fore the prisoner can be discharged. Where the residence of the plaintiff, or his atttorney is known, this notice ought to be given, and it ought to be given in a reasonable manner, so as to produce effect. Whether it were most reasonable to give it to the party, or to the attorney, must depend upon the circumstances of each particular case.

A creditor cannot be said to neglect or refuse to support the prisoner, when he has no knowledge that such support is required of him. This notice therefore cannot be dispensed with unless it is impossible to give it, as where the residence both of plaintiff and attorney, or other agent, cannot be ascertained; which can seldom happen. In this case the notice was given to the attorney. The attorney acted upon it, and furnished support for a time. This was an acceptance of notice, and it is too late for the plaintiff to object the want of it. The second point made is, that the prison bounds cannot be extended over private property, so as to authorise the prisoner to enter private houses, or labor on private grounds within the condition of his bond. The court cannot adopt the reasoning by which it is attempted to sustain this position; and the rejection does not include the proposition that the prisoner acquires a right to go where he pleases upon private property, without the consent of the owner. The prisoner acquires within the limits of the prison bounds no other right than that enjoyed by every other citizen, to associate where admitted, and to labor where employed. The public assumes no other control over the property or persons within the bounds, than over the property and persons of other citi. Within the bonnds prescribed, the rights of the prisoner are the same that he would enjoy were he not imprisoned. This is what the law intended to confer, and the practice under it has been uniform in adopting this interpretation.

zens.

It was not the object of the law to permit air and exercise only. It intended to afford an opportunity to labour; to employ himself if he could, for the support of himself and family. Any other construction would make him a mere idle saunterer in the streets, exposed to the temptation of vicious indulgence, and setting an evil example to others.

The statute directs that bounds may be laid off and assigned around and adjoining the prison so that these bounds shall not extend more than four hundred yards in any direction, from the jail. A subsequent law extends the prison bounds to the corporation limits of the town in which the jail is situate, or if the town be not incorporated, then to the limits of the recorded. town plat. According to the plaintiff's argument, the prisoner may range within these limitts any where upon the public ground, and the public streets and alleys; but he can go no where else. He must retire to the jail to sleep, to eat, and to perform all the offices of nature, or these must be attended to in the public streets. Such a construction was never thought of by our legislators: it therefore could not have been intended by them. The court have not looked into the authorities cited by the plaintiff on this point; they could not adopt them if they sustain his position. The question stands too clear upon principle and sound practical good sense, to be decided against these, in deference to any authority.

The third point is, that the rules assigned by the Court of Common Pleas, are not defined by metes and bounds, and therefore do not so exist as to

warrant the prisoner going at large. If this point is well taken it cannot en title the plaintiff to recover upon the prison bounds bond. If no bounds were assigned, the bond was taken without authority, and against law. The sheriff might be liable for an escape, but the bond could not be sustained. The point however, is not well taken. The assignment of limits, or bounds, is clear and certain. These bounds are mathematical lines, not vissible actual monuments. It never was intended that the bounds around the jail, extending in each direction four hundred yards, should be wholly enclosed by actual vissible monuments. Upon the plaintiff's argument these must be continuous around the whole area of the limits. If monuments be set up at certain points, and the line between described only mathematically, it would not be sufficient. The space between the monuments would not be designated with that certainty which is contended for. This consequence of the argument would seem suffi. cient to show that it is not tenable.

It is lastly contended for the plaintiff, that Tuscarawas street is not included within the bounds as assigned by the court. These bounds are extended "south of the jail to Tuscarawas street inclusive." This term includes Tus. carawas street, and establishes the southern line of that street, as the southern limits of the bounds. The bounds further extend west of the jail to Poplar street, inclusive. East of the jail as far as Walnut street in Canton, inclusive. Tuscarawas street, from its intersection with Poplar street, west, and Walnut street, east, is thus clearly included within the bounds. The prisoner was not out of the bounds when upon Tuscarawas street, any where between its intersection and with Poplar Walnut street. The case agreed does not show that he was on that street, east or west of this intersection. It does not therefore show him out of the bounds.

Judgment must be for the defendant.

GOODENOW v. TAPPAN.

Where the defendant pleads in Abatement a misnomer of the plaintiff, the plaintiff may reply, that he is known as well by the one name as the other.

Words spoken in discharge of official duty are not actionable, otherwise, if spoken, wantonly and maliciously under pretence of official duty.

The intention with which words are spoken is to be left to the jury.

This case came before the court upon a motion in arrest of judgment, reserved in Jefferson county, and certified to this court for determination. As two impor tant points were ruled in the previous proceedings, and as the cause is of importance to the two respectable gentlemen who are parties, and who are now both members of the profession, a brief history of the case is here presented. The declaration was as follows:

1st Count. "For that whereas the said Goodenow is a good citizen, and has always maintained a good character from his youth to the present time, and for divers years has been an attorney and counsellor at law of the several courts of judicature of the the State of Ohio: yet the said Tappan, well know. ing the premises, but contriving and maliciously intending to injure the said Goodenow in his good name and professional character; and to bring him into

public scandal and disgrace, and to destroy his practice as a lawyer, and to harass, and oppress, and impoverish him, hertofore to wit: on the 31st day of December, in the year of our Lord one thousand eight hundred and sixteen, at the county of Jefferson aforesaid, in a certain discourse which he the said Tappan then and there had, of and concerning the said Goodenow, and of and concerning his said profession and standing as an attorney and counsellor at law, as aforesaid in the presence and hearing of divers good and worthy citi zens of this state; then and there, in the presence and hearing of those citizens, falsely and maliciously spoke and published of and concerning the said Goodenow, and of, and concerning his said profession and standing as an attorney and counsellor as aforesaid, these false, scandalous, malicious and defamatory, words following, that is to say: "He" (meaning the said Goodenow) "fled his country to escape from justice, and now disguises himself" (again meaning the said Goodenow,) "under a borrowed name-he" (again meaning the said Goodenow) "is unfit to be trusted."

2d Count. Same inducement as in the first. Words charged-"He is of infamous character-he broke jail in New England and fled from justice."

3d Count. Same inducement as in the first. Words charged-"He is a d-d rascal, and an immoral and base man, and unless ignorance of the law makes a lawyer he is no lawyer-he is an ambidexter and a disgrace to his profession."

4th Count. "And whereas also the said Goodenow is a good citizen and of upright character, and as such has always conducted himself from his childhood to the present time; and now is, and for divers years has been, an attorney and counsellor at law of the courts of judicature in this state: and whereas also before the committing of the several grievances by the said Tappan, as hereinafter mentioned, a certain appointment was pending, in the power and disposal of the court of Common Pleas of the county of Jefferson, to the office of prosecuting attorney of the state of Ohio for said county; and whereas the said Goodenow was proposed and considered of as a candidate for said appointment: nevertheless; the said Tappan, well knowing the premises, but contriving and wickedly and maliciously intending as aforesaid, heretofore: to wit: on the first day of January in the year of our Lord one thousand eight hundred and seventeen, at the county of Jefferson aforesaid, in a certain other discourse which he the said Tappan then and there had and held with divers other good and worthy citizens of this state, of and concerning the said Goodenow, and of and concerning his profession and character as an attorney and counsellor at law as aforesaid and of and concerning the appointment of prosecuting attorney as aforeseaid, then and there, to wit, on the day and year last aforesaid, falsely and malicously spoke and published of and concerning his said profession and charcater as an atttorney and counsellor at law as aforesaid, and of and concerning the apppointment aforesaid, and in the presence and hearing of the said last mentioned citizens, these other false, opprobrious, malicious and defamatory words following, that is to say: "He" (meaning the said Goode. now) "is a man of immoral character. He" (again meaning the said Goode. now) "broke jail in his own country, and fled from justice."

5th Count. Same inducement and colloquium as in the fourth. Words charged "He is destitute of character-he broke jail in New England, and fled to escape the lash of the law, and now wears a borrowed name."

6th Count. Same inducement and colloquium as in the fourth count. Words charged "It won't do to appoint such a man-he is of bad character -a man that broke jail and fled from justice is unfit for any office-"

7th Count. Without any inducement. Words charged: "He is a runaway he broke out of jail in New-England and fled from justice.”

The defendant by consent of the plaintiff obtained leave to plead at the same time, both in abatement and in bar, as many several pleas as he might deem necessary for his defence, without the pleas in bar being considered a waiver of the pleas in abatement.

He then pleaded in abatement that said "Goodenow is named and called by the name of Milton Goodenow, and by the name of Milton Goodenow from the time of his baptism hitherto hath always been called and known, without that he now is, or at the time of suing out the said writ was, or ever before had been called or known by the name of John Milton Goodenow," &c. and verified the plea by affidavit as the statute required. He also pleaded the general issue upon which issue was joined.

To the plea in abatement the plaintiff replied that "the said John Milton Goodenow, long before, and at the time of suing out the said writ, and of filing his said declaration, was and still is called and known as well by the name of John Milton Godenow, as by the name of Milton Goodenow," &c. To this replication the defendant demurred.

The question upon the demurrer was argued in Jefferson county, at the October term of the Supreme Court, 1819, before Judges Pease and McLean, -when the demurrer was overruled, and the cause continued to be tried upon. the issue.

A trial was had at November term, 1822, before judges Pease and Hitchcock, and a struck jury. The testimony to prove the speaking of the words, was as follows:

Alexander Sutherland Esq.-At the F. and M. Bank, in Steubenville, in the winter of 1817, after Mr. Goodenow had been elected a justice of the peace the second time, there was a conversation between judge Tappan, Thomas Scott, the Cashier of the bank, and witness. Judge Tappan began boring wit ness, for having supported the plaintiff for the office of justice of the peace, he having, as witness understood, opposed said Goodenow's election: Tappan said "where he came from, it required the best men to be elected to office-but here it made no odds." Witness then observed-"some time since a lawyer could not have been elected:" upon which the defendant replied "As to Good. enow's law knowledge, God knows' that ought to be no objection to him." Witness further stated, that plaintiff had always been been known in his practice as a lawyer by the name of John M.

On his cross-examination, he stated, that plaintiff had been elected a justice, and the election set aside on Mr. Wright's remonstrance, on account of the votes not having been opened agreeably to law, and a new election ordered.

Samuel McElroy, Esq. late an associate judge.--Before the appointment of Mr. Hallock, prosecuting attorney, but whether while the office was vacant, or before it became so, witness could not recollect which, in a conversation with judge Tappan concerning the appointment of a prosecuting attorney

there being several candidates, and among others, the plaintiff was spoken of-he said, that Goodenow had left his own country privately, that he was not a law character, and that his christian name was not John M. but Milton. This conversation was at defendant's house, and considered by witness as. private and confidential, and had not before the present moment been divulged. Thomas Turner's deposition.—That a short time after judge Moores' return rom the Legislature in the month of February, he, with judge Moores and James Moores, jun. were at judge Tappan's, James Moores, jr. having an intention for offering for the Clerk's office. Judge Tappan asked judge Moores who he thought a proper person for a states' attorney: judge Moores observed he knew of no person but Goodenow. Judge Tappan said—“Goodenow won't do he is an immoral character-he broke jail for debt or otherwise— ran away and changed his name."

Col. James Moores, jr.-Witness's father, Thomas Turner, and himself, were at judge Tappan's in February, 1817, when the subject of appointing a prosecuting attorney was introduced. Judge Tappan said "It won't do to appoint Goodenow-he is an immoral character-he broke jail-fled his country and changed his name."

James Moores sen. Esq. associate judge.—The third or fourth of February, 1817, he was in Steubenville, with his son, and son-in-law Turner; his son, having some intention of applying for the office of clerk of the courts, which was then vacant, asked him to walk down to Judge Tappan's: he went with his son and son-in-law; and after some little conversation, judge Tappan turned himself full in the face of the witness, and said "It won't do to ap point Goodenow prosecuting attorney"-witness asked, why? he replied—“He is an immoral character (or an immoral man)—he broke jail and fled his country, (or fled from justice) changed his name and now wears a fictitious one." On the day before, defendant had been conversing with witness about the appointment of a prosecuting attorney, when the defendant spoke in favor of Mr. Hallock--said he was a better draftsman, &c.; and stated to witness that judge Anderson was agreed to Hallock's appointment: to which witness replied, if that was the case his assent was not necessary, for the defendant and the other judges would overrule him. Defendant replied, he wanted no overruling about it. At that time witness was in favor of Goodenow's appoint. ment; but when, on the next day, the judge made the charges before stated, he gave Goodenow up. Witness stated further, that the plaintiff had always been known, in his practice at the bar, by name of John M. and none other. On his cross-examination, witness said he had, sometime in the fall season of 1816, conversed with the plaintiff about the office of prosecuting attorney, and asked him if be would accept it if it became vacant. He said he would, but not

to the prejudice of Mr. Wright, the then incumbent.

The Plea in abatement, and the affidavit attached to it, and the certificate of Plaintiff's admission by the Supreme Court to practice as an attorney and counsellor at law, were then read.

A number of depositions taken in New England, were read, by which it was most clearly established that the plaintiff was baptised by the name of John Milton Goodenow, but had generally transacted business and been known by the. name of Milton Goodenow only. It also was placed beyond all doubt, that he