
    JOSEPH ROGERS, DEFENDANT IN CERTIORARI, v. JOHN KERSHAW, PLAINTIFF IN CERTIORARI.
    Submitted July 14, 1899
    Decided November 14, 1899.
    In actions for slander or libel, brought in a District Court and appealed to the Common Pleas, where the defence is that the communication was privileged,, and it appears the privilege is one qualified by the condition that the communication must have been bona fide and without express malice, a mixed question of law and fact is presented, the decision of which will not be reviewed on certiorari if there be any evidence to support it.
    On certiorari to Passaic Pleas.
    Before Justices Dixon and Collins.
    For the plaintiff in certiorari, Michael Dunn.
    
    For the defendant in certiorari, John W. Harding.
    
   The opinion of the court was delivered by

Collins, J.

The certiorari in this cause removes a judgment of the Passaic Common Pleas on an appeal from the District Court of Paterson, taken at a time when the statute permitted such an appeal, and tried without a jury. The state of demand has two counts, the one for slander and the other for libel. The count for slander is, for the first time, challenged in this court, and should therefore not be condemned, but should be amended if need be. While not artificial, the count is sufficient for a District Court where no great particularity in pleading should be exacted of suitors. The count for libel was properly held unexceptionable in the court below. The only arguable cause assigned for reversal is that the communications were privileged. There was evidence to sustain the first count by proof of words spoken, in substance as laid, when the occasion could not have been privileged; but, if we consider only the occasion to which the plaintiff in certiorari seeks to limit the communications intended by the pleader, still we cannot disturb the judgment. The claim is that such occasion was the protest of the plaintiff in certiorari as a citizen and taxpayer, to the mayor of the city, against the proposed appointment, as policeman, of the defendant in certiorari. The communication was at first verbal, and then, at the mayor’s request, was embodied in an affidavit. The privilege of a citizen to be heard as to the fitness of a pending appointment to municipal employment is qualified by the condition that his unfavorable statement shall be bona fide and without express malice. Odg. Lib. & S. *227. Thus a mixed question of law and fact was presented to the judge for decision. On review, by certiorari, of the judgments, original or appellate, of the courts of Common Pleas, which are courts of general jurisdiction, this court will not reverse a conclusion involving a determination of facts, if legally warranted by any evidence. Tewksbury v. Branchburg, 15 Vroom 595; Roehers v. Remhoff, 26 Id. 475 ; Shangnuole v. Ohl, 29 Id. 557; Houman v. Schulster, 31 Id. 132.

In this case, on the proofs laid before us, there was legal warrant for the decision, and the judgment must be affirmed, with costs.  