It is provided by the act of 1855, already referred to, that when a religious society becomes incorporated under its provisions the trustees "may take into their possession and custody all the temporalities of such church, congregation, and society, whether the same shall consist of real or personal estate, and whether the same may have been given, granted, or devised, directly or indirectly, to such church, congregation or society, or to any other person or persons for their use." Comp. L. § 3060. Under the operation of this statute, and of the provision in the statute of uses, found in section 4116 of the Compiled Laws, if the land in dispute was held in trust for this society at the time it became incorporated, the latter passed immediately to the corporation, and the trustees no longer retained any legal interest in or any control over it. Reformed Church v. Verder, 4 Wend. 494; Miller v. Chittenden, 4 Iowa, 252. The terms of the trust are somewhat ambiguous, and the deed is open to an interpretation which would preclude an exclusive appropriation by the local society. Regarding this, we content ourselves with a reference to the somewhat similar case of Methodist Society v. Bennett, 39 Conn. 293, expressing no opinion upon its applicability.

But, assuming that the trust was for the exclusive benefit of the local society, and that, if valid, the land would pass to the church society when incorporated, it is to be said of the trust that it was in terms and apparently, perpetual. If it was created in contemplation of an incorporation, the fact does not appear in the deed, and no time was limited within which the incorporation should be effected. The tenor of the trust may well be thought inconsistent with any alienation of the land by the trustees, for it was to be perpetually devoted to a particular use, and, if so, a conveyance would defeat the trust itself. The question which remains open, therefore, is whether a perpetual trust, without power of alienation in the trustees, was not designed, and certainly there could be no power of alienation in any other person or persons if the trust was valid.

It is provided by statute that "the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate," except in a single case not important to be named here. Comp. L. § 4081. Another section makes the estate void in its creation when this provision is disregarded in an attempt to create it.

Comp. L. § 4080. Most estates come under these provisions. Comp. L. § 4124.

If the law of charitable uses was in force in this state, the trust might be upheld under its rules; but that law is generally referred to as the statute of Elizabeth, commonly called the statute of charitable uses, which, with other English statutes, was repealed in Michigan, 1810. 1 Territorial Laws, 900. There is no evidence that any pre-existing law on that subject has ever been recognized in this state. The revised statutes which took effect March 1, 1847, expressly abolished uses and trusts, except as authorized and modified therein, and no distinction is made in the statute between charitable uses and any others. The same requisites are, therefore, essential to their validity. The New York and Wisconsin decisions, which are made in the light of statutes similar to our own, are directly in point here, and we refer to them as rendering any discussion by us unnecessary. Phelps v. Pond, 23 N. Y. 69; Levy v. Levy, 33 N. Y. 97; Bacon v. Alvason, 34 N. Y. 584; Gram v. Prussia, etc. Society, 36 N. Y. 161; Holmes v. Mead, 52 N. Y. 332; Ruth v. Oberbruner, 40 Wis. 238. And it may be well to mention, also, that our statute, after defining cases in which express trusts may be created, none of which would include indefinite charitable trusts, provides for others only in the following words: "For the beneficial interest of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it." It is for the very reason that trusts for charitable purposes are not fully expressed and clearly defined that the law of charitable uses has grown up and been maintained.

The decree must be reversed, with costs of this court, and the bill dismissed. Costs of the lower court, however, are discretionary, and the discretion may well be exercised in refusing to award them to defendants. They do not appear to advantage on this record, and they are entitled only to what the strict letter of the law will give them. Their recognition of the trust invited the litigation, and it is proper that they be left to bear their portion of the costs, so far as our decree can accomplish that result.

(The other justices concurred.)

JAMES E. SCRIPPS vs. GEORGE B. FOSTER.

Filed October 28, 1879.

Where an article claimed as libelous is one of a series that has been published-is one of a series, or part of a discussion on the same subject-the defendant may, for the purpose of defeating exemplary damages, introduce the whole series. At a time when excitement prevailed in regard to small-pox, and the authorities had ordered a general vaccination, and in regard to which and the use of the trocar in such operation there had been considerable discussion, and the use of such instrument condemned by some, the article complained of as libelous was published. It charged plaintiff, a city physician, with using it, and by reason thereof causing the death of one child and the serious illness of others. Held, that it was proper, to prevent or mitigate exemplary damages, to show a declaration of the plaintiff before the publication, defending the use of the trocar, as was also the entire series of articles published in the discussion at the time in regard to the use of such instrument. In this state, in an action of libel, defendant may, in mitigation of exemplary damages, show any fact or circumstance tending to show that in publishing the libelous article he acted in good faith, and that, after using all proper precautions, he had good cause to believe the statement to be true. Section 5943, C. L., prohibiting disclosure by a physician of information received in a professional capacity, is a personal privilege of the patient, and for his protection.-[ED.

Error to superior court of Detroit.

Henry W. Montrose and C. I. Walker, for plaintiff in error. Griffin & Dickinson, for defendant in error.

MARSTON, J. This action was brought to recover damages sustained on account of the publication of an article concerning the plaintiff, Foster, in the performance of his duties as city physician.

The defendant offered in evidence certain articles published in the Evening News, discussing the subject of small-pox and compulsory vaccination, and pointing out precautions to be observed by both the citizens and the vaccinating physician. Defendant's counsel also offered in evidence the proceedings of the common council of the city of Detroit, and of the Detroit board of health, also a petition of the physicians of Detroit, all pertaining to the same matter. The defendant was examined as a witness in his own behalf. He was asked: "What do you know of Dr. Foster being at your office previous to this publication, and defending the use of the trocar?" This evidence was offered, not in justification, but to prevent or limit in amount the recovery of exemplary damages which were claimed. It is conceded that this evidence would not have been admissible in the case for any other purpose, as, under the evidence, plaintiff was entitled to recover actual compensatory damages.

The evidence offered was excluded, and, in order to fully and properly understand the bearing and probable effect of the evidence offered, it might be well to look at the nature of the article complained of.

It stated that the common council had made an appropriation of money and ordered a general vaccination throughout the city; that the Evening News had cautioned the authorities and people generally against too hasty action in the matter; that the wisdom of compulsory vaccination was doubted by many of the best physicians, not so much from a lack of confidence in the efficiency of vaccination, as from a fear that it might not be properly done; that the board of health had taken into consideration the two principal sources of danger likely to accompany a general vaccination, that of the use of impure virus and that of the use of improper implements in applying it, and had ordered that the operation should be performed in a certain way which precluded the use of the trocar.

The article then set forth that most of the physicians had acted under the instructions of the board of health; that several who thought they could make more money by ignoring the rule did so, notably Dr. Foster, the physician of the second district, who preferred to use the trocar, with which he was enabled to perform vaccinations at the rate of one hundred a day, instead of the twenty or thirty which would have been possible with the proper instrument; that he had persisted in his course, arguing that the trocar was a proper and safe instrument to use. It then in effect charged him with causing the death of the infant son of Mrs. Connelly; that the operation was vaccination-the instrument the trocar; also the sickness of two other children; that scarlet fever had been introduced into their systems by Dr. Foster's trocar, which had probably a few hours before pierced the arm of some scarlet fever patient in some remote part of the city. This statement will be sufficient for the purposes of the present case. Evidence was introduced tending to prove that the reporter who prepared the article had assured the defendant that every word in it was correct, and that defendant so believed.

From the statement thus made it appears that the prevalence of small-pox in the city of Detroit was causing alarm, and that official action had been taken by the public authorities, and measures adopted to prevent the spread thereof, and that the newspaper in which the article in question was

published had, in a series of articles, been discussing the propriety and wisdom of the measures adopted.

It would seem as though the public newspapers of the present day had not only the right, but that it was their duty to take part in the discussion of those matters which relate to the health, welfare, comfort and happiness of the people. The wisdom and propriety of the action taken by the public authorities, and the means and instruments to be adopted to check the spread of a malignant disease, would seem to be of sufficient public importance as to be deemed a matter proper for comment and criticism. The newspaper articles referred to, we may assume, were proper, and the publication thereof justified by the existing circumstances. None of these considerations would, however, justify the charge made against Dr. Foster, as complained of.

It is and was on the trial conceded that Dr. Foster, in vaccinating Mrs. Connelly's children, did not use the trocar, but there was evidence introduced tending to show the truthfulness of many of the facts set forth in the article complained of, but not that Dr. Foster was responsible therefor.

In this state it is the settled doctrine that in an action like the present, where the plaintiff seeks to recover exemplary damages, the defendant, on the trial, may introduce facts and circumstances tending to show that he acted in the matter complained of in good faith, and that, after using all proper precaution, he had good reason to believe that the facts as published were true.

In considering. the question of good faith and reasonable belief, for the publication of such an article as the one complained of, evidence of the publication thereof, upon the assur-ance of a third person that the facts stated therein are true, when standing alone, would not be so likely, in many cases, to carry conviction to the mind of the ordinary juror, as though accompanied by previous facts and circumstances pertaining to the same subject-matter, and the tendency of which led in the same direction. In many instances it would be very difficult, indeed, to satisfy a juror that a distinct wrong had been done by a particular individual, or that any one could have reason to believe such a person capable of committing such an act, upon proof of the direct evidence relating thereto. The reputation of the individual complained of, and the nature of the act charged, may be sufficient to overcome what, in the case of some other individual, might be considered more convincing proof. And yet, in