ohio St. 232; Huntington v. Ziegler, 2 Ohio St. 11.
    YL. The replications de injuria to the second and third pleas,, were proper. Stephen on Pleading, 163, 164, 264.
    YII. The verdict is technically, as well as substantially correct..
    YIII. The 9th assignment of error objects to the judgment of November 17,1848. But that judgment was reversed upon the first writ of error. The judgment under consideration was rendered November 7, 1851.
    IX. The motions for a new trial, and in arrest of judgment were-overruled before the judgment in question was rendered. There-can not be a judgment for a defendant, non obstante veredicto; hence, the motion for that judgment was frivolous. Buckingham v. McCracken, 2 Ohio St. 287.
    A judgment will not be reversed because a motion previously made was not decided, if there was no ground for the motion. Young v. The State, 6 Ohio, 437, 439.
    X. The authorities fully warrant the judgment nunc pro tunc. 2: 238] Tidd’s Pr. 932; 1 Bac. Abr. (Bouvier’s ed.) 15; *Tooker v. Duke of Beaufort, 1 Bur. 146, 148; Trelawney v. Bishop of Winchester, 1 Bur. 219, 226; Toulmin v. Anderson, 1 Taunt. 384; Mackay v. Rhinelander, 1 Johns. Cas. 408, 410; Collins v. Prentice, 15 Conn. 423, 427; Campbell v. Mesier, 4 Johns. Ch. 334, 342; Lapelle v. Barnett, 1 Blackf. 150, 155; Dartmouth College v. Woodward, 4 Wheat. 518, 714.
    Farnel v. Tipper, Latch, 92, is not good law. Besides, it does not appear that the delay in that case was occasioned by a motion for a new trial, or in arrest of judgment, or a cui ad vult.
    
    
      In Crisp v. The Mayor, etc., of Berwick, Levinz, 252, 1 Mod. 36, no decision was made.
    XI. As to the p.oint, that there was a time when the common pleas had no jurisdiction of the case, the same thing might he said of every case in which further proceedings are had in that court after a reversal.
    XII. Mr. Jolliffe asks, what was the use of reversing the first judgment, if another judgment could be rendered nunc pro tunc, to take its place ?
    The answer is plain. The first judgment was reversed, because the motions for a new trial, etc., were not decided. Thereupon they were overruled, and being out of the way, a proper judgment could be rendered.
    XIII. Mr. Jolliffe insists, that a judgment nunc pro tunc can not be entered in an action for defamation, because such an action abates by the death of the defendant.
    A strange point’. The very reason for a judgment nunc pro tunc, is, that the action abates by death, and therefore, such a judgment is necessary to do justice. At common law, all personal actions abated by death, and it was for this reason that judgments nunc pro tunc were invented. Were there no abatement, there would be no necessity *for such a judgment, for the personal representa- [239 tive of the decedent might be made a party, and judgment be given against him.
    XIY. If a judgment nunc pro tunc can be rendered three years after verdict, it may be twenty years after; “ and to the prejudice of intervening rights,” says Mr. Jolliffe. I reply:
    1. That a power mighr be abused, does not prove its non-existence.
    2. The court may impose conditions to protect intervening rights that ought to be protected. Mara v. Quin, Executrix, 6 Mod. 1.
    And this is an answer to all Mr. Jolliffe’s argument, founded on our statutes.
    XY. But, in truth, the statutes create no difficulty.
    1. As to liens. As between the surviving party and the heirs of the decedent, a judgment nunc pro tunc may well be a lien as of the date for which it is rendered; but as to bona fide intervening rights of third persons, the lien may be held to date from the time of the actual rendition of the judgment, upon the principle of the O. L. Ins. and Tr. Co. v. The Urbana Ins. Co., 13 Ohio, 220.
    The provision that between executions sued out during the same judgment term, or within ten days thereafter, there shall be no preference, can give no trouble; for if the judgment nunc pro tunc be actually rendered more than ten days after the term for a judgment of which it is to stand, there can have been no execution thus issued upon it. .
    So, if more than a year has elapsed between the term for which the judgment is to stand and that at which it is actually rendered, it will not prejudice a bona fide judgment rendered within the year. This is, in effect, settled by McCormick v. Alexander, 2 Ohio, 65, and Patten v. Sheriff of Pickaway, Ib. 395.
    *2. Nor does the limitation act in respect to writs of error, create any difficulty; for the time begins to run from the date of the actual rendition of the judgment. Under the old system a decree of the court in bank was generally certified to the county and entered as a decree of the court in the county of the term of the reservation of the cause. Chase v. Washburn, 2 Ohio St. 99, 100; Wilcox Forms (2 ed.), 5, and cases there cited. But it was uniformly held that the five years within which to file a bill of review began to run from the time of the actual rendition of the decree in the court in bank, and not from the reservation term in the county; so expressly ruled, after full argument, in Miner v. Wallace, ultimately decided by this court. 5 Ohio St.
    3. As to dormancy. The five years begin to run from the day of the actual rendition of judgment.
    4. As to appeals. Neither in 1848 nor in 1851 could this cause have been appealed.
    5. As to interest. It is.perfectly right that a judgment nunc pro tunc should bear interest from the term of which it is to stand as a j udgment.
    XVI. Judgments nunc pro tunc rest upon a most solid foundation of justice; for it would be manifestly unjust that a party who had, by the verdict of a jury, established a right to recover, should be deprived of it by delay in entering judgment, occasioned not by liis fault, but by the course of his adversary, or the act of the court.
    XVII. The judgment of 1848, rendered in the lifetime of Dial, was improperly reversed. Instead of reversing it, the court should have reversed the order deciding the motions for a new trial, etc., to be abated, and have awarded a procedendo or issued a mandamus to compel the decision of those motions.. The motions have now been heard and overruled, and the plaintiff in error is in no worse condition *by the judgment of 1851, than he would be in had [241 the judgment of 1848 remained in force, as it should have done. Upon the whole record, then, he is not prejudiced by the judgment of 1851, and, therefore, it ought not to be reversed. Harman v. Kelly et al., 14 Ohio, 502; Gano & Thomas v. Samuel, Ib. 592.
    And the correctness of the judgment of reversal may be inquired into in this case. Aubrey v. Almey, 4 Ohio St. 524.
   Bowen, J.

Three questions are presented in the record for decision, which, for convenience, may be stated as follows :

1. Does the second count of the declaration contain actionable words ?

- 2. Does the special plea of the defendant contain matter sufficient to bar a recovery by the plaintiff?

3. "Was it competent for the court of common pleas, at its November term, 1851, to enter a judgment nunc pro tune upon a verdict found in the same court at its November term, 1848?

To determine the question whether the words are actionable in themselves, when not spoken of the plaintiff in his office, profession, or calling, we must ascertain whether the charge, if true, will subject the party charged to an indictment for crime, involving moral turpitude, or subject him to an infamous punishment, or will tend to render him loathsome to society in which he moves. If any such result would be likely to attach to the plaintiff, by means of the speaking of such defamatory words, then they will be, in themselves, actionable. Brooks v. Coffin, 5 Johns. 188; Martin v. Stillwell, 13 Ib. 275. By this rule the infamy of the offense or of the punishment constitutes the test whether the words are actionable, when an indictable *offense is charged upon the plaintiff. [242 And so it must be understood when he has imputed to him acts not subject to indictment, but which, nevertheless, involve great moral turpitude, and, if believed, would exclude him from the favor and countenance of all moral persons; as, for example, the crime of sodomy, or a charge that the plaintiff was laboring under some loathsome disease. The nature and turpitude of the act charged are the criterions by which to decide whether the injury is such as to be the foundation of an action. A charge of assault and battery — of fighting at fisticuffs — of refusing aid to an officer to arrest criminals — resisting an officer in the execution of process — keeping a ferry or tavern without license, and others of the like class, ' •though subject to indictment and punishment, and of themselves reprehensible as violations of positive law, do not imply that degree of moral depravity which will sustain an action of slander for words spoken imputing such offense.

Section 101 of the act punishing such offenses (Statutes, 286), enacts: “That if any person shall knowingly, willfully, and maliciously cut, fell, deface, alter, or remove anydandmark, corner, or bearing-tree, properly established, the person so offending shall, on conviction thereof, be fined in any sum not exceeding five hundred dollars, or imprisoned in the cell or dungeon of the jail of the county, and be fed on bread and water only, not exceeding thirty days, or both, at the discretion of the court.”

In a conviction under this act, not only would the plaintiff be subject to pecuniary loss, but to loss of character, because the removal of boundaries has always been held in execration. The curse of God was denounced against it by the Mosaic law. Deut. ix: 14. Dr. Scott says that the removal of landmarks was a crime among the Israelites similar to forging, altering, destroying, or canceling 243] *the title deeds of an estate at this day. The Romans considered it an infamous offense, and all civilized nations have been of the same opinion. Todd v. Rough, 10 Serg. & Rawle, 22; Young v. Miller, 3 Hill, 21.

We are satisfied that both counts of the declaration contain allegations sufficient to maintain the action, and that the motion in arrest was properly overruled.

2. The special plea to the first count of the declaration attempts to repel any malicious and. slanderous intentions in making the publication. Both parties were members of a religious church, whose discipline authorizes and makes it the duty of those who fall out or differ in their secular affairs to come before the body of which they constitute a part, and have an investigation into and settlement of disputes between them. For this purpose either may prefer his petition to the church, specifying the cause of complaint he has against his brother member. By this means the subject is brought officially to the notice of those charged with its adjudication. Having this clearly authorized right thus to appear in the character of a petitioner, and to ask for a hearing and decision according to the rules which all of the members undertake to observe, he may pursue it, whenever necessary, against another member, subject to this restriction: he must not institute the proceeding maliciously. He can not shield himself, under the cover of church privilege, from an intentional and willful attack upon another’s-character, under pretense of'inviting a religious inquiry into the-charges he makes. The declaration avers that the defendant charged 'the plaintiff with “ knowingly and maliciously removing the cornerstone.” This the defendant, in his plea, says he did without malice,, for the purpose of bringing the plaintiff to trial on the charge before-■a committee of the church. The plaintiff replies, that the defendant willfully and maliciously ^exhibited the charge to the church, [244 for the purpose of harassing, injuring, and defaming him. It thus-becomes a question of fact for the jury to decide, whether the defendant, in preferring the charge, was governed by a sense of Christian duty and his obligations to the rules of the church, or whether those pure and commendable principles were disregarded by him, and an evil and malignant desire to degrade and injure his neighbor-permitted to control his action. This issue the parties themselves-made, and when settled by verdict must be conclusive, unless the court should set the finding aside. The jury found that the charge-was maliciously made; that the defendant exceeded the privilege of a church member, and should be held for the injury committed-while thus acting contrary to the object and spirit of the discipline. It was not erroneous to allow the jury to pass upon the question thus made up by the parties.

It is said,.however, that the replication does not deny probable-cause on the part of the defendant to make the charge. This was not necessary. The replication was good without it.. If there was-any necessity to aver or to negative the existence of probable cause, on the part of the defendant, that necessity rested with the defendant. It was incumbent on him to place a full and perfect defense upon the record. "Whatever defect, therefore, attaches to the pleadings by the omission of those words, is chargeable to the plea; for-if the principle before alluded to be correct, that such publication as that made by the defendant is only privileged when made in strict compliance with the rules of the church, and iñ good faith,, without malice, it follows that the plaintiff was only bound to answer a general denial of malice, by a roaffirmance of it. Hence,, if the demurrer to the replication had been sustained, as it is claimed ought to have been done, the judgment of the *court would [245 have reached the plea, and set it aside for insufficiency. Wo think that the demurrer was correctly overruled..

3. It is urged with much ability by the counsel for plaintiff in •error, that the action of the court below, at the November term, 1851, in giving a judgment nunc pro-tunc upon the verdict of November, 1848, is not warranted by the laws of this state. Dial was in life when the verdict was returned and the judgment entered upon it: and by filing motions for a new trial and in arrest, within the rules of the court, he superseded the judgment, though not the verdict, until the court should make a disposition of them. No decision, however, of the motions was had at that term, and the general ■order of continuance carried the verdict, the judgment, and the motion to the next term for further action thereon. Before the November term of the court had expired, but after the motions were ■filed, the defendant died. This occurrence divested the court of .any further power over the case, except to hear and determine the motions, and, if overruled, to enter judgment upon the verdict. But if a new trial had been allowed, or the judgment arrested, the •cause could not have proceeded any further, as the death of the party abated it. Neither of the orders of reversal of the Supreme Court reached or attempted to go behind the verdict, but both allowed that to remain undisturbed. Later irregularities only, were .affected by the reversals. And this brings us to the inquiry whether the court, after overruling the motions for a new trial and in arrest, which left the verdict unimpaired, could predicate a judgment upon it as of the term in which it was found; and thereby save the cause from abating, and the plainttiff from losing his recov■ery of-damages.

The power of the courts to enter nunc pro tunc orders *and judgments is discretionary. It may be exercised, in a proper case, •to prevent injustice. Whenever there is a foundation presented by the facts of the case, for the exercise of such power, there should be no hesitation in making the entry. It has been frequently done in this state, and is a practice well known and often followed in the -common-law courts of England and of this country.

Personal actions, by the common law, as well as by our statute, abate by the death of the party. If, before verdict,'such an event happens to one of the suitors, the cause is brought to an end. But if after verdict, and before judgment, he dies, the rule is different. The right to recover being established, and the amount of damages ■determined by the verdict, it shall continue in force, and a judgment may be given upon it as of the term when it was rendered.

In Collins v. Prentice, 15 Conn. 423, it was beld, where a defendant in an action of trespass died after a trial in the superior court, and a verdict for the plaintiff, and during the pendency of a motion for a new trial by the defendant, that after the rule for such motion was discharged, a judgment might be entered for the plaintiff as of the term in which the verdict was had.

In Ryghtmyre v. Durham et al., 12 Wend. 245, the same order was made. And so in Mackay v. Rhinelander, 1 Johns. Cases, 408.

These and other cases to the same point, proceed upon the supposition that judgment might and undoubtedly would have been entered for the plaintiff in time, had it not been for the delay occasioned by the defendant in filing his motion for a new trial, and that when the motion does not prevail, it ought not to work any prejudice to the rights of the plaintiff.

The court of common pleas being satisfied that the *mo- [247' tions of the defendant should be overruled, and having before it the record showing that the motions had operated to delay the verdict of the jury, as well as the judgment of the court entered on its journal during the lifetime of the defendant, conceived it to be justly due to the plaintiff to give him the same benefit from the' verdict as if the motions of defendant had not been interposed. In this we think there was no error; and do, therefore, affirm the judgment of the district court.

, Bartley, C. J., and Swan, Brinkerhoef, and Scott, JJ., concurred.  