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N. Y. Superior Court.-Stanley v. Webb. money to him, which he refused to do; and finding that he had been cheated out of his money and would be held to bail to answer the complaint preferred, he makes this charge. Officer Lownds, we understand, produces a permission from the mayor, allowing him to receive $25 from Phelps for obtaiņing bail for him, but it is said to be dated subsequent to this transaction, and is intended, doubtless, to cover it up."

The declaration contains the usual counts. The damages were laid at $5000.

The defendant pleaded, 1st. Not guilty.

2d. That before the printing and publishing the said words, and after the

arrest of Phelps, said Phelps appeared in person before W. Waln Drinker, one of the police magistrates of the city of New York, and preferred a complaint, which was in writing as therein set forth

and that the said proceedings before said magistrate were judicial in their character, and were openly and publicly conducted before said justice, and that the said alleged publication as aforesaid, was a true, fair, and correct account of the said public proceedings before said magistrate.”

Replication as to so much of the plea of the defendant as avers that said Phelps appeared in open court, &c.; that the plaintiff ought not to be barred, &c., because he saith “ that the said complaint, so prefered for, was a primary and original complaint, and made by James W. Phelps, ex parte, in the absence of the plaintiff, and without cognizance thereof to him, and that the matters therein stated of and concerning said plaintiff, and of and concerning the several persons, matters and things as in said declaration mentioned, were and are false, libellous, and untrue, as in said declaration set forth, and that the said libel in the said declaration mentioned, was published of and concerning the said ex parte complaint, and of and concerning the said several persons, matters and things in the said declaration mentioned.” Concluding with a verification.

Demurrer to replication, assigning the following causes of demurrer :

First. That the said replication is bad in form, because it contains no new matter which amounts to more than a denial of the allegations of the plea; and it concludes with a verification.

Second. That the replication is bad in form, because it confounds and mixes up two separate issues, or defences, or allegations, which ought to be kept distinct, one is, that the complaint, or statement made by Phelps, was made ex parte, in the absence of the plaintiff, and the other is, that the statement or complaint made by Phelps was untrue. The first is intended to be a mere denial of the defendani's plea. The last is denying what is virtually admitted by the defendant's plea. The defendant should have the privilege of answering or demurring to the first, without being compelled to answer the second.

N. Y. Superior Court.-Stanley v. Webb. Third. That the said replication is bad in substance, because it is immaterial whether the said statement made by Phelps was made in the absence of the plaintiff or not, if, as is admitted by the replication, it was made at the time and in the course of a judicial investigation in a public manner, by a public magistrate, of the whole proceedings on the part of the plaintiff himself.

Fourth. That the said replication is bad in substance, because it is immaterial whether the statement, or complaint made by Phelps was "false, libellous and untrue," or not, if," as is admitted by the said replication, the alleged publication complained of was a true, fair and correct account of the said public proceedings before said magistrate.

Joinder in demurrer.
The cause now came on for argument.

J. J. Ring, in support of the demurrer, made and argued the following points:

The declaration alleges that the plaintiff had made a complaint at the police office against James W. Phelps, and that on said complaint Phelps was arrested and held to bail to answer said complaint before one of the special justices of the peace.

The plea avers that the said proceedings as set forth in the declaration were proceedings before said police justice as a magistrate, and that the magistrate was engaged in a judicial investigation, and that the publication complained of was “a true, fair and correct account of said public proceedings before said magistrate.” *

I. If the publication complained of was a true, fair and correct account of a public proceeding before a magistrate as a judicial officer, the publication was privileged, and the plea is a complete defence to this action, because it expressly avers the fact. (Starkie on Slander, 234; 1 Bos. and Pul. 525; 7 East. 502 ; 7 Johns. 264.)

II. The publication is no less privileged because it contains a statement of what was charged by Phelps against the plaintiff, as well as what was charged by the plaintiff against Phelps. The charges preferred by Phelps against the plaintiff were made at the time Phelps was under arrest upon the complaint of the plaintiff, and while the magistrate was engaged in his judicial capacity in the investigation.

4 B. and A. 612, shows that a publication of a part of the case, and not the whole of it as it appeared before the magistrate, would perhaps make the publication libellous.

III. The replication is bad in form:

1. Because it is a special traverse of a part of defendant's plea, and there is no absque hoc “ without this, that the publication, &c., was a true account," &c. (Gould's Pleadings, 376.)

2. Because it is a mere argumentative denial of the averment in defendant's plea, “that the publication was a true account," &c. The replication amounts to this : the publication complained of, was of the complaint of Phelps, which was an ex parte complaint,

N. Y. Superior Court.--Stanley v. Webb. therefore the publication was not a true and correct account of the proceedings mentioned in the plea.

3. Because it ought not to conclude with a verification.

4. Because it avers two separate and independent facts tending to two separate issues: one that the publication was not a true account, &c.; and the other th:at the statements by Phelps while under arrest were not true. (1 Purrill's Prac. 172.)

IV. The replication is bad in substance :

1. The absence of the plaintiff at the time Phelps was under arrest upon the plaintiff's complaint, and the magistrate was proceeding in a judicial investigation did not deprive Phelps of the right of making a complaint against the plaintiff, as to Phelps' conduct in reference to the very offence which was then undergoing an investigation-what Phelps said at the time and upon that occasion, could not subject even Phelps to an action for slander. At all events Phelps was in open court, where by law the proceedings are public, and the publication complained of is a re-publication of that which by law Phelps in the first instance had a right to make public.

2. Whether or not the staiement made by Phelps upon that occasion were or not false, libellous, &c., cannot affect the defendant's plea, that defendant's publication was a true account of the proceedings before the magistrate.

William Mulock, for the plaintiff, contra, made and argued the following points :

I. The replication is good in form, single, without departure, and suggesting new matter not stated in the plea.

II. Publications of ex parte proceedings affecting third persons have no immunity beyond their being in fact true ; if so, the circulation of malice is without remedy against publishers, who, in all cases, cause the whole injury. 1 Stark. (Wend. ed.) 234.

III. The grosest part of the libel, and not included as part of the proceedings,” is wholly unanswered by the plea. (11 Jac. 573–583 -585; 2 Ib. 419; 8 Ib. 615; 12 Ib. 402; 3 I. Car. 205; 19 Jac. 349; 20 [b. 204.)

By the Court. Campbell, J.---This suit was instituted for the recovery of damages for the publication in the Courier and Inquirer newspaper, of which the defendant is editor and proprietor, of an alleged libel against the plaintiff.

The defendant pleads that the publication was a true, fair and correct account of public judicial proceedings before a magistrate, and the plea contains the affidavit upon which the complaint against the plaintiff was founded, and it further avers that other proceedings were pending before said magistrate, growing out of a complaint made by the plaintiff.

The replication charges that the complaint was primary and original, and made ex parte, in the absence of the plaintiff, and is false and libellous.

N. Y. Superior Court.-Stanley v. Webb. And the defendant demurs.

The question presented for our consideration is, whether this publication is privileged.

The question of privilege is one of great delicacy and importance, affecting as it does the independence of legislation, the impartial administration of jastice, the proper discharge of official duty, the liberty of the press, and the protection of private characier. And whenever the law concedes the claim of privilege, it at the same time exercises a watchful care that the enjoyment of such privilege shall be limited to the necessity of the particular case, and that it shall not be used to the injury of the private character of the citizen.

Thus, in the case of The King v. Lord Abingdon, 1 Espinasse, 226, it was held that a member of parliament may not with impunity publish and circulate a speech containing slanderous charges against an individual, though such speech was delivered by him in the House of which he was a member. He cannot be called to account for what he does in the discharge of his duties, but if he publishes he loses his privilege. So, in Lake v. King, 1 Saund. 124, a petition presented to a committee of parliament was ordered to be printed for the use of the members; but it was published elsewhere, and such publication was held unjustifiable, because it went beyond that which the privilege of parliament required. And at a recent day, in the great case of Stockdale v. Hanvard, 9 Adolph. & Ellis, 1*. The question was presented whether a report published by order of the House of Commons for the use of the members of that body, and also for sale, and which contained reflections upon the character of the plaintiff, was privileged. The case was argued at great length by the attorney-general on the part of the defendants, acting under instructions of the House of Commons, which body bad passed resolutions asserting their privilege in the matter. In his opinion, Lord Denman, speaking of these resolutions, says, “We are informed that a large majority of that house adopted the assertion. It is not without the utmost respect and deference that I proceed to examine what has been promulgated by such high authority. Most willingly would I decline to enter upon an inquiry which may lead to my differing from that great and powerful assembly. But when one of my fellow-subjects presents himself before me in this court, demanding justice for an injury, it is not at my option to grant or withhold redress. I am bound to afford it if the law declares him entitled to it.” The decision of the court was unanimous that the privilege did not exist except where the reports or proceedings are published simply for the use of the members. That publications of reports or proceedings for general sale or distribution, might be inquired into if they contain unjust reflections upon private character. The protection

The decision in this case was given in May, 1839, and in April, 1840, parliament passed an act which virtually restored the privilege. (See Cook's Law of Defamation, 185.)

N. Y. Superior Court -Stanley v. Webb.

of the character of the citizen triumphed over privilege claimed to have existed for a period so long that it had become boary with age. (See Vol. I. Lives of the Lord Chancellors, by Lord Campbell, page 293, Am. ed., Life of Sir John Fortescue.)

It is admitted as a general rule, that a full, fair and correct account of a trial in court is a privileged publication, and this is the well established law of England and of this country. But “if a party is to be allowed," says Chief Justice Abbot, (Lewis v. Wallers, 4 B. & A. 611,) " 10 publish what passes in a court of Justice, he must publish the whole case and not merely state the conclusion which he himself draws from the evidence, and in Flint v. Pike, 4 B. & C. 467, a plea that the supposed libel, was in substance a true account, and report of the trial, was held bad. In Saunders v. Wills, 6 Bingham 213, a statement of the circumstances of a trial, given as from the counsel in the case, was held not such a report as is privileged-and in Delegal v. Heghley, 3 Bingham, N. C. 950, Chief Justice Tindall says: It is an established principle upon which the privilege of publishing a report of any judicial proceeding is admitted to rest ,ihat such report must be strictly confined to the actual proceedings in court, and must contain no defamatory observations or comments from any quarter whatever, in addition to what forms strictly and properly the legal proceedings. So it was said in the King v. Carlile,' by Chief Justice Abbot, 3 B. & A. 167. “ There can be no doubt in the mind of the court, or of any person acquainted with the law of the country, that if, in the course of a trial, it becomes necessary for the purposes of Justice, that matters of a defamatory, nature should be publicly read, it does not therefore follow that it is competent to any person under the pretence of publishing that trial, to re-utter the defamatory matter;" and so was the law held to be in that case by all the judges. See also the observations of Lord Ellenborough and Grøse on the arguments in Styles v. Nokes, 7 East, 503. In Thomas v. Croswell, 7th Johnson, 272, Spencer Justice says: "there is not a dictum to be met with in the books that a man under pretence of publishing the proceedings of a court of justice, may discolor and garble the proceedings by his own comments and constructions, so as to effect the purpose of aspersing the character of those concerned.” In the case of Clement v. Lewis, 3 Broderip & Bingham, 297, the heading of the articles was "shameful conduct of an attorney.” The defendant justified, on the ground that the alleged libel contained a faithful and true account of the several proceedings therein stated, had in the insolvent debtor's court, and on some of the pleas, the jury found in favor of the defendant. But the court of King's Bench held that the words at the head of the article formed no part of the proceedings in the debtor's court, and on this point, the judgment in the exchequer chamber on error was affirmed on the argument of the cause. In the case now before us, the heading of the article was “extorting money to hush up a complaint." If the ceedings had taken place in court on the trial of the case, and the

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